[Title 48 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2013 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          Title 48

Federal Acquisition Regulations System


________________________

Chapter 1 (Parts 1 to 51)

                         Revised as of October 1, 2013

          Containing a codification of documents of general 
          applicability and future effect

          As of October 1, 2013
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register

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                            Table of Contents



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

  Title 48:
          Chapter 1--Federal Acquisition Regulation                  3
  Finding Aids:
      Table of CFR Titles and Chapters........................    1045
      Alphabetical List of Agencies Appearing in the CFR......    1065
      List of CFR Sections Affected...........................    1075

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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 48 CFR 1.000 refers 
                       to title 48, part 1, 
                       section 000.

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

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                               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 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
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Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
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Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

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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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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 
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PAST PROVISIONS OF THE CODE

    Provisions of the Code that are no longer in force and effect as of 
the revision date stated on the cover of each volume are not carried. 
Code users may find the text of provisions in effect on any given date 
in the past by using the appropriate List of CFR Sections Affected 
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the Code prior to the LSA listings at the end of the volume, consult 
previous annual editions of the LSA. For changes to the Code prior to 
2001, consult the List of CFR Sections Affected compilations, published 
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.

``[RESERVED]'' TERMINOLOGY

    The term ``[Reserved]'' is used as a place holder within the Code of 
Federal Regulations. An agency may add regulatory information at a 
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used 
editorially to indicate that a portion of the CFR was left vacant and 
not accidentally dropped due to a printing or computer error.

INCORPORATION BY REFERENCE

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This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
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    (a) The incorporation will substantially reduce the volume of 
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    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
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    (c) The incorporating document is drafted and submitted for 
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alphabetical list of agencies publishing in the CFR are also included in 
this volume.

[[Page vii]]

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    Charles A. Barth,
    Director,
    Office of the Federal Register.
    October 1, 2013.







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                               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, 2013.

    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).

    For this volume, Michele Bugenhagen 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 chapter 1, parts 1 to 51)

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

chapter 1--Federal Acquisition Regulation...................           1

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                CHAPTER 1--FEDERAL ACQUISITION REGULATION




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

                          SUBCHAPTER A--GENERAL
Part                                                                Page
1               Federal Acquisition Regulations System......           5
2               Definitions of words and terms..............          21
3               Improper business practices and personal 
                    conflicts of interest...................          45
4               Administrative matters......................          77
                   SUBCHAPTER B--ACQUISITION PLANNING
5               Publicizing contract actions................         105
6               Competition requirements....................         120
7               Acquisition planning........................         133
8               Required sources of supplies and services...         147
9               Contractor qualifications...................         176
10              Market research.............................         213
11              Describing agency needs.....................         215
12              Acquisition of commercial items.............         229
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
13              Simplified acquisition procedures...........         245
14              Sealed bidding..............................         264
15              Contracting by negotiation..................         291
16              Types of contracts..........................         345
17              Special contracting methods.................         379
18              Emergency acquisitions......................         395
                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
19              Small business programs.....................         401
20-21           [Reserved]

22              Application of labor laws to Government 
                    acquisitions............................         468
23              Environment, energy and water efficiency, 
                    renewable energy technologies, 
                    occupational safety, and drug-free 
                    workplace...............................         539
24              Protection of privacy and freedom of 
                    information.............................         554

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25              Foreign acquisition.........................         556
26              Other socioeconomic programs................         593
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
27              Patents, data, and copyrights...............         598
28              Bonds and insurance.........................         626
29              Taxes.......................................         646
30              Cost accounting standards administration....         652
31              Contract cost principles and procedures.....         667
32              Contract financing..........................         719
33              Protests, disputes, and appeals.............         786
             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
34              Major system acquisition....................         800
35              Research and development contracting........         804
36              Construction and architect-engineer 
                    contracts...............................         814
37              Service contracting.........................         833
38              Federal supply schedule contracting.........         845
39              Acquisition of information technology.......         846
40              [Reserved]

41              Acquisition of utility services.............         850
                    SUBCHAPTER G--CONTRACT MANAGEMENT
42              Contract administration and audit services..         860
43              Contract modifications......................         896
44              Subcontracting policies and procedures......         901
45              Government property.........................         908
46              Quality assurance...........................         920
47              Transportation..............................         938
48              Value engineering...........................         974
49              Termination of contracts....................         982
50              Extraordinary contractual actions and the 
                    safety act..............................        1024
51              Use of Government sources by contractors....        1037

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                          SUBCHAPTER A_GENERAL

              PART 1_FEDERAL ACQUISITION REGULATIONS SYSTEM

Sec.

Sec. 1.000 Scope of part.

                Subpart 1.1_Purpose, Authority, Issuance


Sec. 1.101 Purpose.

Sec. 1.102 Statement of guiding principles for the Federal Acquisition 
          System.

Sec. 1.102-1 Discussion.

Sec. 1.102-2 Performance standards.

Sec. 1.102-3 Acquisition team.

Sec. 1.102-4 Role of the acquisition team.

Sec. 1.103 Authority.

Sec. 1.104 Applicability.

Sec. 1.105 Issuance.

Sec. 1.105-1 Publication and code arrangement.

Sec. 1.105-2 Arrangement of regulations.

Sec. 1.105-3 Copies.

Sec. 1.106 OMB approval under the Paperwork Reduction Act.

Sec. 1.107 Certifications.

Sec. 1.108 FAR conventions.

Sec. 1.109 Statutory acquisition-related dollar thresholds--adjustment 
          for inflation.

                       Subpart 1.2_Administration


Sec. 1.201 Maintenance of the FAR.

Sec. 1.201-1 The two councils.

Sec. 1.201-2 FAR Secretariat.

Sec. 1.202 Agency compliance with the FAR.

               Subpart 1.3_Agency Acquisition Regulations


Sec. 1.301 Policy.

Sec. 1.302 Limitations.

Sec. 1.303 Publication and codification.

Sec. 1.304 Agency control and compliance procedures.

                   Subpart 1.4_Deviations from the FAR


Sec. 1.400 Scope of subpart.

Sec. 1.401 Definition.

Sec. 1.402 Policy.

Sec. 1.403 Individual deviations.

Sec. 1.404 Class deviations.

Sec. 1.405 Deviations pertaining to treaties and executive agreements.

               Subpart 1.5_Agency and Public Participation


Sec. 1.501 Solicitation of agency and public views.

Sec. 1.501-1 Definition.

Sec. 1.501-2 Opportunity for public comments.

Sec. 1.501-3 Exceptions.

Sec. 1.502 Unsolicited proposed revisions.

Sec. 1.503 Public meetings.

       Subpart 1.6_Career Development, Contracting Authority, and 
                            Responsibilities


Sec. 1.601 General.

Sec. 1.602 Contracting officers.

Sec. 1.602-1 Authority.

Sec. 1.602-2 Responsibilities.

Sec. 1.602-3 Ratification of unauthorized commitments.

Sec. 1.603 Selection, appointment, and termination of appointment for 
          contracting officers.

Sec. 1.603-1 General.

Sec. 1.603-2 Selection.

Sec. 1.603-3 Appointment.

Sec. 1.603-4 Termination.

Sec. 1.604 Contracting Officer's Representative (COR).

                 Subpart 1.7_Determinations and Findings


Sec. 1.700 Scope of subpart.

Sec. 1.701 Definition.

Sec. 1.702 General.

Sec. 1.703 Class determinations and findings.

Sec. 1.704 Content.

Sec. 1.705 Supersession and modification.

Sec. 1.706 Expiration.

Sec. 1.707 Signatory authority.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 
20113.

    Source: 48 FR 42103, Sept. 19, 1983, unless otherwise noted.



Sec. 1.000  Scope of part.

    This part sets forth basic policies and general information about 
the Federal Acquisition Regulations System including purpose, authority, 
applicability, issuance, arrangement, numbering, dissemination, 
implementation, supplementation, maintenance, administration, and 
deviation. Subparts 1.2, 1.3, and 1.4 prescribe administrative 
procedures for maintaining the FAR System.

                Subpart 1.1_Purpose, Authority, Issuance



Sec. 1.101  Purpose.

    The Federal Acquisition Regulations System is established for the 
codification and publication of uniform policies and procedures for 
acquisition by all executive agencies. The Federal Acquisition 
Regulations System consists

[[Page 6]]

of the Federal Acquisition Regulation (FAR), which is the primary 
document, and agency acquisition regulations that implement or 
supplement the FAR. The FAR System does not include internal agency 
guidance of the type described in 1.301(a)(2).

[48 FR 42103, Sept. 19, 1983, as amended at 51 FR 27116, July 29, 1986]



Sec. 1.102  Statement of guiding principles for the Federal Acquisition 
          System.

    (a) The vision for the Federal Acquisition System is to deliver on a 
timely basis the best value product or service to the customer, while 
maintaining the public's trust and fulfilling public policy objectives. 
Participants in the acquisition process should work together as a team 
and should be empowered to make decisions within their area of 
responsibility.
    (b) The Federal Acquisition System will--
    (1) Satisfy the customer in terms of cost, quality, and timeliness 
of the delivered product or service by, for example--
    (i) Maximizing the use of commercial products and services;
    (ii) Using contractors who have a track record of successful past 
performance or who demonstrate a current superior ability to perform; 
and
    (iii) Promoting competition;
    (2) Minimize administrative operating costs;
    (3) Conduct business with integrity, fairness, and openness; and
    (4) Fulfill public policy objectives.
    (c) The Acquisition Team consists of all participants in Government 
acquisition including not only representatives of the technical, supply, 
and procurement communities but also the customers they serve, and the 
contractors who provide the products and services.
    (d) The role of each member of the Acquisition Team is to exercise 
personal initiative and sound business judgment in providing the best 
value product or service to meet the customer's needs. In exercising 
initiative, Government members of the Acquisition Team may assume if a 
specific strategy, practice, policy or procedure is in the best 
interests of the Government and is not addressed in the FAR nor 
prohibited by law (statute or case law), Executive order or other 
regulation, that the strategy, practice, policy or procedure is a 
permissible exercise of authority.

[60 FR 34733, July 3, 1995]



Sec. 1.102-1  Discussion.

    (a) Introduction. The statement of Guiding Principles for the 
Federal Acquisition System (System) represents a concise statement 
designed to be user-friendly for all participants in Government 
acquisition. The following discussion of the principles is provided in 
order to illuminate the meaning of the terms and phrases used. The 
framework for the System includes the Guiding Principles for the System 
and the supporting policies and procedures in the FAR.
    (b) Vision. All participants in the System are responsible for 
making acquisition decisions that deliver the best value product or 
service to the customer. Best value must be viewed from a broad 
perspective and is achieved by balancing the many competing interests in 
the System. The result is a system which works better and costs less.

[60 FR 34733, July 3, 1995]



Sec. 1.102-2  Performance standards.

    (a) Satisfy the customer in terms of cost, quality, and timeliness 
of the delivered product or service. (1) The principal customers for the 
product or service provided by the System are the users and line 
managers, acting on behalf of the American taxpayer.
    (2) The System must be responsive and adaptive to customer needs, 
concerns, and feedback. Implementation of acquisition policies and 
procedures, as well as consideration of timeliness, quality and cost 
throughout the process, must take into account the perspective of the 
user of the product or service.
    (3) When selecting contractors to provide products or perform 
services the Government will use contractors who have a track record of 
successful past performance or who demonstrate a current superior 
ability to perform.
    (4) The Government must not hesitate to communicate with the 
commercial sector as early as possible in the

[[Page 7]]

acquisition cycle to help the Government determine the capabilities 
available in the commercial marketplace. The Government will maximize 
its use of commercial products and services in meeting Government 
requirements.
    (5) It is the policy of the System to promote competition in the 
acquisition process.
    (6) The System must perform in a timely, high quality, and cost-
effective manner.
    (7) All members of the Team are required to employ planning as an 
integral part of the overall process of acquiring products or services. 
Although advance planning is required, each member of the Team must be 
flexible in order to accommodate changing or unforeseen mission needs. 
Planning is a tool for the accomplishment of tasks, and application of 
its discipline should be commensurate with the size and nature of a 
given task.
    (b) Minimize administrative operating costs. (1) In order to ensure 
that maximum efficiency is obtained, rules, regulations, and policies 
should be promulgated only when their benefits clearly exceed the costs 
of their development, implementation, administration, and enforcement. 
This applies to internal administrative processes, including reviews, 
and to rules and procedures applied to the contractor community.
    (2) The System must provide uniformity where it contributes to 
efficiency or where fairness or predictability is essential. The System 
should also, however, encourage innovation, and local adaptation where 
uniformity is not essential.
    (c) Conduct business with integrity, fairness, and openness. (1) An 
essential consideration in every aspect of the System is maintaining the 
public's trust. Not only must the System have integrity, but the actions 
of each member of the Team must reflect integrity, fairness, and 
openness. The foundation of integrity within the System is a competent, 
experienced, and well-trained, professional workforce. Accordingly each 
member of the Team is responsible and accountable for the wise use of 
public resources as well as acting in a manner which maintains the 
public's trust. Fairness and openness require open communication among 
team members, internal and external customers, and the public.
    (2) To achieve efficient operations, the System must shift its focus 
from ``risk avoidance'' to one of ``risk management.'' The cost to the 
taxpayer of attempting to eliminate all risk is prohibitive. The 
Executive Branch will accept and manage the risk associated with 
empowering local procurement officials to take independent action based 
on their professional judgment.
    (3) The Government shall exercise discretion, use sound business 
judgment, and comply with applicable laws and regulations in dealing 
with contractors and prospective contractors. All contractors and 
prospective contractors shall be treated fairly and impartially but need 
not be treated the same.
    (d) Fulfill public policy objectives. The System must support the 
attainment of public policy goals adopted by the Congress and the 
President. In attaining these goals, and in its overall operations, the 
process shall ensure the efficient use of public resources.

[60 FR 34734, July 3, 1995, as amended at 62 FR 51229, Sept. 30, 1997]



Sec. 1.102-3  Acquisition team.

    The purpose of defining the Federal Acquisition Team (Team) in the 
Guiding Principles is to ensure that participants in the System are 
identified--beginning with the customer and ending with the contractor 
of the product or service. By identifying the team members in this 
manner, teamwork, unity of purpose, and open communication among the 
members of the Team in sharing the vision and achieving the goal of the 
System are encouraged. Individual team members will participate in the 
acquisition process at the appropriate time.

[60 FR 34734, July 3, 1995]



Sec. 1.102-4  Role of the acquisition team.

    (a) Government members of the Team must be empowered to make 
acquisition decisions within their areas of responsibility, including 
selection, negotiation, and administration of contracts consistent with 
the Guiding

[[Page 8]]

Principles. In particular, the contracting officer must have the 
authority to the maximum extent practicable and consistent with law, to 
determine the application of rules, regulations, and policies, on a 
specific contract.
    (b) The authority to make decisions and the accountability for the 
decision made will be delegated to the lowest level within the System, 
consistent with law.
    (c) The Team must be prepared to perform the functions and duties 
assigned. The Government is committed to provide training, professional 
development, and other resources necessary for maintaining and improving 
the knowledge, skills, and abilities for all Government participants on 
the Team, both with regard to their particular area of responsibility 
within the System, and their respective role as a team member. The 
contractor community is encouraged to do likewise.
    (d) The System will foster cooperative relationships between the 
Government and its contractors consistent with its overriding 
responsibility to the taxpayers.
    (e) The FAR outlines procurement policies and procedures that are 
used by members of the Acquisition Team. If a policy or procedure, or a 
particular strategy or practice, is in the best interest of the 
Government and is not specifically addressed in the FAR, nor prohibited 
by law (statute or case law), Executive order or other regulation, 
Government members of the Team should not assume it is prohibited. 
Rather, absence of direction should be interpreted as permitting the 
Team to innovative and use sound business judgment that is otherwise 
consistent with law and within the limits of their authority. 
Contracting officers should take the lead in encouraging business 
process innovations and ensuring that business decisions are sound.

[60 FR 34734, July 3, 1995, as amended at 62 FR 44804, Aug. 22, 1997]



Sec. 1.103  Authority.

    (a) The development of the FAR System is in accordance with the 
requirements of the Office of Federal Procurement Policy Act of 1974 
(Pub. L. 93-400), as amended by Pub. L. 96-83.
    (b) The FAR is prepared, issued, and maintained, and the FAR System 
is prescribed, jointly by the Secretary of Defense, the Administrator of 
General Services, and the Administrator, National Aeronautics and Space 
Administration, under their several statutory authorities.

[48 FR 42103, Sept. 19, 1983, as amended at 51 FR 27116, July 29, 1986. 
Redesignated at 60 FR 34733, July 3, 1995, as amended at 65 FR 36014, 
June 6, 2000]



Sec. 1.104  Applicability.

    The FAR applies to all acquisitions as defined in part 2 of the FAR, 
except where expressly excluded.

[48 FR 42103, Sept. 19, 1983. Redesignated at 60 FR 34733, July 3, 1995]



Sec. 1.105  Issuance.



Sec. 1.105-1  Publication and code arrangement.

    (a) The FAR is published in (1) the daily issue of the Federal 
Register, (2) cumulated form in the Code of Federal Regulations (CFR), 
and (3) a separate loose-leaf edition.
    (b) The FAR is issued as Chapter 1 of Title 48, CFR. Subsequent 
chapters are reserved for agency acquisition regulations that implement 
or supplement the FAR (see subpart 1.3). The CFR Staff will assign 
chapter numbers to requesting agencies.
    (c) Each numbered unit or segment (e.g., part, subpart, section, 
etc.) of an agency acquisition regulation that is codified in the CFR 
shall begin with the chapter number. However, the chapter number 
assigned to the FAR will not be included in the numbered units or 
segments of the FAR.

[48 FR 42103, Sept. 19, 1983. Redesignated at 60 FR 34733, July 3, 1995]



Sec. 1.105-2  Arrangement of regulations.

    (a) General. The FAR is divided into subchapters, parts (each of 
which covers a separate aspect of acquisition), subparts, sections, and 
subsections.
    (b) Numbering. (1) The numbering system permits the discrete 
identification of every FAR paragraph. The digits to the left of the 
decimal point represent the part number. The numbers to the right of the 
decimal point and to the

[[Page 9]]

left of the dash, represent, in order, the subpart (one or two digits), 
and the section (two digits). The number to the right of the dash 
represents the subsection. Subdivisons may be used at the section and 
subsection level to identify individual paragraphs. The following 
example illustrates the make-up of a FAR number citation (note that 
subchapters are not used with citations):
[GRAPHIC] [TIFF OMITTED] TC03AP91.000

    (2) Subdivisions below the section or subsection level consist of 
parenthetical alpha numerics using the following sequence: 
(a)(1)(i)(A)(1)(i).
    (c) References and citations. (1) Unless otherwise stated, cross-
references indicate parts, subparts, sections, subsections, paragraphs, 
subparagraphs, or subdivisions of this regulation.
    (2) This regulation may be referred to as the Federal Acquisition 
Regulation or the FAR.
    (3) Using the FAR coverage at 9.106-4(d) as a typical illustration, 
reference to the--
    (i) Part would be ``FAR part 9'' outside the FAR and ``part 9'' 
within the FAR.
    (ii) Subpart would be ``FAR subpart 9.1'' outside the FAR and 
``subpart 9.1'' within the FAR.
    (iii) Section would be ``FAR 9.106'' outside the FAR and ``9.106'' 
within the FAR.
    (iv) Subsection would be ``FAR 9.106-4'' outside the FAR and 
``9.106-4'' within the FAR.
    (v) Paragraph would be ``FAR 9.106-4(d)'' outside the FAR and 
``9.106-4(d)'' within the FAR.
    (4) Citations of authority (e.g., statutes or executive orders) in 
the FAR shall follow the Federal Register form guides.

[48 FR 42103, Sept. 19, 1983. Redesignated at 60 FR 34733, July 3, 1995, 
as amended at 65 FR 36015, June 6, 2000; 77 FR 44065, July 26, 2012]



Sec. 1.105-3  Copies.

    Copies of the FAR in Federal Register, loose-leaf, CD-ROM and CFR 
form may be purchased from the Superintendent of Documents, Government 
Printing Office (GPO), Washington, DC 20402.

[48 FR 42103, Sept. 19, 1983. Redesignated at 60 FR 34733, July 3, 1995, 
as amended at 62 FR 40236, July 25, 1997]



Sec. 1.106  OMB approval under the Paperwork Reduction Act.

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) imposes a 
requirement on Federal agencies to obtain approval from the Office of 
Management and Budget (OMB) before collecting information from 10 or 
more members of the public. The information collection and recordkeeping 
requirements contained in this regulation have been approved by the OMB. 
The following OMB control numbers apply:

------------------------------------------------------------------------
                                                             OMB control
                        FAR segment                              No.
------------------------------------------------------------------------
3.103......................................................    9000-0018
3.4........................................................    9000-0003
3.11.......................................................    9000-0181
4.102......................................................    9000-0033
4.7........................................................    9000-0034
4.9........................................................    9000-0097
4.14.......................................................    9000-0177
4.605......................................................    9000-0145
4.607......................................................    9000-0145
5.405......................................................    9000-0036
7.2........................................................    9000-0082
8.5........................................................    9000-0113
9.1........................................................    9000-0011
9.2........................................................    9000-0020
14.201.....................................................    9000-0034
14.202-4...................................................    9000-0040
14.202-5...................................................    9000-0039
14.205.....................................................    9000-0037
14.214.....................................................    9000-0105
14.407.....................................................    9000-0038
14.5.......................................................    9000-0041
15.2.......................................................    9000-0037
15.209.....................................................    9000-0034
15.4.......................................................    9000-0013
15.404-1(f)................................................    9000-0080
15.407-2...................................................    9000-0078
15.408.....................................................    9000-0115
19.7.......................................................    9000-0006
                                                                     and
                                                               9000-0007
19.12......................................................    9000-0150
22.103.....................................................    9000-0065
22.8.......................................................    1215-0072
22.11......................................................    9000-0066
22.12......................................................    1235-0007
                                                                     and
                                                               1235-0025
22.13......................................................    1293-0005
                                                                     and
                                                               1215-0072
22.14......................................................    1215-0072

[[Page 10]]

 
22.16......................................................    1215-0209
23.602.....................................................    9000-0107
25.302.....................................................    9000-0184
27.2.......................................................    9000-0096
27.3.......................................................    9000-0095
27.4.......................................................    9000-0090
28.1.......................................................    9000-0045
28.2.......................................................    9000-0045
29.304.....................................................    9000-0059
30.6.......................................................    9000-0129
31.205-46..................................................    9000-0079
31.205-46(a)(3)............................................    9000-0088
32.........................................................    9000-0035
32.000.....................................................    9000-0138
32.1.......................................................    9000-0070
                                                                     and
                                                               9000-0138
32.2.......................................................    9000-0138
32.4.......................................................    9000-0073
32.5.......................................................    9000-0010
                                                                     and
                                                               9000-0138
32.7.......................................................    9000-0074
32.9.......................................................    9000-0102
32.10......................................................    9000-0138
33.........................................................    9000-0035
36.213-2...................................................    9000-0037
36.603.....................................................    9000-0157
41.202(c)..................................................    9000-0125
42.7.......................................................    9000-0013
42.12......................................................    9000-0076
42.13......................................................    9000-0076
43.205(f)..................................................    9000-0026
45.........................................................    9000-0075
46.........................................................    9000-0077
47.........................................................    9000-0061
47.208.....................................................    9000-0056
48.........................................................    9000-0027
49.........................................................    9000-0028
50.........................................................    9000-0029
51.1.......................................................    9000-0031
51.2.......................................................    9000-0032
52.203-2...................................................    9000-0018
52.203-7...................................................    9000-0091
52.203-16..................................................    9000-0181
52.204-3...................................................    9000-0097
52.204-6...................................................    9000-0145
52.204-7...................................................    9000-0159
52.204-10..................................................    9000-0177
52.204-12..................................................    9000-0145
52.204-13..................................................    9000-0159
52.207-3...................................................    9000-0114
52.209-7...................................................    9000-0174
52.209-9...................................................    9000-0174
52.211-8...................................................    9000-0043
52.211-9...................................................    9000-0043
52.212-1(k)................................................    9000-0159
52.212-3...................................................    9000-0136
52.212-4(t)................................................    9000-0159
52.214-14..................................................    9000-0047
52.214-15..................................................    9000-0044
52.214-16..................................................    9000-0044
52.214-21..................................................    9000-0039
52.214-26..................................................    9000-0034
52.214-28..................................................    9000-0013
52.215-1(c)(2)(iv).........................................    9000-0048
52.215-1(d)................................................    9000-0044
52.215-2...................................................    9000-0034
52.215-6...................................................    9000-0047
52.215-9...................................................    9000-0078
52.215-12..................................................    9000-0013
52.215-13..................................................    9000-0013
52.215-14..................................................    9000-0080
52.215-19..................................................    9000-0115
52.215-20..................................................    9000-0013
52.215-21..................................................    9000-0013
52.215-22..................................................    9000-0173
52.215-23..................................................    9000-0173
52.216-2...................................................    9000-0068
52.216-3...................................................    9000-0068
52.216-4...................................................    9000-0068
52.216-5...................................................    9000-0071
52.216-6...................................................    9000-0071
52.216-7...................................................    9000-0069
52.216-10..................................................    9000-0067
52.216-15..................................................    9000-0069
52.216-16..................................................    9000-0067
52.216-17..................................................    9000-0067
52.219-9...................................................    9000-0006
                                                               and 9000-
                                                                    0007
52.219-10..................................................    9000-0006
52.219-22..................................................    9000-0150
52.219-23..................................................    9000-0150
52.219-25..................................................    9000-0150
52.219-28..................................................    9000-0163
52.219-29..................................................    3245-0374
52.219-30..................................................    3245-0374
52.222-2...................................................    9000-0065
52.222-4...................................................    1215-0119
52.222-6...................................................    1215-0140
52.222-8...................................................    1215-0149
                                                                     and
                                                               1215-0017
52.222-11..................................................    9000-0014
55.222-17..................................................    1235-0007
                                                                     and
                                                               1235-0025
52.222-18..................................................    9000-0127
52.222-21..................................................    1215-0072
52.222-22..................................................    1215-0072
52.222-23..................................................    1215-0072
52.222-25..................................................    1215-0072
52.222-26..................................................    1215-0072
52.222-27..................................................    1215-0072
52.222-32..................................................    9000-0154
52.222-35..................................................    1215-0072
52.222-36..................................................    1215-0072
52.222-37..................................................    1293-0005
52.222-40..................................................    1215-0209
52.222-41..................................................    1215-0017
                                                                     and
                                                               1215-0150
52.222-46..................................................    9000-0066
52.223-2...................................................    9000-0180
52.223-4...................................................    9000-0134
52.223-5...................................................    9000-0147
52.223-6(b)(5).............................................    9000-0101
52.223-9...................................................    9000-0134
52.225-2...................................................    9000-0024
52.225-4...................................................    9000-0130
52.225-6...................................................    9000-0025
52.225-8...................................................    9000-0022
52.225-9...................................................    9000-0141
52.225-11..................................................    9000-0141
52.225-18..................................................    9000-0161
52.225-21..................................................    9000-0141
52.225-23..................................................    9000-0141
52.227-2...................................................    9000-0096
52.227-6...................................................    9000-0096
52.227-9...................................................    9000-0096
52.227-14..................................................    9000-0090
52.227-15..................................................    9000-0090
52.227-16..................................................    9000-0090
52.227-17..................................................    9000-0090
52.227-18..................................................    9000-0090

[[Page 11]]

 
52.227-19..................................................    9000-0090
52.227-20..................................................    9000-0090
52.227-21..................................................    9000-0090
52.227-22..................................................    9000-0090
52.227-23..................................................    9000-0090
52.228-1...................................................    9000-0045
52.228-2...................................................    9000-0045
52.228-12..................................................    9000-0135
52.228-13..................................................    9000-0045
52.228-15..................................................    9000-0045
52.228-16..................................................    9000-0045
52.229-2...................................................    9000-0059
52.230-6...................................................    9000-0129
52.232-1...................................................    9000-0070
52.232-2...................................................    9000-0070
52.232-3...................................................    9000-0070
52.232-4...................................................    9000-0070
52.232-5...................................................    9000-0070
52.232-6...................................................    9000-0070
52.232-7...................................................    9000-0070
52.232-8...................................................    9000-0070
52.232-9...................................................    9000-0070
52.232-10..................................................    9000-0070
52.232-11..................................................    9000-0070
52.232-12..................................................    9000-0073
52.232-13..................................................    9000-0010
52.232-14..................................................    9000-0010
52.232-15..................................................    9000-0010
52.232-16..................................................    9000-0010
52.232-20..................................................    9000-0074
52.232-22..................................................    9000-0074
52.232-27..................................................    9000-0102
52.232-29..................................................    9000-0138
52.232-30..................................................    9000-0138
52.232-31..................................................    9000-0138
52.232-32..................................................    9000-0138
52.233-1...................................................    9000-0035
52.233-7...................................................    9000-0117
52.236-5...................................................    9000-0062
52.236-13..................................................    1220-0029
                                                                     and
                                                               9000-0060
52.236-15..................................................    9000-0058
52.236-19..................................................    9000-0064
52.241-1...................................................    9000-0126
52.241-3...................................................    9000-0122
52.241-7...................................................    9000-0123
52.241-13..................................................    9000-0124
52.243-1...................................................    9000-0026
52.243-2...................................................    9000-0026
52.243-3...................................................    9000-0026
52.243-4...................................................    9000-0026
52.243-6...................................................    9000-0026
52.243-7...................................................    9000-0026
52.245-1...................................................    9000-0075
52.245-9...................................................    9000-0075
52.246-2...................................................    9000-0077
52.246-3...................................................    9000-0077
52.246-4...................................................    9000-0077
52.246-5...................................................    9000-0077
52.246-6...................................................    9000-0077
52.246-7...................................................    9000-0077
52.246-8...................................................    9000-0077
52.246-10..................................................    9000-0077
52.246-12..................................................    9000-0077
52.246-15..................................................    9000-0077
52.247-2...................................................    9000-0053
52.247-29..................................................    9000-0061
52.247-30..................................................    9000-0061
52.247-31..................................................    9000-0061
52.247-32..................................................    9000-0061
52.247-33..................................................    9000-0061
52.247-34..................................................    9000-0061
52.247-35..................................................    9000-0061
52.247-36..................................................    9000-0061
52.247-37..................................................    9000-0061
52.247-38..................................................    9000-0061
52.247-39..................................................    9000-0061
52.247-40..................................................    9000-0061
52.247-41..................................................    9000-0061
52.247-42..................................................    9000-0061
52.247-43..................................................    9000-0061
52.247-44..................................................    9000-0061
52.247-48..................................................    9000-0061
52.247-51..................................................    9000-0057
52.247-53..................................................    9000-0055
52.247-57..................................................    9000-0061
52.247-63..................................................    9000-0054
52.247-64..................................................    9000-0061
52.247-68..................................................    9000-0056
52.248-1...................................................    9000-0027
52.248-2...................................................    9000-0027
52.248-3...................................................    9000-0027
52.249-2...................................................    9000-0028
52.249-3...................................................    9000-0028
52.249-5...................................................    9000-0028
52.249-6...................................................    9000-0028
52.249-11..................................................    9000-0028
52.250-1...................................................    9000-0029
SF 24......................................................    9000-0045
SF 25......................................................    9000-0045
SF 25-A....................................................    9000-0045
SF 28......................................................    9000-0001
SF 34......................................................    9000-0045
SF 35......................................................    9000-0045
SF 273.....................................................    9000-0045
SF 274.....................................................    9000-0045
SF 275.....................................................    9000-0045
SF 330.....................................................    9000-0157
SF 1403....................................................    9000-0011
SF 1404....................................................    9000-0011
SF 1405....................................................    9000-0011
SF 1406....................................................    9000-0011
SF 1407....................................................    9000-0011
SF 1408....................................................    9000-0011
SF 1413....................................................    9000-0014
SF 1416....................................................    9000-0045
SF 1418....................................................    9000-0045
SF 1428....................................................    9000-0075
SF 1429....................................................    9000-0075
SF 1435....................................................    9000-0012
SF 1436....................................................    9000-0012
SF 1437....................................................    9000-0012
SF 1438....................................................    9000-0012
SF 1439....................................................    9000-0012
SF 1440....................................................    9000-0012
SF 1443....................................................    9000-0010
SF 1444....................................................    9000-0089
SF 1445....................................................    9000-0089
SF 1446....................................................    9000-0089
------------------------------------------------------------------------


[59 FR 67065, Dec. 28, 1994. Redesignated at 60 FR 34733, 34736, July 3, 
1995]

    Editorial Note: For Federal Register citations affecting 1.106, see 
the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and at www.fdsys.gov.



Sec. 1.107  Certifications.

    In accordance with Section 29 of the Office of Federal Procurement 
Policy

[[Page 12]]

Act (41 U.S.C. 425), as amended by Section 4301 of the Clinger-Cohen Act 
of 1996 (Public Law 104-106), a new requirement for a certification by a 
contractor or offeror may not be included in this chapter unless--
    (a) The certification requirement is specifically imposed by 
statute; or
    (b) Written justification for such certification is provided to the 
Administrator for Federal Procurement Policy by the Federal Acquisition 
Regulatory Council, and the Administrator approves in writing the 
inclusion of such certification requirement.

[62 FR 44813, Aug. 22, 1997]



Sec. 1.108  FAR conventions.

    The following conventions provide guidance for interpreting the FAR:
    (a) Words and terms. Definitions in Part 2 apply to the entire 
regulation unless specifically defined in another part, subpart, 
section, provision, or clause. Words or terms defined in a specific 
part, subpart, section, provision, or clause have that meaning when used 
in that part, subpart, section, provision, or clause. Undefined words 
retain their common dictionary meaning.
    (b) Delegation of authority. Each authority is delegable unless 
specifically stated otherwise (see 1.102-4(b)).
    (c) Dollar thresholds. Unless otherwise specified, a specific dollar 
threshold for the purpose of applicability is the final anticipated 
dollar value of the action, including the dollar value of all options. 
If the action establishes a maximum quantity of supplies or services to 
be acquired or establishes a ceiling price or establishes the final 
price to be based on future events, the final anticipated dollar value 
must be the highest final priced alternative to the Government, 
including the dollar value of all options.
    (d) Application of FAR changes to solicitations and contracts. 
Unless otherwise specified--
    (1) FAR changes apply to solicitations issued on or after the 
effective date of the change;
    (2) Contracting officers may, at their discretion, include the FAR 
changes in solicitations issued before the effective date, provided 
award of the resulting contract(s) occurs on or after the effective 
date; and
    (3) Contracting officers may, at their discretion, include the 
changes in any existing contract with appropriate consideration.
    (e) Citations. When the FAR cites a statute, Executive order, Office 
of Management and Budget circular, Office of Federal Procurement Policy 
policy letter, or relevant portion of the Code of Federal Regulations, 
the citation includes all applicable amendments, unless otherwise 
stated.
    (f) Imperative sentences. When an imperative sentence directs 
action, the contracting officer is responsible for the action, unless 
another party is expressly cited.

[65 FR 36015, June 6, 2000]



Sec. 1.109  Statutory acquisition-related dollar thresholds--adjustment 
          for inflation.

    (a) 41 U.S.C. 431a requires that the FAR Council periodically adjust 
all statutory acquisition-related dollar thresholds in the FAR for 
inflation, except as provided in paragraph (c) of this section. This 
adjustment is calculated every 5 years, starting in October 2005, using 
the Consumer Price Index (CPI) for all-urban consumers, and supersedes 
the applicability of any other provision of law that provides for the 
adjustment of such acquisition-related dollar thresholds.
    (b) The statute defines an acquisition-related dollar threshold as a 
dollar threshold that is specified in law as a factor in defining the 
scope of the applicability of a policy, procedure, requirement, or 
restriction provided in that law to the procurement of supplies or 
services by an executive agency, as determined by the FAR Council.
    (c) The statute does not permit escalation of acquisition-related 
dollar thresholds established by the Davis-Bacon Act (40 U.S.C. 3141 
through 3144, 3146, and 3147), the Service Contract Act of 1965 (41 
U.S.C. 351, et seq.), or the United States Trade Representative pursuant 
to the authority of the Trade Agreements Act of 1979 (19 U.S.C. 2511 et 
seq).
    (d) A matrix showing calculation of the most recent escalation 
adjustments of statutory acquisition-related dollar thresholds is 
available via the Internet

[[Page 13]]

at http://www.regulations.gov (search FAR case 2008-024).

[71 FR 57365, Sept. 28, 2006, as amended at 75 FR 53131, Aug. 30, 2010]

                       Subpart 1.2_Administration



Sec. 1.201  Maintenance of the FAR.



Sec. 1.201-1  The two councils.

    (a) Subject to the authorities discussed in 1.103, revisions to the 
FAR will be prepared and issued through the coordinated action of two 
councils, the Defense Acquisition Regulations Council (DAR Council) and 
the Civilian Agency Acquisition Council (CAA Council). Members of these 
councils shall--
    (1) Represent their agencies on a full-time basis;
    (2) Be selected for their superior qualifications in terms of 
acquisition experience and demonstrated professional expertise; and
    (3) Be funded by their respective agencies.
    (b) The chairperson of the CAA Council shall be the representative 
of the Administrator of General Services. The other members of this 
council shall be one each representative from the (1) Departments of 
Agriculture, Commerce, Energy, Health and Human Services, Homeland 
Security, Interior, Labor, State, Transportation, and Treasury, and (2) 
Environmental Protection Agency, Social Security Administration, Small 
Business Administration, and Department of Veterans Affairs.
    (c) The Director of the DAR Council shall be the representative of 
the Secretary of Defense. The operation of the DAR Council will be as 
prescribed by the Secretary of Defense. Membership shall include 
representatives of the military departments, the Defense Logistics 
Agency, the Defense Contract Management Agency, and the National 
Aeronautics and Space Administration.
    (d) Responsibility for processing revisions to the FAR is 
apportioned by the two councils so that each council has cognizance over 
specified parts or subparts.
    (e) Each council shall be responsible for--
    (1) Agreeing on all revisions with the other council;
    (2) Submitting to the FAR Secretariat (see 1.201-2) the information 
required under paragraphs 1.501-2(b) and (e) for publication in the 
Federal Register of a notice soliciting comments on a proposed revision 
to the FAR;
    (3) Considering all comments received in response to notice of 
proposed revisions;
    (4) Arranging for public meetings;
    (5) Preparing any final revision in the appropriate FAR format and 
language; and
    (6) Submitting any final revision to the FAR Secretariat for 
publication in the Federal Register and printing for distribution.

[48 FR 42103, Sept. 19, 1983, as amended at 50 FR 2269, Jan. 15, 1985; 
50 FR 26903, June 28, 1985; 51 FR 2649, Jan. 17, 1986; 54 FR 29280, July 
11, 1989; 62 FR 64940, Dec. 9, 1997; 63 FR 9069, Feb. 23, 1998; 65 FR 
16286, Mar. 27, 2000; 68 FR 69258, Dec. 11, 2003; 77 FR 23370, Apr. 18, 
2012]



Sec. 1.201-2  FAR Secretariat.

    (a) The General Services Administration is responsible for 
establishing and operating the FAR Secretariat to print, publish, and 
distribute the FAR through the Code of Federal Regulations system 
(including a loose-leaf edition with periodic updates).
    (b) Additionally, the FAR Secretariat shall provide the two councils 
with centralized services for--
    (1) Keeping a synopsis of current FAR cases and their status;
    (2) Maintaining official files;
    (3) Assisting parties interested in reviewing the files on completed 
cases; and
    (4) Performing miscellaneous administrative tasks pertaining to the 
maintenance of the FAR.

[48 FR 42103, Sept. 19, 1983, as amended at 62 FR 40236, July 25, 1997]



Sec. 1.202  Agency compliance with the FAR.

    Agency compliance with the FAR (see 1.304) is the responsibility of 
the Secretary of Defense (for the military departments and defense 
agencies), the Administrator of General Services (for civilian agencies 
other than NASA),

[[Page 14]]

and the Administrator of NASA (for NASA activities).

               Subpart 1.3_Agency Acquisition Regulations



Sec. 1.301  Policy.

    (a)(1) Subject to the authorities in paragraph (c) below and other 
statutory authority, an agency head may issue or authorize the issuance 
of agency acquisition regulations that implement or supplement the FAR 
and incorporate, together with the FAR, agency policies, procedures, 
contract clauses, solicitation provisions, and forms that govern the 
contracting process or otherwise control the relationship between the 
agency, including any of its suborganizations, and contractors or 
prospective contractors.
    (2) Subject to the authorities in (c) below and other statutory 
authority, an agency head may issue or authorize the issuance of 
internal agency guidance at any organizational level (e.g., designations 
and delegations of authority, assignments of responsibilities, work-flow 
procedures, and internal reporting requirements).
    (b) Agency heads shall establish procedures to ensure that agency 
acquisition regulations are published for comment in the Federal 
Register in conformance with the procedures in subpart 1.5 and as 
required by section 22 of the Office of Federal Procurement Policy Act, 
as amended (41 U.S.C. 418b), and other applicable statutes, when they 
have a significant effect beyond the internal operating procedures of 
the agency or have a significant cost or administrative impact on 
contractors or offerors. However, publication is not required for 
issuances that merely implement or supplement higher level issuances 
that have previously undergone the public comment process, unless such 
implementation or supplementation results in an additional significant 
cost or administrative impact on contractors or offerors or effect 
beyond the internal operating procedures of the issuing organization. 
Issuances under 1.301(a)(2) need not be publicized for public comment.
    (c) When adopting acquisition regulations, agencies shall ensure 
that they comply with the Paperwork Reduction Act (44 U.S.C. 3501, et 
seq.) as implemented in 5 CFR part 1320 (see 1.105) and the Regulatory 
Flexibility Act (5 U.S.C. 601, et seq.). Normally, when a law requires 
publication of a proposed regulation, the Regulatory Flexibility Act 
applies and agencies must prepare written analyses or certifications as 
provided in the law.
    (d) Agency acquisition regulations implementing or supplementing the 
FAR are, for--
    (1) The military departments and defense agencies, issued subject to 
the authority of the Secretary of Defense;
    (2) NASA activities, issued subject to the authorities of the 
Administrator of NASA; and
    (3) The civilian agencies other than NASA, issued by the heads of 
those agencies subject to the overall authority of the Administrator of 
General Services or independent authority the agency may have.

[48 FR 42103, Sept. 19, 1983, as amended at 50 FR 2269, Jan. 15, 1985; 
54 FR 5054, Jan. 31, 1989]



Sec. 1.302  Limitations.

    Agency acquisition regulations shall be limited to--
    (a) Those necessary to implement FAR policies and procedures within 
the agency; and
    (b) Additional policies, procedures, solicitation provisions, or 
contract clauses that supplement the FAR to satisfy the specific needs 
of the agency.



Sec. 1.303  Publication and codification.

    (a) Agency-wide acquisition regulations shall be published in the 
Federal Register as required by law, shall be codified under an assigned 
chapter in Title 48, Code of Federal Regulations, and shall parallel the 
FAR in format, arrangement, and numbering system (but see 1.104-1(c)). 
Coverage in an agency acquisition regulation that implements a specific 
part, subpart, section, or subsection of the FAR shall be numbered and 
titled to correspond to the appropriate FAR number and title. 
Supplementary material for which there is no counterpart in the FAR 
shall be codified using chapter, part,

[[Page 15]]

subpart, section, or subsection numbers of 70 and up (e.g., for the 
Department of Interior, whose assigned chapter number in Title 48 is 14, 
part 1470, subpart 1401.70, section 1401.370, or subsection 1401.301-
70.)
    (b) Issuances under 1.301(a)(2) need not be published in the Federal 
Register.

[48 FR 42103, Sept. 19, 1983, as amended at 50 FR 2269, Jan. 15, 1985]



Sec. 1.304  Agency control and compliance procedures.

    (a) Under the authorities of 1.301(d), agencies shall control and 
limit issuance of agency acquisition regulations and, in particular, 
local agency directives that restrain the flexibilities found in the 
FAR, and shall establish formal procedures for the review of these 
documents to assure compliance with this part 1.
    (b) Agency acquisition regulations shall not--
    (1) Unnecessarily repeat, paraphrase, or otherwise restate material 
contained in the FAR or higher-level agency acquisition regulations; or
    (2) Except as required by law or as provided in subpart 1.4, 
conflict or be inconsistent with FAR content.
    (c) Agencies shall evaluate all regulatory coverage in agency 
acquisition regulations to determine if it could apply to other 
agencies. Coverage that is not peculiar to one agency shall be 
recommended for inclusion in the FAR.

[48 FR 42103, Sept. 19, 1983, as amended at 61 FR 39190, July 26, 1996; 
65 FR 16286, Mar. 27, 2000]

                   Subpart 1.4_Deviations from the FAR



Sec. 1.400  Scope of subpart.

    This subpart prescribes the policies and procedures for authorizing 
deviations from the FAR. Exceptions pertaining to the use of forms 
prescribed by the FAR are covered in part 53 rather than in this 
subpart.



Sec. 1.401  Definition.

    Deviation means any one or combination of the following:
    (a) The issuance or use of a policy, procedure, solicitation 
provision (see definition in 2.101), contract clause (see definition in 
2.101), method, or practice of conducting acquisition actions of any 
kind at any stage of the acquisition process that is inconsistent with 
the FAR.
    (b) The omission of any solicitation provision or contract clause 
when its prescription requires its use.
    (c) The use of any solicitation provision or contract clause with 
modified or alternate language that is not authorized by the FAR (see 
definition of ``modification'' in 52.101(a) and definition of 
``alternate'' in 2.101(a)).
    (d) The use of a solicitation provision or contract clause 
prescribed by the FAR on a substantially as follows or substantially the 
same as basis (see definitions in 2.101 and 52.101(a)), if such use is 
inconsistent with the intent, principle, or substance of the 
prescription or related coverage on the subject matter in the FAR.
    (e) The authorization of lesser or greater limitations on the use of 
any solicitation provision, contract clause, policy, or procedure 
prescribed by the FAR.
    (f) The issuance of policies or procedures that govern the 
contracting process or otherwise control contracting relationships that 
are not incorporated into agency acquisition regulations in accordance 
with 1.301(a).

[48 FR 42103, Sept. 19, 1983, as amended at 66 FR 2118, Jan. 10, 2001]



Sec. 1.402  Policy.

    Unless precluded by law, executive order, or regulation, deviations 
from the FAR may be granted as specified in this subpart when necessary 
to meet the specific needs and requirements of each agency. The 
development and testing of new techniques and methods of acquisition 
should not be stifled simply because such action would require a FAR 
deviation. The fact that deviation authority is required should not, of 
itself, deter agencies in their development and testing of new 
techniques and acquisition methods. Refer to 31.101 for instructions 
concerning deviations pertaining to the subject matter of part 31, 
Contract Cost Principles and Procedures. Deviations are not authorized 
with respect to 30.201-3 and 30.201-4, or the requirements of the

[[Page 16]]

Cost Accounting Standards Board (CASB) rules and regulations (48 CFR 
Chapter 99 (FAR Appendix)). Refer to 30.201-5 for instructions 
concerning waivers pertaining to Cost Accounting Standards.

[48 FR 42103, Sept. 19, 1983, as amended at 52 FR 35612, Sept. 22, 1987; 
62 FR 64914, Dec. 9, 1997]



Sec. 1.403  Individual deviations.

    Individual deviations affect only one contract action, and, unless 
1.405(e) is applicable, may be authorized by the agency head. The 
contracting officer must document the justification and agency approval 
in the contract file.

[67 FR 13053, Mar. 20, 2002]



Sec. 1.404  Class deviations.

    Class deviations affect more than one contract action. When an 
agency knows that it will require a class deviation on a permanent 
basis, it should propose a FAR revision, if appropriate. Civilian 
agencies, other than NASA, must furnish a copy of each approved class 
deviation to the FAR Secretariat.
    (a) For civilian agencies except NASA, class deviations may be 
authorized by agency heads or their designees, unless 1.405(e) is 
applicable. Delegation of this authority shall not be made below the 
head of a contracting activity. Authorization of class deviations by 
agency officials is subject to the following limitations:
    (1) An agency official who may authorize a class deviation, before 
doing so, shall consult with the chairperson of the Civilian Agency 
Acquisition Council (CAA Council), unless that agency official 
determines that urgency precludes such consultation.
    (2) Recommended revisions to the FAR shall be transmitted to the FAR 
Secretariat by agency heads or their designees for authorizing class 
deviations.
    (b) For DOD, class deviations shall be controlled, processed, and 
approved in accordance with the Defense FAR Supplement.
    (c) For NASA, class deviations shall be controlled and approved by 
the Assistant Administrator for Procurement. Deviations shall be 
processed in accordance with agency regulations.

[48 FR 42103, Sept. 19, 1983, as amended at 56 FR 15148, Apr. 15, 1991; 
59 FR 11387, Mar. 10, 1994; 61 FR 67411, Dec. 20, 1996; 67 FR 13053, 
13068, Mar. 20, 2002]



Sec. 1.405  Deviations pertaining to treaties and executive agreements.

    (a) Executive agreements, as used in this section, means Government-
to-Government agreements, including agreements with international 
organizations, to which the United States is a party.
    (b) Any deviation from the FAR required to comply with a treaty to 
which the United States is a party is authorized, unless the deviation 
would be inconsistent with FAR coverage based on a law enacted after the 
execution of the treaty.
    (c) Any deviation from the FAR required to comply with an executive 
agreement is authorized unless the deviation would be inconsistent with 
FAR coverage based on law.
    (d) For civilian agencies other than NASA, a copy of the text 
deviation authorized under paragraph (b) or (c) of this section shall be 
transmitted to the FAR Secretariat through a central agency control 
point.
    (e) For civilian agencies other than NASA, if a deviation required 
to comply with a treaty or an executive agreement is not authorized by 
paragraph (b) or (c) of this section, then the request for deviation 
shall be processed through the FAR Secretariat to the Civilian Agency 
Acquisition Council.

[48 FR 42103, Sept. 19, 1983, as amended at 61 FR 67411, Dec. 20, 1996]

               Subpart 1.5_Agency and Public Participation

    Source: 50 FR 2269, Jan. 15, 1985, unless otherwise noted.



Sec. 1.501  Solicitation of agency and public views.



Sec. 1.501-1  Definition.

    Significant revisions, as used in this subpart, means revisions that 
alter the substantive meaning of any coverage in the FAR System having a 
significant

[[Page 17]]

cost or administrative impact on contractors or offerors, or a 
significant effect beyond the internal operating procedures of the 
issuing agency. This expression, for example, does not include 
editorial, stylistic, or other revisions that have no impact on the 
basic meaning of the coverage being revised.



Sec. 1.501-2  Opportunity for public comments.

    (a) Views of agencies and nongovernmental parties or organizations 
will be considered in formulating acquisition policies and procedures.
    (b) The opportunity to submit written comments on proposed 
significant revisions shall be provided by placing a notice in the 
Federal Register. Each of these notices shall include--
    (1) The text of the revision or, if it is impracticable to publish 
the full text, a summary of the proposal;
    (2) The address and telephone number of the individual from whom 
copies of the revision, in full text, can be requested and to whom 
comments thereon should be addressed; and
    (3) When 1.501-3(b) is applicable, a statement that the revision is 
effective on a temporary basis pending completion of the public comment 
period.
    (c) A minimum of 30 days and, normally, at least 60 days will be 
given for the receipt of comments.



Sec. 1.501-3  Exceptions.

    (a) Comments need not be solicited when the proposed coverage does 
not constitute a significant revision.
    (b) Advance comments need not be solicited when urgent and 
compelling circumstances make solicitation of comments impracticable 
prior to the effective date of the coverage, such as when a new statute 
must be implemented in a relatively short period of time. In such case, 
the coverage shall be issued on a temporary basis and shall provide for 
at least a 30 day public comment period.



Sec. 1.502  Unsolicited proposed revisions.

    Consideration shall also be given to unsolicited recommendations for 
revisions that have been submitted in writing with sufficient data and 
rationale to permit their evaluation.



Sec. 1.503  Public meetings.

    Public meetings may be appropriate when a decision to adopt, amend, 
or delete coverage is likely to benefit from significant additional 
views and discussion.

       Subpart 1.6_Career Development, Contracting Authority, and 
                            Responsibilities



Sec. 1.601  General.

    (a) Unless specifically prohibited by another provision of law, 
authority and responsibility to contract for authorized supplies and 
services are vested in the agency head. The agency head may establish 
contracting activities and delegate broad authority to manage the 
agency's contracting functions to heads of such contracting activities. 
Contracts may be entered into and signed on behalf of the Government 
only by contracting officers. In some agencies, a relatively small 
number of high level officials are designated contracting officers 
solely by virtue of their positions. Contracting officers below the 
level of a head of a contracting activity shall be selected and 
appointed under 1.603.
    (b) Agency heads may mutually agree to--
    (1) Assign contracting functions and responsibilities from one 
agency to another; and
    (2) Create joint or combined offices to exercise acquisition 
functions and responsibilities.

[60 FR 49721, Sept. 26, 1995]



Sec. 1.602  Contracting officers.



Sec. 1.602-1  Authority.

    (a) Contracting officers have authority to enter into, administer, 
or terminate contracts and make related determinations and findings. 
Contracting officers may bind the Government only to the extent of the 
authority delegated to them. Contracting officers shall receive from the 
appointing authority (see 1.603-1) clear instructions in writing 
regarding the limits of their authority. Information on the limits of 
the contracting officers' authority shall be readily available to the 
public and agency personnel.

[[Page 18]]

    (b) No contract shall be entered into unless the contracting officer 
ensures that all requirements of law, executive orders, regulations, and 
all other applicable procedures, including clearances and approvals, 
have been met.



Sec. 1.602-2  Responsibilities.

    Contracting officers are responsible for ensuring performance of all 
necessary actions for effective contracting, ensuring compliance with 
the terms of the contract, and safeguarding the interests of the United 
States in its contractual relationships. In order to perform these 
responsibilities, contracting officers should be allowed wide latitude 
to exercise business judgment. Contracting officers shall--
    (a) Ensure that the requirements of 1.602-1(b) have been met, and 
that sufficient funds are available for obligation;
    (b) Ensure that contractors receive impartial, fair, and equitable 
treatment;
    (c) Request and consider the advice of specialists in audit, law, 
engineering, information security, transportation, and other fields, as 
appropriate; and
    (d) Designate and authorize, in writing and in accordance with 
agency procedures, a contracting officer's representative (COR) on all 
contracts and orders other than those that are firm-fixed price, and for 
firm-fixed-price contracts and orders as appropriate, unless the 
contracting officer retains and executes the COR duties. See 7.104(e). A 
COR--
    (1) Shall be a Government employee, unless otherwise authorized in 
agency regulations;
    (2) Shall be certified and maintain certification in accordance with 
the current Office of Management and Budget memorandum on the Federal 
Acquisition Certification for Contracting Officer Representatives (FAC-
COR) guidance, or for DoD, in accordance with the current applicable DoD 
policy guidance;
    (3) Shall be qualified by training and experience commensurate with 
the responsibilities to be delegated in accordance with agency 
procedures;
    (4) May not be delegated responsibility to perform functions that 
have been delegated under 42.202 to a contract administration office, 
but may be assigned some duties at 42.302 by the contracting officer;
    (5) Has no authority to make any commitments or changes that affect 
price, quality, quantity, delivery, or other terms and conditions of the 
contract nor in any way direct the contractor or its subcontractors to 
operate in conflict with the contract terms and conditions;
    (6) Shall be nominated either by the requiring activity or in 
accordance with agency procedures; and
    (7) Shall be designated in writing, with copies furnished to the 
contractor and the contract administration office--
    (i) Specifying the extent of the COR's authority to act on behalf of 
the contracting officer;
    (ii) Identifying the limitations on the COR's authority;
    (iii) Specifying the period covered by the designation;
    (iv) Stating the authority is not redelegable; and
    (v) Stating that the COR may be personally liable for unauthorized 
acts.

[48 FR 42103, Sept. 19, 1983, as amended at 70 FR 57451, Sept. 30, 2005; 
76 FR 14545, Mar. 16, 2011; 77 FR 12926, Mar. 2, 2012; 78 FR 37676, June 
21, 2013]



Sec. 1.602-3  Ratification of unauthorized commitments.

    (a) Definitions.
    Ratification, as used in this subsection, means the act of approving 
an unauthorized commitment by an official who has the authority to do 
so.
    Unauthorized commitment, as used in this subsection, means an 
agreement that is not binding solely because the Government 
representative who made it lacked the authority to enter into that 
agreement on behalf of the Government.
    (b) Policy. (1) Agencies should take positive action to preclude, to 
the maximum extent possible, the need for ratification actions. Although 
procedures are provided in this section for use in those cases where the 
ratification of an unauthorized commitment is necessary, these 
procedures may not be used in a manner that encourages such commitments 
being made by Government personnel.

[[Page 19]]

    (2) Subject to the limitations in paragraph (c) of this subsection, 
the head of the contracting activity, unless a higher level official is 
designated by the agency, may ratify an unauthorized commitment.
    (3) The ratification authority in subparagraph (b)(2) of this 
subsection may be delegated in accordance with agency procedures, but in 
no case shall the authority be delegated below the level of chief of the 
contracting office.
    (4) Agencies should process unauthorized commitments using the 
ratification authority of this subsection instead of referring such 
actions to the Government Accountability Office for resolution. (See 
1.602-3(d).)
    (5) Unauthorized commitments that would involve claims subject to 
resolution under the Contract Disputes Act of 1978 should be processed 
in accordance with subpart 33.2, Disputes and Appeals.
    (c) Limitations. The authority in subparagraph (b)(2) of this 
subsection may be exercised only when--
    (1) Supplies or services have been provided to and accepted by the 
Government, or the Government otherwise has obtained or will obtain a 
benefit resulting from performance of the unauthorized commitment;
    (2) The ratifying official has the authority to enter into a 
contractual commitment;
    (3) The resulting contract would otherwise have been proper if made 
by an appropriate contracting officer;
    (4) The contracting officer reviewing the unauthorized commitment 
determines the price to be fair and reasonable;
    (5) The contracting officer recommends payment and legal counsel 
concurs in the recommendation, unless agency procedures expressly do not 
require such concurrence;
    (6) Funds are available and were available at the time the 
unauthorized commitment was made; and
    (7) The ratification is in accordance with any other limitations 
prescribed under agency procedures.
    (d) Nonratifiable commitments. Cases that are not ratifiable under 
this subsection may be subject to resolution as recommended by the 
Government Accountability Office under its claim procedure (GAO Policy 
and Procedures Manual for Guidance of Federal Agencies, Title 4, Chapter 
2), or as authorized by FAR Subpart 50.1. Legal advice should be 
obtained in these cases.

[53 FR 3689, Feb. 8, 1988, as amended at 60 FR 48225, Sept. 18, 1995; 71 
FR 57380, Sept. 28, 2006, 72 FR 63029, Nov. 7, 2007]



Sec. 1.603  Selection, appointment, and termination of appointment for 
          contracting officers.



Sec. 1.603-1  General.

    Subsection 414(4) of title 41, United States Code, requires agency 
heads to establish and maintain a procurement career management program 
and a system for the selection, appointment, and termination of 
appointment of contracting officers. Agency heads or their designees may 
select and appoint contracting officers and terminate their 
appointments. These selections and appointments shall be consistent with 
Office of Federal Procurement Policy's (OFPP) standards for skill-based 
training in performing contracting and purchasing duties as published in 
OFPP Policy Letter No. 05-01, Developing and Managing the Acquisition 
Workforce, April 15, 2005.

[59 FR 67015, Dec. 28, 1994, as amended at 73 FR 21800, Apr. 22, 2008]



Sec. 1.603-2  Selection.

    In selecting contracting officers, the appointing official shall 
consider the complexity and dollar value of the acquisitions to be 
assigned and the candidate's experience, training, education, business 
acumen, judgment, character, and reputation. Examples of selection 
criteria include--
    (a) Experience in Government contracting and administration, 
commercial purchasing, or related fields;
    (b) Education or special training in business administration, law, 
accounting, engineering, or related fields;
    (c) Knowledge of acquisition policies and procedures, including this 
and other applicable regulations;
    (d) Specialized knowledge in the particular assigned field of 
contracting; and
    (e) Satisfactory completion of acquisition training courses.

[[Page 20]]



Sec. 1.603-3  Appointment.

    (a) Contracting officers shall be appointed in writing on an SF 
1402, Certificate of Appointment, which shall state any limitations on 
the scope of authority to be exercised, other than limitations contained 
in applicable law or regulation. Appointing officials shall maintain 
files containing copies of all appointments that have not been 
terminated.
    (b) Agency heads are encouraged to delegate micro-purchase authority 
to individuals who are employees of an executive agency or members of 
the Armed Forces of the United States who will be using the supplies or 
services being purchased. Individuals delegated this authority are not 
required to be appointed on an SF 1402, but shall be appointed in 
writing in accordance with agency procedures.

[61 FR 39190, July 26, 1996]



Sec. 1.603-4  Termination.

    Termination of a contracting officer appointment will be by letter, 
unless the Certificate of Appointment contains other provisions for 
automatic termination. Terminations may be for reasons such as 
reassignment, termination of employment, or unsatisfactory performance. 
No termination shall operate retroactively.



Sec. 1.604  Contracting Officer's Representative (COR).

    A contracting officer's representative (COR) assists in the 
technical monitoring or administration of a contract (see 1.602-2(d)). 
The COR shall maintain a file for each assigned contract. The file must 
include, at a minimum--
    (a) A copy of the contracting officer's letter of designation and 
other documents describing the COR's duties and responsibilities;
    (b) A copy of the contract administration functions delegated to a 
contract administration office which may not be delegated to the COR 
(see 1.602-2(d)(4)); and
    (c) Documentation of COR actions taken in accordance with the 
delegation of authority.

[76 FR 14545, Mar. 16, 2011]

                 Subpart 1.7_Determinations and Findings

    Source: 50 FR 1726, Jan. 11, 1985; 50 FR 52429, Dec. 23, 1985, 
unless otherwise noted.



Sec. 1.700  Scope of subpart.

    This subpart prescribes general policies and procedures for the use 
of determinations and findings (D&F's). Requirements for specific types 
of D&F's can be found with the appropriate subject matter.



Sec. 1.701  Definition.

    Determination and Findings (D&F) means a special form of written 
approval by an authorized official that is required by statute or 
regulation as a prerequisite to taking certain contract actions. The 
determination is a conclusion or decision supported by the findings. The 
findings are statements of fact or rationale essential to support the 
determination and must cover each requirement of the statute or 
regulation.

[50 FR 1726, Jan. 11, 1985, and 50 FR 52429, Dec. 23, 1985, as amended 
at 67 FR 13053, Mar. 20, 2002]



Sec. 1.702  General.

    (a) A D&F shall ordinarily be for an individual contract action. 
Unless otherwise prohibited, class D&F's may be executed for classes of 
contract action (see 1.703). The approval granted by a D&F is restricted 
to the proposed contract action(s) reasonably described in that D&F. 
D&F's may provided for a reasonable degree of flexibility. Furthermore, 
in their application, reasonable variations in estimated quantities or 
prices are permitted, unless the D&F specifies otherwise.
    (b) When an option is anticipated, the D&F shall state the 
approximate quantity to be awarded initially and the extent of the 
increase to be permitted by the option.



Sec. 1.703  Class determinations and findings.

    (a) A class D&F provides authority for a class of contract actions. 
A class may consist of contract actions for the same or related supplies 
or services or

[[Page 21]]

other contract actions that require essentially identical justification.
    (b) The findings in a class D&F shall fully support the proposed 
action either for the class as a whole or for each action. A class D&F 
shall be for a specified period, with the expiration date stated in the 
document.
    (c) The contracting officer shall ensure that individual actions 
taken pursuant to the authority of a class D&F are within the scope of 
the D&F.

[50 FR 1726, Jan. 11, 1985, and 50 FR 52429, Dec. 23, 1985 , as amended 
at 67 FR 13053, Mar. 20, 2002]



Sec. 1.704  Content.

    Each D&F shall set forth enough facts and circumstances to clearly 
and convincingly justify the specific determination made. As a minimum, 
each D&F shall include, in the prescribed agency format, the following 
information:
    (a) Identification of the agency and of the contracting activity and 
specific identifications of the document as a Determination and 
Findings.
    (b) Nature and/or description of the action being approved.
    (c) Citation of the appropriate statute and/or regulation upon which 
the D&F is based.
    (d) Findings that detail the particular circumstances, facts, or 
reasoning essential to support the determination. Necessary supporting 
documentation shall be obtained from appropriate requirements and 
technical personnel.
    (e) A determination, based on the findings, that the proposed action 
is justified under the applicable statute or regulation.
    (f) Expiration date of the D&F, if required (see 1.706(b)).
    (g) The signature of the official authorized to sign the D&F (see 
1.706) and the date signed.



Sec. 1.705  Supersession and modification.

    (a) If a D&F is superseded by another D&F, that action shall not 
render invalid any action taken under the original D&F prior to the date 
of its supersession.
    (b) The contracting officer need not cancel the solicitation if the 
D&F, as modified, supports the contract action.

[50 FR 1726, Jan. 11, 1985, and 50 FR 52429, Dec. 23, 1985, as amended 
at 67 FR 13053, Mar. 20, 2002]



Sec. 1.706  Expiration.

    Expiration dates are required for class D&F's and are optional for 
individual D&F's. Authority to act under an individual D&F expires when 
it is exercised or on an expiration date specified in the document, 
whichever occurs first. Authority to act under a class D&F expires on 
the expiration date specified in the document. When a solicitation has 
been furnished to prospective offerors before the expiration date, the 
authority under the D&F will continue until award of the contract(s) 
resulting from that solicitation.



Sec. 1.707  Signatory authority.

    When a D&F is required, it shall be signed by the appropriate 
official in accordance with agency regulations. Authority to sign or 
delegate signature authority for the various D&F's is as shown in the 
applicable FAR part.

                  PART 2_DEFINITIONS OF WORDS AND TERMS

Sec.

Sec. 2.000 Scope of part.

                         Subpart 2.1_Definitions


Sec. 2.101 Definitions.

                     Subpart 2.2_Definitions Clause


Sec. 2.201 Contract clause.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 
20113.

    Source: 48 FR 42107, Sept. 19, 1983, unless otherwise noted.



Sec. 2.000  Scope of part.

    (a) This part--
    (1) Defines words and terms that are frequently used in the FAR;
    (2) Provides cross-references to other definitions in the FAR of the 
same word or term; and
    (3) Provides for the incorporation of these definitions in 
solicitations and contracts by reference.

[[Page 22]]

    (b) Other parts, subparts, and sections of this regulation (48 CFR 
chapter 1) may define other words or terms and those definitions only 
apply to the part, subpart, or section where the word or term is 
defined.

[66 FR 2118, Jan. 10, 2001, as amended at 78 FR 6191, Jan. 29, 2013]

                         Subpart 2.1_Definitions



Sec. 2.101  Definitions.

    (a) A word or a term, defined in this section, has the same meaning 
throughout this regulation (48 CFR chapter 1), unless--
    (1) The context in which the word or term is used clearly requires a 
different meaning; or
    (2) Another FAR part, subpart, or section provides a different 
definition for the particular part or portion of the part.
    (b) If a word or term that is defined in this section is defined 
differently in another part, subpart, or section of this regulation (48 
CFR chapter 1, the definition in--
    (1) This section includes a cross-reference to the other 
definitions; and
    (2) That part, subpart, or section applies to the word or term when 
used in that part, subpart, or section.
    Acquisition means the acquiring by contract with appropriated funds 
of supplies or services (including construction) by and for the use of 
the Federal Government through purchase or lease, whether the supplies 
or services are already in existence or must be created, developed, 
demonstrated, and evaluated. Acquisition begins at the point when agency 
needs are established and includes the description of requirements to 
satisfy agency needs, solicitation and selection of sources, award of 
contracts, contract financing, contract performance, contract 
administration, and those technical and management functions directly 
related to the process of fulfilling agency needs by contract.
    Acquisition planning means the process by which the efforts of all 
personnel responsible for an acquisition are coordinated and integrated 
through a comprehensive plan for fulfilling the agency need in a timely 
manner and at a reasonable cost. It includes developing the overall 
strategy for managing the acquisition.
    Adequate evidence means information sufficient to support the 
reasonable belief that a particular act or omission has occurred.
    Advisory and assistance services means those services provided under 
contract by nongovernmental sources to support or improve: 
organizational policy development; decision-making; management and 
administration; program and/or project management and administration; or 
R&D activities. It can also mean the furnishing of professional advice 
or assistance rendered to improve the effectiveness of Federal 
management processes or procedures (including those of an engineering 
and technical nature). In rendering the foregoing services, outputs may 
take the form of information, advice, opinions, alternatives, analyses, 
evaluations, recommendations, training and the day-to-day aid of support 
personnel needed for the successful performance of ongoing Federal 
operations. All advisory and assistance services are classified in one 
of the following definitional subdivisions:
    (1) Management and professional support services, i.e., contractual 
services that provide assistance, advice or training for the efficient 
and effective management and operation of organizations, activities 
(including management and support services for R&D activities), or 
systems. These services are normally closely related to the basic 
responsibilities and mission of the agency originating the requirement 
for the acquisition of services by contract. Included are efforts that 
support or contribute to improved organization of program management, 
logistics management, project monitoring and reporting, data collection, 
budgeting, accounting, performance auditing, and administrative 
technical support for conferences and training programs.
    (2) Studies, analyses and evaluations, i.e., contracted services 
that provide organized, analytical assessments/evaluations in support of 
policy development, decision-making, management, or administration. 
Included are studies in support of R&D activities. Also included are 
acquisitions of models, methodologies, and related software

[[Page 23]]

supporting studies, analyses or evaluations.
    (3) Engineering and technical services, i.e., contractual services 
used to support the program office during the acquisition cycle by 
providing such services as systems engineering and technical direction 
(see 9.505-1(b)) to ensure the effective operation and maintenance of a 
weapon system or major system as defined in OMB Circular No. A-109 or to 
provide direct support of a weapon system that is essential to research, 
development, production, operation or maintenance of the system.
    Affiliates means associated business concerns or individuals if, 
directly or indirectly--
    (1) Either one controls or can control the other; or
    (2) A third party controls or can control both.
    Agency head or head of the agency means the Secretary, Attorney 
General, Administrator, Governor, Chairperson, or other chief official 
of an executive agency, unless otherwise indicated, including any deputy 
or assistant chief official of an executive agency.
    Alternate means a substantive variation of a basic provision or 
clause prescribed for use in a defined circumstance. It adds wording to, 
deletes wording from, or substitutes specified wording for a portion of 
the basic provision or clause. The alternate version of a provision or 
clause is the basic provision or clause as changed by the addition, 
deletion, or substitution (see 52.105(a)).
    Architect-engineer services, as defined in 40 U.S.C. 1102, means--
    (1) Professional services of an architectural or engineering nature, 
as defined by State law, if applicable, that are required to be 
performed or approved by a person licensed, registered, or certified to 
provide those services;
    (2) Professional services of an architectural or engineering nature 
performed by contract that are associated with research, planning, 
development, design, construction, alteration, or repair of real 
property; and
    (3) Those other professional services of an architectural or 
engineering nature, or incidental services, that members of the 
architectural and engineering professions (and individuals in their 
employ) may logically or justifiably perform, including studies, 
investigations, surveying and mapping, tests, evaluations, 
consultations, comprehensive planning, program management, conceptual 
designs, plans and specifications, value engineering, construction phase 
services, soils engineering, drawing reviews, preparation of operating 
and maintenance manuals, and other related services.
    Assignment of claims means the transfer or making over by the 
contractor to a bank, trust company, or other financing institution, as 
security for a loan to the contractor, of its right to be paid by the 
Government for contract performance.
    Assisted acquisition means a type of interagency acquisition where a 
servicing agency performs acquisition activities on a requesting 
agency's behalf, such as awarding and administering a contract, task 
order, or delivery order.
    Basic research means that research directed toward increasing 
knowledge in science. The primary aim of basic research is a fuller 
knowledge or understanding of the subject under study, rather than any 
practical application of that knowledge.
    Best value means the expected outcome of an acquisition that, in the 
Government's estimation, provides the greatest overall benefit in 
response to the requirement.
    Bid sample means a product sample required to be submitted by an 
offeror to show characteristics of the offered products that cannot 
adequately be described by specifications, purchase descriptions, or the 
solicitation (e.g., balance, facility of use, or pattern).
    Biobased product means a product determined by the U.S. Department 
of Agriculture to be a commercial or industrial product (other than food 
or feed) that is composed, in whole or in significant part, of 
biological products, including renewable domestic agricultural 
materialsand forestry materials.
    Broad agency announcement means a general announcement of an 
agency's research interest including criteria for selecting proposals 
and soliciting the participation of all offerors capable of

[[Page 24]]

satisfying the Government's needs (see 6.102(d)(2)).
    Building or work means construction activity as distinguished from 
manufacturing, furnishing of materials, or servicing and maintenance 
work. The terms include, without limitation, buildings, structures, and 
improvements of all types, such as bridges, dams, plants, highways, 
parkways, streets, subways, tunnels, sewers, mains, power lines, pumping 
stations, heavy generators, railways, airports, terminals, docks, piers, 
wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, canals, 
dredging, shoring, rehabilitation and reactivation of plants, 
scaffolding, drilling, blasting, excavating, clearing, and landscaping. 
The manufacture or furnishing of materials, articles, supplies, or 
equipment (whether or not a Federal or State agency acquires title to 
such materials, articles, supplies, or equipment during the course of 
the manufacture or furnishing, or owns the materials from which they are 
manufactured or furnished) is not ``building'' or ``work'' within the 
meaning of this definition unless conducted in connection with and at 
the site of such building or work as is described in the foregoing 
sentence, or under the United States Housing Act of 1937 and the Housing 
Act of 1949 in the construction or development of the project.
    Bundled contract means a contract where the requirements have been 
consolidated by bundling. (See the definition of bundling.)
    Bundling means--
    (1) Consolidating two or more requirements for supplies or services, 
previously provided or performed under separate smaller contracts, into 
a solicitation for a single contract that is likely to be unsuitable for 
award to a small business concern due to--
    (i) The diversity, size, or specialized nature of the elements of 
the performance specified;
    (ii) The aggregate dollar value of the anticipated award;
    (iii) The geographical dispersion of the contract performance sites; 
or
    (iv) Any combination of the factors described in paragraphs (1)(i), 
(ii), and (iii) of this definition.
    (2) ``Separate smaller contract'' as used in this definition, means 
a contract that has been performed by one or more small business 
concerns or that was suitable for award to one or more small business 
concerns.
    (3) Single contract, as used in this definition, includes--
    (i) Multiple awards of indefinite-quantity contracts under a single 
solicitation for the same or similar supplies or services to two or more 
sources (see FAR 16.504(c)); and
    (ii) An order placed against an indefinite quantity contract under 
a--
    (A) Federal Supply Schedule contract; or
    (B) Task-order contract or delivery-order contract awarded by 
another agency (i.e., Governmentwide acquisition contract or multi-
agency contract).
    (4) This definition does not apply to a contract that will be 
awarded and performed entirely outside of the United States.
    Business unit means any segment of an organization, or an entire 
business organization that is not divided into segments.
    Certified cost or pricing data means ``cost or pricing data'' that 
were required to be submitted in accordance with FAR 15.403-4 and 
15.403-5 and have been certified, or are required to be certified, in 
accordance with 15.406-2. This certification states that, to the best of 
the person's knowledge and belief, the cost or pricing data are 
accurate, complete, and current as of a date certain before contract 
award. Cost or pricing data are required to be certified in certain 
procurements (10 U.S.C. 2306a and 41 U.S.C. 254b).
    Change-of-name agreement means a legal instrument executed by the 
contractor and the Government that recognizes the legal change of name 
of the contractor without disturbing the original contractual rights and 
obligations of the parties.
    Change order means a written order, signed by the contracting 
officer, directing the contractor to make a change that the Changes 
clause authorizes the contracting officer to order without the 
contractor's consent.

[[Page 25]]

    Chief Acquisition Officer means an executive level acquisition 
official responsible for agency performance of acquisition activities 
and acquisition programs created pursuant to the Services Acquisition 
Reform Act of 2003, Section 1421 of Public Law 108-136.
    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.
    Claim means a written demand or written assertion by one of the 
contracting parties seeking, as a matter of right, the payment of money 
in a sum certain, the adjustment or interpretation of contract terms, or 
other relief arising under or relating to the contract. However, a 
written demand or written assertion by the contractor seeking the 
payment of money exceeding $100,000 is not a claim under the Contract 
Disputes Act of 1978 until certified as required by the Act. A voucher, 
invoice, or other routine request for payment that is not in dispute 
when submitted is not a claim. The submission may be converted to a 
claim, by written notice to the contracting officer as provided in 
33.206(a), if it is disputed either as to liability or amount or is not 
acted upon in a reasonable time.
    Classified acquisition means an acquisition in which offerors must 
have access to classified information to properly submit an offer or 
quotation, to understand the performance requirements, or to perform the 
contract.
    Classified contract means any contract in which the contractor or 
its employees must have access to classified information during contract 
performance. A contract may be a classified contract even though the 
contract document itself is unclassified.
    Classified information means any knowledge that can be communicated 
or any documentary material, regardless of its physical form or 
characteristics, that--
    (1)(i) Is owned by, is produced by or for, or is under the control 
of the United States Government; or
    (ii) Has been classified by the Department of Energy as privately 
generated restricted data following the procedures in 10 CFR 1045.21; 
and
    (2) Must be protected against unauthorized disclosure according to 
Executive Order 12958, Classified National Security Information, April 
17, 1995, or classified in accordance with the Atomic Energy Act of 
1954.
    Cognizant Federal agency means the Federal agency that, on behalf of 
all Federal agencies, is responsible for establishing final indirect 
cost rates and forward pricing rates, if applicable, and administering 
cost accounting standards for all contracts in a business unit.
    Combatant commander means the commander of a unified or specified 
combatant command established in accordance with 10 U.S.C. 161.
    Commercial component means any component that is a commercial item.
    Commercial computer software means any computer software that is a 
commercial item.
    Commercial item means--
    (1) Any item, other than real property, that is of a type 
customarily used by the general public or by non-governmental entities 
for purposes other than governmental purposes, and--
    (i) Has been sold, leased, or licensed to the general public; or
    (ii) Has been offered for sale, lease, or license to the general 
public;
    (2) Any item that evolved from an item described in paragraph (1) of 
this definition through advances in technology or performance and that 
is not yet available in the commercial marketplace, but will be 
available in the commercial marketplace in time to satisfy the delivery 
requirements under a Government solicitation;
    (3) Any item that would satisfy a criterion expressed in paragraphs 
(1) or (2) of this definition, but for--
    (i) Modifications of a type customarily available in the commercial 
marketplace; or
    (ii) Minor modifications of a type not customarily available in the 
commercial marketplace made to meet Federal Government requirements. 
Minor

[[Page 26]]

modifications means modifications that do not significantly alter the 
nongovernmental function or essential physical characteristics of an 
item or component, or change the purpose of a process. Factors to be 
considered in determining whether a modification is minor include the 
value and size of the modification and the comparative value and size of 
the final product. Dollar values and percentages may be used as 
guideposts, but are not conclusive evidence that a modification is 
minor;
    (4) Any combination of items meeting the requirements of paragraphs 
(1), (2), (3), or (5) of this definition that are of a type customarily 
combined and sold in combination to the general public;
    (5) Installation services, maintenance services, repair services, 
training services, and other services if--
    (i) Such services are procured for support of an item referred to in 
paragraph (1), (2), (3), or (4) of this definition, regardless of 
whether such services are provided by the same source or at the same 
time as the item; and
    (ii) The source of such services provides similar services 
contemporaneously to the general public under terms and conditions 
similar to those offered to the Federal Government;
    (6) Services of a type offered and sold competitively in substantial 
quantities in the commercial marketplace based on established catalog or 
market prices for specific tasks performed or specific outcomes to be 
achieved and under standard commercial terms and conditions. For 
purposes of these services--
    (i) Catalog price means a price included in a catalog, price list, 
schedule, or other form that is regularly maintained by the manufacturer 
or vendor, is either published or otherwise available for inspection by 
customers, and states prices at which sales are currently, or were last, 
made to a significant number of buyers constituting the general public; 
and
    (ii) Market prices means current prices that are established in the 
course of ordinary trade between buyers and sellers free to bargain and 
that can be substantiated through competition or from sources 
independent of the offerors.
    (7) Any item, combination of items, or service referred to in 
paragraphs (1) through (6) of this definition, notwithstanding the fact 
that the item, combination of items, or service is transferred between 
or among separate divisions, subsidiaries, or affiliates of a 
contractor; or
    (8) A nondevelopmental item, if the procuring agency determines the 
item was developed exclusively at private expense and sold in 
substantial quantities, on a competitive basis, to multiple State and 
local governments.
    Commercially available off-the-shelf (COTS) item--  (1) Means any 
item of supply (including construction material) that is--
    (i) A commercial item (as defined in paragraph (1) of the definition 
in this section);
    (ii) Sold in substantial quantities in the commercial marketplace; 
and
    (iii) Offered to the Government, under a contract or subcontract at 
any tier, without modification, in the same form in which it is sold in 
the commercial marketplace; and
    (2) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), 
such as agricultural products and petroleum products.
    Common item means material that is common to the applicable 
Government contract and the contractor's other work.
    Component means any item supplied to the Government as part of an 
end item or of another component, except that for use in--
    (1) Part 25, see the definition in 25.003;
    (2) 52.225-1 and 52.225-3, see the definition in 52.225-1(a) and 
52.225-3(a);
    (3) 52.225-9 and 52.225-11, see the definition in 52.225-9(a) and 
52.225-11(a); and
    (4) 52.225-21 and 52.225-23, see the definition in 52.225-21(a) and 
52.225-23(a).
    Computer database or database means a collection of recorded 
information in a form capable of, and for the purpose of, being stored 
in, processed, and operated on by a computer. The term does not include 
computer software.
    Computer software--(1) Means (i) Computer programs that comprise a 
series of instructions, rules, routines, or statements, regardless of 
the media in

[[Page 27]]

which recorded, that allow or cause a computer to perform a specific 
operation or series of operations; and
    (ii) Recorded information comprising source code listings, design 
details, algorithms, processes, flow charts, formulas, and related 
material that would enable the computer program to be produced, created, 
or compiled.
    (2) Does not include computer databases or computer software 
documentation.
    Computer software documentation means owner's manuals, user's 
manuals, installation instructions, operating instructions, and other 
similar items, regardless of storage medium, that explain the 
capabilities of the computer software or provide instructions for using 
the software.
    Consent to subcontract means the contracting officer's written 
consent for the prime contractor to enter into a particular subcontract.
    Construction means construction, alteration, or repair (including 
dredging, excavating, and painting) of buildings, structures, or other 
real property. For purposes of this definition, the terms ``buildings, 
structures, or other real property'' include, but are not limited to, 
improvements of all types, such as bridges, dams, plants, highways, 
parkways, streets, subways, tunnels, sewers, mains, power lines, 
cemeteries, pumping stations, railways, airport facilities, terminals, 
docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, 
levees, canals, and channels. Construction does not include the 
manufacture, production, furnishing, construction, alteration, repair, 
processing, or assembling of vessels, aircraft, or other kinds of 
personal property (except that for use in subpart 22.5, see the 
definition at 22.502).
    Contiguous United States (CONUS) means the 48 contiguous States and 
the District of Columbia.
    Contingency operation (10 U.S.C. 101(a)(13)) means a military 
operation that--
    (1) Is designated by the Secretary of Defense as an operation in 
which members of the armed forces are or may become involved in military 
actions, operations, or hostilities against an enemy of the United 
States or against an opposing military force; or
    (2) Results in the call or order to, or retention on, active duty of 
members of the uniformed services under sections 688, 12301(a), 12302, 
12304, 12304a, 12305, or 12406 of title 10 of the United States Code, 
Chapter 15 of title 10 of the United States Code, or any other provision 
of law during a war or during a national emergency declared by the 
President or Congress.
    Continued portion of the contract means the portion of a contract 
that the contractor must continue to perform following a partial 
termination.
    Contract means a mutually binding legal relationship obligating the 
seller to furnish the supplies or services (including construction) and 
the buyer to pay for them. It includes all types of commitments that 
obligate the Government to an expenditure of appropriated funds and 
that, except as otherwise authorized, are in writing. In addition to 
bilateral instruments, contracts include (but are not limited to) awards 
and notices of awards; job orders or task letters issued under basic 
ordering agreements; letter contracts; orders, such as purchase orders, 
under which the contract becomes effective by written acceptance or 
performance; and bilateral contract modifications. Contracts do not 
include grants and cooperative agreements covered by 31 U.S.C. 6301, et 
seq. For discussion of various types of contracts, see part 16.
    Contract administration office means an office that performs--
    (1) Assigned postaward functions related to the administration of 
contracts; and
    (2) Assigned preaward functions.
    Contract clause or clause means a term or condition used in 
contracts or in both solicitations and contracts, and applying after 
contract award or both before and after award.
    Contract modification means any written change in the terms of a 
contract (see 43.103).
    Contracting means purchasing, renting, leasing, or otherwise 
obtaining supplies or services from nonfederal sources. Contracting 
includes description (but not determination) of supplies and services 
required, selection and solicitation of sources, preparation

[[Page 28]]

and award of contracts, and all phases of contract administration. It 
does not include making grants or cooperative agreements.
    Contracting activity means an element of an agency designated by the 
agency head and delegated broad authority regarding acquisition 
functions.
    Contracting office means an office that awards or executes a 
contract for supplies or services and performs postaward functions not 
assigned to a contract administration office (except for use in part 48, 
see also 48.001).
    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. ``Administrative contracting 
officer (ACO)'' refers to a contracting officer who is administering 
contracts. ``Termination contracting officer (TCO)'' refers to a 
contracting officer who is settling terminated contracts. A single 
contracting officer may be responsible for duties in any or all of these 
areas. Reference in this regulation (48 CFR chapter 1) to administrative 
contracting officer or termination contracting officer does not--
    (1) Require that a duty be performed at a particular office or 
activity; or
    (2) Restrict in any way a contracting officer in the performance of 
any duty properly assigned.
    Contracting officer's representative (COR) means an individual, 
including a contracting officer's technical representative (COTR), 
designated and authorized in writing by the contracting officer to 
perform specific technical or administrative functions.
    Conviction means a judgment or conviction of a criminal offense by 
any court of competent jurisdiction, whether entered upon a verdict or a 
plea, and includes a conviction entered upon a plea of nolo contendere. 
For use in subpart 23.5, see the definition at 23.503.
    Cost or pricing data (10 U.S.C. 2306a(h)(1) and 41 U.S.C. 254b) 
means all facts that, as of the date of price agreement, or, if 
applicable, an earlier date agreed upon between the parties that is as 
close as practicable to the date of agreement on price, prudent buyers 
and sellers would reasonably expect to affect price negotiations 
significantly. Cost or pricing data are factual, not judgmental; and are 
verifiable. While they do not indicate the accuracy of the prospective 
contractor's judgment about estimated future costs or projections, they 
do include the data forming the basis for that judgment. Cost or pricing 
data are more than historical accounting data; they are all the facts 
that can be reasonably expected to contribute to the soundness of 
estimates of future costs and to the validity of determinations of costs 
already incurred. They also include, but are not limited to, such 
factors as--
    (1) Vendor quotations;
    (2) Nonrecurring costs;
    (3) Information on changes in production methods and in production 
or purchasing volume;
    (4) Data supporting projections of business prospects and objectives 
and related operations costs;
    (5) Unit-cost trends such as those associated with labor efficiency;
    (6) Make-or-buy decisions;
    (7) Estimated resources to attain business goals; and
    (8) Information on management decisions that could have a 
significant bearing on costs.
    Cost realism means that the costs in an offeror's proposal--
    (1) Are realistic for the work to be performed;
    (2) Reflect a clear understanding of the requirements; and
    (3) Are consistent with the various elements of the offeror's 
technical proposal.
    Cost sharing means an explicit arrangement under which the 
contractor bears some of the burden of reasonable, allocable, and 
allowable contract cost.
    Customs territory of the United States means the 50 States, the 
District of Columbia, and Puerto Rico.
    Data other than certified cost or pricing data means pricing data, 
cost data, and judgmental information necessary for the contracting 
officer to determine a fair and reasonable price or to determine cost 
realism. Such data may include the identical types of data as certified 
cost or pricing data, consistent

[[Page 29]]

with Table 15-2 of 15.408, but without the certification. The data may 
also include, for example, sales data and any information reasonably 
required to explain the offeror's estimating process, including, but not 
limited to--
    (1) The judgmental factors applied and the mathematical or other 
methods used in the estimate, including those used in projecting from 
known data; and
    (2) The nature and amount of any contingencies included in the 
proposed price.
    Data Universal Numbering System (DUNS) number means the 9-digit 
number assigned by Dun and Bradstreet, Inc. (D&B), to identify unique 
business entities, which is used as the identification number for 
Federal contractors.
    Data Universal Numbering System +4 (DUNS+4) number means the DUNS 
number assigned by D&B plus a 4-character suffix that may be assigned by 
a business concern. (D&B has no affiliation with this 4-character 
suffix.) This 4-character suffix may be assigned at the discretion of 
the business concern to establish additional System for Award Management 
records for identifying alternative Electronic Funds Transfer (EFT) 
accounts (see subpart 32.11) for the same concern.
    Day means, unless otherwise specified, a calendar day.
    Debarment means action taken by a debarring official under 9.406 to 
exclude a contractor from Government contracting and Government-approved 
subcontracting for a reasonable, specified period; a contractor that is 
excluded is ``debarred.''
    Delivery order means an order for supplies placed against an 
established contract or with Government sources.
    Depreciation means a charge to current operations that distributes 
the cost of a tangible capital asset, less estimated residual value, 
over the estimated useful life of the asset in a systematic and logical 
manner. It does not involve a process of valuation. Useful life refers 
to the prospective period of economic usefulness in a particular 
contractor's operations as distinguished from physical life; it is 
evidenced by the actual or estimated retirement and replacement practice 
of the contractor.
    Descriptive literature means information provided by an offeror, 
such as cuts, illustrations, drawings, and brochures, that shows a 
product's characteristics or construction of a product or explains its 
operation. The term includes only that information needed to evaluate 
the acceptability of the product and excludes other information for 
operating or maintaining the product.
    Design-to-cost means a concept that establishes cost elements as 
management goals to achieve the best balance between life-cycle cost, 
acceptable performance, and schedule. Under this concept, cost is a 
design constraint during the design and development phases and a 
management discipline throughout the acquisition and operation of the 
system or equipment.
    Designated operational area means a geographic area designated by 
the combatant commander or subordinate joint force commander for the 
conduct or support of specified military operations.
    Direct acquisition means a type of interagency acquisition where a 
requesting agency places an order directly against a servicing agency's 
indefinite-delivery contract. The servicing agency manages the 
indefinite-delivery contract but does not participate in the placement 
or administration of an order.
    Direct cost means any cost that is identified specifically with a 
particular final cost objective. Direct costs are not limited to items 
that are incorporated in the end product as material or labor. Costs 
identified specifically with a contract are direct costs of that 
contract. All costs identified specifically with other final cost 
objectives of the contractor are direct costs of those cost objectives.
    Disaster Response Registry means a voluntary registry of contractors 
who are willing to perform debris removal, distribution of supplies, 
reconstruction, and other disaster or emergency relief activities 
established in accordance with 6 U.S.C. 796, Registry of Disaster 
Response Contractors. The Registry contains information on contractors 
who are willing to perform disaster or emergency relief activities

[[Page 30]]

within the United States and its outlying areas. The Registry is 
accessed via https://www.acquisition.gov and alternately through the 
FEMA Web site at http://www.fema.gov/business/index.shtm. (See 26.205.)
    Drug-free workplace means the site(s) for the performance of work 
done by the contractor in connection with a specific contract where 
employees of the contractor are prohibited from engaging in the unlawful 
manufacture, distribution, dispensing, possession, or use of a 
controlled substance.
    Earned value management system means a project management tool that 
effectively integrates the project scope of work with cost, schedule and 
performance elements for optimum project planning and control. The 
qualities and operating characteristics of an earned value management 
system are described in American National Standards Institute/
Electronics Industries Alliance (ANSI/EIA) Standard-748, Earned Value 
Management Systems. (See OMB Circular A-11, Part 7.)
    Economically disadvantaged women-owned small business (EDWOSB) 
concern--(see definition of Women-Owned Small Business (WOSB) Program in 
this section).
    Effective date of termination means the date on which the notice of 
termination requires the contractor to stop performance under the 
contract. If the contractor receives the termination notice after the 
date fixed for termination, then the effective date of termination means 
the date the contractor receives the notice.
    Electronic and information technology (EIT) has the same meaning as 
``information technology'' except EIT also includes any equipment or 
interconnected system or subsystem of equipment that is used in the 
creation, conversion, or duplication of data or information. The term 
EIT, includes, but is not limited to, telecommunication products (such 
as telephones), information kiosks and transaction machines, worldwide 
websites, multimedia, and office equipment (such as copiers and fax 
machines).
    Electronic commerce means electronic techniques for accomplishing 
business transactions including electronic mail or messaging, World Wide 
Web technology, electronic bulletin boards, purchase cards, electronic 
funds transfer, and electronic data interchange.
    Electronic data interchange (EDI) means a technique for 
electronically transferring and storing formatted information between 
computers utilizing established and published formats and codes, as 
authorized by the applicable Federal Information Processing Standards.
    Electronic Funds Transfer (EFT) means any transfer of funds, other 
than a transaction originated by cash, check, or similar paper 
instrument, that is initiated through an electronic terminal, telephone, 
computer, or magnetic tape, for the purpose of ordering, instructing, or 
authorizing a financial institution to debit or credit an account. The 
term includes Automated Clearing House transfers, Fedwire transfers, and 
transfers made at automatic teller machines and point-of-sale terminals. 
For purposes of compliance with 31 U.S.C. 3332 and implementing 
regulations at 31 CFR part 208, the term ``electronic funds transfer'' 
includes a Governmentwide commercial purchase card transaction.
    End product means supplies delivered under a line item of a 
Government contract, except for use in part 25 and the associated 
clauses at 52.225-1, 52.225-3, and 52.225-5, see the definitions in 
25.003, 52.225-1(a), 52.225-3(a), and 52.225-5(a).
    Energy-efficient product--(1) Means a product that--
    (i) Meets Department of Energy and Environmental Protection Agency 
criteria for use of the Energy Star trademark label; or
    (ii) Is in the upper 25 percent of efficiency for all similar 
products as designated by the Department of Energy's Federal Energy 
Management Program.
    (2) As used in this definition, the term ``product'' does not 
include any energy-consuming product or system designed or procured for 
combat or combat-related missions (42 U.S.C. 8259b).
    Energy-efficient standby power devices means products that use--
    (1) External standby power devices, or that contain an internal 
standby power function; and

[[Page 31]]

    (2) No more than one watt of electricity in their standby power 
consuming mode or meet recommended low standby levels as designated by 
the Department of Energy Federal Energy Management Program.
    Energy-savings performance contract means a contract that requires 
the contractor to--
    (1) Perform services for the design, acquisition, financing, 
installation, testing, operation, and where appropriate, maintenance and 
repair, of an identified energy conservation measure or series of 
measures at one or more locations;
    (2) Incur the costs of implementing the energy savings measures, 
including at least the cost (if any) incurred in making energy audits, 
acquiring and installing equipment, and training personnel in exchange 
for a predetermined share of the value of the energy savings directly 
resulting from implementation of such measures during the term of the 
contract; and
    (3) Guarantee future energy and cost savings to the Government.
    Environmentally preferable means products or services that have a 
lesser or reduced effect on human health and the environment when 
compared with competing products or services that serve the same 
purpose. This comparison may consider raw materials acquisition, 
production, manufacturing, packaging, distribution, reuse, operation, 
maintenance, or disposal of the product or service.
    Excess personal property means any personal property under the 
control of a Federal agency that the agency head determines is not 
required for its needs or for the discharge of its responsibilities.
    Executive agency means an executive department, a military 
department, or any independent establishment within the meaning of 5 
U.S.C. 101, 102, and 104(1), respectively, and any wholly owned 
Government corporation within the meaning of 31 U.S.C. 9101.
    Facilities capital cost of money means ``cost of money as an element 
of the cost of facilities capital'' as used at 48 CFR 9904.414--Cost 
Accounting Standard--Cost of Money as an Element of the Cost of 
Facilities Capital.
    Facsimile means electronic equipment that communicates and 
reproduces both printed and handwritten material. If used in conjunction 
with a reference to a document; e.g., facsimile bid, the terms refers to 
a document (in the example given, a bid) that has been transmitted to 
and received by the Government via facsimile.
    Federal agency means any executive agency or any independent 
establishment in the legislative or judicial branch of the Government 
(except the Senate, the House of Representatives, the Architect of the 
Capitol, and any activities under the Architect's direction).
    Federally-controlled facilities means--
    (1) Federally-owned buildings or leased space, whether for single or 
multi-tenant occupancy, and its grounds and approaches, all or any 
portion of which is under the jurisdiction, custody or control of a 
department or agency;
    (2) Federally-controlled commercial space shared with non-government 
tenants. For example, if a department or agency leased the 10th floor of 
a commercial building, the Directive applies to the 10th floor only;
    (3) Government-owned, contractor-operated facilities, including 
laboratories engaged in national defense research and production 
activities; and
    (4) Facilities under a management and operating contract, such as 
for the operation, maintenance, or support of a Government-owned or 
Government-controlled research, development, special production, or 
testing establishment.
    Federally-controlled information system means an information system 
(44 U.S.C. 3502(8) used or operated by a Federal agency, or a contractor 
or other organization on behalf of the agency (44 U.S.C. 3544(a)(1)(A)).
    Federally Funded Research and Development Centers (FFRDC's) means 
activities that are sponsored under a broad charter by a Government 
agency (or agencies) for the purpose of performing, analyzing, 
integrating, supporting, and/or managing basic or applied research and/
or development, and that receive 70 percent or more of their financial 
support from the Government; and--

[[Page 32]]

    (1) A long-term relationship is contemplated;
    (2) Most or all of the facilities are owned or funded by the 
Government; and
    (3) The FFRDC has access to Government and supplier data, employees, 
and facilities beyond that common in a normal contractual relationship.
    Final indirect cost rate means the indirect cost rate established 
and agreed upon by the Government and the contractor as not subject to 
change. It is usually established after the close of the contractor's 
fiscal year (unless the parties decide upon a different period) to which 
it applies. For cost-reimbursement research and development contracts 
with educational institutions, it may be predetermined; that is, 
established for a future period on the basis of cost experience with 
similar contracts, together with supporting data.
    First article means a preproduction model, initial production 
sample, test sample, first lot, pilot lot, or pilot models.
    First article testing means testing and evaluating the first article 
for conformance with specified contract requirements before or in the 
initial stage of production.
    F.o.b. means free on board. This term is used in conjunction with a 
physical point to determine--
    (1) The responsibility and basis for payment of freight charges; and
    (2) Unless otherwise agreed, the point where title for goods passes 
to the buyer or consignee.
    F.o.b. destination means free on board at destination; i.e., the 
seller or consignor delivers the goods on seller's or consignor's 
conveyance at destination. Unless the contract provides otherwise, the 
seller or consignor is responsible for the cost of shipping and risk of 
loss. For use in the clause at 52.247-34, see the definition at 52.247-
34(a).
    F.o.b. origin means free on board at origin; i.e., the seller or 
consignor places the goods on the conveyance. Unless the contract 
provides otherwise, the buyer or consignee is responsible for the cost 
of shipping and risk of loss. For use in the clause at 52.247-29, see 
the definition at 52.247-29(a).
    F.o.b. * * * (For other types of F.o.b., see 47.303).
    Forward pricing rate agreement means a written agreement negotiated 
between a contractor and the Government to make certain rates available 
during a specified period for use in pricing contracts or modifications. 
These rates represent reasonable projections of specific costs that are 
not easily estimated for, identified with, or generated by a specific 
contract, contract end item, or task. These projections may include 
rates for such things as labor, indirect costs, material obsolescence 
and usage, spare parts provisioning, and material handling.
    Forward pricing rate recommendation means a rate set unilaterally by 
the administrative contracting officer for use by the Government in 
negotiations or other contract actions when forward pricing rate 
agreement negotiations have not been completed or when the contractor 
will not agree to a forward pricing rate agreement.
    Freight means supplies, goods, and transportable property.
    Full and open competition, when used with respect to a contract 
action, means that all responsible sources are permitted to compete.
    General and administrative (G&A) expense means any management, 
financial, and other expense which is incurred by or allocated to a 
business unit and which is for the general management and administration 
of the business unit as a whole. G&A expense does not include those 
management expenses whose beneficial or causal relationship to cost 
objectives can be more directly measured by a base other than a cost 
input base representing the total activity of a business unit during a 
cost accounting period.
    Governmentwide acquisition contract (GWAC) means a task-order or 
delivery-order contract for information technology established by one 
agency for Governmentwide use that is operated--
    (1) By an executive agent designated by the Office of Management and 
Budget pursuant to 40 U.S.C. 11302(e); or
    (2) Under a delegation of procurement authority issued by the 
General Services Administration (GSA) prior to August 7, 1996, under 
authority granted GSA by former section 40 U.S.C. 759, repealed by Pub. 
L. 104-106. The Economy

[[Page 33]]

Act does not apply to orders under a Governmentwide acquisition 
contract.
    Governmentwide point of entry (GPE) means the single point where 
Government business opportunities greater than $25,000, including 
synopses of proposed contract actions, solicitations, and associated 
information, can be accessed electronically by the public. The GPE is 
located at http://www.fedbizopps.gov.
    Head of the agency (see ``agency head'').
    Head of the contracting activity means the official who has overall 
responsibility for managing the contracting activity.
    Historically black college or university means an institution 
determined by the Secretary of Education to meet the requirements of 34 
CFR 608.2. For the Department of Defense, the National Aeronautics and 
Space Administration, and the Coast Guard, the term also includes any 
nonprofit research institution that was an integral part of such a 
college or university before November 14, 1986.
    HUBZone means a historically underutilized business zone that is an 
area located within one or more qualified census tracts, qualified 
nonmetropolitan counties, lands within the external boundaries of an 
Indian reservation, qualified base closure areas, or redesignated areas, 
as defined in 13 CFR 126.103.
    HUBZone contract means a contract awarded to a ``HUBZone small 
business'' concern through any of the following procurement methods:
    (1) A sole source award to a HUBZone small business concern.
    (2) Set-aside awards based on competition restricted to HUBZone 
small business concerns.
    (3) Awards to HUBZone small business concerns through full and open 
competition after a price evaluation preference in favor of HUBZone 
small business concerns.
    HUBZone small business concern means a small business concern that 
appears on the List of Qualified HUBZone Small Business Concerns 
maintained by the Small Business Administration (13 CFR 126.103).
    Humanitarian or peacekeeping operation means a military operation in 
support of the provision of humanitarian or foreign disaster assistance 
or in support of a peacekeeping operation under chapter VI or VII of the 
Charter of the United Nations. The term does not include routine 
training, force rotation, or stationing (10 U.S.C. 2302(8) and 41 U.S.C. 
259(d)).
    In writing, writing, or written means any worded or numbered 
expression that can be read, reproduced, and later communicated, and 
includes electronically transmitted and stored information.
    Indirect cost means any cost not directly identified with a single 
final cost objective, but identified with two or more final cost 
objectives or with at least one intermediate cost objective.
    Indirect cost rate means the percentage or dollar factor that 
expresses the ratio of indirect expense incurred in a given period to 
direct labor cost, manufacturing cost, or another appropriate base for 
the same period (see also ``final indirect cost rate'').
    Ineligible means excluded from Government contracting (and 
subcontracting, if appropriate) pursuant to statutory, Executive order, 
or regulatory authority other than this regulation (48 CFR chapter 1) 
and its implementing and supplementing regulations; for example, 
pursuant to the Davis-Bacon Act and its related statutes and 
implementing regulations, the Service Contract Act, the Equal Employment 
Opportunity Acts and Executive orders, the Walsh-Healey Public Contracts 
Act, the Buy American Act, or the Environmental Protection Acts and 
Executive orders.
    Information security means protecting information and information 
systems from unauthorized access, use, disclosure, disruption, 
modification, or destruction in order to provide--
    (1) Integrity, which means guarding against improper information 
modification or destruction, and includes ensuring information 
nonrepudiation and authenticity;
    (2) Confidentiality, which means preserving authorized restrictions 
on access and disclosure, including means for protecting personal 
privacy and proprietary information; and

[[Page 34]]

    (3) Availability, which means ensuring timely and reliable access 
to, and use of, information.
    Information technology means any equipment, or interconnected 
system(s) or subsystem(s) of equipment, that is used in the automatic 
acquisition, storage, analysis, evaluation, manipulation, management, 
movement, control, display, switching, interchange, transmission, or 
reception of data or information by the agency.
    (1) For purposes of this definition, equipment is used by an agency 
if the equipment is used by the agency directly or is used by a 
contractor under a contract with the agency that requires--
    (i) Its use; or
    (ii) To a significant extent, its use in the performance of a 
service or the furnishing of a product.
    (2) The term ``information technology'' includes computers, 
ancillary equipment (including imaging peripherals, input, output, and 
storage devices necessary for security and surveillance), peripheral 
equipment designed to be controlled by the central processing unit of a 
computer, software, firmware and similar procedures, services (including 
support services), and related resources.
    (3) The term ``information technology'' does not include any 
equipment that--
    (i) Is acquired by a contractor incidental to a contract; or
    (ii) Contains imbedded information technology that is used as an 
integral part of the product, but the principal function of which is not 
the acquisition, storage, analysis, evaluation, manipulation, 
management, movement, control, display, switching, interchange, 
transmission, or reception of data or information. For example, HVAC 
(heating, ventilation, and air conditioning) equipment, such as 
thermostats or temperature control devices, and medical equipment where 
information technology is integral to its operation, are not information 
technology.
    Inherently governmental function means, as a matter of policy, a 
function that is so intimately related to the public interest as to 
mandate performance by Government employees. This definition is a policy 
determination, not a legal determination. An inherently governmental 
function includes activities that require either the exercise of 
discretion in applying Government authority, or the making of value 
judgments in making decisions for the Government. Governmental functions 
normally fall into two categories: the act of governing, i.e., the 
discretionary exercise of Government authority, and monetary 
transactions and entitlements.
    (1) An inherently governmental function involves, among other 
things, the interpretation and execution of the laws of the United 
States so as to--
    (i) Bind the United States to take or not to take some action by 
contract, policy, regulation, authorization, order, or otherwise;
    (ii) Determine, protect, and advance United States economic, 
political, territorial, property, or other interests by military or 
diplomatic action, civil or criminal judicial proceedings, contract 
management, or otherwise;
    (iii) Significantly affect the life, liberty, or property of private 
persons;
    (iv) Commission, appoint, direct, or control officers or employees 
of the United States; or
    (v) Exert ultimate control over the acquisition, use, or disposition 
of the property, real or personal, tangible or intangible, of the United 
States, including the collection, control, or disbursement of Federal 
funds.
    (2) Inherently governmental functions do not normally include 
gathering information for or providing advice, opinions, 
recommendations, or ideas to Government officials. They also do not 
include functions that are primarily ministerial and internal in nature, 
such as building security, mail operations, operation of cafeterias, 
housekeeping, facilities operations and maintenance, warehouse 
operations, motor vehicle fleet management operations, or other routine 
electrical or mechanical services.
    Inspection means examining and testing supplies or services 
(including, when appropriate, raw materials, components, and 
intermediate assemblies) to determine whether they conform to contract 
requirements.

[[Page 35]]

    Insurance means a contract that provides that for a stipulated 
consideration, one party undertakes to indemnify another against loss, 
damage, or liability arising from an unknown or contingent event.
    Interagency acquisition means a procedure by which an agency needing 
supplies or services (the requesting agency) obtains them from another 
agency (the servicing agency), by an assisted acquisition or a direct 
acquisition. The term includes--
    (1) Acquisitions under the Economy Act (31 U.S.C. 1535); and
    (2) Non-Economy Act acquisitions completed under other statutory 
authorities (e.g., General Services Administration Federal Supply 
Schedules in subpart 8.4 and Governmentwide acquisition contracts 
(GWACs)).
    Invoice means a contractor's bill or written request for payment 
under the contract for supplies delivered or services performed (see 
also ``proper invoice'').
    Irrevocable letter of credit means a written commitment by a 
federally insured financial institution to pay all or part of a stated 
amount of money, until the expiration date of the letter, upon the 
Government's (the beneficiary) presentation of a written demand for 
payment. Neither the financial institution nor the offeror/contractor 
can revoke or condition the letter of credit.
    Labor surplus area means a geographical area identified by the 
Department of Labor in accordance with 20 CFR part 654, subpart A, as an 
area of concentrated unemployment or underemployment or an area of labor 
surplus.
    Labor surplus area concern means a concern that together with its 
first-tier subcontractors will perform substantially in labor surplus 
areas. Performance is substantially in labor surplus areas if the costs 
incurred under the contract on account of manufacturing, production, or 
performance of appropriate services in labor surplus areas exceed 50 
percent of the contract price.
    Latent defect means a defect that exists at the time of acceptance 
but cannot be discovered by a reasonable inspection.
    Major system means that combination of elements that will function 
together to produce the capabilities required to fulfill a mission need. 
The elements may include hardware, equipment, software, or any 
combination thereof, but exclude construction or other improvements to 
real property. A system is a major system if--
    (1) The Department of Defense is responsible for the system and the 
total expenditures for research, development, test, and evaluation for 
the system are estimated to be more than $189.5 million or the eventual 
total expenditure for the acquisition exceeds $890 million;
    (2) A civilian agency is responsible for the system and total 
expenditures for the system are estimated to exceed $ 2 million or the 
dollar threshold for a ``major system'' established by the agency 
pursuant to Office of Management and Budget Circular A-109, entitled 
``Major System Acquisitions,'' whichever is greater; or
    (3) The system is designated a ``major system'' by the head of the 
agency responsible for the system (10 U.S.C. 2302 and 41 U.S.C. 403).
    Make-or-buy program means that part of a contractor's written plan 
for a contract identifying those major items to be produced or work 
efforts to be performed in the prime contractor's facilities and those 
to be subcontracted.
    Market research means collecting and analyzing information about 
capabilities within the market to satisfy agency needs.
    Master solicitation means a document containing special clauses and 
provisions that have been identified as essential for the acquisition of 
a specific type of supply or service that is acquired repetitively.
    May denotes the permissive. However, the words ``no person may * * 
*'' mean that no person is required, authorized, or permitted to do the 
act described.
    Micro-purchase means an acquisition of supplies or services using 
simplified acquisition procedures, the aggregate amount of which does 
not exceed the micro-purchase threshold.
    Micro-purchase threshold means $3,000, except it means--

[[Page 36]]

    (1) For acquisitions of construction subject to the Davis-Bacon Act, 
$2,000;
    (2) For acquisitions of services subject to the Service Contract 
Act, $2,500; and
    (3) For acquisitions of supplies or services that, as determined by 
the head of the agency, are to be used to support a contingency 
operation or to facilitate defense against or recovery from nuclear, 
biological, chemical, or radiological attack, as described in 
13.201(g)(1), except for construction subject to the Davis-Bacon Act (41 
U.S.C. 428a)--
    (i) $15,000 in the case of any contract to be awarded and performed, 
or purchase to be made, inside the United States; and
    (ii) $30,000 in the case of any contract to be awarded and 
performed, or purchase to be made, outside the United States.
    Minority Institution means an institution of higher education 
meeting the requirements of Section 365(3) of the Higher Education Act 
of 1965 (20 U.S.C. 1067k), including a Hispanic-serving institution of 
higher education, as defined in Section 502(a) of the Act (20 U.S.C. 
1101a).
    Multi-agency contract (MAC) means a task-order or delivery-order 
contract established by one agency for use by Government agencies to 
obtain supplies and services, consistent with the Economy Act (see 
17.502-2). Multi-agency contracts include contracts for information 
technology established pursuant to 40 U.S.C. 11314(a)(2).
    Must (see ``shall'').
    National defense means any activity related to programs for military 
or atomic energy production or construction, military assistance to any 
foreign nation, stockpiling, or space, except that for use in Subpart 
11.6, see the definition in 11.601.
    Neutral person means an impartial third party, who serves as a 
mediator, fact finder, or arbitrator, or otherwise functions to assist 
the parties to resolve the issues in controversy. A neutral person may 
be a permanent or temporary officer or employee of the Federal 
Government or any other individual who is acceptable to the parties. A 
neutral person must have no official, financial, or personal conflict of 
interest with respect to the issues in controversy, unless the interest 
is fully disclosed in writing to all parties and all parties agree that 
the neutral person may serve (5 U.S.C. 583).
    Nondevelopmental item means--
    (1) Any previously developed item of supply used exclusively for 
governmental purposes by a Federal agency, a State or local government, 
or a foreign government with which the United States has a mutual 
defense cooperation agreement;
    (2) Any item described in paragraph (1) of this definition that 
requires only minor modification or modifications of a type customarily 
available in the commercial marketplace in order to meet the 
requirements of the procuring department or agency; or
    (3) Any item of supply being produced that does not meet the 
requirements of paragraphs (1) or (2) solely because the item is not yet 
in use.
    Novation agreement means a legal instrument--
    (1) Executed by the--
    (i) Contractor (transferor);
    (ii) Successor in interest (transferee); and
    (iii) Government; and
    (2) By which, among other things, the transferor guarantees 
performance of the contract, the transferee assumes all obligations 
under the contract, and the Government recognizes the transfer of the 
contract and related assets.
    Offer means a response to a solicitation that, if accepted, would 
bind the offeror to perform the resultant contract. Responses to 
invitations for bids (sealed bidding) are offers called ``bids'' or 
``sealed bids''; responses to requests for proposals (negotiation) are 
offers called ``proposals''; however, responses to requests for 
quotations (simplified acquisition) are ``quotations'', not offers. For 
unsolicited proposals, see subpart 15.6.
    Offeror means offeror or bidder.
    Office of Small and Disadvantaged Business Utilization means the 
Office of Small Business Programs when referring to the Department of 
Defense.
    Option means a unilateral right in a contract by which, for a 
specified time, the Government may elect to purchase additional supplies 
or services called

[[Page 37]]

for by the contract, or may elect to extend the term of the contract.
    Organizational conflict of interest means that because of other 
activities or relationships with other persons, a person is unable or 
potentially unable to render impartial assistance or advice to the 
Government, or the person's objectivity in performing the contract work 
is or might be otherwise impaired, or a person has an unfair competitive 
advantage.
    Outlying areas means--
    (1) Commonwealths. (i) Puerto Rico.
    (ii) The Northern Mariana Islands;
    (2) Territories. (i) American Samoa.
    (ii) Guam.
    (iii) U.S. Virgin Islands; and
    (3) Minor outlying islands. (i) Baker Island.
    (ii) Howland Island.
    (iii) Jarvis Island.
    (iv) Johnston Atoll.
    (v) Kingman Reef.
    (vi) Midway Islands.
    (vii) Navassa Island.
    (viii) Palmyra Atoll.
    (ix) Wake Atoll.
    Overtime means time worked by a contractor's employee in excess of 
the employee's normal workweek.
    Overtime premium means the difference between the contractor's 
regular rate of pay to an employee for the shift involved and the higher 
rate paid for overtime. It does not include shift premium, i.e., the 
difference between the contractor's regular rate of pay to an employee 
and the higher rate paid for extra-pay-shift work.
    Ozone-depleting substance means any substance the Environmental 
Protection Agency designates in 40 CFR part 82 as--
    (1) Class I, including, but not limited to, chlorofluorocarbons, 
halons, carbon tetrachloride, and methyl chloroform; or
    (2) Class II, including, but not limited to, 
hydrochlorofluorocarbons.
    Partial termination means the termination of a part, but not all, of 
the work that has not been completed and accepted under a contract.
    Past performance means an offeror's or contractor's performance on 
active and physically completed contracts (see 4.804-4).
    Performance-based acquisition (PBA) means an acquisition structured 
around the results to be achieved as opposed to the manner by which the 
work is to be performed.
    Performance Work Statement (PWS) means a statement of work for 
performance-based acquisitions that describes the required results in 
clear, specific and objective terms with measurable outcomes.
    Personal property means property of any kind or interest in it 
except real property, records of the Federal Government, and naval 
vessels of the following categories:
    (1) Battleships;
    (2) Cruisers;
    (3) Aircraft carriers;
    (4) Destroyers; and
    (5) Submarines.
    Personal services contract means a contract that, by its express 
terms or as administered, makes the contractor personnel appear to be, 
in effect, Government employees (see 37.104).
    Plant clearance officer means an authorized representative of the 
contracting officer, appointed in accordance with agency procedures, 
responsible for screening, redistributing, and disposing of contractor 
inventory from a contractor's plant or work site. The term 
``Contractor's plant'' includes, but is not limited to, Government-owned 
contractor-operated plants, Federal installations, and Federal and non-
Federal industrial operations, as may be required under the scope of the 
contract.
    Pollution prevention means any practice that--
    (1)(i) Reduces the amount of any hazardous substance, pollutant, or 
contaminant entering any waste stream or otherwise released into the 
environment (including fugitive emissions) prior to recycling, 
treatment, or disposal; and
    (ii) Reduces the hazards to public health and the environment 
associated with the release of such substances, pollutants, and 
contaminants;
    (2) Reduces or eliminates the creation of pollutants through 
increased efficiency in the use of raw materials, energy, water, or 
other resources; or
    (3) Protects natural resources by conservation.

[[Page 38]]

    Power of attorney means the authority given one person or 
corporation to act for and obligate another, as specified in the 
instrument creating the power; in corporate suretyship, an instrument 
under seal that appoints an attorney-in-fact to act in behalf of a 
surety company in signing bonds (see also ``attorney-in-fact'' at 
28.001).
    Preaward survey means an evaluation of a prospective contractor's 
capability to perform a proposed contract.
    Preponderance of the evidence means proof by information that, 
compared with that opposing it, leads to the conclusion that the fact at 
issue is more probably true than not.
    Pricing means the process of establishing a reasonable amount or 
amounts to be paid for supplies or services.
    Principal means an officer, director, owner, partner, or a person 
having primary management or supervisory responsibilities within a 
business entity (e.g., general manager; plant manager; head of a 
division or business segment; and similar positions).
    Procurement (see ``acquisition'').
    Procuring activity means a component of an executive agency having a 
significant acquisition function and designated as such by the head of 
the agency. Unless agency regulations specify otherwise, the term 
``procuring activity'' is synonymous with ``contracting activity.''
    Projected average loss means the estimated long-term average loss 
per period for periods of comparable exposure to risk of loss.
    Proper invoice means an invoice that meets the minimum standards 
specified in 32.905(b).
    Purchase order, when issued by the Government, means an offer by the 
Government to buy supplies or services, including construction and 
research and development, upon specified terms and conditions, using 
simplified acquisition procedures.
    Qualification requirement means a Government requirement for testing 
or other quality assurance demonstration that must be completed before 
award of a contract.
    Qualified products list (QPL) means a list of products that have 
been examined, tested, and have satisfied all applicable qualification 
requirements.
    Receiving report means written evidence that indicates Government 
acceptance of supplies delivered or services performed (see subpart 
46.6). Receiving reports must meet the requirements of 32.905(c).
    Recovered material 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. For use in subpart 11.3 for paper and 
paper products, see the definition at 11.301.
    Registered in the System for Award Management (SAM) database means 
that--
    (1) The Contractor has entered all mandatory information, including 
the DUNS number or the DUNS+4 number, the Contractor and Government 
Entity (CAGE) code, as well as data required by the Federal Funding 
Accountability and Transparency Act of 2006 (see subpart 4.14), into the 
SAM database;
    (2) The Contractor has completed the Core, Assertions, 
Representations and Certifications, and Points of Contact sections of 
the registration in the SAM database;
    (3) The Government has validated all mandatory data fields, to 
include validation of the Taxpayer Identification Number (TIN) with the 
Internal Revenue Service (IRS). The contractor will be required to 
provide consent for TIN validation to the Government as a part of the 
SAM registration process; and
    (4) The Government has marked the record ``Active''.
    Renewable energy means energy produced by solar, wind, geothermal, 
biomass, landfill gas, ocean (including tidal, wave, current, and 
thermal), municipal solid waste, or new hydroelectric generation 
capacity achieved from increased efficiency or additions of new capacity 
at an existing hydroelectric project (Energy Policy Act of 2005, 42 
U.S.C. 15852).
    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

[[Page 39]]

    (2) The use of integrated whole-building designs that rely upon 
renewable energy resources, including passive solar design.
    Residual value means the proceeds, less removal and disposal costs, 
if any, realized upon disposition of a tangible capital asset. It 
usually is measured by the net proceeds from the sale or other 
disposition of the asset, or its fair value if the asset is traded in on 
another asset. The estimated residual value is a current forecast of the 
residual value.
    Responsible audit agency means the agency that is responsible for 
performing all required contract audit services at a business unit.
    Responsible prospective contractor means a contractor that meets the 
standards in 9.104.
    Requesting agency means the agency that has the requirement for an 
interagency acquisition.
    Scrap means personal property that has no value except its basic 
metallic, mineral, or organic content.
    Segment means one of two or more divisions, product departments, 
plants, or other subdivisions of an organization reporting directly to a 
home office, usually identified with responsibility for profit and/or 
producing a product or service. The term includes--
    (1) Government-owned contractor-operated (GOCO) facilities; and
    (2) Joint ventures and subsidiaries (domestic and foreign) in which 
the organization has--
    (i) A majority ownership; or
    (ii) Less than a majority ownership, but over which it exercises 
control.
    Self-insurance means the assumption or retention of the risk of loss 
by the contractor, whether voluntarily or involuntarily. Self-insurance 
includes the deductible portion of purchased insurance.
    Senior procurement executive means the individual appointed pursuant 
to section 16(3) of the Office of Federal Procurement Policy Act (41 
U.S.C. 414(3)) who is responsible for management direction of the 
acquisition system of the executive agency, including implementation of 
the unique acquisition policies, regulations, and standards of the 
executive agency.
    Service-disabled veteran-owned small business concern--
    (1) Means a small business concern--
    (i) Not less than 51 percent of which is owned by one or more 
service-disabled veterans or, in the case of any publicly owned 
business, not less than 51 percent of the stock of which is owned by one 
or more service-disabled veterans; and
    (ii) The management and daily business operations of which are 
controlled by one or more service-disabled veterans or, in the case of a 
service-disabled veteran with permanent and severe disability, the 
spouse or permanent caregiver of such veteran.
    (2) Service-disabled veteran means a veteran, as defined in 38 
U.S.C. 101(2), with a disability that is service-connected, as defined 
in 38 U.S.C. 101(16).
    Servicing agency means the agency that will conduct an assisted 
acquisition on behalf of the requesting agency.
    Shall denotes the imperative.
    Shipment means freight transported or to be transported.
    Shop drawings means drawings submitted by the construction 
contractor or a subcontractor at any tier or required under a 
construction contract, showing in detail either or both of the 
following:
    (1) The proposed fabrication and assembly of structural elements.
    (2) The installation (i.e., form, fit, and attachment details) of 
materials or equipment.
    Should means an expected course of action or policy that is to be 
followed unless inappropriate for a particular circumstance.
    Signature or signed means the discrete, verifiable symbol of an 
individual which, when affixed to a writing with the knowledge and 
consent of the individual, indicates a present intention to authenticate 
the writing. This includes electronic symbols.
    Simplified acquisition procedures means the methods prescribed in 
part 13 for making purchases of supplies or services.
    Simplified acquisition threshold means $150,000, except for 
acquisitions of supplies or services that, as determined by the head of 
the agency, are to be used to support a contingency operation or

[[Page 40]]

to facilitate defense against or recovery from nuclear, biological, 
chemical, or radiological attack (41 U.S.C. 428a), the term means--
    (1) $300,000 for any contract to be awarded and performed, or 
purchase to be made, inside the United States; and
    (2) $1 million for any contract to be awarded and performed, or 
purchase to be made, outside the United States.
    Single, Governmentwide point of entry, means the one point of entry 
to be designated by the Administrator of OFPP that will allow the 
private sector to electronically access procurement opportunities 
Governmentwide.
    Small business concern means a concern, including its affiliates, 
that is independently owned and operated, not dominant in the field of 
operation in which it is bidding on Government contracts, and qualified 
as a small business under the criteria and size standards in 13 CFR part 
121 (see 19.102). Such a concern is ``not dominant in its field of 
operation'' when it does not exercise a controlling or major influence 
on a national basis in a kind of business activity in which a number of 
business concerns are primarily engaged. In determining whether 
dominance exists, consideration must be given to all appropriate 
factors, including volume of business, number of employees, financial 
resources, competitive status or position, ownership or control of 
materials, processes, patents, license agreements, facilities, sales 
territory, and nature of business activity. (See 15 U.S.C. 632.)
    Small business subcontractor means a concern, including affiliates, 
that for subcontracts valued at--
    (1) $10,000 or less, does not have more than 500 employees; and
    (2) More than $10,000, does not have employees or average annual 
receipts exceeding the size standard in 13 CFR part 121 (see 19.102) for 
the product or service it is providing on the subcontract.
    Small disadvantaged business concern (except for 52.212-3(c)(4) and 
52.219-1(b)(2) for general statistical purposes and 52.212-3(c)(9)(ii), 
52.219-22(b)(2), 52.219-22(b)(1)(C), and 52.219-23(a)(3) for joint 
ventures under the price evaluation adjustment for small disadvantaged 
business concerns), consistent with 13 CFR 124.1002, means an offeror, 
that is a small business under the size standard applicable to the 
acquisition; and either--
    (1) It has received certification as a small disadvantaged business 
concern consistent with 13 CFR part 124, subpart B; and
    (i) No material change in disadvantaged ownership and control has 
occurred since its certification;
    (ii) Where the concern is owned by one or more disadvantaged 
individuals, the net worth of each individual upon whom the 
certification is based does not exceed $750,000 after taking into 
account the applicable exclusions set forth at 13 CFR 124.104(c)(2); and
    (iii) It is identified, on the date of its representation, as a 
certified small disadvantaged business concern in the Dynamic Small 
Business Search data base maintained by the Small Business 
Administration;
    (2) For a prime contractor, it has submitted a completed application 
to the Small Business Administration or a private certifier to be 
certified as a small disadvantaged business concern in accordance with 
13 CFR part 124, subpart B, and a decision on that application is 
pending, and that no material change in disadvantaged ownership and 
control has occurred since it submitted its application. In this case, a 
contractor must receive certification as a small disadvantaged business 
by the Small Business Administration prior to contract award;
    (3) It represents in writing that it qualifies as a small 
disadvantaged business (SDB) for any Federal subcontracting program if 
it believes in good faith that it is owned and controlled by one or more 
socially and economically disadvantaged individuals and meets the SDB 
eligibility criteria of 13 CFR 124.1002.
    Sole source acquisition means a contract for the purchase of 
supplies or services that is entered into or proposed to be entered into 
by an agency after soliciting and negotiating with only one source.
    Solicitation means any request to submit offers or quotations to the 
Government. Solicitations under sealed bid procedures are called 
``invitations for bids.'' Solicitations under negotiated

[[Page 41]]

procedures are called ``requests for proposals.'' Solicitations under 
simplified acquisition procedures may require submission of either a 
quotation or an offer.
    Solicitation provision or provision means a term or condition used 
only in solicitations and applying only before contract award.
    Source selection information means any of the following information 
that is prepared for use by an agency for the purpose of evaluating a 
bid or proposal to enter into an agency procurement contract, if that 
information has not been previously made available to the public or 
disclosed publicly:
    (1) Bid prices submitted in response to an agency invitation for 
bids, or lists of those bid prices before bid opening.
    (2) Proposed costs or prices submitted in response to an agency 
solicitation, or lists of those proposed costs or prices.
    (3) Source selection plans.
    (4) Technical evaluation plans.
    (5) Technical evaluations of proposals.
    (6) Cost or price evaluations of proposals.
    (7) Competitive range determinations that identify proposals that 
have a reasonable chance of being selected for award of a contract.
    (8) Rankings of bids, proposals, or competitors.
    (9) Reports and evaluations of source selection panels, boards, or 
advisory councils.
    (10) Other information marked as ``Source Selection Information--See 
FAR 2.101 and 3.104'' based on a case-by-case determination by the head 
of the agency or the contracting officer, that its disclosure would 
jeopardize the integrity or successful completion of the Federal agency 
procurement to which the information relates.
    Special competency means a special or unique capability, including 
qualitative aspects, developed incidental to the primary functions of 
the Federally Funded Research and Development Centers to meet some 
special need.
    Special test equipment means either single or multipurpose 
integrated test units engineered, designed, fabricated, or modified to 
accomplish special purpose testing in performing a contract. It consists 
of items or assemblies of equipment including foundations and similar 
improvements necessary for installing special test equipment, and 
standard or general purpose items or components that are interconnected 
and interdependent so as to become a new functional entity for special 
testing purposes. Special test equipment does not include material, 
special tooling, real property, and equipment items used for general 
testing purposes or property that with relatively minor expense can be 
made suitable for general purpose use.
    Special tooling means jigs, dies, fixtures, molds, patterns, taps, 
gauges, and all components of these items including foundations and 
similar improvements necessary for installing special tooling, and which 
are of such a specialized nature that without substantial modification 
or alteration their use is limited to the development or production of 
particular supplies or parts thereof or to the performance of particular 
services. Special tooling does not include material, special test 
equipment, real property, equipment, machine tools, or similar capital 
items.
    State and local taxes means taxes levied by the States, the District 
of Columbia, outlying areas of the United States, or their political 
subdivisions.
    Statement of Objectives (SOO) means a Government-prepared document 
incorporated into the solicitation that states the overall performance 
objectives. It is used in solicitations when the Government intends to 
provide the maximum flexibility to each offeror to propose an innovative 
approach.
    Substantial evidence means information sufficient to support the 
reasonable belief that a particular act or omission has occurred.
    Substantially as follows or substantially the same as, when used in 
the prescription and introductory text of a provision or clause, means 
that authorization is granted to prepare and utilize a variation of that 
provision or clause to accommodate requirements that are peculiar to an 
individual acquisition; provided that the variation includes the salient 
features of the FAR provision or clause, and is not inconsistent

[[Page 42]]

with the intent, principle, and substance of the FAR provision or clause 
or related coverage of the subject matter.
    Supplemental agreement means a contract modification that is 
accomplished by the mutual action of the parties.
    Supplies means all property except land or interest in land. It 
includes (but is not limited to) public works, buildings, and 
facilities; ships, floating equipment, and vessels of every character, 
type, and description, together with parts and accessories; aircraft and 
aircraft parts, accessories, and equipment; machine tools; and the 
alteration or installation of any of the foregoing.
    Supporting a diplomatic or consular mission means performing outside 
the United States under a contract administered by Federal agency 
personnel who are subject to the direction of a Chief of Mission.
    Surety means an individual or corporation legally liable for the 
debt, default, or failure of a principal to satisfy a contractual 
obligation. The types of sureties referred to are as follows:
    (1) An individual surety is one person, as distinguished from a 
business entity, who is liable for the entire penal amount of the bond.
    (2) A corporate surety is licensed under various insurance laws and, 
under its charter, has legal power to act as surety for others.
    (3) A cosurety is one of two or more sureties that are jointly 
liable for the penal sum of the bond. A limit of liability for each 
surety may be stated.
    Surplus property means excess personal property not required by any 
Federal agency as determined by the Administrator of the General 
Services Administration (GSA). (See 41 CFR 102-36.40).
    Suspension means action taken by a suspending official under 9.407 
to disqualify a contractor temporarily from Government contracting and 
Government-approved subcontracting; a contractor that is disqualified is 
``suspended.''
    Sustainable acquisition means acquiring goods and services in order 
to create and maintain conditions--
    (1) Under which humans and nature can exist in productive harmony; 
and
    (2) That permit fulfilling the social, economic, and other 
requirements of present and future generations.
    System for Award Management (SAM) means the primary Government 
repository for prospective Federal awardee and Federal awardee 
information and the centralized Government system for certain 
contracting, grants, and other assistance-related processes. It 
includes--
    (1) Data collected from prospective Federal awardees required for 
the conduct of business with the Government;
    (2) Prospective contractor-submitted annual representations and 
certifications in accordance with FAR subpart 4.12; and
    (3) Identification of those parties excluded from receiving Federal 
contracts, certain subcontracts, and certain types of Federal financial 
and non-financial assistance and benefits.
    Task order means an order for services placed against an established 
contract or with Government sources.
    Taxpayer Identification Number (TIN) means the number required by 
the IRS to be used by the offeror in reporting income tax and other 
returns. The TIN may be either a Social Security Number or an Employer 
Identification Number.
    Technical data means recorded information (regardless of the form or 
method of the recording) of a scientific or technical nature (including 
computer databases and computer software documentation). This term does 
not include computer software or financial, administrative, cost or 
pricing, or management data or other information incidental to contract 
administration. The term includes recorded information of a scientific 
or technical nature that is included in computer databases (See 41 
U.S.C. 403(8)).
    Termination for convenience means the exercise of the Government's 
right to completely or partially terminate performance of work under a 
contract when it is in the Government's interest.
    Termination for default means the exercise of the Government's right 
to completely or partially terminate a contract because of the 
contractor's

[[Page 43]]

actual or anticipated failure to perform its contractual obligations.
    Terminated portion of the contract means the portion of a contract 
that the contractor is not to perform following a partial termination. 
For construction contracts that have been completely terminated for 
convenience, it means the entire contract, notwithstanding the 
completion of, and payment for, individual items of work before 
termination.
    Termination inventory means any property purchased, supplied, 
manufactured, furnished, or otherwise acquired for the performance of a 
contract subsequently terminated and properly allocable to the 
terminated portion of the contract. It includes Government-furnished 
property. It does not include any facilities, material, special test 
equipment, or special tooling that are subject to a separate contract or 
to a special contract requirement governing their use or disposition.
    Unallowable cost means any cost that, under the provisions of any 
pertinent law, regulation, or contract, cannot be included in prices, 
cost-reimbursements, or settlements under a Government contract to which 
it is allocable.
    Unique and innovative concept, when used relative to an unsolicited 
research proposal, means that--
    (1) In the opinion and to the knowledge of the Government evaluator, 
the meritorious proposal--
    (i) Is the product of original thinking submitted confidentially by 
one source;
    (ii) Contains new, novel, or changed concepts, approaches, or 
methods;
    (iii) Was not submitted previously by another; and
    (iv) Is not otherwise available within the Federal Government.
    (2) In this context, the term does not mean that the source has the 
sole capability of performing the research.
    United States, when used in a geographic sense, means the 50 States 
and the District of Columbia, except as follows:
    (1) For use in Subpart 3.10, see the definition at 3.1001.
    (2) For use in subpart 22.8, see the definition at 22.801.
    (3) For use in subpart 22.10, see the definition at 22.1001.
    (4) For use in subpart 22.12, see the definition at 22.1201.
    (5) For use in subpart 22.13, see the definition at 22.1301.
    (6) For use in subpart 22.16, see the definition at 22.1601.
    (7) For use in Subpart 22.18, see the definition at 22.1801.
    (8) For use in part 23, see definition at 23.001.
    (9) For use in part 25, see the definition at 25.003.
    (10) For use in Part 27, see the definition at 27.001.
    (11) For use in subpart 47.4, see the definition at 47.401.
    Unsolicited proposal means a written proposal for a new or 
innovative idea that is submitted to an agency on the initiative of the 
offeror for the purpose of obtaining a contract with the Government, and 
that is not in response to a request for proposals, Broad Agency 
Announcement, Small Business Innovation Research topic, Small Business 
Technology Transfer Research topic, Program Research and Development 
Announcement, or any other Government-initiated solicitation or program.
    Value engineering means an analysis of the functions of a program, 
project, system, product, item of equipment, building, facility, 
service, or supply of an executive agency, performed by qualified agency 
or contractor personnel, directed at improving performance, reliability, 
quality, safety, and life-cycle costs (section 36 of the Office of 
Federal Procurement Policy Act, 41 U.S.C. 401, et seq.). For use in the 
clause at 52.248-2, see the definition at 52.248-2(b).
    Value engineering change proposal (VECP)-(1) means a proposal that--
    (i) Requires a change to the instant contract to implement; and
    (ii) Results in reducing the overall projected cost to the agency 
without impairing essential functions or characteristics, provided that 
it does not involve a change--
    (A) In deliverable end item quantities only;
    (B) In research and development (R&D) items or R&D test quantities 
that are due solely to results of previous testing under the instant 
contract; or
    (C) To the contract type only.

[[Page 44]]

    (2) For use in the clauses at--
    (i) 52.248-2, see the definition at 52.248-2(b); and
    (ii) 52.248-3, see the definition at 52.248-3(b).
    Veteran-owned small business concern means a small business 
concern--
    (1) Not less than 51 percent of which is owned by one or more 
veterans (as defined at 38 U.S.C. 101(2)) or, in the case of any 
publicly owned business, not less than 51 percent of the stock of which 
is owned by one or more veterans; and
    (2) The management and daily business operations of which are 
controlled by one or more veterans.
    Virgin material means--
    (1) Previously unused raw material, including previously unused 
copper, aluminum, lead, zinc, iron, other metal or metal ore; or
    (2) Any undeveloped resource that is, or with new technology will 
become, a source of raw materials.
    Voluntary consensus standards means common and repeated use of 
rules, conditions, guidelines or characteristics for products, or 
related processes and production methods and related management systems. 
Voluntary Consensus Standards are developed or adopted by domestic and 
international voluntary consensus standard making bodies (e.g., 
International Organization for Standardization (ISO) and ASTM-
International). See OMB Circular A-119.
    Warranty means a promise or affirmation given by a contractor to the 
Government regarding the nature, usefulness, or condition of the 
supplies or performance of services furnished under the contract.
    Waste reduction means preventing or decreasing the amount of waste 
being generated through waste prevention, recycling, or purchasing 
recycled and environmentally preferable products.
    Water consumption intensity means water consumption per square foot 
of building space.
    Women-owned small business concern means--
    (1) A small business concern--
    (i) That is at least 51 percent owned by one or more women; or, in 
the case of any publicly owned business, at least 51 percent of the 
stock of which is owned by one or more women; and
    (ii) Whose management and daily business operations are controlled 
by one or more women; or
    (2) A small business concern eligible under the Women-Owned Small 
Business Program in accordance with 13 CFR part 127 (see subpart 19.15).
    Women-Owned Small Business (WOSB) Program. (1) Women-Owned Small 
Business Program (WOSB Program) means a program that authorizes 
contracting officers to limit competition to--
    (i) Eligible economically disadvantaged women-owned small business 
concerns for Federal contracts assigned a North American Industry 
Classification Systems (NAICS) code in an industry in which the Small 
Business Administration (SBA) has determined that WOSB concerns are 
underrepresented in Federal procurement; and
    (ii) Eligible WOSB concerns eligible under the WOSB Program for 
Federal contracts assigned a NAICS code in an industry in which SBA has 
determined that WOSB concerns are substantially underrepresented.
    (2) Economically disadvantaged women-owned small business (EDWOSB) 
concern means a small business concern that is at least 51 percent 
directly and unconditionally owned by, and the management and daily 
business operations of which are controlled by, one or more women who 
are citizens of the United States and who are economically disadvantaged 
in accordance with 13 CFR part 127. It automatically qualifies as a 
women-owned small business concern eligible under the WOSB Program.
    (3) Women-owned small business (WOSB) concern eligible under the 
WOSB Program means a small business concern that is at least 51 percent 
directly and unconditionally owned by, and the management and daily 
business operations of which are controlled by, one or more women who 
are citizens of the United States (13 CFR part 127).
    Writing or written (see ``in writing'').

[66 FR 2118, Jan. 10, 2001]

    Editorial Note: For Federal Register citations affectingSec. 
2.101, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.fdsys.gov.

[[Page 45]]

                     Subpart 2.2_Definitions Clause



Sec. 2.201  Contract clause.

    Insert the clause at 52.202-1, Definitions, in solicitations and 
contracts that exceed the simplified acquisition threshold.

[69 FR 34228, June 18, 2004]

  PART 3_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

Sec.

Sec. 3.000 Scope of part.

                         Subpart 3.1_Safeguards


Sec. 3.101 Standards of conduct.

Sec. 3.101-1 General.

Sec. 3.101-2 Solicitation and acceptance of gratuities by Government 
          personnel.

Sec. 3.101-3 Agency regulations.

Sec. 3.102 [Reserved]

Sec. 3.103 Independent pricing.

Sec. 3.103-1 Solicitation provision.

Sec. 3.103-2 Evaluating the certification.

Sec. 3.103-3 The need for further certifications.

Sec. 3.104 Procurement integrity.

Sec. 3.104-1 Definitions.

Sec. 3.104-2 General.

Sec. 3.104-3 Statutory and related prohibitions, restrictions, and 
          requirements.

Sec. 3.104-4 Disclosure, protection, and marking of contractor bid or 
          proposal information and source selection information.

Sec. 3.104-5 Disqualification.

Sec. 3.104-6 Ethics advisory opinions regarding prohibitions on a former 
          official's acceptance of compensation from a contractor.

Sec. 3.104-7 Violations or possible violations.

Sec. 3.104-8 Criminal and civil penalties, and further administrative 
          remedies.

Sec. 3.104-9 Contract clauses.

        Subpart 3.2_Contractor Gratuities to Government Personnel


Sec. 3.201 Applicability.

Sec. 3.202 Contract clause.

Sec. 3.203 Reporting suspected violations of the Gratuities clause.

Sec. 3.204 Treatment of violations.

          Subpart 3.3_Reports of Suspected Antitrust Violations


Sec. 3.301 General.

Sec. 3.302 Definitions.

Sec. 3.303 Reporting suspected antitrust violations.

                       Subpart 3.4_Contingent Fees


Sec. 3.400 Scope of subpart.

Sec. 3.401 Definitions.

Sec. 3.402 Statutory requirements.

Sec. 3.403 Applicability.

Sec. 3.404 Contract clause.

Sec. 3.405 Misrepresentations or violations of the Covenant Against 
          Contingent Fees.

Sec. 3.406 Records.

              Subpart 3.5_Other Improper Business Practices


Sec. 3.501 Buying-in.

Sec. 3.501-1 Definition.

Sec. 3.501-2 General.

Sec. 3.502 Subcontractor kickbacks.

Sec. 3.502-1 Definitions.

Sec. 3.502-2 Subcontractor kickbacks.

Sec. 3.502-3 Contract clause.

Sec. 3.503 Unreasonable restrictions on subcontractor sales.

Sec. 3.503-1 Policy.

Sec. 3.503-2 Contract clause.

 Subpart 3.6_Contracts With Government Employees or Organizations Owned 
                          or Controlled by Them


Sec. 3.601 Policy.

Sec. 3.602 Exceptions.

Sec. 3.603 Responsibilities of the contracting officer.

              Subpart 3.7_Voiding and Rescinding Contracts


Sec. 3.700 Scope of subpart.

Sec. 3.701 Purpose.

Sec. 3.702 Definition.

Sec. 3.703 Authority.

Sec. 3.704 Policy.

Sec. 3.705 Procedures.

  Subpart 3.8_Limitation on the Payment of Funds To Influence Federal 
                              Transactions


Sec. 3.800 Scope of subpart.

Sec. 3.801 Definitions.

Sec. 3.802 Statutory prohibition and requirement.

Sec. 3.803 Exceptions.

Sec. 3.804 Policy.

Sec. 3.805 Exemption.

Sec. 3.806 Processing suspected violations.

Sec. 3.807 Civil penalties.

Sec. 3.808 Solicitation provision and contract clause.

     Subpart 3.9_Whistleblower Protections for Contractor Employees


Sec. 3.900 Scope of subpart.

Sec. 3.901 Definitions.

Sec. 3.902 [Reserved]

Sec. 3.903 Policy.

[[Page 46]]


Sec. 3.904 Procedures for filing complaints.

Sec. 3.905 Procedures for investigating complaints.

Sec. 3.906 Remedies.

Sec. 3.907 Whistleblower Protections Under the American Recovery and 
          Reinvestment Act of 2009 (the Recovery Act).

Sec. 3.907-1 Definitions.

Sec. 3.907-2 Policy.

Sec. 3.907-3 Procedures for filing complaints.

Sec. 3.907-4 Procedures for investigating complaints.

Sec. 3.907-5 Access to investigative file of Inspector General.

Sec. 3.907-6 Remedies and enforcement authority.

Sec. 3.907-7 Contract clause.

Sec. 3.908 Pilot program for enhancement of contractor employee 
          whistleblower protections

Sec. 3.908-1 Scope of section.

Sec. 3.908-2 Definitions.

Sec. 3.908-3 Policy.

Sec. 3.908-4 Filing complaints.

Sec. 3.908-5 Procedures for investigating complaints.

Sec. 3.908-6 Statutory remedies.

Sec. 3.908-7 Enforcement of orders.

Sec. 3.908-8 Classified information.

Sec. 3.908-9 Contract clause.

       Subpart 3.10_Contractor Code of Business Ethics and Conduct


Sec. 3.1000 Scope of subpart.

Sec. 3.1001 Definitions.

Sec. 3.1002 Policy.

Sec. 3.1003 Requirements.

Sec. 3.1004 Contract clauses.

 Subpart 3.11_Preventing Personal Conflicts of Interest for Contractor 
               Employees Performing Acquisition Functions


Sec. 3.1100 Scope of subpart.

Sec. 3.1101 Definitions.

Sec. 3.1102 Policy.

Sec. 3.1103 Procedures.

Sec. 3.1104 Mitigation or waiver.

Sec. 3.1105 Violations.

Sec. 3.1106 Contract clause.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 
20113.

    Source: 48 FR 42108, Sept. 19, 1983, unless otherwise noted.



Sec. 3.000  Scope of part.

    This part prescribes policies and procedures for avoiding improper 
business practices and personal conflicts of interest and for dealing 
with their apparent or actual occurrence.

                         Subpart 3.1_Safeguards



Sec. 3.101  Standards of conduct.



Sec. 3.101-1  General.

    Government business shall be conducted in a manner above reproach 
and, except as authorized by statute or regulation, with complete 
impartiality and with preferential treatment for none. Transactions 
relating to the expenditure of public funds require the highest degree 
of public trust and an impeccable standard of conduct. The general rule 
is to avoid strictly any conflict of interest or even the appearance of 
a conflict of interest in Government-contractor relationships. While 
many Federal laws and regulations place restrictions on the actions of 
Government personnel, their official conduct must, in addition, be such 
that they would have no reluctance to make a full public disclosure of 
their actions.



Sec. 3.101-2  Solicitation and acceptance of gratuities by Government 
          personnel.

    As a rule, no Government employee may solicit or accept, directly or 
indirectly, any gratuity, gift, favor, entertainment, loan, or anything 
of monetary value from anyone who (a) has or is seeking to btain 
Government business with the employee's agency, (b) conducts activities 
that are regulated by the employee's agency, or (c) has interests that 
may be substantially affected by the performance or nonperformance of 
the employee's official duties. Certain limited exceptions are 
authorized in agency regulations.



Sec. 3.101-3  Agency regulations.

    (a) Agencies are required by Executive Order 11222 of May 8, 1965, 
and 5 CFR part 735 to prescribe Standards of Conduct. These agency 
standards contain--
    (1) Agency-authorized exceptions to 3.101-2; and
    (2) Disciplinary measures for persons violating the standards of 
conduct.

[[Page 47]]

    (b) Requirements for employee financial disclosure and restrictions 
on private employment for former Government employees are in Office of 
Personnel Management and agency regulations implementing Public Law 95-
521, which amended 18 U.S.C. 207.



Sec. 3.102  [Reserved]



Sec. 3.103  Independent pricing.



Sec. 3.103-1  Solicitation provision.

    The contracting officer shall insert the provision at 52.203-2, 
Certificate of Independent Price Determination, in solicitations when a 
firm-fixed-price contract or fixed-price contract with economic price 
adjustment is contemplated, unless--
    (a) The acquisition is to be made under the simplified acquisition 
procedures in part 13;
    (b) [Reserved]
    (c) The solicitation is a request for technical proposals under two-
step sealed bidding procedures; or
    (d) The solicitation is for utility services for which rates are set 
by law or regulation.

[48 FR 42108, Sept. 19, 1983, as amended at 50 FR 1727, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 55 FR 25526, June 21, 1990; 60 FR 34744, 
July 3, 1995]



Sec. 3.103-2  Evaluating the certification.

    (a) Evaluation guidelines. (1) None of the following, in and of 
itself, constitutes disclosure as it is used in subparagraph (a)(2) of 
the Certificate of Independent Price Determination (hereafter, the 
certificate):
    (i) The fact that a firm has published price lists, rates, or 
tariffs covering items being acquired by the Government.
    (ii) The fact that a firm has informed prospective customers of 
proposed or pending publication of new or revised price lists for items 
being acquired by the Government.
    (iii) The fact that a firm has sold the same items to commercial 
customers at the same prices being offered to the Government.
    (2) For the purpose of subparagraph (b)(2) of the certificate, an 
individual may use a blanket authorization to act as an agent for the 
person(s) responsible for determining the offered prices if--
    (i) The proposed contract to which the certificate applies is 
clearly within the scope of the authorization; and
    (ii) The person giving the authorization is the person within the 
offeror's organization who is responsible for determining the prices 
being offered at the time the certification is made in the particular 
offer.
    (3) If an offer is submitted jointly by two or more concerns, the 
certification provided by the representative of each concern applies 
only to the activities of that concern.
    (b) Rejection of offers suspected of being collusive. (1) If the 
offeror deleted or modified subparagraph (a)(1) or (a)(3) or paragraph 
(b) of the certificate, the contracting officer shall reject the 
offeror's bid or proposal.
    (2) If the offeror deleted or modified subparagraph (a)(2) of the 
certificate, the offeror must have furnished with its offer a signed 
statement of the circumstances of the disclosure of prices contained in 
the bid or proposal. The chief of the contracting office shall review 
the altered certificate and the statement and shall determine, in 
writing, whether the disclosure was made for the purpose or had the 
effect of restricting competition. If the determination is positive, the 
bid or proposal shall be rejected; if it is negative, the bid or 
proposal shall be considered for award.
    (3) Whenever an offer is rejected under subparagraph (1) or (2) 
above, or the certificate is suspected of being false, the contracting 
officer shall report the situation to the Attorney General in accordance 
with 3.303.
    (4) The determination made under subparagraph (2) above shall not 
prevent or inhibit the prosecution of any criminal or civil actions 
involving the occurrences or transactions to which the certificate 
relates.

[48 FR 42108, Sept. 19, 1983, as amended at 55 FR 25526, June 21, 1990]



Sec. 3.103-3  The need for further certifications.

    A contractor that properly executed the certificate before award 
does not have to submit a separate certificate with each proposal to 
perform a work

[[Page 48]]

order or similar ordering instrument issued pursuant to the terms of the 
contract, where the Government's requirements cannot be met from another 
source.



Sec. 3.104  Procurement integrity.



Sec. 3.104-1  Definitions.

    As used in this section--
    Agency ethics official means the designated agency ethics official 
described in 5 CFR 2638.201 or other designated person, including--
    (1) Deputy ethics officials described in 5 CFR 2638.204, to whom 
authority under 3.104-6 has been delegated by the designated agency 
ethics official; and
    (2) Alternate designated agency ethics officials described in 5 CFR 
2638.202(b).
    Compensation means wages, salaries, honoraria, commissions, 
professional fees, and any other form of compensation, provided directly 
or indirectly for services rendered. Compensation is indirectly provided 
if it is paid to an entity other than the individual, specifically in 
exchange for services provided by the individual.
    Contractor bid or proposal information means any of the following 
information submitted to a Federal agency as part of or in connection 
with a bid or proposal to enter into a Federal agency procurement 
contract, if that information has not been previously made available to 
the public or disclosed publicly:
    (1) Cost or pricing data (as defined by 10 U.S.C. 2306a(h)) with 
respect to procurements subject to that section, and section 304A(h) of 
the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 
254b(h)), with respect to procurements subject to that section.
    (2) Indirect costs and direct labor rates.
    (3) Proprietary information about manufacturing processes, 
operations, or techniques marked by the contractor in accordance with 
applicable law or regulation.
    (4) Information marked by the contractor as ``contractor bid or 
proposal information'' in accordance with applicable law or regulation.
    (5) Information marked in accordance with 52.215-1(e).
    Decision to award a subcontract or modification of subcontract means 
a decision to designate award to a particular source.
    Federal agency procurement means the acquisition (by using 
competitive procedures and awarding a contract) of goods or services 
(including construction) from non-Federal sources by a Federal agency 
using appropriated funds. For broad agency announcements and small 
business innovation research programs, each proposal received by an 
agency constitutes a separate procurement for purposes of the Act.
    In excess of $10,000,000 means--
    (1) The value, or estimated value, at the time of award, of the 
contract, including all options;
    (2) The total estimated value at the time of award of all orders 
under an indefinite-delivery, indefinite-quantity, or requirements 
contract;
    (3) Any multiple award schedule contract, unless the contracting 
officer documents a lower estimate;
    (4) The value of a delivery order, task order, or an order under a 
Basic Ordering Agreement;
    (5) The amount paid or to be paid in settlement of a claim; or
    (6) The estimated monetary value of negotiated overhead or other 
rates when applied to the Government portion of the applicable 
allocation base.
    Official means--
    (1) An officer, as defined in 5 U.S.C. 2104;
    (2) An employee, as defined in 5 U.S.C. 2105;
    (3) A member of the uniformed services, as defined in 5 U.S.C. 
2101(3); or
    (4) A special Government employee, as defined in 18 U.S.C. 202.
    Participating personally and substantially in a Federal agency 
procurement means--
    (1) Active and significant involvement of an official in any of the 
following activities directly related to that procurement:
    (i) Drafting, reviewing, or approving the specification or statement 
of work for the procurement.
    (ii) Preparing or developing the solicitation.
    (iii) Evaluating bids or proposals, or selecting a source.

[[Page 49]]

    (iv) Negotiating price or terms and conditions of the contract.
    (v) Reviewing and approving the award of the contract.
    (2) Participating personally means participating directly, and 
includes the direct and active supervision of a subordinate's 
participation in the matter.
    (3) Participating substantially means that the official's 
involvement is of significance to the matter. Substantial participation 
requires more than official responsibility, knowledge, perfunctory 
involvement, or involvement on an administrative or peripheral issue. 
Participation may be substantial even though it is not determinative of 
the outcome of a particular matter. A finding of substantiality should 
be based not only on the effort devoted to a matter, but on the 
importance of the effort. While a series of peripheral involvements may 
be insubstantial, the single act of approving or participating in a 
critical step may be substantial. However, the review of procurement 
documents solely to determine compliance with regulatory, 
administrative, or budgetary procedures, does not constitute substantial 
participation in a procurement.
    (4) Generally, an official will not be considered to have 
participated personally and substantially in a procurement solely by 
participating in the following activities:
    (i) Agency-level boards, panels, or other advisory committees that 
review program milestones or evaluate and make recommendations regarding 
alternative technologies or approaches for satisfying broad agency-level 
missions or objectives.
    (ii) The performance of general, technical, engineering, or 
scientific effort having broad application not directly associated with 
a particular procurement, notwithstanding that such general, technical, 
engineering, or scientific effort subsequently may be incorporated into 
a particular procurement.
    (iii) Clerical functions supporting the conduct of a particular 
procurement.
    (iv) For procurements to be conducted under the procedures of OMB 
Circular A-76, participation in management studies, preparation of in-
house cost estimates, preparation of ``most efficient organization'' 
analyses, and furnishing of data or technical support to be used by 
others in the development of performance standards, statements of work, 
or specifications.
    Source selection evaluation board means any board, team, council, or 
other group that evaluates bids or proposals.

[67 FR 13059, Mar. 20, 2002, as amended at 75 FR 77745, Dec. 13, 2010]



Sec. 3.104-2  General.

    (a) This section implements section 27 of the Office of Federal 
Procurement Policy Act (the Procurement Integrity Act) (41 U.S.C. 423) 
referred to as ``the Act''). Agency supplementation of 3.104, including 
specific definitions to identify individuals who occupy positions 
specified in 3.104-3(d)(1)(ii), and any clauses required by 3.104 must 
be approved by the senior procurement executive of the agency, unless a 
law establishes a higher level of approval for that agency.
    (b) Agency officials are reminded that there are other statutes and 
regulations that deal with the same or related prohibited conduct, for 
example--
    (1) The offer or acceptance of a bribe or gratuity is prohibited by 
18 U.S.C. 201 and 10 U.S.C. 2207. The acceptance of a gift, under 
certain circumstances, is prohibited by 5 U.S.C. 7353 and 5 CFR part 
2635;
    (2) Contacts with an offeror during the conduct of an acquisition 
may constitute ``seeking employment,''(see subpart F of 5 CFR part 2636 
and 3.104-3(c)(2)). Government officers and employees (employees) are 
prohibited by 18 U.S.C. 208 and 5 CFR part 2635 from participating 
personally and substantially in any particular matter that would affect 
the financial interests of any person with whom the employee is seeking 
employment. An employee who engages in negotiations or is otherwise 
seeking employment with an offeror or who has an arrangement concerning 
future employment with an offeror must comply with the applicable 
disqualification requirements of 5 CFR 2635.604 and 2635.606. The 
statutory prohibition in 18 U.S.C. 208 also may require an employee's 
disqualification from participation in the acquisition even if the

[[Page 50]]

employee's duties may not be considered ``participating personally and 
substantially,'' as this term is defined in 3.104-1;
    (3) Post-employment restrictions are covered by 18 U.S.C. 207 and 5 
CFR parts 2637 and 2641, that prohibit certain activities by former 
Government employees, including representation of a contractor before 
the Government in relation to any contract or other particular matter 
involving specific parties on which the former employee participated 
personally and substantially while employed by the Government. 
Additional restrictions apply to certain senior Government employees and 
for particular matters under an employee's official responsibility;
    (4) Parts 14 and 15 place restrictions on the release of information 
related to procurements and other contractor information that must be 
protected under 18 U.S.C. 1905;
    (5) Release of information both before and after award (see 3.104-4) 
may be prohibited by the Privacy Act (5 U.S.C. 552a), the Trade Secrets 
Act (18 U.S.C. 1905), and other laws; and
    (6) Using nonpublic information to further an employee's private 
interest or that of another and engaging in a financial transaction 
using nonpublic information are prohibited by 5 CFR 2635.703.

[67 FR 13059, Mar. 20, 2002]



Sec. 3.104-3  Statutory and related prohibitions, restrictions, and 
          requirements.

    (a) Prohibition on disclosing procurement information (subsection 
27(a) of the Act). (1) A person described in paragraph (a)(2) of this 
subsection must not, other than as provided by law, knowingly disclose 
contractor bid or proposal information or source selection information 
before the award of a Federal agency procurement contract to which the 
information relates. (See 3.104-4(a).)
    (2) Paragraph (a)(1) of this subsection applies to any person who--
    (i) Is a present or former official of the United States, or a 
person who is acting or has acted for or on behalf of, or who is 
advising or has advised the United States with respect to, a Federal 
agency procurement; and
    (ii) By virtue of that office, employment, or relationship, has or 
had access to contractor bid or proposal information or source selection 
information.
    (b) Prohibition on obtaining procurement information (subsection 
27(b) of the Act). A person must not, other than as provided by law, 
knowingly obtain contractor bid or proposal information or source 
selection information before the award of a Federal agency procurement 
contract to which the information relates.
    (c) Actions required when an agency official contacts or is 
contacted by an offeror regarding non-Federal employment (subsection 
27(c) of the Act). (1) If an agency official, participating personally 
and substantially in a Federal agency procurement for a contract in 
excess of the simplified acquisition threshold, contacts or is contacted 
by a person who is an offeror in that Federal agency procurement 
regarding possible non-Federal employment for that official, the 
official must--
    (i) Promptly report the contact in writing to the official's 
supervisor and to the agency ethics official; and
    (ii) Either reject the possibility of non-Federal employment or 
disqualify himself or herself from further personal and substantial 
participation in that Federal agency procurement (see 3.104-5) until 
such time as the agency authorizes the official to resume participation 
in that procurement, in accordance with the requirements of 18 U.S.C. 
208 and applicable agency regulations, because--
    (A) The person is no longer an offeror in that Federal agency 
procurement; or
    (B) All discussions with the offeror regarding possible non-Federal 
employment have terminated without an agreement or arrangement for 
employment.
    (2) A contact is any of the actions included as ``seeking 
employment'' in 5 CFR 2635.603(b). In addition, unsolicited 
communications from offerors regarding possible employment are 
considered contacts.
    (3) Agencies must retain reports of employment contacts for 2 years 
from the date the report was submitted.

[[Page 51]]

    (4) Conduct that complies with subsection 27(c) of the Act may be 
prohibited by other criminal statutes and the Standards of Ethical 
Conduct for Employees of the Executive Branch. See 3.104-2(b)(2).
    (d) Prohibition on former official's acceptance of compensation from 
a contractor (subsection 27(d) of the Act). (1) A former official of a 
Federal agency may not accept compensation from a contractor that has 
been awarded a competitive or sole source contract, as an employee, 
officer, director, or consultant of the contractor within a period of 1 
year after such former official--
    (i) Served, at the time of selection of the contractor or the award 
of a contract to that contractor, as the procuring contracting officer, 
the source selection authority, a member of a source selection 
evaluation board, or the chief of a financial or technical evaluation 
team in a procurement in which that contractor was selected for award of 
a contract in excess of $10,000,000;
    (ii) Served as the program manager, deputy program manager, or 
administrative contracting officer for a contract in excess of 
$10,000,000 awarded to that contractor; or
    (iii) Personally made for the Federal agency a decision to--
    (A) Award a contract, subcontract, modification of a contract or 
subcontract, or a task order or delivery order in excess of $10,000,000 
to that contractor;
    (B) Establish overhead or other rates applicable to a contract or 
contracts for that contractor that are valued in excess of $10,000,000;
    (C) Approve issuance of a contract payment or payments in excess of 
$10,000,000 to that contractor; or
    (D) Pay or settle a claim in excess of $10,000,000 with that 
contractor.
    (2) The 1-year prohibition begins on the date--
    (i) Of contract award for positions described in paragraph (d)(1)(i) 
of this subsection, or the date of contractor selection if the official 
was not serving in the position on the date of award;
    (ii) The official last served in one of the positions described in 
paragraph (d)(1)(ii) of this subsection; or
    (iii) The official made one of the decisions described in paragraph 
(d)(1)(iii) of this subsection.
    (3) Nothing in paragraph (d)(1) of this subsection may be construed 
to prohibit a former official of a Federal agency from accepting 
compensation from any division or affiliate of a contractor that does 
not produce the same or similar products or services as the entity of 
the contractor that is responsible for the contract referred to in 
paragraph (d)(1) of this subsection.

[67 FR 13059, Mar. 20, 2002]



Sec. 3.104-4  Disclosure, protection, and marking of contractor bid or 
          proposal information and source selection information.

    (a) Except as specifically provided for in this subsection, no 
person or other entity may disclose contractor bid or proposal 
information or source selection information to any person other than a 
person authorized, in accordance with applicable agency regulations or 
procedures, by the agency head or the contracting officer to receive 
such information.
    (b) Contractor bid or proposal information and source selection 
information must be protected from unauthorized disclosure in accordance 
with 14.401, 15.207, applicable law, and agency regulations.
    (c) Individuals unsure if particular information is source selection 
information, as defined in 2.101, should consult with agency officials 
as necessary. Individuals responsible for preparing material that may be 
source selection information as described at paragraph (10) of the 
``source selection information'' definition in 2.101 must mark the cover 
page and each page that the individual believes contains source 
selection information with the legend ``Source Selection Information--
See FAR 2.101 and 3.104.'' Although the information in paragraphs (1) 
through (9) of the definition in 2.101 is considered to be source 
selection information whether or not marked, all reasonable efforts must 
be made to mark such material with the same legend.

[[Page 52]]

    (d) Except as provided in paragraph (d)(3) of this subsection, the 
contracting officer must notify the contractor in writing if the 
contracting officer believes that proprietary information, contractor 
bid or proposal information, or information marked in accordance with 
52.215-1(e) has been inappropriately marked. The contractor that has 
affixed the marking must be given an opportunity to justify the marking.
    (1) If the contractor agrees that the marking is not justified, or 
does not respond within the time specified in the notice, the 
contracting officer may remove the marking and release the information.
    (2) If, after reviewing the contractor's justification, the 
contracting officer determines that the marking is not justified, the 
contracting officer must notify the contractor in writing before 
releasing the information.
    (3) For technical data marked as proprietary by a contractor, the 
contracting officer must follow the procedures in 27.404-5.
    (e) This section does not restrict or prohibit--
    (1) A contractor from disclosing its own bid or proposal information 
or the recipient from receiving that information;
    (2) The disclosure or receipt of information, not otherwise 
protected, relating to a Federal agency procurement after it has been 
canceled by the Federal agency, before contract award, unless the 
Federal agency plans to resume the procurement;
    (3) Individual meetings between a Federal agency official and an 
offeror or potential offeror for, or a recipient of, a contract or 
subcontract under a Federal agency procurement, provided that 
unauthorized disclosure or receipt of contractor bid or proposal 
information or source selection information does not occur; or
    (4) The Government's use of technical data in a manner consistent 
with the Government's rights in the data.
    (f) This section does not authorize--
    (1) The withholding of any information pursuant to a proper request 
from the Congress, any committee or subcommittee thereof, a Federal 
agency, the Comptroller General, or an Inspector General of a Federal 
agency, except as otherwise authorized by law or regulation. Any release 
containing contractor bid or proposal information or source selection 
information must clearly identify the information as contractor bid or 
proposal information or source selection information related to the 
conduct of a Federal agency procurement and notify the recipient that 
the disclosure of the information is restricted by section 27 of the 
Act;
    (2) The withholding of information from, or restricting its receipt 
by, the Comptroller General in the course of a protest against the award 
or proposed award of a Federal agency procurement contract;
    (3) The release of information after award of a contract or 
cancellation of a procurement if such information is contractor bid or 
proposal information or source selection information that pertains to 
another procurement; or
    (4) The disclosure, solicitation, or receipt of bid or proposal 
information or source selection information after award if disclosure, 
solicitation, or receipt is prohibited by law. (See 3.104-2(b)(5) and 
subpart 24.2.)

[67 FR 13059, Mar. 20, 2002, as amended at 72 FR 63049, Nov. 7, 2007]



Sec. 3.104-5  Disqualification.

    (a) Contacts through agents or other intermediaries. Employment 
contacts between the employee and the offeror, that are conducted 
through agents, or other intermediaries, may require disqualification 
under 3.104-3(c)(1). These contacts may also require disqualification 
under other statutes and regulations. (See 3.104-2(b)(2).)
    (b) Disqualification notice. In addition to submitting the contact 
report required by 3.104-3(c)(1), an agency official who must disqualify 
himself or herself pursuant to 3.104-3(c)(1)(ii) must promptly submit 
written notice of disqualification from further participation in the 
procurement to the contracting officer, the source selection authority 
if other than the contracting officer, and the agency official's 
immediate supervisor. As a minimum, the notice must--
    (1) Identify the procurement;

[[Page 53]]

    (2) Describe the nature of the agency official's participation in 
the procurement and specify the approximate dates or time period of 
participation; and
    (3) Identify the offeror and describe its interest in the 
procurement.
    (c) Resumption of participation in a procurement. (1) The official 
must remain disqualified until such time as the agency, at its sole and 
exclusive discretion, authorizes the official to resume participation in 
the procurement in accordance with 3.104-3(c)(1)(ii).
    (2) After the conditions of 3.104-3(c)(1)(ii)(A) or (B) have been 
met, the head of the contracting activity (HCA), after consultation with 
the agency ethics official, may authorize the disqualified official to 
resume participation in the procurement, or may determine that an 
additional disqualification period is necessary to protect the integrity 
of the procurement process. In determining the disqualification period, 
the HCA must consider any factors that create an appearance that the 
disqualified official acted without complete impartiality in the 
procurement. The HCA's reinstatement decision should be in writing.
    (3) Government officer or employee must also comply with the 
provisions of 18 U.S.C. 208 and 5 CFR part 2635 regarding any resumed 
participation in a procurement matter. Government officer or employee 
may not be reinstated to participate in a procurement matter affecting 
the financial interest of someone with whom the individual is seeking 
employment, unless the individual receives--
    (i) A waiver pursuant to 18 U.S.C. 208(b)(1) or (b)(3); or
    (ii) An authorization in accordance with the requirements of subpart 
F of 5 CFR part 2635.

[67 FR 13059, Mar. 20, 2002]



Sec. 3.104-6  Ethics advisory opinions regarding prohibitions on a 
          former official's acceptance of compensation from a 
          contractor.

    (a) An official or former official of a Federal agency who does not 
know whether he or she is or would be precluded by subsection 27(d) of 
the Act (see 3.104-3(d)) from accepting compensation from a particular 
contractor may request advice from the appropriate agency ethics 
official before accepting such compensation.
    (b) The request for an advisory opinion must be in writing, include 
all relevant information reasonably available to the official or former 
official, and be dated and signed. The request must include information 
about the--
    (1) Procurement(s), or decision(s) on matters under 3.104-
3(d)(1)(iii), involving the particular contractor, in which the 
individual was or is involved, including contract or solicitation 
numbers, dates of solicitation or award, a description of the supplies 
or services procured or to be procured, and contract amount;
    (2) Individual's participation in the procurement or decision, 
including the dates or time periods of that participation, and the 
nature of the individual's duties, responsibilities, or actions; and
    (3) Contractor, including a description of the products or services 
produced by the division or affiliate of the contractor from whom the 
individual proposes to accept compensation.
    (c) Within 30 days after receipt of a request containing complete 
information, or as soon thereafter as practicable, the agency ethics 
official should issue an opinion on whether the proposed conduct would 
violate subsection 27(d) of the Act.
    (d)(1) If complete information is not included in the request, the 
agency ethics official may ask the requester to provide more information 
or request information from other persons, including the source 
selection authority, the contracting officer, or the requester's 
immediate supervisor.
    (2) In issuing an opinion, the agency ethics official may rely upon 
the accuracy of information furnished by the requester or other agency 
sources, unless he or she has reason to believe that the information is 
fraudulent, misleading, or otherwise incorrect.
    (3) If the requester is advised in a written opinion by the agency 
ethics official that the requester may accept compensation from a 
particular contractor, and accepts such compensation in good faith 
reliance on that advisory opinion, then neither the requester nor the 
contractor will be found to have knowingly violated subsection 27(d) of

[[Page 54]]

the Act. If the requester or the contractor has actual knowledge or 
reason to believe that the opinion is based upon fraudulent, misleading, 
or otherwise incorrect information, their reliance upon the opinion will 
not be deemed to be in good faith.

[67 FR 13059, Mar. 20, 2002]



Sec. 3.104-7  Violations or possible violations.

    (a) A contracting officer who receives or obtains information of a 
violation or possible violation of subsection 27(a), (b), (c), or (d) of 
the Act (see 3.104-3) must determine if the reported violation or 
possible violation has any impact on the pending award or selection of 
the contractor.
    (1) If the contracting officer concludes that there is no impact on 
the procurement, the contracting officer must forward the information 
concerning the violation or possible violation and documentation 
supporting a determination that there is no impact on the procurement to 
an individual designated in accordance with agency procedures.
    (i) If that individual concurs, the contracting officer may proceed 
with the procurement.
    (ii) If that individual does not concur, the individual must 
promptly forward the information and documentation to the HCA and advise 
the contracting officer to withhold award.
    (2) If the contracting officer concludes that the violation or 
possible violation impacts the procurement, the contracting officer must 
promptly forward the information to the HCA.
    (b) The HCA must review all information available and, in accordance 
with agency procedures, take appropriate action, such as--
    (1) Advise the contracting officer to continue with the procurement;
    (2) Begin an investigation;
    (3) Refer the information disclosed to appropriate criminal 
investigative agencies;
    (4) Conclude that a violation occurred; or
    (5) Recommend that the agency head determine that the contractor, or 
someone acting for the contractor, has engaged in conduct constituting 
an offense punishable under subsection 27(e) of the Act, for the purpose 
of voiding or rescinding the contract.
    (c) Before concluding that an offeror, contractor, or person has 
violated the Act, the HCA may consider that the interests of the 
Government are best served by requesting information from appropriate 
parties regarding the violation or possible violation.
    (d) If the HCA concludes that section 27 of the Act has been 
violated, the HCA may direct the contracting officer to--
    (1) If a contract has not been awarded--
    (i) Cancel the procurement;
    (ii) Disqualify an offeror; or
    (iii) Take any other appropriate actions in the interests of the 
Government.
    (2) If a contract has been awarded--
    (i) Effect appropriate contractual remedies, including profit 
recapture under the clause at 52.203-10, Price or Fee Adjustment for 
Illegal or Improper Activity, or, if the contract has been rescinded 
under paragraph (d)(2)(ii) of this subsection, recovery of the amount 
expended under the contract;
    (ii) Void or rescind the contract with respect to which--
    (A) The contractor or someone acting for the contractor has been 
convicted for an offense where the conduct constitutes a violation of 
subsection 27(a) or (b) of the Act for the purpose of either--
    (1) Exchanging the information covered by the subsections for 
anything of value; or
    (2) Obtaining or giving anyone a competitive advantage in the award 
of a Federal agency procurement contract; or
    (B) The agency head has determined, based upon a preponderance of 
the evidence, that the contractor or someone acting for the contractor 
has engaged in conduct constituting an offense punishable under 
subsection 27(e)(1) of the Act; or
    (iii) Take any other appropriate actions in the best interests of 
the Government.
    (3) Refer the matter to the agency suspending or debarring official.
    (e) The HCA should recommend or direct an administrative or 
contractual

[[Page 55]]

remedy commensurate with the severity and effect of the violation.
    (f) If the HCA determines that urgent and compelling circumstances 
justify an award, or award is otherwise in the interests of the 
Government, the HCA, in accordance with agency procedures, may authorize 
the contracting officer to award the contract or execute the contract 
modification after notifying the agency head.
    (g) The HCA may delegate his or her authority under this subsection 
to an individual at least one organizational level above the contracting 
officer and of General Officer, Flag, Senior Executive Service, or 
equivalent rank.

[67 FR 13059, Mar. 20, 2002]



Sec. 3.104-8  Criminal and civil penalties, and further administrative 
          remedies.

    Criminal and civil penalties, and administrative remedies, may apply 
to conduct that violates the Act (see 3.104-3). See 33.102(f) for 
special rules regarding bid protests. See 3.104-7 for administrative 
remedies relating to contracts.
    (a) An official who knowingly fails to comply with the requirements 
of 3.104-3 is subject to the penalties and administrative action set 
forth in subsection 27(e) of the Act.
    (b) An offeror who engages in employment discussion with an official 
subject to the restrictions of 3.104-3, knowing that the official has 
not complied with 3.104-3(c)(1), is subject to the criminal, civil, or 
administrative penalties set forth in subsection 27(e) of the Act.
    (c) An official who refuses to terminate employment discussions (see 
3.104-5) may be subject to agency administrative actions under 5 CFR 
2635.604(d) if the official's disqualification from participation in a 
particular procurement interferes substantially with the individual's 
ability to perform assigned duties.

[67 FR 13059, Mar. 20, 2002]



Sec. 3.104-9  Contract clauses.

    In solicitations and contracts for other than commercial items that 
exceed the simplified acquisition threshold, insert the clauses at--
    (a) 52.203-8, Cancellation, Rescission, and Recovery of Funds for 
Illegal or Improper Activity; and
    (b) 52.203-10, Price or Fee Adjustment for Illegal or Improper 
Activity.

[67 FR 13059, Mar. 20, 2002]

        Subpart 3.2_Contractor Gratuities to Government Personnel



Sec. 3.201  Applicability.

    This subpart applies to all executive agencies, except that coverage 
concerning exemplary damages applies only to the Department of Defense 
(10 U.S.C. 2207).



Sec. 3.202  Contract clause.

    The contracting officer shall insert the clause at 52.203-3, 
Gratuities, in solicitations and contracts with a value exceeding the 
simplified acquisition threshold, except those for personal services and 
those between military departments or defense agencies and foreign 
governments that do not obligate any funds appropriated to the 
Department of Defense.

[61 FR 39200, July 26, 1996]



Sec. 3.203  Reporting suspected violations of the Gratuities clause.

    Agency personnel shall report suspected violations of the Gratuities 
clause to the contracting officer or other designated official in 
accordance with agency procedures. The agency reporting procedures shall 
be published as an implementation of this section 3.203 and shall 
clearly specify--
    (a) What to report and how to report it; and
    (b) The channels through which reports must pass, including the 
function and authority of each official designated to review them.



Sec. 3.204  Treatment of violations.

    (a) Before taking any action against a contractor, the agency head 
or a designee shall determine, after notice and hearing under agency 
procedures, whether the contractor, its agent, or another 
representative, under a contract containing the Gratuities clause--

[[Page 56]]

    (1) Offered or gave a gratuity (e.g., an entertainment or gift) to 
an officer, official, or employee of the Government; and
    (2) Intended by the gratuity to obtain a contract or favorable 
treatment under a contract (intent generally must be inferred).
    (b) Agency procedures shall afford the contractor an opportunity to 
appear with counsel, submit documentary evidence, present witnesses, and 
confront any person the agency presents. The procedures should be as 
informal as practicable, consistent with principles of fundamental 
fairness.
    (c) When the agency head or designee determines that a violation has 
occurred, the Government may--
    (1) Terminate the contractor's right to proceed;
    (2) Initiate debarment or suspension measures as set forth in 
subpart 9.4; and
    (3) Assess exemplary damages, if the contract uses money 
appropriated to the Department of Defense.

          Subpart 3.3_Reports of Suspected Antitrust Violations



Sec. 3.301  General.

    (a) Practices that eliminate competition or restrain trade usually 
lead to excessive prices and may warrant criminal, civil, or 
administrative action against the participants. Examples of 
anticompetitive practices are collusive bidding, follow-the-leader 
pricing, rotated low bids, collusive price estimating systems, and 
sharing of the business.
    (b) Contracting personnel are an important potential source of 
investigative leads for antitrust enforcement and should therefore be 
sensitive to indications of unlawful behavior by offerors and 
contractors. Agency personnel shall report, in accordance with agency 
regulations, evidence of suspected antitrust violations in acquisitions 
for possible referral to (1) the Attorney General under 3.303 and (2) 
the agency office responsible for contractor debarment and suspension 
under subpart 9.4.

[48 FR 42108, Sept. 19, 1983, as amended at 50 FR 1727, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985]



Sec. 3.302  Definitions.

    As used in this subpart--
    Identical bids means bids for the same line item that are determined 
to be identical as to unit price or total line item amount, with or 
without the application of evaluation factors (e.g., discount or 
transportation cost).
    Line item means an item of supply or service, specified in a 
solicitation, that the offeror must separately price.

[49 FR 12974, Mar. 30, 1984, as amended at 66 FR 2127, Jan. 10, 2001; 67 
FR 13055, Mar. 20, 2002]



Sec. 3.303  Reporting suspected antitrust violations.

    (a) Agencies are required by 41 U.S.C. 253b(i) and 10 U.S.C. 
2305(b)(9) to report to the Attorney General any bids or proposals that 
evidence a violation of the antitrust laws. These reports are in 
addition to those required by subpart 9.4.
    (b) The antitrust laws are intended to ensure that markets operate 
competitively. Any agreement or mutual understanding among competing 
firms that restrains the natural operation of market forces is suspect. 
Paragraph (c) below identifies behavior patterns that are often 
associated with antitrust violations. Activities meeting the 
descriptions in paragraph (c) are not necessarily improper, but they are 
sufficiently questionable to warrant notifying the appropriate 
authorities, in accordance with agency procedures.
    (c) Practices or events that may evidence violations of the 
antitrust laws include--
    (1) The existence of an industry price list or price agreement to 
which contractors refer in formulating their offers;
    (2) A sudden change from competitive bidding to identical bidding;
    (3) Simultaneous price increases or follow-the-leader pricing;
    (4) Rotation of bids or proposals, so that each competitor takes a 
turn in sequence as low bidder, or so that certain competitors bid low 
only on some sizes of contracts and high on other sizes;
    (5) Division of the market, so that certain competitors bid low only 
for contracts let by certain agencies, or for contracts in certain 
geographical

[[Page 57]]

areas, or on certain products, and bid high on all other jobs;
    (6) Establishment by competitors of a collusive price estimating 
system;
    (7) The filing of a joint bid by two or more competitors when at 
least one of the competitors has sufficient technical capability and 
productive capacity for contract performance;
    (8) Any incidents suggesting direct collusion among competitors, 
such as the appearance of identical calculation or spelling errors in 
two or more competitive offers or the submission by one firm of offers 
for other firms; and
    (9) Assertions by the employees, former employees, or competitors of 
offerors, that an agreement to restrain trade exists.
    (d) Identical bids shall be reported under this section if the 
agency has some reason to believe that the bids resulted from collusion.
    (e) For offers from foreign contractors for contracts to be 
performed outside the United States and its outlying areas, contracting 
officers may refer suspected collusive offers to the authorities of the 
foreign government concerned for appropriate action.
    (f) Agency reports shall be addressed to the Attorney General, U.S. 
Department of Justice, Washington, DC 20530, Attention: Assistant 
Attorney General, Antitrust Division, and shall include--
    (1) A brief statement describing the suspected practice and the 
reason for the suspicion; and
    (2) The name, address, and telephone number of an individual in the 
agency who can be contacted for further information.
    (g) Questions concerning this reporting requirement may be 
communicated by telephone directly to the Office of the Assistant 
Attorney General, Antitrust Division.

[48 FR 42108, Sept. 19, 1983, as amended at 49 FR 12974, Mar. 30, 1984; 
50 FR 1727, Jan. 11, 1985; 50 FR 52429, Dec. 23, 1985; 55 FR 25526, June 
21, 1990; 65 FR 36030, June 6, 2000; 68 FR 28080, May 22, 2003]

                       Subpart 3.4_Contingent Fees



Sec. 3.400  Scope of subpart.

    This subpart prescribes policies and procedures that restrict 
contingent fee arrangements for soliciting or obtaining Government 
contracts to those permitted by 10 U.S.C. 2306(b) and 41 U.S.C. 254(a).



Sec. 3.401  Definitions.

    As used in this subpart--
    Bona fide agency, means an established commercial or selling agency, 
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, 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, 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, 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.

[48 FR 42108, Sept. 19, 1983, as amended at 66 FR 2127, Jan. 10, 2001]



Sec. 3.402  Statutory requirements.

    Contractors' arrangements to pay contingent fees for soliciting or 
obtaining Government contracts have long been considered contrary to 
public policy because such arrangements may lead to attempted or actual 
exercise of improper influence. In 10 U.S.C. 2306(b) and 41 U.S.C. 
254(a), Congress affirmed this public policy but permitted certain 
exceptions. These statutes--
    (a) Require in every negotiated contract a warranty by the 
contractor against contingent fees;
    (b) Permit, as an exception to the warranty, contingent fee 
arrangements between contractors and bona fide employees or bona fide 
agencies; and

[[Page 58]]

    (c) Provide that, for breach or violation of the warranty by the 
contractor, the Government may annul the contract without liability or 
deduct from the contract price or consideration, or otherwise recover, 
the full amount of the contingent fee.



Sec. 3.403  Applicability.

    This subpart applies to all contracts. Statutory requirements for 
negotiated contracts are, as a matter of policy, extended to sealed bid 
contracts.

[48 FR 42108, Sept. 19, 1983, as amended at 50 FR 1727, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985]



Sec. 3.404  Contract clause.

    The contracting officer shall insert the clause at 52.203-5, 
Covenant Against Contingent Fees, in all solicitations and contracts 
exceeding the simplified acquisition threshold, other than those for 
commercial items (see parts 2 and 12).

[61 FR 39188, July 26, 1996]



Sec. 3.405  Misrepresentations or violations of the Covenant Against 
          Contingent Fees.

    (a) Government personnel who suspect or have evidence of attempted 
or actual exercise of improper influence, misrepresentation of a 
contingent fee arrangement, or other violation of the Covenant Against 
Contingent Fees shall report the matter promptly to the contracting 
officer or appropriate higher authority in accordance with agency 
procedures.
    (b) When there is specific evidence or other reasonable basis to 
suspect one or more of the violations in paragraph (a) above, the chief 
of the contracting office shall review the facts and, if appropriate, 
take or direct one or more of the following, or other, actions:
    (1) If before award, reject the bid or proposal.
    (2) If after award, enforce the Government's right to annul the 
contract or to recover the fee.
    (3) Initiate suspension or debarment action under subpart 9.4.
    (4) Refer suspected fraudulent or criminal matters to the Department 
of Justice, as prescribed in agency regulations.

[48 FR 42108, Sept. 19, 1983. Redesignated at 61 FR 39188, July 26, 
1996]



Sec. 3.406  Records.

    For enforcement purposes, agencies shall preserve any specific 
evidence of one or more of the violations in 3.405(a), together with all 
other pertinent data, including a record of actions taken. Contracting 
offices shall not retire or destroy these records until it is certain 
that they are no longer needed for enforcement purposes. If the original 
record is maintained in a central file, a copy must be retained in the 
contract file.

[48 FR 42108, Sept. 19, 1983. Redesignated and amended at 61 FR 39188, 
July 26, 1996]

              Subpart 3.5_Other Improper Business Practices



Sec. 3.501  Buying-in.



Sec. 3.501-1  Definition.

    Buying-in as used in this section, means submitting an offer below 
anticipated costs, expecting to--
    (1) Increase the contract amount after award (e.g., through 
unnecessary or excessively priced change orders); or
    (2) Receive follow-on contracts at artificially high prices to 
recover losses incurred on the buy-in contract.

[48 FR 42108, Sept. 19, 1983, as amended at 66 FR 2127, Jan. 10, 2001]



Sec. 3.501-2  General.

    (a) Buying-in may decrease competition or result in poor contract 
performance. The contracting officer must take appropriate action to 
ensure buying-in losses are not recovered by the contractor through the 
pricing of (1) change orders or (2) follow-on contracts subject to cost 
analysis.
    (b) The Government should minimize the opportunity for buying-in by 
seeking a price commitment covering as much of the entire program 
concerned as is practical by using--
    (1) Multiyear contracting, with a requirement in the solicitation 
that a price be submitted only for the total multiyear quantity; or

[[Page 59]]

    (2) Priced options for additional quantities that, together with the 
firm contract quantity, equal the program requirements (see subpart 
17.2).
    (c) Other safeguards are available to the contracting officer to 
preclude recovery of buying-in losses (e.g., amortization of 
nonrecurring costs (see 15.408, Table 15-2, paragraph A., column (2) 
under ``Formats for Submission of Line Item Summaries) and treatment of 
unreasonable price quotations (see 15.405).

[48 FR 42108, Sept. 19, 1983, as amended at 62 FR 51270, Sept. 30, 1997]



Sec. 3.502  Subcontractor kickbacks.



Sec. 3.502-1  Definitions.

    As used in this section--
    Kickback, means any money, fee, commission, credit, gift, gratuity, 
thing of value, or compensation of any kind which is provided, directly 
or indirectly, to any prime contractor, prime contractor employee, 
subcontractor, or subcontractor employee for the purpose of improperly 
obtaining or rewarding favorable treatment in connection with a prime 
contract or in connection with a subcontract relating to a prime 
contract.
    Person, means a corporation, partnership, business association of 
any kind, trust, joint-stock company, or individual.
    Prime contract, means a contract or contractual action entered into 
by the United States for the purpose of obtaining supplies, materials, 
equipment, or services of any kind.
    Prime Contractor, means a person who has entered into a prime 
contract with the United States.
    Prime Contractor employee, as used in this section, means any 
officer, partner, employee, or agent of a prime contractor.
    Subcontract, means a contract or contractural action entered into by 
a prime contractor or subcontractor for the purpose of obtaining 
supplies, materials, equipment, or service of any kind under a prime 
contract.
    Subcontractor, (1) means any person, other than the prime 
contractor, who offers to furnish or furnishes any supplies, materials, 
equipment, or services of any kind under a prime contract or a 
subcontract entered into in connection with such prime contract, and (2) 
includes any person who offers to furnish or furnishes general supplies 
to the prime contractor or a higher tier subcontractor.
    Subcontractor employee, as used in this section, means any officer, 
partner, employee, or agent of a subcontractor.

[52 FR 6121, Feb. 27, 1987, as amended at 53 FR 34226, Sept. 2, 1988; 66 
FR 2127, Jan. 10, 2001]

    Editorial Note: At 66 FR 2127, Jan. 10, 2001, as amended at 66 FR 
14260, Mar. 9, 2001, section 3.502-1 was amended by redesignating 
paragraphs (a) and (b) as (1) and (2). There are no designated 
paragraphs (a) and (b) in section 3.502-1.



Sec. 3.502-2  Subcontractor kickbacks.

    The Anti-Kickback Act of 1986 (41 U.S.C. 51-58) was passed to deter 
subcontractors from making payments and contractors from accepting 
payments for the purpose of improperly obtaining or rewarding favorable 
treatment in connection with a prime contract or a subcontract relating 
to a prime contract. The Act--
    (a) Prohibits any person from--
    (1) Providing, attempting to provide, or offering to provide any 
kickback;
    (2) Soliciting, accepting, or attempting to accept any kickbacks; or
    (3) Including, directly or indirectly, the amount of any kickback in 
the contract price charged by a subcontractor to a prime contractor or a 
higher tier subcontractor or in the contract price charged by a prime 
contractor to the United States.
    (b) Imposes criminal penalties on any person who knowingly and 
willfully engages in the prohibited conduct addressed in paragraph (a) 
of this subsection.
    (c) Provides for the recovery of civil penalties by the United 
States from any person who knowingly engages in such prohibited conduct 
and from any person whose employee, subcontractor, or subcontractor 
employee provides, accepts, or charges a kickback.
    (d) Provides that--
    (1) The contracting officer may offset the amount of a kickback 
against monies owed by the United States to the prime contractor under 
the prime contract to which such kickback relates;

[[Page 60]]

    (2) The contracting officer may direct a prime contractor to 
withhold from any sums owed to a subcontract under a subcontractor of 
the prime contract the amount of any kickback which was or may be offset 
against the prime contractor under subparagraph (d)(1) of this 
subsection; and
    (3) An offset under subparagraph (d)(1) or a direction under 
subparagraph (d)(2) of this subsection is a claim by the Government for 
the purposes of the Contract Disputes Act of 1978.
    (e) Authorizes contracting officers to order that sums withheld 
under subparagraph (d)(2) of this subsection be paid to the contracting 
agency, or if the sum has already been offset against the prime 
contractor, that it be retained by the prime contractor.
    (f) Requires the prime contractor to notify the contracting officer 
when the withholding under subparagraph (d)(2) of this subsection has 
been accomplished unless the amount withheld has been paid to the 
Government.
    (g) Requires a prime contractor or subcontractor to report in 
writing to the inspector general of the contracting agency, the head of 
the contracting agency if the agency does not have an inspector general, 
or the Department of Justice any possible violation of the Act when the 
prime contractor or subcontractor has reasonable grounds to believe such 
violation may have occurred.
    (h) Provides that, for the purpose of ascertaining whether there has 
been a violation of the Act with respect to any prime contract, the 
Government Accountability Office and the inspector general of the 
contracting agency, or a representative of such contracting agency 
designated by the head of such agency if the agency does not have an 
inspector general, shall have access to and may inspect the facilities 
and audit the books and records, including any electronic data or 
records, of any prime contractor or subcontractor under a prime contract 
awarded by such agency.
    (i) Requires each contracting agency to include in each prime 
contract exceeding $150,000 for other than commercial items (see part 
12), a requirement that the prime contractor shall--
    (1) Have in place and follow reasonable procedures designed to 
prevent and detect violations of the Act in its own operations and 
direct business relationships (e.g., company ethics rules prohibiting 
kickbacks by employees, agents, or subcontractors; education programs 
for new employees and subcontractors, explaining policies about 
kickbacks, related company procedures and the consequences of detection; 
procurement procedures to minimize the opportunity for kickbacks; audit 
procedures designed to detect kickbacks; periodic surveys of 
subcontractors to elicit information about kickbacks; procedures to 
report kickbacks to law enforcement officials; annual declarations by 
employees of gifts or gratuities received from subcontractors; annual 
employee declarations that they have violated no company ethics rules; 
personnel practices that document unethical or illegal behavior and make 
such information available to prospective employers); and
    (2) Cooperate fully with any Federal agency investigating a possible 
violation of the Act.
    (j) Notwithstanding paragraph (i) of this subsection, a prime 
contractor shall cooperate fully with any Federal government agency 
investigating a violation of Section 3 of the Anti-Kickback Act of 1986 
(41 U.S.C. 51-58).

[52 FR 6121, Feb. 27, 1987; 52 FR 9989, Mar. 27, 1987, as amended at 53 
FR 34226, Sept. 2, 1988; 60 FR 48235, Sept. 18, 1995; 61 FR 39191, July 
26, 1996; 62 FR 235, Jan. 2, 1997; 71 FR 57380, Sept. 28, 2006; 75 FR 
53131, Aug. 30, 2010]



Sec. 3.502-3  Contract clause.

    The contracting officer shall insert the clause at 52.203-7, Anti-
Kickback Procedures, in solicitations and contracts exceeding the 
simplified acquisition threshold, other than those for commercial items 
(see part 12).

[60 FR 48235, Sept. 18, 1995, as amended at 61 FR 39190, July 26, 1996]



Sec. 3.503  Unreasonable restrictions on subcontractor sales.



Sec. 3.503-1  Policy.

    10 U.S.C. 2402 and 41 U.S.C. 253(g) require that subcontractors not 
be unreasonably precluded from making direct

[[Page 61]]

sales to the Government of any supplies or services made or furnished 
under a contract. However, this does not preclude contractors from 
asserting rights that are otherwise authorized by law or regulation.

[50 FR 35475, Aug. 30, 1985, and 51 FR 27116, July 29, 1986]



Sec. 3.503-2  Contract clause.

    The contracting officer shall insert the clause at 52.203-6, 
Restrictions on Subcontractor Sales to the Government, in solicitations 
and contracts exceeding the simplified acquisition threshold. For the 
acquisition of commercial items, the contracting officer shall use the 
clause with its Alternate I.

[74 FR 11832, Mar. 19, 2009]

 Subpart 3.6_Contracts With Government Employees or Organizations Owned 
                          or Controlled by Them



Sec. 3.601  Policy.

    (a) Except as specified in 3.602, a contracting officer shall not 
knowingly award a contract to a Government employee or to a business 
concern or other organization owned or substantially owned or controlled 
by one or more Government employees. This policy is intended to avoid 
any conflict of interest that might arise between the employees' 
interests and their Government duties, and to avoid the appearance of 
favoritism or preferential treatment by the Government toward its 
employees.
    (b) For purposes of this subpart, special Government employees (as 
defined in 18 U.S.C. 202) performing services as experts, advisors, or 
consultants, or as members of advisory committees, are not considered 
Government employees unless--
    (1) The contract arises directly out of the individual's activity as 
a special Government employee;
    (2) In the individual's capacity as a special Government employee, 
the individual is in a position to influence the award of the contract; 
or
    (3) Another conflict of interest is determined to exist.

[55 FR 34864, Aug. 24, 1990]



Sec. 3.602  Exceptions.

    The agency head, or a designee not below the level of the head of 
the contracting activity, may authorize an exception to the policy in 
3.601 only if there is a most compelling reason to do so, such as when 
the Government's needs cannot reasonably be otherwise met.



Sec. 3.603  Responsibilities of the contracting officer.

    (a) Before awarding a contract, the contracting officer shall obtain 
an authorization under 3.602 if--
    (1) The contracting officer knows, or has reason to believe, that a 
prospective contractor is one to which award is otherwise prohibited 
under 3.601; and
    (2) There is a most compelling reason to make an award to that 
prospective contractor.
    (b) The contracting officer shall comply with the requirements and 
guidance in subpart 9.5 before awarding a contract to an organization 
owned or substantially owned or controlled by Government employees.

              Subpart 3.7_Voiding and Rescinding Contracts

    Source: 51 FR 27116, July 29, 1986, unless otherwise noted.



Sec. 3.700  Scope of subpart.

    (a) This subpart prescribes Governmentwide policies and procedures 
for exercising discretionary authority to declare void and rescind 
contracts in relation to which--
    (1) There has been a final conviction for bribery, conflict of 
interest, disclosure or receipt of contractor bid or proposal 
information or source selection information in exchange for a thing of 
value or to give anyone a competitive advantage in the award of a 
Federal agency procurement contract, or similar misconduct; or
    (2) There has been an agency head determination that contractor bid 
or proposal information or source selection

[[Page 62]]

information has been disclosed or received in exchange for a thing of 
value, or for the purpose of obtaining or giving anyone a competitive 
advantage in the award of a Federal agency procurement contract.
    (b) This subpart does not prescribe policies or procedures for, or 
govern the exercise of, any other remedy available to the Government 
with respect to such contracts, including but not limited to, the common 
law right of avoidance, rescission, or cancellation.

[51 FR 27116, July 29, 1986, as amended at 62 FR 232, Jan. 2, 1997]



Sec. 3.701  Purpose.

    This subpart provides--
    (a) An administrative remedy with respect to contracts in relation 
to which there has been--
    (1) A final conviction for bribery, conflict of interest, disclosure 
or receipt of contractor bid or proposal information or source selection 
information in exchange for a thing of value or to give anyone a 
competitive advantage in the award of a Federal agency procurement 
contract, or similar misconduct; or
    (2) An agency head determination that contractor bid or proposal 
information or source selection information has been disclosed or 
received in exchange for a thing of value, or for the purpose of 
obtaining or giving anyone a competitive advantage in the award of a 
Federal agency procurement contract; and
    (b) A means to deter similar misconduct in the future by those who 
are involved in the award, performance, and administration of Government 
contracts.

[62 FR 232, Jan. 2, 1997]



Sec. 3.702  Definition.

    Final conviction means a conviction, whether entered on a verdict or 
plea, including a plea of nolo contendere, for which sentence has been 
imposed.



Sec. 3.703  Authority.

    (a) Section 1(e) of Pub. L. 87-849, 18 U.S.C. 218 (the Act), 
empowers the President or the heads of executive agencies acting under 
regulations prescribed by the President, to declare void and rescind 
contracts and other transactions enumerated in the Act, in relation to 
which there has been a final conviction for bribery, conflict of 
interest, or any other violation of Chapter 11 of Title 18 of the United 
States Code (18 U.S.C. 201-224). Executive Order 12448, November 4, 
1983, delegates the President's authority under the Act to the heads of 
the executive agencies and military departments.
    (b) Subsection 27(e)(3) of the Office of Federal Procurement Policy 
Act (41 U.S.C. 423) (the OFPP Act), as amended, requires a Federal 
agency, upon receiving information that a contractor or a person has 
engaged in conduct constituting a violation of subsection 27 (a) or (b) 
of the OFPP Act, to consider recission of a contract with respect to 
which--
    (1) The contractor or someone acting for the contractor has been 
convicted for an offense punishable under subsection 27(e)(1) of the 
OFPP Act; or
    (2) The head of the agency, or designee, has determined, based upon 
a preponderance of the evidence, that the contractor or someone acting 
for the contractor has engaged in conduct constituting such an offense.

[51 FR 27116, July 29, 1986, as amended at 62 FR 232, Jan. 2, 1997]



Sec. 3.704  Policy.

    (a) In cases in which there is a final conviction for any violation 
of 18 U.S.C. 201-224 involving or relating to contracts awarded by an 
agency, the agency head or designee shall consider the facts available 
and, if appropriate, may declare void and rescind contracts, and recover 
the amounts expended and property transferred by the agency in 
accordance with the policies and procedures of this subpart.
    (b) Since a final conviction under 18 U.S.C. 201-224 relating to a 
contract also may justify the conclusion that the party involved is not 
presently responsible, the agency should consider initiating debarment 
proceedings in accordance with subpart 9.4, Debarment, Suspension, and 
Ineligibility, if debarment has not been initiated or is not in effect 
at the time the final conviction is entered.

[[Page 63]]

    (c) If there is a final conviction for an offense punishable under 
subsection 27(e) of the OFPP Act, or if the head of the agency, or 
designee, has determined, based upon a preponderance of the evidence, 
that the contractor or someone acting for the contractor has engaged in 
conduct constituting such an offense, then the head of the contracting 
activity shall consider, in addition to any other penalty prescribed by 
law or regulation--
    (1) Declaring void and rescinding contracts, as appropriate, and 
recovering the amounts expended under the contracts by using the 
procedures at 3.705 (see 3.104-7); and
    (2) Recommending the initiation of suspension or debarment 
proceedings in accordance with subpart 9.4.

[51 FR 27116, July 29, 1986, as amended at 62 FR 232, Jan. 2, 1997; 67 
FR 13063, Mar. 20, 2002]



Sec. 3.705  Procedures.

    (a) Reporting. The facts concerning any final conviction for any 
violation of 18 U.S.C. 201-224 involving or relating to agency contracts 
shall be reported promptly to the agency head or designee for that 
official's consideration. The agency head or designee shall promptly 
notify the Civil Division, Department of Justice, that an action is 
being considered under this subpart.
    (b) Decision. Following an assessment of the facts, the agency head 
or designee may declare void and rescind contracts with respect to which 
a final conviction has been entered, and recover the amounts expended 
and the property transferred by the agency under the terms of the 
contracts involved.
    (c) Decision-making process. Agency procedures governing the voiding 
and rescinding decision-making process shall be as informal as is 
practicable, consistent with the principles of fundamental fairness. As 
a minimum, however, agencies shall provide the following:
    (1) A notice of the proposed action to declare void and rescind the 
contract shall be made in writing and sent by certified mail, return 
receipt requested.
    (2) A thirty calendar day period after receipt of the notice, for 
the contractor to submit pertinent information before any final decision 
is made.
    (3) Upon request made within the period for submission of pertinent 
information, an opportunity shall be afforded for a hearing at which 
witnesses may be presented, and any witness the agency presents may be 
confronted. However, no inquiry shall be made regarding the validity of 
a conviction.
    (4) If the agency head or designee decides to declare void and 
rescind the contracts involved, that official shall issue a written 
decision which--
    (i) States that determination;
    (ii) Reflects consideration of the fair value of any tangible 
benefits received and retained by the agency; and
    (iii) States the amount due, and the property to be returned, to the 
agency.
    (d) Notice of proposed action. The notice of the proposed action, as 
a minimum shall--
    (1) Advise that consideration is being given to declaring void and 
rescinding contracts awarded by the agency, and recovering the amounts 
expended and property transferred therefor, under the provisions of 18 
U.S.C. 218;
    (2) Specifically identify the contracts affected by the action;
    (3) Specifically identify the offense or final conviction on which 
the action is based;
    (4) State the amounts expended and property transferred under each 
of the contracts involved, and the money and the property demanded to be 
returned;
    (5) Identify any tangible benefits received and retained by the 
agency under the contract, and the value of those benefits, as 
calculated by the agency;
    (6) Advise that pertinent information may be submitted within 30 
calendar days after receipt of the notice, and that, if requested within 
that time, a hearing shall be held at which witnesses may be presented 
and any witness the agency presents may be confronted; and
    (7) Advise that action shall be taken only after the agency head or 
designee issues a final written decision on the proposed action.
    (e) Final agency decision. The final agency decision shall be based 
on the information available to the agency

[[Page 64]]

head or designee, including any pertinent information submitted or, if a 
hearing was held, presented at the hearing. If the agency decision 
declares void and rescinds the contract, the final decision shall 
specify the amounts due and property to be returned to the agency, and 
reflect consideration of the fair value of any tangible benefits 
received and retained by the agency. Notice of the decision shall be 
sent promptly by certified mail, return receipt requested. Rescission of 
contracts under the authority of the Act and demand for recovery of the 
amounts expended and property transferred therefor, is not a claim 
within the meaning of the Contract Disputes Act of 1978 (CDA), 41 U.S.C. 
601-613, or part 33. Therefore, the procedures required by the CDA and 
the FAR for the issuance of a final contracting officer decision are not 
applicable to final agency decisions under this subpart, and shall not 
be followed.

[51 FR 27116, July 29, 1986, as amended at 62 FR 232, Jan. 2, 1997]

  Subpart 3.8_Limitations on the Payment of Funds To Influence Federal 
                              Transactions

    Source: 55 FR 3190, Jan. 30, 1990, unless otherwise noted.



Sec. 3.800  Scope of subpart.

    This subpart prescribes policies and procedures implementing 31 
U.S.C. 1352, ``Limitation on use of appropriated funds to influence 
certain Federal contracting and financial transactions.''

[72 FR 46329, Aug. 17, 2007]



Sec. 3.801  Definitions.

    As used in this subpart--
    Agency means executive agency as defined in 2.101.
    Covered Federal action means any of the following actions:
    (1) Awarding any Federal contract.
    (2) Making any Federal grant.
    (3) Making any Federal loan.
    (4) Entering into any cooperative agreement.
    (5) Extending, continuing, renewing, amending, or modifying any 
Federal contract, grant, loan, or cooperative agreement.
    Indian tribe and tribal organization have the meaning provided in 
section 4 of the Indian Self-Determination and Education Assistance Act 
(25 U.S.C. 450b) and include Alaskan Natives.
    Influencing or attempting to influence means making, with the intent 
to influence, any communication to or appearance before an officer or 
employee of any agency, a Member of Congress, an officer or employee of 
Congress, or an employee of a Member of Congress in connection with any 
covered Federal action.
    Local government means a unit of government in a State and, if 
chartered, established, or otherwise recognized by a State for the 
performance of a governmental duty, including a local public authority, 
a special district, an intrastate district, a council of governments, a 
sponsor group representative organization, and any other instrumentality 
of a local government.
    Officer or employee of an agency includes the following individuals 
who are employed by an agency:
    (1) An individual who is appointed to a position in the Government 
under Title 5, United States Code, including a position under a 
temporary appointment.
    (2) A member of the uniformed services, as defined in subsection 
101(3), Title 37, United States Code.
    (3) A special Government employee, as defined in section 202, Title 
18, United States Code.
    (4) An individual who is a member of a Federal advisory committee, 
as defined by the Federal Advisory Committee Act, Title 5, United States 
Code, appendix 2.
    Person means an individual, corporation, company, association, 
authority, firm, partnership, society, State, and local government, 
regardless of whether such entity is operated for profit or not for 
profit. This term excludes an Indian tribe, tribal organization, or any 
other Indian organization eligible to receive Federal contracts, grants, 
cooperative agreements, or loans from

[[Page 65]]

an agency, but only with respect to expenditures by such tribe or 
organization that are made for purposes specified in paragraph 3.802(a) 
and are permitted by other Federal law.
    Reasonable compensation means, with respect to a regularly employed 
officer or employee of any person, compensation that is consistent with 
the normal compensation for such officer or employee for work that is 
not furnished to, not funded by, or not furnished in cooperation with 
the Federal Government.
    Reasonable payment means, with respect to professional and other 
technical services, a payment in an amount that is consistent with the 
amount normally paid for such services in the private sector.
    Recipient includes the contractor and all subcontractors. This term 
excludes an Indian tribe, tribal organization, or any other Indian 
organization eligible to receive Federal contracts, grants, cooperative 
agreements, or loans from an agency, but only with respect to 
expenditures by such tribe or organization that are made for purposes 
specified in paragraph 3.802(a) and are permitted by other Federal law.
    Regularly employed means, with respect to an officer or employee of 
a person requesting or receiving a Federal contract, an officer or 
employee who is employed by such person for at least 130 working days 
within 1 year immediately preceding the date of the submission that 
initiates agency consideration of such person for receipt of such 
contract. An officer or employee who is employed by such person for less 
than 130 working days within 1 year immediately preceding the date of 
the submission that initiates agency consideration of such person shall 
be considered to be regularly employed as soon as he or she is employed 
by such person for 130 working days.
    State means a State of the United States, the District of Columbia, 
an outlying area of the United States, an agency or instrumentality of a 
State, and multi-State, regional, or interstate entity having 
governmental duties and powers.

[72 FR 46329, Aug. 17, 2007]



Sec. 3.802  Statutory prohibition and requirement.

    (a) 31 U.S.C. 1352 prohibits a recipient of a Federal contract, 
grant, loan, or cooperative agreement from using appropriated funds to 
pay any person for influencing or attempting to influence an officer or 
employee of any agency, a Member of Congress, an officer or employee of 
Congress, or an employee of a Member of Congress in connection with any 
covered Federal actions.
    (1) For purposes of this subpart the term ``appropriated funds'' 
does not include profit or fee from a covered Federal action.
    (2) To the extent a person can demonstrate that the person has 
sufficient monies, other than Federal appropriated funds, the Government 
shall assume that these other monies were spent for any influencing 
activities that would be unallowable if paid for with Federal 
appropriated funds.
    (b) 31 U.S.C. 1352 also requires offerors to furnish a declaration 
consisting of both a certification and a disclosure, with periodic 
updates of the disclosure after contract award. These requirements are 
contained in the provision at 52.203-11, Certification and Disclosure 
Regarding Payments to Influence Certain Federal Transactions, and the 
clause at 52.203-12, Limitation on Payments to Influence Certain Federal 
Transactions.

[72 FR 46329, Aug. 17, 2007]



Sec. 3.803  Exceptions.

    (a) The prohibition of paragraph 3.802(a) does not apply under the 
following conditions:
    (1) Agency and legislative liaison by own employees. (i) Payment of 
reasonable compensation made to an officer or employee of a person 
requesting or receiving a covered Federal action if the payment is for 
agency and legislative liaison activities not directly related to a 
covered Federal action. For purposes of this paragraph, providing any 
information specifically requested by an agency or Congress is permitted 
at any time.
    (ii) Participating with an agency in discussions that are not 
related to a specific solicitation for any covered Federal action, but 
that concern--

[[Page 66]]

    (A) The qualities and characteristics (including individual 
demonstrations) of the person's products or services, conditions or 
terms of sale, and service capabilities; or
    (B) The application or adaptation of the person's products or 
services for an agency's use.
    (iii) Providing prior to formal solicitation of any covered Federal 
action any information not specifically requested but necessary for an 
agency to make an informed decision about initiation of a covered 
Federal action.
    (iv) Participating in technical discussions regarding the 
preparation of an unsolicited proposal prior to its official submission.
    (v) Making capability presentations prior to formal solicitation of 
any covered Federal action when seeking an award from an agency pursuant 
to the provisions of the Small Business Act, as amended by Pub. L. 95-
507, and subsequent amendments.
    (2) Professional and technical services. (i) Payment of reasonable 
compensation made to an officer or employee of a person requesting or 
receiving a covered Federal action, if payment is for professional or 
technical services rendered directly in the preparation, submission, or 
negotiation of any bid, proposal, or application for that Federal action 
or for meeting requirements imposed by or pursuant to law as a condition 
for receiving that Federal action;
    (ii) Any reasonable payment to a person, other than an officer or 
employee of a person requesting or receiving a covered Federal action, 
if the payment is for professional or technical services rendered 
directly in the preparation, submission, or negotiation of any bid, 
proposal, or application for that Federal action, or for meeting 
requirements imposed by or pursuant to law as a condition for receiving 
that Federal action. Persons other than officers or employees of a 
person requesting or receiving a covered Federal action include 
consultants and trade associations.
    (iii) As used in paragraph (a)(2) of this section ``professional and 
technical services'' are limited to advice and analysis directly 
applying any professional or technical discipline. For example, drafting 
of a legal document accompanying a bid or proposal by a lawyer is 
allowable. Similarly, technical advice provided by an engineer on the 
performance or operational capability of a piece of equipment rendered 
directly in the negotiation of a contract is allowable. However, 
communications with the intent to influence made by a professional or a 
technical person are not allowable under this section unless they 
provide advice and analysis directly applying their professional or 
technical expertise and unless the advice or analysis is rendered 
directly and solely in the preparation, submission or negotiation of a 
covered Federal action. Thus, for example, communications with the 
intent to influence made by a lawyer that do not provide legal advice or 
analysis directly and solely related to the legal aspects of his or her 
client's proposal, but generally advocate one proposal over another, are 
not allowable under this section because the lawyer is not providing 
professional legal services. Similarly, communications with the intent 
to influence made by an engineer providing an engineering analysis prior 
to the preparation or submission of a bid or proposal are not allowable 
under this section since the engineer is providing technical services 
but not directly in the preparation, submission or negotiation of a 
covered Federal action.
    (iv) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal award include those required by law or 
regulation and any other requirements in the actual award documents.
    (b) Only those communications and services expressly authorized by 
paragraph (a) of this section are permitted.
    (c) The disclosure requirements of paragraph 3.802(b) do not apply 
with respect to payments of reasonable compensation made to regularly 
employed officers or employees of a person.

[72 FR 46329, Aug. 17, 2007]



Sec. 3.804  Policy.

    The contracting officer shall obtain certifications and disclosures 
as required by the provision at 52.203-11, Certification and Disclosure 
Regarding Payments to Influence Certain Federal

[[Page 67]]

Transactions, prior to the award of any contract exceeding $150,000.

[72 FR 46330, Aug. 17, 2007, as amended at 75 FR 53131, Aug. 30, 2010]



Sec. 3.805  Exemption.

    The Secretary of Defense may exempt, on a case-by-case basis, a 
covered Federal action from the prohibitions of this subpart whenever 
the Secretary determines, in writing, that such an exemption is in the 
national interest. The Secretary shall transmit a copy of the exemption 
to Congress immediately after making the determination.

[72 FR 46330, Aug. 17, 2007]



Sec. 3.806  Processing suspected violations.

    The contracting officer shall report suspected violations of the 
requirements of 31 U.S.C. 1352 in accordance with agency procedures.

[72 FR 46330, Aug. 17, 2007]



Sec. 3.807  Civil penalties.

    Agencies shall impose and collect civil penalties pursuant to the 
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C. 3803 
(except subsection (c)), 3804-3808, and 3812, insofar as the provisions 
therein are not inconsistent with the requirements of this subpart.

[55 FR 3190, Jan. 30, 1990, as amended at 67 FR 6120, Feb. 8, 2002]



Sec. 3.808  Solicitation provision and contract clause.

    (a) Insert the provision at 52.203-11, Certification and Disclosure 
Regarding Payments to Influence Certain Federal Transactions, in 
solicitations expected to exceed $150,000.
    (b) Insert the clause at 52.203-12, Limitation on Payments to 
Influence Certain Federal Transactions, in solicitations and contracts 
expected to exceed $150,000.

[72 FR 46330, Aug. 17, 2007, as amended at 75 FR 53132, Aug. 30, 2010]

     Subpart 3.9_Whistleblower Protections for Contractor Employees

    Source: 60 FR 37776, July 21, 1995, unless otherwise noted.



Sec. 3.900  Scope of subpart.

    This subpart implements three different statutory whistleblower 
programs. This subpart does not implement 10 U.S.C. 2409, which is 
applicable only to DoD, NASA, and the Coast Guard.
    (a) 41 U.S.C. 4705 (in effect before July 1, 2013 and on or after 
January 2, 2017). Sections 3.901 through 3.906 of this subpart implement 
41 U.S.C. 4705, applicable to civilian agencies other than NASA and the 
Coast Guard, except as provided in paragraph (c) of this section. These 
sections are not in effect for the duration of the pilot program 
described in paragraph (b) of this section.
    (b) 41 U.S.C. 4712 (in effect on July 1, 2013 through January 1, 
2017). Section 3.908 of this subpart implements the pilot program, 
applicable to civilian agencies other than NASA and the Coast Guard, 
except as provided in paragraph (c) of this section.
    (c) Contracts funded by the American Recovery and Reinvestment Act. 
Section 3.907 of this subpart implements section 1553 of the American 
Recovery and Reinvestment Act of 2009 (Pub. L. 111-5), and applies to 
all contracts funded in whole or in part by that Act.

[78 FR 60171, Sept. 30, 2013]



Sec. 3.901  Definitions.

    As used in this subpart--
    Authorized official of an agency means an officer or employee 
responsible for contracting, program management, audit, inspection, 
investigation, or enforcement of any law or regulation relating to 
Government procurement or the subject matter of the contract.
    Authorized official of the Department of Justice means any person 
responsible for the investigation, enforcement, or prosecution of any 
law or regulation.
    Inspector General means an Inspector General appointed under the 
Inspector General Act of 1978, as amended. In the Department of Defense 
that is the DOD

[[Page 68]]

Inspector General. In the case of an executive agency that does not have 
an Inspector General, the duties shall be performed by an official 
designated by the head of the executive agency.

[48 FR 42108, Sept. 19, 1983, as amended at 66 FR 2127, Jan. 10, 2001]



Sec. 3.902  [Reserved]



Sec. 3.903  Policy.

    Government contractors shall not discharge, demote or otherwise 
discriminate against an employee as a reprisal for disclosing 
information to a Member of Congress, or an authorized official of an 
agency or of the Department of Justice, relating to a substantial 
violation of law related to a contract (including the competition for or 
negotiation of a contract).



Sec. 3.904  Procedures for filing complaints.

    (a) Any employee of a contractor who believes that he or she has 
been discharged, demoted, or otherwise discriminated against contrary to 
the policy in 3.903 may file a complaint with the Inspector General of 
the agency that awarded the contract.
    (b) The complaint shall be signed and shall contain--
    (1) The name of the contractor;
    (2) The contract number, if known; if not, a description reasonably 
sufficient to identify the contract(s) involved;
    (3) The substantial violation of law giving rise to the disclosure;
    (4) The nature of the disclosure giving rise to the discriminatory 
act; and
    (5) The specific nature and date of the reprisal.



Sec. 3.905  Procedures for investigating complaints.

    (a) Upon receipt of a complaint, the Inspector General shall conduct 
an initial inquiry. If the Inspector General determines that the 
complaint is frivolous or for other reasons does not merit further 
investigation, the Inspector General shall advise the complainant that 
no further action on the complaint will be taken.
    (b) If the Inspector General determines that the complaint merits 
further investigation, the Inspector General shall notify the 
complainant, contractor, and head of the contracting activity. The 
Inspector General shall conduct an investigation and provide a written 
report of findings to the head of the agency or designee.
    (c) Upon completion of the investigation, the head of the agency or 
designee shall ensure that the Inspector General provides the report of 
findings to--
    (1) The complainant and any person acting on the complainant's 
behalf;
    (2) The contractor alleged to have committed the violation; and
    (3) The head of the contracting activity.
    (d) The complainant and contractor shall be afforded the opportunity 
to submit a written response to the report of findings within 30 days to 
the head of the agency or designee. Extensions of time to file a written 
response may be granted by the head of the agency or designee.
    (e) At any time, the head of the agency or designee may request 
additional investigative work be done on the complaint.



Sec. 3.906  Remedies.

    (a) If the head of the agency or designee determines that a 
contractor has subjected one of its employees to a reprisal for 
providing information to a Member of Congress, or an authorized official 
of an agency or of the Department of Justice, the head of the agency or 
designee may take one or more of the following actions:
    (1) Order the contractor to take affirmative action to abate the 
reprisal.
    (2) Order the contractor to reinstate the person to the position 
that the person held before the reprisal, together with the compensation 
(including back pay), employment benefits, and other terms and 
conditions of employment that would apply to the person in that position 
if the reprisal had not been taken.
    (3) Order the contractor to pay the complainant an amount equal to 
the aggregate amount of all costs and expenses (including attorneys' 
fees and expert witnesses' fees) that were reasonably incurred by the 
complainant for, or in connection with, bringing the complaint regarding 
the reprisal.
    (b) Whenever a contractor fails to comply with an order, the head of 
the

[[Page 69]]

agency or designee shall request the Department of Justice to file an 
action for enforcement of such order in the United States district court 
for a district in which the reprisal was found to have occurred. In any 
action brought under this section, the court may grant appropriate 
relief, including injunctive relief and compensatory and exemplary 
damages.
    (c) Any person adversely affected or aggrieved by an order issued 
under this section may obtain review of the order's conformance with the 
law, and this subpart, in the United States Court of Appeals for a 
circuit in which the reprisal is alleged in the order to have occurred. 
No petition seeking such review may be filed more than 60 days after 
issuance of the order by the head of the agency or designee. Review 
shall conform to Chapter 7 of Title 5, United States Code.



Sec. 3.907  Whistleblower Protections Under the American Recovery and 
          Reinvestment Act of 2009 (the Recovery Act).



Sec. 3.907-1  Definitions.

    As used in this section--
    Board means the Recovery Accountability and Transparency Board 
established by Section 1521 of the Recovery Act.
    Covered funds means any contract payment, grant payment, or other 
payment received by a contractor if--
    (1) The Federal Government provides any portion of the money or 
property that is provided, requested, or demanded; and
    (2) At least some of the funds are appropriated or otherwise made 
available by the Recovery Act.
    Covered information means information that the employee reasonably 
believes is evidence of gross mismanagement of the contract or 
subcontract related to covered funds, gross waste of covered funds, a 
substantial and specific danger to public health or safety related to 
the implementation or use of covered funds, an abuse of authority 
related to the implementation or use of covered funds, or a violation of 
law, rule, or regulation related to an agency contract (including the 
competition for or negotiation of a contract) awarded or issued relating 
to covered funds.
    Inspector General means an Inspector General appointed under the 
Inspector General Act of 1978. In the Department of Defense that is the 
DoD Inspector General. In the case of an executive agency that does not 
have an Inspector General, the duties shall be performed by an official 
designated by the head of the executive agency.
    Non-Federal employer, as used in this section, means any employer 
that receives Recovery Act funds, including a contractor, subcontractor, 
or other recipient of funds pursuant to a contract or other agreement 
awarded and administered in accordance with the Federal Acquisition 
Regulation.

[74 FR 14634, Mar. 31, 2009, as amended at 75 FR 34259, June 16, 2010]



Sec. 3.907-2  Policy.

    Non-Federal employers are prohibited from discharging, demoting, or 
otherwise discriminating against an employee as a reprisal for 
disclosing covered information to any of the following entities or their 
representatives:
    (1) The Board.
    (2) An Inspector General.
    (3) The Comptroller General.
    (4) A member of Congress.
    (5) A State or Federal regulatory or law enforcement agency.
    (6) A person with supervisory authority over the employee or such 
other person working for the employer who has the authority to 
investigate, discover, or terminate misconduct.
    (7) A court or grand jury.
    (8) The head of a Federal agency.

[74 FR 14634, Mar. 31, 2009]



Sec. 3.907-3  Procedures for filing complaints.

    (a) An employee who believes that he or she has been subjected to 
reprisal prohibited by the Recovery Act, Section 1553 as set forth in 
3.907-2, may submit a complaint regarding the reprisal to the Inspector 
General of the agency that awarded the contract.
    (b) The complaint shall be signed and shall contain--
    (1) The name of the contractor;
    (2) The contract number, if known; if not, a description reasonably 
sufficient to identify the contract(s) involved;

[[Page 70]]

    (3) The covered information giving rise to the disclosure;
    (4) The nature of the disclosure giving rise to the discriminatory 
act; and
    (5) The specific nature and date of the reprisal.
    (c) A contracting officer who receives a complaint of reprisal of 
the type described in 3.907-2 shall forward it to the Office of 
Inspector General and to other designated officials in accordance with 
agency procedures (e.g., agency legal counsel).

[74 FR 14634, Mar. 31, 2009, as amended at 75 FR 34259, June 16, 2010]



Sec. 3.907-4  Procedures for investigating complaints.

    Investigation of complaints will be in accordance with section 1553 
of the Recovery Act.

[74 FR 14634, Mar. 31, 2009]



Sec. 3.907-5  Access to investigative file of Inspector General.

    (a) The employee alleging reprisal under this section shall have 
access to the investigation file of the Inspector General, in accordance 
with the Privacy Act, 5 U.S.C. 552a. The investigation of the Inspector 
General shall be deemed closed for the purposes of disclosure under such 
section when an employee files an appeal to the agency head or a court 
of competent jurisdiction.
    (b) In the event the employee alleging reprisal brings a civil 
action under section 1553(c)(3) of the Recovery Act, the employee 
alleging the reprisal and the non-Federal employer shall have access to 
the investigative file of the Inspector General in accordance with the 
Privacy Act.
    (c) The Inspector General may exclude from disclosures made under 
3.907-5(a) or (b)--
    (1) Information protected from disclosure by a provision of law; and
    (2) Any additional information the Inspector General determines 
disclosure of which would impede a continuing investigation, provided 
that such information is disclosed once such disclosure would no longer 
impede such investigation, unless the Inspector General determines that 
the disclosure of law enforcement techniques, procedures, or information 
could reasonably be expected to risk circumvention of the law or 
disclose the identity of a confidential source.
    (d) An Inspector General investigating an alleged reprisal under 
this section may not respond to any inquiry or disclose any information 
from or about any person alleging such reprisal, except in accordance 
with 5 U.S.C. 552a or as required by any other applicable Federal law.

[74 FR 14634, Mar. 31, 2009]



Sec. 3.907-6  Remedies and enforcement authority.

    (a) Burden of Proof. (1) Disclosure as contributing factor in 
reprisal.
    (i) An employee alleging a reprisal under this section shall be 
deemed to have affirmatively established the occurrence of the reprisal 
if the employee demonstrates that a disclosure described in section 
3.907-2 was a contributing factor in the reprisal.
    (ii) A disclosure may be demonstrated as a contributing factor in a 
reprisal for purposes of this paragraph by circumstantial evidence, 
including--
    (A) Evidence that the official undertaking the reprisal knew of the 
disclosure; or
    (B) Evidence that the reprisal occurred within a period of time 
after the disclosure such that a reasonable person could conclude that 
the disclosure was a contributing factor in the reprisal.
    (2) Opportunity for rebuttal. The head of an agency may not find the 
occurrence of a reprisal with respect to a reprisal that is 
affirmatively established under section 3.907-6(a)(1) if the non-Federal 
employer demonstrates by clear and convincing evidence that the non-
Federal employer would have taken the action constituting the reprisal 
in the absence of the disclosure.
    (b) No later than 30 days after receiving an Inspector General 
report in accordance with section 1553 of the Recovery Act, the head of 
the agency concerned shall determine whether there is sufficient basis 
to conclude that the non-Federal employer has subjected the complainant 
to a reprisal prohibited by subsection 3.907-2 and shall either issue an 
order denying relief in

[[Page 71]]

whole or in part or shall take one or more of the following actions:
    (1) Order the employer to take affirmative action to abate the 
reprisal.
    (2) Order the employer to reinstate the person to the position that 
the person held before the reprisal, together with the compensation 
(including back pay), compensatory damages, employment benefits, and 
other terms and conditions of employment that would apply to the person 
in that position if the reprisal had not been taken.
    (3) Order the employer to pay the complainant an amount equal to the 
aggregate amount of all costs and expenses (including attorneys' fees 
and expert witnesses' fees) that were reasonably incurred by the 
complainant for, or in connection with, bringing the complaint regarding 
the reprisal.
    (c)(1) The complainant shall be deemed to have exhausted all 
administrative remedies with respect to the complaint, and the 
complainant may bring a de novo action at law or equity against the 
employer to seek compensatory damages and other relief available under 
this section in the appropriate district court of United States, which 
shall have jurisdiction over such an action without regard to the amount 
in controversy if
    (i) The head of an agency--
    (A) Issues an order denying relief in whole or in part under 
paragraph (a) of this section;
    (B) Has not issued an order within 210 days after the submission of 
a complaint in accordance with section 1553 of the Recovery Act, or in 
the case of an extension of time in accordance with section 1553 of the 
Recovery Act, within 30 days after the expiration of the extension of 
time; or
    (C) Decides in accordance with section 1553 of the Recovery Act not 
to investigate or to discontinue an investigation; and
    (ii) There is no showing that such delay or decision is due to the 
bad faith of the complainant.
    (2) Such an action shall, at the request of either party to the 
action, be tried by the court with a jury.
    (d) Whenever an employer fails to comply with an order issued under 
this section, the head of the agency shall request the Department of 
Justice to file an action for enforcement of such order in the United 
States district court for a district in which the reprisal was found to 
have occurred. In any action brought under this section, the court may 
grant appropriate relief, including injunctive relief, compensatory and 
exemplary damages, and attorneys fees and costs.
    (e) Any person adversely affected or aggrieved by an order issued 
under paragraph (b) of this subsection may obtain review of the order's 
conformance with the law, and this section, in the United States Court 
of Appeals for a circuit in which the reprisal is alleged in the order 
to have occurred. No petition seeking such review may be filed more than 
60 days after issuance of the order by the head of the agency.

[74 FR 14634, Mar. 31, 2009]



Sec. 3.907-7  Contract Clause.

    Use the clause at 52.203-15, Whistleblower Protections Under the 
American Recovery and Reinvestment Act of 2009 in all solicitations and 
contracts funded in whole or in part with Recovery Act funds.

[74 FR 14634, Mar. 31, 2009]



Sec. 3.908  Pilot program for enhancement of contractor employee 
          whistleblower protections.

[78 FR 60171, Sept. 30, 2013]



Sec. 3.908-1  Scope of section.

    (a) This section implements 41 U.S.C. 4712.
    (b) This section does not apply to--
    (1) DoD, NASA, and the Coast Guard; or
    (2) Any element of the intelligence community, as defined in section 
3(4) of the National Security Act of 1947 (50 U.S.C. 3003(4)). This 
section does not apply to any disclosure made by an employee of a 
contractor or subcontractor of an element of the intelligence community 
if such disclosure--
    (i) Relates to an activity of an element of the intelligence 
community; or
    (ii) Was discovered during contract or subcontract services provided 
to an element of the intelligence community.

[78 FR 60171, Sept. 30, 2013]

[[Page 72]]



Sec. 3.908-2  Definitions.

    As used in this section--
    Abuse of authority means an arbitrary and capricious exercise of 
authority that is inconsistent with the mission of the executive agency 
concerned or the successful performance of a contract of such agency.
    Inspector General means an Inspector General appointed under the 
Inspector General Act of 1978 and any Inspector General that receives 
funding from, or has oversight over contracts awarded for, or on behalf 
of, the executive agency concerned.

[78 FR 60171, Sept. 30, 2013]



Sec. 3.908-3  Policy.

    (a) Contractors and subcontractors are prohibited from discharging, 
demoting, or otherwise discriminating against an employee as a reprisal 
for disclosing, to any of the entities listed at paragraph (b) of this 
subsection, information that the employee reasonably believes is 
evidence of gross mismanagement of a Federal contract, a gross waste of 
Federal funds, an abuse of authority relating to a Federal contract, a 
substantial and specific danger to public health or safety, or a 
violation of law, rule, or regulation related to a Federal contract 
(including the competition for or negotiation of a contract). A reprisal 
is prohibited even if it is undertaken at the request of an executive 
branch official, unless the request takes the form of a non-
discretionary directive and is within the authority of the executive 
branch official making the request.
    (b) Entities to whom disclosure may be made.
    (1) A Member of Congress or a representative of a committee of 
Congress.
    (2) An Inspector General.
    (3) The Government Accountability Office.
    (4) A Federal employee responsible for contract oversight or 
management at the relevant agency.
    (5) An authorized official of the Department of Justice or other law 
enforcement agency.
    (6) A court or grand jury.
    (7) A management official or other employee of the contractor or 
subcontractor who has the responsibility to investigate, discover, or 
address misconduct.
    (c) An employee who initiates or provides evidence of contractor or 
subcontractor misconduct in any judicial or administrative proceeding 
relating to waste, fraud, or abuse on a Federal contract shall be deemed 
to have made a disclosure.

[78 FR 60171, Sept. 30, 2013]



Sec. 3.908-4  Filing complaints.

    A contractor or subcontractor employee who believes that he or she 
has been discharged, demoted, or otherwise discriminated against 
contrary to the policy in 3.908-3 of this section may submit a complaint 
with the Inspector General of the agency concerned. Procedures for 
submitting fraud, waste, abuse, and whistleblower complaints are 
generally accessible on agency Office of Inspector General Hotline or 
Whistleblower Internet sites. A complaint by the employee may not be 
brought under 41 U.S.C. 4712 more than three years after the date on 
which the alleged reprisal took place.

[78 FR 60171, Sept. 30, 2013]



Sec. 3.908-5  Procedures for investigating complaints.

    Investigation of complaints by the Inspector General will be in 
accordance with 41 U.S.C. 4712(b).

[78 FR 60171, Sept. 30, 2013]



Sec. 3.908-6  Statutory remedies.

    (a) Agency response to Inspector General report. Not later than 30 
days after receiving an Inspector General report in accordance with 41 
U.S.C. 4712, the head of the agency shall--
    (1) Determine whether sufficient basis exists to conclude that the 
contractor or subcontractor has subjected the employee who submitted the 
complaint to a reprisal as prohibited by 3.908-3; and
    (2) Issue an order denying relief or take one or more of the 
following actions:
    (i) Order the contractor to take affirmative action to abate the 
reprisal.
    (ii) Order the contractor or subcontractor to reinstate the 
complainant-

[[Page 73]]

employee to the position that the person held before the reprisal, 
together with compensatory damages (including back pay), employment 
benefits, and other terms and conditions of employment that would apply 
to the person in that position if the reprisal had not been taken.
    (iii) Order the contractor or subcontractor to pay the complainant-
employee an amount equal to the aggregate amount of all costs and 
expenses (including attorneys' fees and expert witnesses' fees) that 
were reasonably incurred by the complainant for, or in connection with, 
bringing the complaint regarding the reprisal, as determined by the head 
of the agency.
    (b) Complainant's right to go to court. If the head of the agency 
issues an order denying relief or has not issued an order within 210 
days after the submission of the complaint or within 30 days after the 
expiration of an extension of time granted in accordance with 41 U.S.C. 
4712(b)(2)(B) for the submission of the Inspector General's report on 
the investigative findings of the complaint to the head of the agency, 
the contractor or subcontractor, and the complainant, and there is no 
showing that such delay is due to the bad faith of the complainant--
    (1) The complainant shall be deemed to have exhausted all 
administrative remedies with respect to the complaint; and
    (2) The complainant may bring a de novo action at law or equity 
against the contractor or subcontractor to seek compensatory damages and 
other relief available under 41 U.S.C. 4712 in the appropriate district 
court of the United States, which shall have jurisdiction over such an 
action without regard to the amount in controversy. Such an action 
shall, at the request of either party to the action, be tried by the 
court with a jury. An action under this authority may not be brought 
more than two years after the date on which remedies are deemed to have 
been exhausted.
    (c) Admissibility in evidence. An Inspector General determination 
and an agency head order denying relief under this section shall be 
admissible in evidence in any de novo action at law or equity brought 
pursuant to 41 U.S.C. 4712.
    (d) No waiver. The rights and remedies provided for in 41 U.S.C. 
4712 may not be waived by any agreement, policy, form, or condition of 
employment.

[78 FR 60171, Sept. 30, 2013]



Sec. 3.908-7  Enforcement of orders.

    (a) Whenever a contractor or subcontractor fails to comply with an 
order issued under 3.908-6(a)(2) of this section, the head of the agency 
concerned shall file an action for enforcement of the order in the U.S. 
district court for a district in which the reprisal was found to have 
occurred. In any action brought pursuant to this authority, the court 
may grant appropriate relief, including injunctive relief, compensatory 
and exemplary damages, and attorney fees and costs. The complainant-
employee upon whose behalf an order was issued may also file such an 
action or join in an action filed by the head of the agency.
    (b) Any person adversely affected or aggrieved by an order issued 
under 3.908-6(a)(2) may obtain review of the order's conformance with 41 
U.S.C. 4712 and its implementing regulations, in the U.S. court of 
appeals for a circuit in which the reprisal is alleged in the order to 
have occurred. No petition seeking such review may be filed more than 60 
days after issuance of the order by the head of the agency. Filing such 
an appeal shall not act to stay the enforcement of the order of the head 
of an agency, unless a stay is specifically entered by the court.

[78 FR 60171, Sept. 30, 2013]



Sec. 3.908-8  Classified information.

    41 U.S.C. 4712 does not provide any right to disclose classified 
information not otherwise provided by law.

[78 FR 60171, Sept. 30, 2013]



Sec. 3.908-9  Contract clause.

    The contracting officer shall insert the clause at 52.203-17, 
Contractor Employee Whistleblower Rights and Requirement to Inform 
Employees of

[[Page 74]]

Whistleblower Rights, in all solicitations and contracts that exceed the 
simplified acquisition threshold.

[78 FR 60171, Sept. 30, 2013]

       Subpart 3.10_Contractor Code of Business Ethics and Conduct

    Source: 72 FR 65881, Nov. 23, 2007, unless otherwise noted.



Sec. 3.1000  Scope of subpart.

    This subpart prescribes policies and procedures for the 
establishment of contractor codes of business ethics and conduct, and 
display of agency Office of Inspector General (OIG) fraud hotline 
posters.



Sec. 3.1001  Definitions.

    As used in this subpart--
    Subcontract means any contract entered into by a subcontractor to 
furnish supplies or services for performance of a prime contract or a 
subcontract.
    Subcontractor means any supplier, distributor, vendor, or firm that 
furnished supplies or services to or for a prime contractor or another 
subcontractor.
    United States means the 50 States, the District of Columbia, and 
outlying areas.

[73 FR 67090, Nov. 12, 2008]



Sec. 3.1002  Policy.

    (a) Government contractors must conduct themselves with the highest 
degree of integrity and honesty.
    (b) Contractors should have a written code of business ethics and 
conduct. To promote compliance with such code of business ethics and 
conduct, contractors should have an employee business ethics and 
compliance training program and an internal control system that--
    (1) Are suitable to the size of the company and extent of its 
involvement in Government contracting;
    (2) Facilitate timely discovery and disclosure of improper conduct 
in connection with Government contracts; and
    (3) Ensure corrective measures are promptly instituted and carried 
out.



Sec. 3.1003  Requirements.

    (a) Contractor requirements. (1) Although the policy at 3.1002 
applies as guidance to all Government contractors, the contractual 
requirements set forth in the clauses at 52.203-13, Contractor Code of 
Business Ethics and Conduct, and 52.203-14, Display of Hotline 
Poster(s), are mandatory if the contracts meet the conditions specified 
in the clause prescriptions at 3.1004.
    (2) Whether or not the clause at 52.203-13 is applicable, a 
contractor may be suspended and/or debarred for knowing failure by a 
principal to timely disclose to the Government, in connection with the 
award, performance, or closeout of a Government contract performed by 
the contractor or a subcontract awarded thereunder, credible evidence of 
a violation of Federal criminal law involving fraud, conflict of 
interest, bribery, or gratuity violations found in Title 18 of the 
United States Code or a violation of the civil False Claims Act. Knowing 
failure to timely disclose credible evidence of any of the above 
violations remains a cause for suspension and/or debarment until 3 years 
after final payment on a contract (see 9.406-2(b)(1)(vi) and 9.407-
2(a)(8)).
    (3) The Payment clauses at FAR 52.212-4(i)(5), 52.232-25(d), 52.232-
26(c), and 52.232-27(l) require that, if the contractor becomes aware 
that the Government has overpaid on a contract financing or invoice 
payment, the contractor shall remit the overpayment amount to the 
Government. A contractor may be suspended and/or debarred for knowing 
failure by a principal to timely disclose credible evidence of a 
significant overpayment, other than overpayments resulting from contract 
financing payments as defined in 32.001 (see 9.406-2(b)(1)(vi) and 
9.407-2(a)(8)).
    (b) Notification of possible contractor violation. If the 
contracting officer is notified of possible contractor violation of 
Federal criminal law involving fraud, conflict of interest, bribery, or 
gratuity violations found in Title 18 U.S.C.; or a violation of the 
civil False Claims Act, the contracting officer shall--

[[Page 75]]

    (1) Coordinate the matter with the agency Office of the Inspector 
General; or
    (2) Take action in accordance with agency procedures.
    (c) Fraud Hotline Poster. (1) Agency OIGs are responsible for 
determining the need for, and content of, their respective agency OIG 
fraud hotline poster(s).
    (2) When requested by the Department of Homeland Security, agencies 
shall ensure that contracts funded with disaster assistance funds 
require display of any fraud hotline poster applicable to the specific 
contract. As established by the agency OIG, such posters may be 
displayed in lieu of, or in addition to, the agency's standard poster.

[72 FR 65881, Nov. 23, 2007, as amended at 73 FR 67090, Nov. 12, 2008]



Sec. 3.1004  Contract clauses.

    (a) Insert the clause at FAR 52.203-13, Contractor Code of Business 
Ethics and Conduct, in solicitations and contracts if the value of the 
contract is expected to exceed $5,000,000 and the performance period is 
120 days or more.
    (b)(1) Unless the contract is for the acquisition of a commercial 
item or will be performed entirely outside the United States, insert the 
clause at FAR 52.203-14, Display of Hotline Poster(s), if--
    (i) The contract exceeds $5,000,000 or a lesser amount established 
by the agency; and
    (ii)(A) The agency has a fraud hotline poster; or
    (B) The contract is funded with disaster assistance funds.
    (2) In paragraph (b)(3) of the clause, the contracting officer 
shall--
    (i) Identify the applicable posters; and
    (ii) Insert the website link(s) or other contact information for 
obtaining the agency and/or Department of Homeland Security poster.
    (3) In paragraph (d) of the clause, if the agency has established 
policies and procedures for display of the OIG fraud hotline poster at a 
lesser amount, the contracting officer shall replace ``$5,000,000'' with 
the lesser amount that the agency has established.

[72 FR 65881, Nov. 23, 2007, as amended at 73 FR 67090, Nov. 12, 2008]

 Subpart 3.11_Preventing Personal Conflicts of Interest for Contractor 
               Employees Performing Acquisition Functions

    Source: 76 FR 68024, Nov. 2, 2011, unless otherwise noted.



Sec. 3.1100  Scope of subpart.

    This subpart implements the policy on personal conflicts of interest 
by employees of Government contractors as required by section 841(a) of 
the Duncan Hunter National Defense Authorization Act for Fiscal Year 
2009 (Pub. L. 110-417) (41 U.S.C. 2303).



Sec. 3.1101  Definitions.

    As used in this subpart--
    Acquisition function closely associated with inherently governmental 
functions means supporting or providing advice or recommendations with 
regard to the following activities of a Federal agency:
    (1) Planning acquisitions.
    (2) Determining what supplies or services are to be acquired by the 
Government, including developing statements of work.
    (3) Developing or approving any contractual documents, to include 
documents defining requirements, incentive plans, and evaluation 
criteria.
    (4) Evaluating contract proposals.
    (5) Awarding Government contracts.
    (6) Administering contracts (including ordering changes or giving 
technical direction in contract performance or contract quantities, 
evaluating contractor performance, and accepting or rejecting contractor 
products or services).
    (7) Terminating contracts.
    (8) Determining whether contract costs are reasonable, allocable, 
and allowable.
    Covered employee means an individual who performs an acquisition 
function closely associated with inherently governmental functions and 
is--
    (1) An employee of the contractor; or
    (2) A subcontractor that is a self-employed individual treated as a 
covered employee of the contractor because there is no employer to whom 
such an individual could submit the required disclosures.

[[Page 76]]

    Personal conflict of interest means a situation in which a covered 
employee has a financial interest, personal activity, or relationship 
that could impair the employee's ability to act impartially and in the 
best interest of the Government when performing under the contract. (A 
de minimis interest that would not ``impair the employee's ability to 
act impartially and in the best interest of the Government'' is not 
covered under this definition.)
    (1) Among the sources of personal conflicts of interest are--
    (i) Financial interests of the covered employee, of close family 
members, or of other members of the covered employee's household;
    (ii) Other employment or financial relationships (including seeking 
or negotiating for prospective employment or business); and
    (iii) Gifts, including travel.
    (2) For example, financial interests referred to in paragraph (1) of 
this definition may arise from--
    (i) Compensation, including wages, salaries, commissions, 
professional fees, or fees for business referrals;
    (ii) Consulting relationships (including commercial and professional 
consulting and service arrangements, scientific and technical advisory 
board memberships, or serving as an expert witness in litigation);
    (iii) Services provided in exchange for honorariums or travel 
expense reimbursements;
    (iv) Research funding or other forms of research support;
    (v) Investment in the form of stock or bond ownership or partnership 
interest (excluding diversified mutual fund investments);
    (vi) Real estate investments;
    (vii) Patents, copyrights, and other intellectual property 
interests; or
    (viii) Business ownership and investment interests.



Sec. 3.1102  Policy.

    The Government's policy is to require contractors to--
    (a) Identify and prevent personal conflicts of interest of their 
covered employees; and
    (b) Prohibit covered employees who have access to non-public 
information by reason of performance on a Government contract from using 
such information for personal gain.



Sec. 3.1103  Procedures.

    (a) By use of the contract clause at 52.203-16, as prescribed at 
3.1106, the contracting officer shall require each contractor whose 
employees perform acquisition functions closely associated with 
inherently Government functions to--
    (1) Have procedures in place to screen covered employees for 
potential personal conflicts of interest by--
    (i) Obtaining and maintaining from each covered employee, when the 
employee is initially assigned to the task under the contract, a 
disclosure of interests that might be affected by the task to which the 
employee has been assigned, as follows:
    (A) Financial interests of the covered employee, of close family 
members, or of other members of the covered employee's household.
    (B) Other employment or financial relationships of the covered 
employee (including seeking or negotiating for prospective employment or 
business).
    (C) Gifts, including travel; and
    (ii) Requiring each covered employee to update the disclosure 
statement whenever the employee's personal or financial circumstances 
change in such a way that a new personal conflict of interest might 
occur because of the task the covered employee is performing.
    (2) For each covered employee--
    (i) Prevent personal conflicts of interest, including not assigning 
or allowing a covered employee to perform any task under the contract 
for which the Contractor has identified a personal conflict of interest 
for the employee that the Contractor or employee cannot satisfactorily 
prevent or mitigate in consultation with the contracting agency;
    (ii) Prohibit use of non-public information accessed through 
performance of a Government contract for personal gain; and
    (iii) Obtain a signed non-disclosure agreement to prohibit 
disclosure of non-public information accessed through performance of a 
Government contract.
    (3) Inform covered employees of their obligation--

[[Page 77]]

    (i) To disclose and prevent personal conflicts of interest;
    (ii) Not to use non-public information accessed through performance 
of a Government contract for personal gain; and
    (iii) To avoid even the appearance of personal conflicts of 
interest;
    (4) Maintain effective oversight to verify compliance with personal 
conflict-of-interest safeguards;
    (5) Take appropriate disciplinary action in the case of covered 
employees who fail to comply with policies established pursuant to this 
section; and
    (6) Report to the contracting officer any personal conflict-of-
interest violation by a covered employee as soon as identified. This 
report shall include a description of the violation and the proposed 
actions to be taken by the contractor in response to the violation, with 
follow-up reports of corrective actions taken, as necessary.
    (b) If a contractor reports a personal conflict-of-interest 
violation by a covered employee to the contracting officer in accordance 
with paragraph (b)(6) of the clause at 52.203-16, Preventing Personal 
Conflicts of Interest, the contracting officer shall--
    (1) Review the actions taken by the contractor;
    (2) Determine whether any action taken by the contractor has 
resolved the violation satisfactorily; and
    (3) If the contracting officer determines that the contractor has 
not resolved the violation satisfactorily, take any appropriate action 
in consultation with agency legal counsel.



Sec. 3.1104  Mitigation or waiver.

    (a) In exceptional circumstances, if the contractor cannot 
satisfactorily prevent a personal conflict of interest as required by 
paragraph (b)(2)(i) of the clause at 52.203-16, Preventing Personal 
Conflicts of Interest, the contractor may submit a request, through the 
contracting officer, for the head of the contracting activity to--
    (1) Agree to a plan to mitigate the personal conflict of interest; 
or
    (2) Waive the requirement to prevent personal conflicts of interest.
    (b) If the head of the contracting activity determines in writing 
that such action is in the best interest of the Government, the head of 
the contracting activity may impose conditions that provide mitigation 
of a personal conflict of interest or grant a waiver.
    (c) This authority shall not be redelegated.



Sec. 3.1105  Violations.

    If the contracting officer suspects violation by the contractor of a 
requirement of paragraph (b), (c)(3), or (d) of the clause at 52.203-16, 
Preventing Personal Conflicts of Interest, the contracting officer shall 
contact the agency legal counsel for advice and/or recommendations on a 
course of action.



Sec. 3.1106  Contract clause.

    (a) Insert the clause at 52.203-16, Preventing Personal Conflicts of 
Interest, in solicitations and contracts that--
    (1) Exceed the simplified acquisition threshold; and
    (2) Include a requirement for services by contractor employee(s) 
that involve performance of acquisition functions closely associated 
with inherently governmental functions for, or on behalf of, a Federal 
agency or department.
    (b) If only a portion of a contract is for the performance of 
acquisition functions closely associated with inherently governmental 
functions, then the contracting officer shall still insert the clause, 
but shall limit applicability of the clause to that portion of the 
contract that is for the performance of such services.
    (c) Do not insert the clause in solicitations or contracts with a 
self-employed individual if the acquisition functions closely associated 
with inherently governmental functions are to be performed entirely by 
the self-employed individual, rather than an employee of the contractor.

                      PART 4_ADMINISTRATIVE MATTERS

Sec.

Sec. 4.000 Scope of part.

Sec. 4.001 Definitions.

                     Subpart 4.1_Contract Execution


Sec. 4.101 Contracting officer's signature.

Sec. 4.102 Contractor's signature.

Sec. 4.103 Contract clause.

[[Page 78]]

                    Subpart 4.2_Contract Distribution


Sec. 4.201 Procedures.

Sec. 4.202 Agency distribution requirements.

Sec. 4.203 Taxpayer identification information.

                       Subpart 4.3_Paper Documents


Sec. 4.300 Scope of subpart.

Sec. 4.301 Definition.

Sec. 4.302 Policy.

Sec. 4.303 Contract clause.

     Subpart 4.4_Safeguarding Classified Information Within Industry


Sec. 4.401 [Reserved]

Sec. 4.402 General.

Sec. 4.403 Responsibilities of contracting officers.

Sec. 4.404 Contract clause.

             Subpart 4.5_Electronic Commerce in Contracting


Sec. 4.500 Scope of subpart.

Sec. 4.501 [Reserved]

Sec. 4.502 Policy.

                     Subpart 4.6_Contract Reporting


Sec. 4.600 Scope of subpart.

Sec. 4.601 Definitions.

Sec. 4.602 General.

Sec. 4.603 Policy.

Sec. 4.604 Responsibilities.

Sec. 4.605 Procedures.

Sec. 4.606 Reporting Data.

Sec. 4.607 Solicitation provisions and contract clause.

                Subpart 4.7_Contractor Records Retention


Sec. 4.700 Scope of subpart.

Sec. 4.701 Purpose.

Sec. 4.702 Applicability.

Sec. 4.703 Policy.

Sec. 4.704 Calculation of retention periods.

Sec. 4.705 Specific retention periods.

Sec. 4.705-1 Financial and cost accounting records.

Sec. 4.705-2 Pay administration records.

Sec. 4.705-3 Acquisition and supply records.

Sec. 4.706 [Reserved]

                  Subpart 4.8_Government Contract Files


Sec. 4.800 Scope of subpart.

Sec. 4.801 General.

Sec. 4.802 Contract files.

Sec. 4.803 Contents of contract files.

Sec. 4.804 Closeout of contract files.

Sec. 4.804-1 Closeout by the office administering the contract.

Sec. 4.804-2 Closeout of the contracting office files if another office 
          administers the contract.

Sec. 4.804-3 Closeout of paying office contract files.

Sec. 4.804-4 Physically completed contracts.

Sec. 4.804-5 Procedures for closing out contract files.

Sec. 4.805 Storage, handling, and disposal of contract files.

         Subpart 4.9_Taxpayer Identification Number Information


Sec. 4.900 Scope of subpart.

Sec. 4.901 Definition.

Sec. 4.902 General.

Sec. 4.903 Reporting contract information to the IRS.

Sec. 4.904 Reporting payment information to the IRS.

Sec. 4.905 Solicitation provision.

                   Subpart 4.10_Administrative Matters


Sec. 4.1001 Policy.

                Subpart 4.11_System for Award Management


Sec. 4.1100 Scope.

Sec. 4.1101 Definitions.

Sec. 4.1102 Policy.

Sec. 4.1103 Procedures.

Sec. 4.1104 Disaster Response Registry.

Sec. 4.1105 Solicitation provision and contract clauses.

             Subpart 4.12_Representations and Certifications


Sec. 4.1200 Scope.

Sec. 4.1201 Policy.

Sec. 4.1202 Solicitation provision and contract clause.

               Subpart 4.13_Personal Identity Verification


Sec. 4.1300 Scope of subpart.

Sec. 4.1301 Policy.

Sec. 4.1302 Acquisition of approved products and services for personal 
          identity verification.

Sec. 4.1303 Contract clause.

Subpart 4.14_Reporting Executive Compensation and First-Tier Subcontract 
                                 Awards


Sec. 4.1400 Scope of subpart.

Sec. 4.1401 Applicability.

Sec. 4.1402 Procedures.

Sec. 4.1403 Contract clause.

     Subpart 4.15_American Recovery and Reinvestment Act_Reporting 
                              Requirements


Sec. 4.1500 Scope of subpart.

Sec. 4.1501 Procedures.

Sec. 4.1502 Contract clause.

[[Page 79]]

         Subpart 4.16_Unique Procurement Instrument Identifiers


Sec. 4.1600 Scope of subpart.

Sec. 4.1601 Policy.

Sec. 4.1602 Identifying the PIID and supplementary PIID.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 
20113.

    Source: 48 FR 42113, Sept. 19, 1983, unless otherwise noted.



Sec. 4.000  Scope of part.

    This part prescribes policies and procedures relating to the 
administrative aspects of contract execution, contractor-submitted paper 
documents, distribution, reporting, retention, and files.

[60 FR 28493, May 31, 1995]

                     Subpart 4.1_Contract Execution



Sec. 4.001  Definitions.

    As used in this part--
    Procurement Instrument Identifier (PIID) means the Government-unique 
identifier for each solicitation, contract, agreement, or order. For 
example, an agency may use as its PIID for procurement actions, such as 
delivery and task orders or basic ordering agreements, the order or 
agreement number in conjunction with the contract number (see 4.1602).
    Supplementary procurement instrument identifier means the non-unique 
identifier for a procurement action that is used in conjunction with the 
Government-unique identifier. For example, an agency may use as its PIID 
for an amended solicitation, the Government-unique identifier for a 
solicitation number (e.g., N0002309R0009) in conjunction with a non-
unique amendment number (e.g., 0001). The non-unique amendment number 
represents the supplementary PIID.

[76 FR 39235, July 5, 2011]



Sec. 4.101  Contracting officer's signature.

    Only contracting officers shall sign contracts on behalf of the 
United States. The contracting officer's name and official title shall 
be typed, stamped, or printed on the contract. The contracting officer 
normally signs the contract after it has been signed by the contractor. 
The contracting officer shall ensure that the signer(s) have authority 
to bind the contractor (see specific requirements in 4.102 of this 
subpart).

[60 FR 34736, July 3, 1995]



Sec. 4.102  Contractor's signature.

    (a) Individuals. A contract with an individual shall be signed by 
that individual. A contract with an individual doing business as a firm 
shall be signed by that individual, and the signature shall be followed 
by the individual's typed, stamped, or printed name and the words ``, an 
individual doing business as ----------------------'' [insert name of 
firm].
    (b) Partnerships. A contract with a partnership shall be signed in 
the partnership name. Before signing for the Government, the contracting 
officer shall obtain a list of all partners and ensure that the 
individual(s) signing for the partnership have authority to bind the 
partnership.
    (c) Corporations. A contract with a corporation shall be signed in 
the corporate name, followed by the word ``by'' and the signature and 
title of the person authorized to sign. The contracting officer shall 
ensure that the person signing for the corporation has authority to bind 
the corporation.
    (d) Joint venturers. A contract with joint venturers may involve any 
combination of individuals, partnerships, or corporations. The contract 
shall be signed by each participant in the joint venture in the manner 
prescribed in paragraphs (a) through (c) above for each type of 
participant. When a corporation is participating, the contracting 
officer shall verify that the corporation is authorized to participate 
in the joint venture.
    (e) Agents. When an agent is to sign the contract, other than as 
stated in paragraphs (a) through (d) above, the agent's authorization to 
bind the principal must be established by evidence satisfactory to the 
contracting officer.

[48 FR 42113, Sept. 19, 1983, as amended at 62 FR 235, Jan. 2, 1997]

[[Page 80]]



Sec. 4.103  Contract clause.

    The contracting officer shall insert the clause at 52.204-1, 
Approval of Contract, in solicitations and contracts if required by 
agency procedures.

[49 FR 26741, June 29, 1984]

                    Subpart 4.2_Contract Distribution



Sec. 4.201  Procedures.

    Contracting officers shall distribute copies of contracts or 
modifications within 10 working days after execution by all parties. As 
a minimum, the contracting officer shall--
    (a) Distribute simultaneously one signed copy or reproduction of the 
signed contract to the contractor and the paying office;
    (b) When a contract is assigned to another office for contract 
administration (see subpart 42.2), provide to that office--
    (1) One copy or reproduction of the signed contract and of each 
modification; and
    (2) A copy of the contract distribution list, showing those offices 
that should receive copies of modifications, and any changes to the list 
as they occur;
    (c) Distribute one copy to each accounting and finance office 
(funding office) whose funds are cited in the contract;
    (d) When the contract is not assigned for administration but 
contains a Cost Accounting Standards clause, provide one copy of the 
contract to the cognizant administrative contracting officer and mark 
the copy ``FOR COST ACCOUNTING STANDARDS ADMINISTRATION ONLY'' (see 
30.601(b));
    (e) Provide one copy of each contract or modification that requires 
audit service to the appropriate field audit office listed in the 
``Directory of Federal Contract Audit Offices'' (copies of this 
directory can be ordered from the U.S. Government Printing Office, 
Superintendent of Documents, Washington, DC 20402, referencing stock 
numbers 008-007-03189-9 and 008-007-03190-2 for Volumes I and II, 
respectively); and
    (f) Provide copies of contracts and modifications to those 
organizations required to perform contract administration support 
functions (e.g., when manufacturing is performed at multiple sites, the 
contract administration office cognizant of each location).

[48 FR 42113, Sept. 19, 1983, as amended at 60 FR 34736, July 3, 1995]



Sec. 4.202  Agency distribution requirements.

    Agencies shall limit additional distribution requirements to the 
minimum necessary for proper performance of essential functions. When 
contracts are assigned for administration to a contract administration 
office located in an agency different from that of the contracting 
office (see part 42), the two agencies shall agree on any necessary 
distribution in addition to that prescribed in 4.201 above.



Sec. 4.203  Taxpayer identification information.

    (a) If the contractor has furnished a Taxpayer Identification Number 
(TIN) when completing the solicitation provision at 52.204-3, Taxpayer 
Identification, or paragraph (l) of the solicitation provision at 
52.212-3, Offeror Representations and Certifications--Commercial Items, 
the contracting officer shall, unless otherwise provided in agency 
procedures, attach a copy of the completed solicitation provision as the 
last page of the copy of the contract sent to the payment office.
    (b) If the TIN or type of organization is derived from a source 
other than the provision at 52.204-3 or 52.212-3(l), the contracting 
officer shall annotate the last page of the contract or order forwarded 
to the payment office to state the contractor's TIN and type of 
organization, unless this information is otherwise provided to the 
payment office in accordance with agency procedures.
    (c) If the contractor provides its TIN or type of organization to 
the contracting officer after award, the contracting officer shall 
forward the information to the payment office within 7 days of its 
receipt.
    (d) Federal Supply Schedule contracts. Each contracting officer that 
places an order under a Federal Supply Schedule contract (see Subpart 
8.4) shall provide

[[Page 81]]

the TIN and type of organization information to the payment office in 
accordance with paragraph (b) of this section.
    (e) Basic ordering agreements and indefinite-delivery contracts 
(other than Federal Supply Schedule contracts). (1) Each contracting 
officer that issues a basic ordering agreement or indefinite-delivery 
contract (other than a Federal Supply Schedule contract) shall provide 
to contracting officers placing orders under the agreement or contract 
(if the contractor is not required to provide this information to the 
System for Award Management)--
    (i) A copy of the agreement or contract with a copy of the completed 
solicitation provision at 52.204-3 or 52.212-3(l) as the last page of 
the agreement or contract; or
    (ii) The contractor's TIN and type of organization information.
    (2) Each contracting officer that places an order under a basic 
ordering agreement or indefinite-delivery contract (other than a Federal 
Supply Schedule contract) shall provide the TIN and type of organization 
information to the payment office in accordance with paragraph (a) or 
(b) of this section.

[63 FR 58588, Oct. 30, 1998, as amended at 68 FR 56672, Oct. 1, 2003; 73 
FR 33638, June 12, 2008; 78 FR 37677, June 21, 2013]

                       Subpart 4.3_Paper Documents



Sec. 4.300  Scope of subpart.

    This subpart provides policies and procedures on contractor-
submitted paper documents.

[60 FR 28493, May 31, 1995]



Sec. 4.301  Definition.

    Printed or copied double-sided, as used in this subpart, means 
printing or reproducing a document so that information is on both sides 
of a sheet of paper.

[65 FR 36017, June 6, 2000]



Sec. 4.302  Policy.

    (a) Section 3(a) of E.O. 13423, Strengthening Federal Environmental, 
Energy, and Transportation Management, directs agencies to implement 
waste prevention. In addition, section 2(e) of E.O. 13514, Federal 
Leadership in Environmental, Energy, and Economic Performance, directs 
agencies to eliminate waste. Electronic commerce methods (see 4.502) and 
double-sided printing and copying are best practices for waste 
prevention.
    (b) When electronic commerce methods (see 4.502) are not used, 
agencies shall require contractors to submit paper documents to the 
Government relating to an acquisition printed or copied double-sided on 
at least 30 percent postconsumer fiber paper whenever practicable. If 
the contractor cannot print or copy double-sided, it shall print or copy 
single-sided on at least 30 percent postconsumer fiber paper.

[76 FR 31397, May 31, 2011]



Sec. 4.303  Contract clause.

    Insert the clause at 52.204-4, Printed or Copied Double-Sided on 
Recycled Paper, in solicitations and contracts that exceed the 
simplified acquisition threshold.

[65 FR 36017, June 6, 2000]

     Subpart 4.4_Safeguarding Classified Information Within Industry



Sec. 4.401  [Reserved]



Sec. 4.402  General.

    (a) Executive Order 12829, January 6, 1993 (58 FR 3479, January 8, 
1993), entitled ``National Industrial Security Program'' (NISP), 
establishes a program to safeguard Federal Government classified 
information that is released to contractors, licensees, and grantees of 
the United States Government. Executive Order 12829 amends Executive 
Order 10865, February 20, 1960 (25 FR 1583, February 25, 1960), entitled 
``Safeguarding Classified Information Within Industry,'' as amended by 
Executive Order 10909, January 17, 1961 (26 FR 508, January 20, 1961).
    (b) The National Industrial Security Program Operating Manual 
(NISPOM) incorporates the requirements of these Executive Orders. The 
Secretary of Defense, in consultation with all affected agencies and 
with the concurrence of the Secretary of Energy, the Chairman of the 
Nuclear Regulatory Commission,

[[Page 82]]

and the Director of Central Intelligence, is responsible for issuance 
and maintenance of this Manual. The following DOD publications implement 
the program:
    (1) National Industrial Security Program Operating Manual (NISPOM) 
(DOD 5220.22-M).
    (2) Industrial Security Regulation (DOD 5220.22-R).
    (c) Procedures for the protection of information relating to foreign 
classified contracts awarded to U.S. industry, and instructions for the 
protection of U.S. information relating to classified contracts awarded 
to foreign firms, are prescribed in Chapter 10 of the NISPOM.
    (d) Part 27, Patents, Data, and Copyrights, contains policy and 
procedures for safeguarding classified information in patent 
applications and patents.

[48 FR 42113, Sept. 19, 1983, as amended at 61 FR 31617, June 20, 1996; 
73 FR 21781, Apr. 22, 2008]



Sec. 4.403  Responsibilities of contracting officers.

    (a) Presolicitation phase. Contracting officers shall review all 
proposed solicitations to determine whether access to classified 
information may be required by offerors, or by a contractor during 
contract performance.
    (1) If access to classified information of another agency may be 
required, the contracting officer shall--
    (i) Determine if the agency is covered by the NISP; and
    (ii) Follow that agency's procedures for determining the security 
clearances of firms to be solicited.
    (2) If the classified information required is from the contracting 
officer's agency, the contracting officer shall follow agency 
procedures.
    (b) Solicitation phase. Contracting officers shall--
    (1) Ensure that the classified acquisition is conducted as required 
by the NISP or agency procedures, as appropriate; and
    (2) Include (i) an appropriate Security Requirements clause in the 
solicitation (see 4.404), and (ii) as appropriate, in solicitations and 
contracts when the contract may require access to classified 
information, a requirement for security safeguards in addition to those 
provided in the clause (52.204-2, Security Requirements).
    (c) Award phase. Contracting officers shall inform contractors and 
subcontractors of the security classifications and requirements assigned 
to the various documents, materials, tasks, subcontracts, and components 
of the classified contract as follows:
    (1) Agencies covered by the NISP shall use the Contract Security 
Classification Specification, DD Form 254. The contracting officer, or 
authorized representative, is the approving official for the form and 
shall ensure that it is prepared and distributed in accordance with the 
Industrial Security Regulation.
    (2) Contracting officers in agencies not covered by the NISP shall 
follow agency procedures.

[48 FR 42113, Sept. 19, 1983, as amended at 61 FR 31617, June 20, 1996; 
73 FR 21781, Apr. 22, 2008]



Sec. 4.404  Contract clause.

    (a) The contracting officer shall insert the clause at 52.204-2, 
Security Requirements, in solicitations and contracts when the contract 
may require access to classified information, unless the conditions 
specified in paragraph (d) below apply.
    (b) If a cost contract (see 16.302) for research and development 
with an educational institution is contemplated, the contracting officer 
shall use the clause with its Alternate I.
    (c) If a construction or architect-engineer contract where employee 
identification is required for security reasons is contemplated, the 
contracting officer shall use the clause with its Alternate II.
    (d) If the contracting agency is not covered by the NISP and has 
prescribed a clause and alternates that are substantially the same as 
those at 52.204-2, the contracting officer shall use the agency-
prescribed clause as required by agency procedures.

[48 FR 42113, Sept. 19, 1983, as amended at 61 FR 31617, June 20, 1996]

[[Page 83]]

             Subpart 4.5_Electronic Commerce in Contracting

    Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 U.S.C. 
2473(c).

    Source: 63 FR 58592, Oct. 30, 1998, unless otherwise noted.



Sec. 4.500  Scope of subpart.

    This subpart provides policy and procedures for the establishment 
and use of electronic commerce in Federal acquisition as required by 
Section 30 of the Office of Federal Procurement Policy (OFPP) Act (41 
U.S.C. 426).



Sec. 4.501  [Reserved]



Sec. 4.502  Policy.

    (a) The Federal Government shall use electronic commerce whenever 
practicable or cost-effective. The use of terms commonly associated with 
paper transactions (e.g., ``copy,'' ``document,'' ``page,'' ``printed,'' 
``sealed envelope,'' and ``stamped'') shall not be interpreted to 
restrict the use of electronic commerce. Contracting officers may 
supplement electronic transactions by using other media to meet the 
requirements of any contract action governed by the FAR (e.g., transmit 
hard copy of drawings).
    (b) Agencies may exercise broad discretion in selecting the hardware 
and software that will be used in conducting electronic commerce. 
However, as required by Section 30 of the OFPP Act (41 U.S.C. 426), the 
head of each agency, after consulting with the Administrator of OFPP, 
shall ensure that systems, technologies, procedures, and processes used 
by the agency to conduct electronic commerce--
    (1) Are implemented uniformly throughout the agency, to the maximum 
extent practicable;
    (2) Are implemented only after considering the full or partial use 
of existing infrastructures;
    (3) Facilitate access to Government acquisition opportunities by 
small business concerns, small disadvantaged business concerns, women-
owned, veteran-owned, HUBZone, and service-disabled veteran-owned small 
business concerns;
    (4) Include a single means of providing widespread public notice of 
acquisition opportunities through the Governmentwide point of entry and 
a means of responding to notices or solicitations electronically; and
    (5) Comply with nationally and internationally recognized standards 
that broaden interoperability and ease the electronic interchange of 
information, such as standards established by the National Institute of 
Standards and Technology.
    (c) Before using electronic commerce, the agency head shall ensure 
that the agency systems are capable of ensuring authentication and 
confidentiality commensurate with the risk and magnitude of the harm 
from loss, misuse, or unauthorized access to or modification of the 
information.
    (d) Agencies may accept electronic signatures and records in 
connection with Government contracts.

[63 FR 58592, Oct. 30, 1998, as amended at 66 FR 27409, May 16, 2001; 68 
FR 28094, May 22, 2003; 70 FR 14954, Mar. 23, 2005; 72 FR 63076, Nov. 7, 
2007]

                     Subpart 4.6_Contract Reporting

    Source: 73 FR 21776, Apr. 22, 2008, unless otherwise indicated.



Sec. 4.600  Scope of subpart.

    This subpart prescribes uniform reporting requirements for the 
Federal Procurement Data System (FPDS).



Sec. 4.601  Definitions.

    As used in this subpart--
    Contract action means any oral or written action that results in the 
purchase, rent, or lease of supplies or equipment, services, or 
construction using appropriated dollars over the micro-purchase 
threshold, or modifications to these actions regardless of dollar value. 
Contract action does not include grants, cooperative agreements, other 
transactions, real property leases, requisitions from Federal stock, 
training authorizations, or other non-FAR based transactions.
    Contract action report (CAR) means contract action data required to 
be entered into the Federal Procurement Data System (FPDS).
    Definitive contract means any contract that must be reported to FPDS

[[Page 84]]

other than an indefinite delivery vehicle. This definition is only for 
FPDS, and is not intended to apply to Part 16.
    Entitlement program means a Federal program that guarantees a 
certain level of benefits to persons or other entities who meet 
requirements set by law, such as Social Security, farm price supports, 
or unemployment benefits.
    Generic DUNS number means a DUNS number assigned to a category of 
vendors not specific to any individual or entity.
    Indefinite delivery vehicle (IDV) means an indefinite delivery 
contract or agreement that has one or more of the following clauses:
    (1) 52.216-18, Ordering.
    (2) 52.216-19, Order Limitations.
    (3) 52.216-20, Definite Quantity.
    (4) 52.216-21, Requirements.
    (5) 52.216-22, Indefinite Quantity.
    (6) Any other clause allowing ordering.

[73 FR 21776, Apr. 22, 2008, as amended at 74 FR 2713, Jan. 15, 2009; 75 
FR 77735, Dec. 13, 2010]



Sec. 4.602  General.

    (a) The FPDS provides a comprehensive web-based tool for agencies to 
report contract actions. The resulting data provides--
    (1) A basis for recurring and special reports to the President, the 
Congress, the Government Accountability Office, Federal executive 
agencies, and the general public;
    (2) A means of measuring and assessing the effect of Federal 
contracting on the Nation's economy and the extent to which small, 
veteran-owned small, service-disabled veteran-owned small, HUBZone 
small, small disadvantaged, women-owned small business concerns, and 
AbilityOne nonprofit agencies operating under the Javits-Wagner-O'Day 
Act, are sharing in Federal contracts;
    (3) A means of measuring and assessing the effect of Federal 
contracting for promoting sustainable technologies, materials, products, 
and high-performance sustainable buildings. This is accomplished by 
collecting and reporting agency data on sustainable acquisition, 
including types of products purchased, the purchase costs, and the 
exceptions used for other than sustainable acquisition; and
    (4) A means of measuring and assessing the effect of other policy 
and management initiatives (e.g., performance based acquisitions and 
competition).
    (b) FPDS does not provide reports for certain acquisition 
information used in the award of a contract action (e.g., subcontracting 
data, funding data, or accounting data).
    (c) The FPDS Web site, https://www.fpds.gov, provides instructions 
for submitting data. It also provides--
    (1) A complete list of departments, agencies, and other entities 
that submit data to the FPDS;
    (2) Technical and end-user guidance;
    (3) A computer-based tutorial; and
    (4) Information concerning reports not generated in FPDS.

[73 FR 21776, Apr. 22, 2008, as amended at 73 FR 53994, Sept. 17, 2008; 
76 FR 31397, May 31, 2011]



Sec. 4.603  Policy.

    (a) In accordance with the Federal Funding Accountability and 
Transparency Act of 2006 (Pub. L. 109-282), all unclassified Federal 
award data must be publicly accessible.
    (b) Executive agencies shall use FPDS to maintain publicly available 
information about all unclassified contract actions exceeding the micro-
purchase threshold, and any modifications to those actions that change 
previously reported contract action report data, regardless of dollar 
value.
    (c) Agencies awarding assisted acquisitions or direct acquisitions 
must report these actions and identify the Program/Funding Agency and 
Office Codes from the applicable agency codes maintained by each agency 
at FPDS. These codes represent the agency and office that has provided 
the predominant amount of funding for the contract action. For assisted 
acquisitions, the requesting agency will receive socioeconomic credit 
for meeting agency small business goals, where applicable. Requesting 
agencies shall provide the appropriate agency/bureau component code as 
part of the written interagency agreement between the requesting and 
servicing agencies (see 17.502-1(b)(1)).
    (d) Agencies awarding contract actions with a mix of appropriated 
and

[[Page 85]]

non-appropriated funding shall only report the full appropriated portion 
of the contract action in FPDS.

[77 FR 69716, 69721, Nov. 20, 2012]



Sec. 4.604  Responsibilities.

    (a) The Senior Procurement Executive in coordination with the head 
of the contracting activity is responsible for developing and monitoring 
a process to ensure timely and accurate reporting of contractual actions 
to FPDS.
    (b)(1) The responsibility for the completion and accuracy of the 
individual contract action report (CAR) resides with the contracting 
officer who awarded the contract action. CARs in a draft or error status 
in FPDS are not considered complete.
    (2) The CAR must be confirmed for accuracy by the contracting 
officer prior to release of the contract award. The CAR must then be 
completed in FPDS within three business days after contract award.
    (3) For any action awarded in accordance with 6.302-2 or pursuant to 
any of the authorities listed at FAR subpart 18.2, the CAR must be 
completed in FPDS within 30 days after contract award.
    (4) When the contracting office receives written notification that a 
contractor has changed its size status in accordance with the clause at 
52.219-28, Post-Award Small Business Program Representation, the 
contracting officer must submit a modification contract action report to 
ensure that the updated size status is entered in FPDS.
    (c) The chief acquisition officer of each agency required to report 
its contract actions must submit to the General Services Administration 
(GSA), in accordance with FPDS guidance, within 120 days after the end 
of each fiscal year, an annual certification of whether, and to what 
degree, agency CAR data for the preceding fiscal year is complete and 
accurate.

[73 FR 21776, Apr. 22, 2008, as amended at 76 FR 68044, Nov. 2, 2011; 77 
FR 69717, Nov. 20, 2012]



Sec. 4.605  Procedures.

    (a) Procurement Instrument Identifier (PIID). Agencies shall have in 
place a process that ensures that each PIID reported to FPDS is unique 
Governmentwide, for all solicitations, contracts, blanket purchase 
agreements, basic agreements, basic ordering agreements, or orders in 
accordance with 4.1601, and will remain so for at least 20 years from 
the date of contract award. Other pertinent PIID instructions for FPDS 
reporting can be found at https://www.fpds.gov.
    (b) Data Universal Numbering System. The contracting officer must 
identify and report a Data Universal Numbering System (DUNS) number 
(Contractor Identification Number) for the successful offeror on a 
contract action. The DUNS number reported must identify the successful 
offeror's name and address as stated in the offer and resultant 
contract, and as registered in the System for Award Management database 
in accordance with the provision at 52.204-7, System for Award 
Management. The contracting officer must ask the offeror to provide its 
DUNS number by using either the provision at 52.204-6, Data Universal 
Numbering System Number, the provision at 52.204-7, System for Award 
Management, or the provision at 52.212-1, Instructions to Offerors--
Commercial Items.
    (c) Generic DUNS number. (1) The use of a generic DUNS number should 
be limited, and only used in the situations described in paragraph 
(c)(2) of this section. Use of a generic DUNS number does not supersede 
the requirements of either provisions 52.204-6 or 52.204-7 (if present 
in the solicitation) for the contractor to have a DUNS number assigned.
    (2) Authorized generic DUNS numbers, maintained by the Integrated 
Acquisition Environment (IAE) program office (https://
www.acquisition.gov), may be used to report contracts in lieu of the 
contractor's actual DUNS number only for--
    (i) Contract actions valued at or below $25,000 that are awarded to 
a contractor that is--
    (A) A student;
    (B) A dependent of either a veteran, foreign service officer, or 
military member assigned outside the United States and its outlying 
areas (as defined in 2.101); or

[[Page 86]]

    (C) Located outside the United States and its outlying areas for 
work to be performed outside the United States and its outlying areas 
and the contractor does not otherwise have a DUNS number;
    (ii) Contracts valued above $25,000 awarded to individuals located 
outside the United States and its outlying areas for work to be 
performed outside the United States and its outlying areas; or
    (iii) Contracts when specific public identification of the 
contracted party could endanger the mission, contractor, or recipients 
of the acquired goods or services. The contracting officer must include 
a written determination in the contract file of a decision applicable to 
authority under this paragraph (c)(2)(iii).
    (d) American Recovery and Reinvestment Act actions. The contracting 
officer, when entering data in FPDS, shall use the instructions at 
https://www.fpds.gov to identify any action funded in whole or in part 
by the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5).

[73 FR 21776, Apr. 22, 2008, as amended at 74 FR 14638, Mar. 31, 2009; 
76 FR 39235, July 5, 2011; 77 FR 69717, Nov. 20, 2012; 78 FR 37677, June 
21, 2013]



Sec. 4.606  Reporting Data.

    (a) Actions required to be reported to FPDS. (1) As a minimum, 
agencies must report the following contract actions over the micro-
purchase threshold, regardless of solicitation process used, and 
agencies must report any modification to these contract actions that 
change previously reported contract action data, regardless of dollar 
value:
    (i) Definitive contracts, including purchase orders and imprest fund 
buys over the micro-purchase threshold awarded by a contracting officer.
    (ii) Indefinite delivery vehicle (identified as an ``IDV'' in FPDS). 
Examples of IDVs include the following:
    (A) Task and Delivery Order Contracts (see Subpart 16.5), 
including--
    (1) Government-wide acquisition contracts.
    (2) Multi-agency contracts.
    (B) GSA Federal supply schedules.
    (C) Blanket Purchase Agreements (see 13.303).
    (D) Basic Ordering Agreements (see 16.703).
    (E) Any other agreement or contract against which individual orders 
or purchases may be placed.
    (iii) All calls and orders awarded under the indefinite delivery 
vehicles identified in paragraph (a)(1)(ii) of this section.
    (2) The GSA Office of Charge Card Management will provide the 
Government purchase card data, at a minimum annually, and GSA will 
incorporate that data into FPDS for reports.
    (3) Agencies may use the FPDS Express Reporting capability for 
consolidated multiple action reports for a vendor when it would be 
overly burdensome to report each action individually. When used, Express 
Reporting should be done at least monthly.
    (b) Reporting other actions. Agencies may submit actions other than 
those listed at paragraph (a)(1) of this section only if they are able 
to be segregated from FAR-based actions and this is approved in writing 
by the FPDS Program Office. Prior to the commencement of reporting, 
agencies must contact the FPDS Program Office if they desire to submit 
any of the following types of activity:
    (1) Transactions at or below the micro-purchase threshold, except as 
provided in paragraph (a)(2) of this section.
    (2) Any non-appropriated fund (NAF) or NAF portion of a contract 
action using a mix of appropriated and nonappropriated funding.
    (3) Lease and supplemental lease agreements for real property.
    (4) Grants and entitlement actions.
    (c) Actions not reported. The following types of contract actions 
are not to be reported to FPDS:
    (1) Imprest fund transactions below the micro-purchase threshold, 
including those made via the Government purchase card (unless specific 
agency procedures prescribe reporting these actions).
    (2) Orders from GSA stock and the GSA Global Supply Program.
    (3) Purchases made at GSA or AbilityOne service stores, as these

[[Page 87]]

items stocked for resale have already been reported by GSA.
    (4) Purchases made using non-appropriated fund activity cards, 
chaplain fund cards, individual Government personnel training orders, 
and Defense Printing orders.
    (5) Actions that, pursuant to other authority, will not be entered 
in FPDS (e.g., reporting of the information would compromise national 
security).
    (6) Contract actions in which the required data would constitute 
classified information.
    (7) Resale activity (i.e., commissary or exchange activity).
    (8) Revenue generating arrangements (i.e., concessions).
    (9) Training expenditures not issued as orders or contracts.
    (10) Interagency agreements other than inter-agency acquisitions 
required to be reported at 4.606(a)(1).
    (11) Letters of obligation used in the A-76 process.
    (d) Agencies not subject to the FAR. Agencies not subject to the FAR 
may be required by other authority (e.g., statute, OMB, or internal 
agency policy) to report certain information to FPDS. Those agencies not 
subject to the FAR must first receive approval from the FPDS Program 
Office prior to reporting to FPDS.

[73 FR 21776, Apr. 22, 2008, as amended at 73 FR 53994, Sept. 17, 2008; 
75 FR 34264, June 16, 2010; 75 FR 82567, Dec. 30, 2010; 77 FR 69717, 
Nov. 20, 2012]



Sec. 4.607  Solicitation provisions and contract clause.

    (a) Insert the provision at 52.204-5, Women-Owned Business (Other 
Than Small Business), in all solicitations that--
    (1) Are not set aside for small business concerns;
    (2) Exceed the simplified acquisition threshold; and
    (3) Are for contracts that will be performed in the United States or 
its outlying areas.
    (b) Insert the provision at 52.204-6, Data Universal Numbering 
System Number, in solicitations that do not contain the provision at 
52.204-7, System for Award Management, or meet a condition at 
4.605(c)(2).
    (c) Insert the clause at 52.204-12, Data Universal Numbering System 
Number Maintenance, in solicitations and resulting contracts that 
contain the provision at 52.204-6, Data Universal Numbering System.

[73 FR 21776, Apr. 22, 2008, as amended at 77 FR 69717, Nov. 20, 2012; 
78 FR 37677, June 21, 2013]

                Subpart 4.7_Contractor Records Retention



Sec. 4.700  Scope of subpart.

    This subpart provides policies and procedures for retention of 
records by contractors to meet the records review requirements of the 
Government. In this subpart, the terms ``contracts'' and ``contractors'' 
include ``subcontracts'' and ``subcontractors.''



Sec. 4.701  Purpose.

    The purpose of this subpart is to generally describe records 
retention requirements and to allow reductions in the retention period 
for specific classes of records under prescribed circumstances.



Sec. 4.702  Applicability.

    (a) This subpart applies to records generated under contracts that 
contain one of the following clauses:
    (1) Audit and Records--Sealed Bidding (52.214-26).
    (2) Audit and Records--Negotiation (52.215-2).
    (b) This subpart is not mandatory on Department of Energy contracts 
for which the Comptroller General allows alternative records retention 
periods. Apart from this exception, this subpart applies to record 
retention periods under contracts that are subject to Chapter 137, Title 
10, U.S.C., or 40 U.S.C. 101, et seq.

[48 FR 42113, Sept. 19, 1983, as amended at 50 FR 1727, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 60 FR 42650, Aug. 16, 1995; 60 FR 48211, 
Sept. 18, 1995; 62 FR 258, Jan. 2, 1997; 70 FR 57454, Sept. 30, 2005]



Sec. 4.703  Policy.

    (a) Except as stated in 4.703(b), contractors shall make available 
records, which includes books, documents, accounting procedures and 
practices, and

[[Page 88]]

other data, regardless of type and regardless of whether such items are 
in written form, in the form of computer data, or in any other form, and 
other supporting evidence to satisfy contract negotiation, 
administration, and audit requirements of the contracting agencies and 
the Comptroller General for (1) 3 years after final payment or, for 
certain records, (2) the period specified in 4.705 through 4.705-3, 
whichever of these periods expires first.
    (b) Contractors shall make available the foregoing records and 
supporting evidence for a longer period of time than is required in 
4.703(a) if--
    (1) A retention period longer than that cited in 4.703(a) is 
specified in any contract clause; or
    (2) The contractor, for its own purposes, retains the foregoing 
records and supporting evidence for a longer period. Under this 
circumstance, the retention period shall be the period of the 
contractor's retention or 3 years after final payment, whichever period 
expires first.
    (3) The contractor does not meet the original due date for 
submission of final indirect cost rate proposals specified in 
subparagraph (d)(2) of the clause at 52.216-7, Allowable Cost and 
Payment. Under these circumstances, the retention periods in 4.705 shall 
be automatically extended one day for each day the proposal is not 
submitted after the original due date.
    (c) Nothing in this section shall be construed to preclude a 
contractor from duplicating or storing original records in electronic 
form unless they contain significant information not shown on the record 
copy. Original records need not be maintained or produced in an audit if 
the contractor or subcontractor provides photographic or electronic 
images of the original records and meets the following requirements:
    (1) The contractor or subcontractor has established procedures to 
ensure that the imaging process preserves accurate images of the 
original records, including signatures and other written or graphic 
images, and that the imaging process is reliable and secure so as to 
maintain the integrity of the records.
    (2) The contractor or subcontractor maintains an effective indexing 
system to permit timely and convenient access to the imaged records.
    (3) The contractor or subcontractor retains the original records for 
a minimum of one year after imaging to permit periodic validation of the 
imaging systems.
    (d) If the information described in paragraph (a) of this section is 
maintained on a computer, contractors shall retain the computer data on 
a reliable medium for the time periods prescribed. Contractors may 
transfer computer data in machine readable form from one reliable 
computer medium to another. Contractors' computer data retention and 
transfer procedures shall maintain the integrity, reliability, and 
security of the original computer data. Contractors shall also retain an 
audit trail describing the data transfer. For the record retention time 
periods prescribed, contractors shall not destroy, discard, delete, or 
write over such computer data.

[48 FR 42113, Sept. 19, 1983, as amended at 51 FR 2649, Jan. 17, 1986; 
53 FR 43388, Oct. 26, 1988; 54 FR 48982, Nov. 28, 1989; 59 FR 67015, 
Dec. 28, 1994; 60 FR 42650, Aug. 16, 1995; 62 FR 64915, Dec. 9, 1997; 72 
FR 27383, May 15, 2007]



Sec. 4.704  Calculation of retention periods.

    (a) The retention periods in 4.705 are calculated from the end of 
the contractor's fiscal year in which an entry is made charging or 
allocating a cost to a Government contract or subcontract. If a specific 
record contains a series of entries, the retention period is calculated 
from the end of the contractor's fiscal year in which the final entry is 
made. The contractor should cut off the records in annual blocks and 
retain them for block disposal under the prescribed retention periods.
    (b) When records generated during a prior contract are relied upon 
by a contractor for certified cost or pricing data in negotiating a 
succeeding contract, the prescribed periods shall run from the date of 
the succeeding contract.
    (c) If two or more of the record categories described in 4.705 are 
interfiled and screening for disposal is not practical, the contractor 
shall retain the

[[Page 89]]

entire record series for the longest period prescribed for any category 
of records.

[48 FR 42113, Sept. 19, 1983, as amended at 75 FR 53142, Aug. 30, 2010]



Sec. 4.705  Specific retention periods.

    The contractor shall retain the records identified in 4.705-1 
through 4.705-3 for the periods designated, provided retention is 
required under 4.702. Records are identified in this subpart in terms of 
their purpose or use and not by specific name or form number. Although 
the descriptive identifications may not conform to normal contractor 
usage or filing practices, these identifications apply to all contractor 
records that come within the description.



Sec. 4.705-1  Financial and cost accounting records.

    (a) Accounts receivable invoices, adjustments to the accounts, 
invoice registers, carrier freight bills, shipping orders, and other 
documents which detail the material or services billed on the related 
invoices: Retain 4 years.
    (b) Material, work order, or service order files, consisting of 
purchase requisitions or purchase orders for material or services, or 
orders for transfer of material or supplies: Retain 4 years.
    (c) Cash advance recapitulations, prepared as posting entries to 
accounts receivable ledgers for amounts of expense vouchers prepared for 
employees' travel and related expenses: Retain 4 years.
    (d) Paid, canceled, and voided checks, other than those issued for 
the payment of salary and wages: Retain 4 years.
    (e) Accounts payable records to support disbursements of funds for 
materials, equipment, supplies, and services, containing originals or 
copies of the following and related documents: remittance advices and 
statements, vendors' invoices, invoice audits and distribution slips, 
receiving and inspection reports or comparable certifications of receipt 
and inspection of material or services, and debit and credit memoranda: 
Retain 4 years.
    (f) Labor cost distribution cards or equivalent documents: Retain 2 
years.
    (g) Petty cash records showing description of expenditures, to whom 
paid, name of person authorizing payment, and date, including copies of 
vouchers and other supporting documents: Retain 2 years.



Sec. 4.705-2  Pay administration records.

    (a) Payroll sheets, registers, or their equivalent, of salaries and 
wages paid to individual employees for each payroll period; change 
slips; and tax withholding statements: Retain 4 years.
    (b) Clock cards or other time and attendance cards: Retain 2 years.
    (c) Paid checks, receipts for wages paid in cash, or other evidence 
of payments for services rendered by employees: Retain 2 years.

[48 FR 42113, Sept. 19, 1983, as amended at 65 FR 36022, June 6, 2000; 
67 FR 70517, Nov. 22, 2002]



Sec. 4.705-3  Acquisition and supply records.

    (a) Store requisitions for materials, supplies, equipment, and 
services: Retain 2 years.
    (b) Work orders for maintenance and other services: Retain 4 years.
    (c) Equipment records, consisting of equipment usage and status 
reports and equipment repair orders: Retain 4 years.
    (d) Expendable property records, reflecting accountability for the 
receipt and use of material in the performance of a contract: Retain 4 
years.
    (e) Receiving and inspection report records, consisting of reports 
reflecting receipt and inspection of supplies, equipment, and materials: 
Retain 4 years.
    (f) Purchase order files for supplies, equipment, material, or 
services used in the performance of a contract; supporting documentation 
and backup files including, but not limited to, invoices, and memoranda; 
e.g., memoranda of negotiations showing the principal elements of 
subcontract price negotiations (see 52.244-2): Retain 4 years.
    (g) Production records of quality control, reliability, and 
inspection: Retain 4 years.
    (h) Property records (see FAR 45.101 and 52.245-1): Retain 4 years.

[48 FR 42113, Sept. 19, 1983, as amended at 63 FR 34060, June 22, 
1998;75 FR 38679, July 2, 2010]

[[Page 90]]



Sec. 4.706  [Reserved]

                  Subpart 4.8_Government Contract Files



Sec. 4.800  Scope of subpart.

    This subpart prescribes requirements for establishing, maintaining, 
and disposing of contract files.

[65 FR 36022, June 6, 2000]



Sec. 4.801  General.

    (a) The head of each office performing contracting, contract 
administration, or paying functions shall establish files containing the 
records of all contractual actions.
    (b) The documentation in the files (see 4.803) shall be sufficient 
to constitute a complete history of the transaction for the purpose of--
    (1) Providing a complete background as a basis for informed 
decisions at each step in the acquisition process;
    (2) Supporting actions taken;
    (3) Providing information for reviews and investigations; and
    (4) Furnishing essential facts in the event of litigation or 
congressional inquiries.
    (c) The files to be established include--
    (1) A file for cancelled solicitations;
    (2) A file for each contract; and
    (3) A file such as a contractor general file, containing documents 
relating--for example--to (i) no specific contract, (ii) more than one 
contract, or (iii) the contractor in a general way (e.g., contractor's 
management systems, past performance, or capabilities).



Sec. 4.802  Contract files.

    (a) A contract file should generally consist of--
    (1) The contracting office contract file, that documents the basis 
for the acquisition and the award, the assignment of contract 
administration (including payment responsibilities), and any subsequent 
actions taken by the contracting office;
    (2) The contract administration office contract file, that documents 
actions reflecting the basis for and the performance of contract 
administration responsibilities; and
    (3) The paying office contract file, that documents actions 
prerequisite to, substantiating, and reflecting contract payments.
    (b) Normally, each file should be kept separately; however, if 
appropriate, any or all of the files may be combined; e.g., if all 
functions or any combination of the functions are performed by the same 
office.
    (c) Files must be maintained at organizational levels that ensure--
    (1) Effective documentation of contract actions;
    (2) Ready accessibility to principal users;
    (3) Minimal establishment of duplicate and working files;
    (4) The safeguarding of classified documents; and
    (5) Conformance with agency regulations for file location and 
maintenance.
    (d) If the contract files or file segments are decentralized (e.g., 
by type or function) to various organizational elements or to other 
outside offices, responsibility for their maintenance must be assigned. 
A central control and, if needed, a locator system should be established 
to ensure the ability to locate promptly any contract files.
    (e) Contents of contract files that are contractor bid or proposal 
information or source selection information as defined in 2.101 must be 
protected from disclosure to unauthorized persons (see 3.104-4).
    (f) Agencies may retain contract files in any medium (paper, 
electronic, microfilm, etc.) or any combination of media, as long as the 
requirements of this subpart are satisfied.

[48 FR 42113, Sept. 19, 1983, as amended at 54 FR 20496, May 11, 1989; 
55 FR 36794, Sept. 6, 1990; 59 FR 67016, Dec. 28, 1994; 62 FR 232, Jan. 
2, 1997; 67 FR 13063, Mar. 20, 2002]



Sec. 4.803  Contents of contract files.

    The following are examples of the records normally contained, if 
applicable, in contract files:
    (a) Contracting office contract file. (1) Purchase request, 
acquisition planning information, and other presolicitation documents.
    (2) Justifications and approvals, determinations and findings, and 
associated documents.

[[Page 91]]

    (3) Evidence of availability of funds.
    (4) Synopsis of proposed acquisition as required by part 5 or a 
reference to the synopsis.
    (5) The list of sources solicited, and a list of any firms or 
persons whose requests for copies of the solicitation were denied, 
together with the reasons for denial.
    (6) Set-aside decision including the type and extent of market 
research conducted.
    (7) Government estimate of contract price.
    (8) A copy of the solicitation and all amendments thereto.
    (9) Security requirements and evidence of required clearances.
    (10) A copy of each offer or quotation, the related abstract, and 
records of determinations concerning late offers or quotations. 
Unsuccessful offers or quotations may be maintained separately, if 
cross-referenced to the contract file. The only portions of the 
unsuccessful offer or quotation that need be retained are--
    (i) Completed solicitation sections A, B, and K;
    (ii) Technical and management proposals;
    (iii) Cost/price proposals;
    (iv) Any other pages of the solicitation that the offeror or quoter 
has altered or annotated.
    (11) Contractor's representations and certifications (see 
4.1201(c)).
    (12) Preaward survey reports or reference to previous preaward 
survey reports relied upon.
    (13) Source selection documentation.
    (14) Contracting officer's determination of the contractor's 
responsibility.
    (15) Small Business Administration Certificate of Competency.
    (16) Records of contractor's compliance with labor policies 
including equal employment opportunity policies.
    (17) Data and information related to the contracting officer's 
determination of a fair and reasonable price. This may include--
    (i) Certified cost or pricing data;
    (ii) Data other than certified cost or pricing data;
    (iii) Justification for waiver from the requirement to submit 
certified cost or pricing data; or
    (iv) Certificates of Current Cost or Pricing Data.
    (18) Packaging and transportation data.
    (19) Cost or price analysis.
    (20) Audit reports or reasons for waiver.
    (21) Record of negotiation.
    (22) Justification for type of contract.
    (23) Authority for deviations from this regulation, statutory 
requirements, or other restrictions.
    (24) Required approvals of award and evidence of legal review.
    (25) Notice of award.
    (26) The original of (i) the signed contract or award, (ii) all 
contract modifications, and (iii) documents supporting modifications 
executed by the contracting office.
    (27) Synopsis of award or reference thereto.
    (28) Notice to unsuccessful quoters or offerors and record of any 
debriefing.
    (29) Acquisition management reports (see subpart 4.6).
    (30) Bid, performance, payment, or other bond documents, or a 
reference thereto, and notices to sureties.
    (31) Report of postaward conference.
    (32) Notice to proceed, stop orders, and any overtime premium 
approvals granted at the time of award.
    (33) Documents requesting and authorizing modification in the normal 
assignment of contract administration functions and responsibility.
    (34) Approvals or disapprovals of requests for waivers or deviations 
from contract requirements.
    (35) Rejected engineering change proposals.
    (36) Royalty, invention, and copyright reports (including invention 
disclosures) or reference thereto.
    (37) Contract completion documents.
    (38) Documentation regarding termination actions for which the 
contracting office is responsible.
    (39) Cross-references to pertinent documents that are filed 
elsewhere.
    (40) Any additional documents on which action was taken or that 
reflect actions by the contracting office pertinent to the contract.

[[Page 92]]

    (41) A current chronological list identifying the awarding and 
successor contracting officers, with inclusive dates of responsibility.
    (42) When limiting competition to women-owned small business (WOSB) 
concerns eligible under the WOSB Program or economically disadvantaged 
women-owned small business (EDWOSB) concerns in accordance with subpart 
19.15, include documentation--
    (i) Of the type and extent of market research; and
    (ii) That the NAICS code assigned to the acquisition is for an 
industry that SBA has designated as--
    (A) Underrepresented for economically disadvantaged women-owned 
small business set-asides, or
    (B) Substantially underrepresented for women-owned small business 
set-asides.
    (b) Contract administration office contract file. (1) Copy of the 
contract and all modifications, together with official record copies of 
supporting documents executed by the contract administration office.
    (2) Any document modifying the normal assignment of contract 
administration functions and responsibility.
    (3) Security requirements.
    (4) Certified cost or pricing data, Certificates of Current Cost or 
Pricing Data, or data other than certified cost or pricing data; cost or 
price analysis; and other documentation supporting contractual actions 
executed by the contract administration office.
    (5) Preaward survey information.
    (6) Purchasing system information.
    (7) Consent to subcontract or purchase.
    (8) Performance and payment bonds and surety information.
    (9) Postaward conference records.
    (10) Orders issued under the contract.
    (11) Notice to proceed and stop orders.
    (12) Insurance policies or certificates of insurance or references 
to them.
    (13) Documents supporting advance or progress payments.
    (14) Progressing, expediting, and production surveillance records.
    (15) Quality assurance records.
    (16) Property administration records.
    (17) Documentation regarding termination actions for which the 
contract administration office is responsible.
    (18) Cross reference to other pertinent documents that are filed 
elsewhere.
    (19) Any additional documents on which action was taken or that 
reflect actions by the contract administration office pertinent to the 
contract.
    (20) Contract completion documents.
    (c) Paying office contract file. (1) Copy of the contract and any 
modifications.
    (2) Bills, invoices, vouchers, and supporting documents.
    (3) Record of payments or receipts.
    (4) Other pertinent documents.

[48 FR 42113, Sept. 19, 1983]

    Editorial Note: For Federal Register citations affecting 4.803, see 
the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and at www.fdsys.gov.



Sec. 4.804  Closeout of contract files.



Sec. 4.804-1  Closeout by the office administering the contract.

    (a) Except as provided in paragraph (c) below, time standards for 
closing out contract files are as follows:
    (1) Files for contracts using simplified acquisition procedures 
should be considered closed when the contracting officer receives 
evidence of receipt of property and final payment, unless otherwise 
specified by agency regulations.
    (2) Files for firm-fixed-price contracts, other than those using 
simplified acquisition procedures, should be closed within 6 months 
after the date on which the contracting officer receives evidence of 
physical completion.
    (3) Files for contracts requiring settlement of indirect cost rates 
should be closed within 36 months of the month in which the contracting 
officer receives evidence of physical completion.
    (4) Files for all other contracts should be closed within 20 months 
of the month in which the contracting officer receives evidence of 
physical completion.
    (b) When closing out the contract files at 4.804-1(a)(2), (3), and 
(4), the contracting officer shall use the closeout procedures at 4.804-
5. However,

[[Page 93]]

these closeout actions may be modified to reflect the extent of 
administration that has been performed. Quick closeout procedures (see 
42.708) should be used, when appropriate, to reduce administrative costs 
and to enable deobligation of excess funds.
    (c) A contract file shall not be closed if (1) the contract is in 
litigation or under appeal, or (2) in the case of a termination, all 
termination actions have not been completed.

[48 FR 42113, Sept. 19, 1983, as amended at 54 FR 34752, Aug. 21, 1989; 
60 FR 34746, July 3, 1995]



Sec. 4.804-2  Closeout of the contracting office files if another office 
          administers the contract.

    (a) Contract files for contracts using simplified acquisition 
procedures should be considered closed when the contracting officer 
receives evidence of receipt of property and final payment, unless 
otherwise specified by agency regulation.
    (b) All other contract files shall be closed as soon as practicable 
after the contracting officer receives a contract completion statement 
from the contract administration office. The contracting officer shall 
ensure that all contractual actions required have been completed and 
shall prepare a statement to that effect. This statement is authority to 
close the contract file and shall be made a part of the official 
contract file.

[48 FR 42113, Sept. 19, 1983, as amended at 60 FR 34746, July 3, 1995]



Sec. 4.804-3  Closeout of paying office contract files.

    The paying office shall close the contract file upon issuance of the 
final payment voucher.



Sec. 4.804-4  Physically completed contracts.

    (a) Except as provided in paragraph (b) below, a contract is 
considered to be physically completed when--
    (1)(i) The contractor has completed the required deliveries and the 
Government has inspected and accepted the supplies;
    (ii) The contractor has performed all services and the Government 
has accepted these services; and
    (iii) All option provisions, if any, have expired; or
    (2) The Government has given the contractor a notice of complete 
contract termination.
    (b) Rental, use, and storage agreements are considered to be 
physically completed when--
    (1) The Government has given the contractor a notice of complete 
contract termination; or
    (2) The contract period has expired.

[48 FR 42113, Sept. 19, 1983, as amended at 72 FR 27383, May 15, 2007]



Sec. 4.804-5  Procedures for closing out contract files.

    (a) The contract administration office is responsible for initiating 
(automated or manual) administrative closeout of the contract after 
receiving evidence of its physical completion. At the outset of this 
process, the contract administration office must review the contract 
funds status and notify the contracting office of any excess funds the 
contract administration office might deobligate. When complete, the 
administrative closeout procedures must ensure that--
    (1) Disposition of classified material is completed;
    (2) Final patent report is cleared. If a final patent report is 
required, the contracting officer may proceed with contract closeout in 
accordance with the following procedures, or as otherwise prescribed by 
agency procedures:
    (i) Final patent reports should be cleared within 60 days of 
receipt.
    (ii) If the final patent report is not received, the contracting 
officer shall notify the contractor of the contractor's obligations and 
the Government's rights under the applicable patent rights clause, in 
accordance with 27.303. If the contractor fails to respond to this 
notification, the contracting officer may proceed with contract closeout 
upon consultation with the agency legal counsel responsible for patent 
matters regarding the contractor's failure to respond.
    (3) Final royalty report is cleared;
    (4) There is no outstanding value engineering change proposal;
    (5) Plant clearance report is received;
    (6) Property clearance is received;

[[Page 94]]

    (7) All interim or disallowed costs are settled;
    (8) Price revision is completed;
    (9) Subcontracts are settled by the prime contractor;
    (10) Prior year indirect cost rates are settled;
    (11) Termination docket is completed;
    (12) Contract audit is completed;
    (13) Contractor's closing statement is completed;
    (14) Contractor's final invoice has been submitted; and
    (15) Contract funds review is completed and excess funds 
deobligated.
    (b) When the actions in paragraph (a) above have been verified, the 
contracting officer administering the contract must ensure that a 
contract completion statement, containing the following information, is 
prepared:
    (1) Contract administration office name and address (if different 
from the contracting office).
    (2) Contracting office name and address.
    (3) Contract number.
    (4) Last modification number.
    (5) Last call or order number.
    (6) Contractor name and address.
    (7) Dollar amount of excess funds, if any.
    (8) Voucher number and date, if final payment has been made.
    (9) Invoice number and date, if the final approved invoice has been 
forwarded to a disbursing office of another agency or activity and the 
status of the payment is unknown.
    (10) A statement that all required contract administration actions 
have been fully and satisfactorily accomplished.
    (11) Name and signature of the contracting officer.
    (12) Date.
    (c) When the statement is completed, the contracting officer must 
ensure that--
    (1) The signed original is placed in the contracting office contract 
file (or forwarded to the contracting office for placement in the files 
if the contract administration office is different from the contracting 
office); and
    (2) A signed copy is placed in the appropriate contract 
administration file if administration is performed by a contract 
administration office.

[48 FR 42113, Sept. 19, 1983, as amended at 54 FR 34752, Aug. 21, 1989; 
64 FR 72445, Dec. 27, 1999; 76 FR 31408, May 31, 2011]



Sec. 4.805  Storage, handling, and disposal of contract files.

    (a) Agencies must prescribe procedures for the handling, storing, 
and disposing of contract files. These procedures must take into account 
documents held in all types of media, including microfilm and various 
electronic media. Agencies may change the original medium to facilitate 
storage as long as the requirements of Part 4, law, and other 
regulations are satisfied. The process used to create and store records 
must record and reproduce the original document, including signatures 
and other written and graphic images completely, accurately, and 
clearly. Data transfer, storage, and retrieval procedures must protect 
the original data from alteration. Unless law or other regulations 
require signed originals to be kept, they may be destroyed after the 
responsible agency official verifies that record copies on alternate 
media and copies reproduced from the record copy are accurate, complete, 
and clear representations of the originals. Agency procedures for 
contract file disposal must include provisions that the documents 
specified in paragraph (b) of this section may not be destroyed before 
the times indicated, and may be retained longer if the responsible 
agency official determines that the files have future value to the 
Government. When original documents have been converted to alternate 
media for storage, the requirements in paragraph (b) of this section 
also apply to the record copies in the alternate media.
    (b) If administrative records are mixed with program records and 
cannot be economically segregated, the entire file should be kept for 
the period of time approved for the program records. Similarly, if 
documents described in the following table are part of a subject or case 
file that documents activities that are not described in the table, they 
should be treated in the same manner as the files of which they are a 
part. The retention periods for

[[Page 95]]

acquisitions at or below the simplified acquisition threshold also apply 
to acquisitions conducted prior to July 3, 1995, that used small 
purchase procedures. The retention periods for acquisitions above the 
simplified acquisition threshold also apply to acquisitions conducted 
prior to July 3, 1995, that used other than small purchase procedures.

------------------------------------------------------------------------
                 Document                         Retention period
------------------------------------------------------------------------
(1) Records pertaining to Contract          6 years and 3 months after
 Disputes Act actions.                       final action or decision
                                             for files created prior to
                                             October 1, 1979. 1 year
                                             after final action or
                                             decision for files created
                                             on or after October 1,
                                             1979.
------------------------------------------------------------------------
(2) Contracts (and related records or       6 years and 3 months after
 documents, including successful             final payment.
 proposals) exceeding the simplified
 acquisition threshold for other than
 construction.
------------------------------------------------------------------------
(3) Contracts (and related records or       3 years after final payment.
 documents, including successful
 proposals) at or below the simplified
 acquisition threshold for other than
 construction.
------------------------------------------------------------------------
(4) Construction contracts:
    (i) Above $2,000......................  6 years and 3 months after
                                             final payment.
------------------------------------------------------------------------
    (ii) $2,000 or less...................  3 years after final payment.
------------------------------------------------------------------------
    (iii) Related records or documents,     Same as contract file.
     including successful proposals,
     except for contractor's payrolls (see
     (b)(4)(iv)).
------------------------------------------------------------------------
    (iv) Contractor's payrolls submitted    3 years after contract
     in accordance with Department of        completion unless contract
     Labor regulations, with related         performance is the subject
     certifications, anti-kickback           of an enforcement action on
     affidavits, and other related papers.   that date.
------------------------------------------------------------------------
(5) Solicited and unsolicited unsuccessful
 offers, quotations, bids, and proposals:
    (i) Relating to contracts above the     If filed separately from
     simplified acquisition threshold.       contract file, until
                                             contract is completed.
                                             Otherwise, the same as
                                             related contract file.
------------------------------------------------------------------------
    (ii) Relating to contracts at or below  1 year after date of award
     the simplified acquisition threshold.   or until final payment,
                                             whichever is later.
------------------------------------------------------------------------
(6) Files for canceled solicitations......  5 years after cancellation.
------------------------------------------------------------------------
(7) Other copies of procurement file        Upon termination or
 records used by component elements of a     completion.
 contracting office for administrative
 purposes.
------------------------------------------------------------------------
(8) Documents pertaining generally to the   Until superseded or
 contractor as described at 4.801(c)(3).     obsolete.
------------------------------------------------------------------------
(9) Data submitted to the Federal           5 years after submittal to
 Procurement Data System (FPDS).             FPDS.
 Electronic data file maintained by fiscal
 year, containing unclassified records of
 all procurements other than simplified
 acquisitions, and information required
 under 4.603.
------------------------------------------------------------------------
(10) Investigations, cases pending or in    Until final clearance or
 litigation (including protests), or         settlement, or, if related
 similar matters.                            to a document identified in
                                             (b)(1)-(9), for the
                                             retention period specified
                                             for the related document,
                                             whichever is later.
------------------------------------------------------------------------


[65 FR 36022, June 6, 2000, as amended at 73 FR 21778, Apr. 22, 2008]

         Subpart 4.9_Taxpayer Identification Number Information

    Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 U.S.C. 
2473(c).

    Source: 63 FR 58589, Oct. 30, 1998, unless otherwise noted.



Sec. 4.900  Scope of subpart.

    This subpart provides policies and procedures for obtaining--
    (a) Taxpayer Identification Number (TIN) information that may be 
used for debt collection purposes; and
    (b) Contract information and payment information for submittal to 
the payment office for Internal Revenue Service (IRS) reporting 
purposes.



Sec. 4.901  Definition.

    Common parent, as used in this subpart, means that corporate entity 
that owns or controls an affiliated group of corporations that files its 
Federal income tax returns on a consolidated

[[Page 96]]

basis, and of which the offeror is a member.

[60 FR 28493, May 31, 1995, as amended at 66 FR 2127, Jan. 10, 2001]



Sec. 4.902  General.

    (a) Debt collection. 31 U.S.C. 7701(c) requires each contractor 
doing business with a Government agency to furnish its TIN to that 
agency. 31 U.S.C. 3325(d) requires the Government to include, with each 
certified voucher prepared by the Government payment office and 
submitted to a disbursing official, the TIN of the contractor receiving 
payment under the voucher. The TIN may be used by the Government to 
collect and report on any delinquent amounts arising out of the 
contractor's relationship with the Government.
    (b) Information reporting to the IRS. The TIN is also required for 
Government reporting of certain contract information (see 4.903) and 
payment information (see 4.904) to the IRS.



Sec. 4.903  Reporting contract information to the IRS.

    (a) 26 U.S.C. 6050M, as implemented in 26 CFR, requires heads of 
Federal executive agencies to report certain information to the IRS.
    (b)(1) The required information applies to contract modifications--
    (i) Increasing the amount of a contract awarded before January 1, 
1989, by $50,000 or more; and
    (ii) Entered into on or after April 1, 1990.
    (2) The reporting requirement also applies to certain contracts and 
modifications thereto in excess of $25,000 entered into on or after 
January 1, 1989.
    (c) The information to report is--
    (1) Name, address, and TIN of the contractor;
    (2) Name and TIN of the common parent (if any);
    (3) Date of the contract action;
    (4) Amount obligated on the contract action; and
    (5) Estimated contract completion date.
    (d) Transmit the information to the IRS through the Federal 
Procurement Data System (see Subpart 4.6 and implementing instructions).



Sec. 4.904  Reporting payment information to the IRS.

    26 U.S.C. 6041 and 6041A, as implemented in 26 CFR, in part, require 
payors, including Government agencies, to report to the IRS, on Form 
1099, payments made to certain contractors. 26 U.S.C. 6109 requires a 
contractor to provide its TIN if a Form 1099 is required. The payment 
office is responsible for submitting reports to the IRS.



Sec. 4.905  Solicitation provision.

    The contracting officer shall insert the provision at 52.204-3, 
Taxpayer Identification, in solicitations that--
    (a) Do not include the provisionat 52.204-7, System for Award 
Management; and
    (b) Are not conducted under the procedures of part 12.

[68 FR 56672, Oct. 1, 2003, as amended at 77 FR 69718, Nov. 20, 2012; 78 
FR 37678, June 21, 2013]

                   Subpart 4.10_Administrative Matters

    Source: 62 FR 51230, Sept. 30, 1997, unless otherwise noted.



Sec. 4.1001  Policy.

    Contracts may identify the items or services to be acquired as 
separately identified line items. Contract line items should provide 
unit prices or lump sum prices for separately identifiable contract 
deliverables, and associated delivery schedules or performance periods. 
Line items may be further subdivided or stratified for administrative 
purposes (e.g., to provide for traceable accounting classification 
citations).

[62 FR 51230, Sept. 30, 1997]

                Subpart 4.11_System for Award Management

    Source: 68 FR 56672, Oct. 1, 2003, unless otherwise noted.



Sec. 4.1100  Scope.

    This subpart prescribes policies and procedures for requiring 
contractor registration in the System for Award Management (SAM) 
database to--

[[Page 97]]

    (a) Increase visibility of vendor sources (including their 
geographical locations) for specific supplies and services; and
    (b) Establish a common source of vendor data for the Government.

[68 FR 56672, Oct. 1, 2003, as amended at 77 FR 188, Jan. 3, 2012; 78 FR 
37678, June 21, 2013]



Sec. 4.1101  Definition.

    As used in this subpart--
    Agreement means basic agreement, basic ordering agreement, or 
blanket purchase agreement.

[48 FR 42113, Sept. 19, 1983, as amended at 69 FR 76345, Dec. 20, 2004]



Sec. 4.1102  Policy.

    (a) Prospective contractors shall be registered in the SAM database 
prior to award of a contract or agreement, except for--
    (1) Purchases under the micro-purchase threshold that use a 
Governmentwide commercial purchase card as both the purchasing and 
payment mechanism, as opposed to using the purchase card for payment 
only;
    (2) Classified contracts (see 2.101) when registration in the SAM 
database, or use of SAM data, could compromise the safeguarding of 
classified information or national security;
    (3) Contracts awarded by--
    (i) Deployed contracting officers in the course of military 
operations, including, but not limited to, contingency operations as 
defined in 10 U.S.C. 101(a)(13) or humanitarian or peacekeeping 
operations as defined in 10 U.S.C. 2302(7);
    (ii) Contracting officers located outside the United States and its 
outlying areas, as defined in 2.101, for work to be performed in support 
of diplomatic or developmental operations, including those performed in 
support of foreign assistance programs overseas, in an area that has 
been designated by the Department of State as a danger pay post (see 
http://aoprals.state.gov/Web920/danger--pay--all.asp); or
    (iii) Contracting officers in the conduct of emergency operations, 
such as responses to natural or environmental disasters or national or 
civil emergencies, e.g., Robert T. Stafford Disaster Relief and 
Emergency Assistance Act (42 U.S.C. 5121);
    (4) Contracts with individuals for performance outside the United 
States and its outlying areas;
    (5) Contracts to support unusual or compelling needs (see 6.302-2);
    (6) Contract actions at or below $25,000 awarded to foreign vendors 
for work performed outside the United States, if it is impractical to 
obtain System for Award Management registration; and
    (7) Micro-purchases that do not use the electronic funds transfer 
(EFT) method for payment and are not required to be reported (see 
subpart 4.6).
    (b) If practical, the contracting officer shall modify the contract 
or agreement awarded under paragraph (a)(3) of this section to require 
SAM registration.
    (c)(1)(i) If a contractor has legally changed its business name, 
``doing business as'' name, or division name (whichever is shown on the 
contract), or has transferred the assets used in performing the 
contract, but has not completed the necessary requirements regarding 
novation and change-of-name agreements in Subpart 42.12, the contractor 
shall provide the responsible contracting officer a minimum of one 
business day's written notification of its intention to change the name 
in the SAM database; comply with the requirements of Subpart 42.12; and 
agree in writing to the timeline and procedures specified by the 
responsible contracting officer. The contractor must provide with the 
notification sufficient documentation to support the legally changed 
name.
    (ii) If the contractor fails to comply with the requirements of 
paragraph (c)(1)(i) of the clause at 52.204-13, System for Award 
Management Maintenance, or fails to perform the agreement at 52.204-13, 
paragraph (c)(1)(i)(C), and, in the absence of a properly executed 
novation or change-of-name agreement, the SAM information that shows the 
contractor to be other than the contractor indicated in the contract 
will be considered to be incorrect information within the meaning of the 
``Suspension of Payment'' paragraph of the EFT clause of the contract.

[[Page 98]]

    (2) The contractor shall not change the name or address for 
electronic funds transfer payments (EFT) or manual payments, as 
appropriate, in the SAM record to reflect an assignee for the purpose of 
assignment of claims (see subpart 32.8, Assignment of Claims).
    (3) Assignees shall be separately registered in the SAM database. 
Information provided to the contractor's SAM record that indicates 
payments, including those made by EFT, to an ultimate recipient other 
than that contractor will be considered to be incorrect information 
within the meaning of the ``Suspension of payment'' paragraph of the EFT 
clause of the contract.

[48 FR 42113, Sept. 19, 1983, as amended at 43586, July 27, 2005; 77 FR 
69718, Nov. 20, 2012; 78 FR 37678, June 21, 2013]



Sec. 4.1103  Procedures.

    (a) Unless the acquisition is exempt under 4.1102, the contracting 
officer--
    (1) Shall verify that the prospective contractor is registered in 
the SAM database (see paragraph (b) of this section) before awarding a 
contract or agreement. Contracting officers are encouraged to check the 
SAM early in the acquisition process, after the competitive range has 
been established, and then communicate to the unregistered offerors that 
they must register;
    (2) Should use the DUNS number or, if applicable, the DUNS+4 number, 
to verify registration--
    (i) Via the Internet at https://www.acquisition.gov;
    (ii) As otherwise provided by agency procedures; and
    (3) Need not verify registration before placing an order or call if 
the contract or agreement includes the provision at 52.204-7, or the 
clause at 52.212-4, or a similar agency clause, except when use of the 
Governmentwide commercial purchase card is contemplated as a method of 
payment. (See 32.1108(b)(2)).
    (b) If the contracting officer, when awarding a contract or 
agreement, determines that a prospective contractor is not registered in 
the SAM database and an exception to the registration requirements for 
the award does not apply (see 4.1102), the contracting officer shall--
    (1) If the needs of the requiring activity allow for a delay, make 
award after the apparently successful offeror has registered in the SAM 
database. The contracting officer shall advise the offeror of the number 
of days it will be allowed to become registered. If the offeror does not 
become registered by the required date, the contracting officer shall 
award to the next otherwise successful registered offeror following the 
same procedures (i.e., if the next apparently successful offeror is not 
registered, the contracting officer shall advise the offeror of the 
number of days it will be allowed to become registered, etc.); or
    (2) If the needs of the requiring activity do not allow for a delay, 
proceed to award to the next otherwise successful registered offeror, 
provided that written approval is obtained at one level above the 
contracting officer; or
    (3) If the contract action is being awarded pursuant to 6.302-2, the 
contractor must be registered in the System for Award Management within 
30 days after contract award, or at least three days prior to submission 
of the first invoice, whichever occurs first.
    (c) Agencies shall protect against improper disclosure of contractor 
SAM information.
    (d) The contracting officer shall, on contractual documents 
transmitted to the payment office, provide the DUNS number, or, if 
applicable, the DUNS+4, in accordance with agency procedures.

[59 FR 67018, Dec. 28, 1994, as amended at 71 FR 36924, June 28, 2006; 
74 FR 65604, Dec. 10, 2009; 77 FR 188, Jan. 3, 2012; 77 FR 69718, Nov. 
20, 2012; 78 FR 37678, June 21, 2013]



Sec. 4.1104  Disaster Response Registry.

    Contracting officers shall consult the Disaster Response Registry 
via https://www.acquisition.gov when contracting for debris removal, 
distribution of supplies, reconstruction, and other disaster or 
emergency relief activities inside the United States and outlying areas. 
(See 26.205).

[74 FR 52849, Oct. 14, 2009, as amended at 77 FR 188, Jan. 3, 2012]



Sec. 4.1105  Solicitation provision and contract clauses.

    (a)(1) Except as provided in 4.1102(a), use the provision at 52.204-
7, System

[[Page 99]]

for Award Management, in solicitations.
    (2) If the solicitation is anticipated to be awarded in accordance 
with 4.1102(a)(5), the contracting officer shall use the provision at 
52.204-7, System for Award Management, with its Alternate I.
    (b) Insert the clause at 52.204-13, System for Award Management 
Maintenance, in solicitations that contain the provision at 52.204-7, 
and resulting contracts.

[77 FR 69718, Nov. 20, 2012, as amended at 78 FR 37678, June 21, 2013]

             Subpart 4.12_Representations and Certifications

    Source: 69 FR 76345, Dec. 20, 2004, unless otherwise noted.



Sec. 4.1200  Scope.

    This subpart prescribes policies and procedures for requiring 
submission and maintenance of representations and certifications via the 
System for Award Management (SAM) to--
    (a) Eliminate the administrative burden for contractors of 
submitting the same information to various contracting offices; and
    (b) Establish a common source for this information to procurement 
offices across the Government.

[69 FR 76345, Dec. 20, 2004, as amended at 72 FR 36854, July 5, 2007; 78 
FR 37678, June 21, 2013]



Sec. 4.1201  Policy.

    (a) Prospective contractors shall complete electronic annual 
representations and certifications at SAM accessed via https://
www.acquisition.gov as a part of required registration (see FAR 4.1102).
    (b)(1) Prospective contractors shall update the representations and 
certifications submitted to SAM as necessary, but at least annually, to 
ensure they are kept current, accurate, and complete. The 
representations and certifications are effective until one year from 
date of submission or update to SAM.
    (2) When any of the conditions in paragraph (b) of the clause at 
52.219-28, Post-Award Small Business Program Rerepresentation, apply, 
contractors that represented they were small businesses prior to award 
of a contract must update the representations and certifications in SAM 
as directed by the clause. Contractors that represented they were other 
than small businesses prior to award of a contract may update the 
representations and certifications in SAM as directed by the clause, if 
their size status has changed since contract award.
    (c) Data in SAM is archived and is electronically retrievable. 
Therefore, when a prospective contractor has completed representations 
and certifications electronically via SAM, the contracting officer must 
reference the date of SAM verification in the contract file, or include 
a paper copy of the electronically-submitted representations and 
certifications in the file. Either of these actions satisfies contract 
file documentation requirements of 4.803(a)(11). However, if an offeror 
identifies changes to SAM data pursuant to the FAR provisions at 52.204-
8(d) or 52.212-3(b), the contracting officer must include a copy of the 
changes in the contract file.

[69 FR 76345, Dec. 20, 2004, as amended at 71 FR 57363, Sept. 28, 2006; 
72 FR 36854, July 5, 2007; 72 FR 63078, Nov. 7, 2007; 73 FR 33638, June 
12, 2008; 74 FR 2729, Jan. 15, 2009; 74 FR 11825, Mar. 19, 2009; 77 FR 
188, Jan. 3, 2012; 78 FR 37678, June 21, 2013]



Sec. 4.1202  Solicitation provision and contract clause.

    Except for commercial item solicitations issued under FAR part 12, 
insert in solicitations the provision at 52.204-8, Annual 
Representations and Certifications. The contracting officer shall check 
the applicable provisions at 52.204-8(c)(2). When the provision at 
52.204-7, System for Award Management, is included in the solicitation, 
do not include the following representations and certifications:
    (a) 52.203-2, Certificate of Independent Price Determination.
    (b) 52.203-11, Certification and Disclosure Regarding Payments to 
Influence Certain Federal Transactions.
    (c) 52.204-3, Taxpayer Identification.
    (d) 52.204-5, Women-Owned Business (Other Than Small Business).

[[Page 100]]

    (e) 52.209-2, Prohibition on Contracting with Inverted Domestic 
Corporations--Representation.
    (f) 52.209-5, Certification Regarding Responsibility Matters.
    (g) 52.214-14, Place of Performance--Sealed Bidding.
    (h) 52.215-6, Place of Performance.
    (i) 52.219-1, Small Business Program Representations (Basic & 
Alternate I).
    (j) 52.219-2, Equal Low Bids.
    (k) 52.219-22, Small Disadvantaged Business Status (Basic & 
Alternate I).
    (l) 52.222-18, Certification Regarding Knowledge of Child Labor for 
Listed End Products.
    (m) 52.222-22, Previous Contracts and Compliance Reports.
    (n) 52.222-25, Affirmative Action Compliance.
    (o) 52.222-38, Compliance with Veterans' Employment Reporting 
Requirements.
    (p) 52.222-48, Exemption from Application of the Service Contract 
Act to Contracts for Maintenance, Calibration, or Repair of Certain 
Equipment Certification.
    (q) 52.222-52, Exemption from Application of the Service Contract 
Act to Contracts for Certain Services--Certification.
    (r) 52.223-1, Biobased Product Certification.
    (s) 52.223-4, Recovered Material Certification.
    (t) 52.223-9, Estimate of Percentage of Recovered Material Content 
for EPA-Designated Items (Alternate I only).
    (u) 52.225-2, Buy American Act Certificate.
    (v) 52.225-4, Buy American Act--Free Trade Agreements--Israeli Trade 
Act Certificate (Basic, Alternates I, II, and III).
    (w) 52.225-6, Trade Agreements Certificate.
    (x) 52.225-20, Prohibition on Conducting Restricted Business 
Operations in Sudan--Certification.
    (y) 52.225-25, Prohibition on Contracting with Entities Engaging in 
Certain Activities or Transactions Relating to Iran--Representation and 
Certifications.
    (z) 52.226-2, Historically Black College or University and Minority 
Institution Representation.
    (aa) 52.227-6, Royalty Information (Basic & Alternate I).
    (bb) 52.227-15, Representation of Limited Rights Data and Restricted 
Computer Software.

[69 FR 76345, Dec. 20, 2004]

    Editorial Note: For Federal Register citations affectingSec. 
4.1202, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.fdsys.gov.

               Subpart 4.13_Personal Identity Verification

    Source: 72 FR 46335, Aug. 17, 2007, unless otherwise noted.



Sec. 4.1300  Scope of subpart.

    This subpart provides policy and procedures associated with Personal 
Identity Verification as required by--
    (a) Federal Information Processing Standards Publication (FIPS PUB) 
Number 201, ``Personal Identity Verification of Federal Employees and 
Contractors''; and
    (b) Office of Management and Budget (OMB) Guidance M-05-24, dated 
August 5, 2005, ``Implementation of Homeland Security Presidential 
Directive (HSPD) 12--Policy for a Common Identification Standard for 
Federal Employees and Contractors.''



Sec. 4.1301  Policy.

    (a) Agencies must follow FIPS PUB Number 201 and the associated OMB 
implementation guidance for personal identity verification for all 
affected contractor and subcontractor personnel when contract 
performance requires contractors to have routine physical access to a 
Federally-controlled facility and/or routine access to a Federally-
controlled information system.
    (b) Agencies must include their implementation of FIPS PUB 201 and 
OMB Guidance M-05-24 in solicitations and contracts that require the 
contractor to have routine physical access to a Federally-controlled 
facility and/or routine access to a Federally-controlled information 
system.
    (c) Agencies must designate an official responsible for verifying 
contractor employee personal identity.

[[Page 101]]

    (d)(1) Agency procedures for the return of Personal Identity 
Verification (PIV) products shall ensure that Government contractors 
account for all forms of Government-provided identification issued to 
Government contractor employees under a contract, i.e., the PIV cards or 
other similar badges, and shall ensure that contractors return such 
identification to the issuing agency as soon as any of the following 
occurs, unless otherwise determined by the agency:
    (i) When no longer needed for contract performance.
    (ii) Upon completion of a contractor employee's employment.
    (iii) Upon contract completion or termination.
    (2) The contracting officer may delay final payment under a contract 
if the contractor fails to comply with these requirements.

[72 FR 46335, Aug. 17, 2007, as amended at 75 FR 82576, Dec. 30, 2010]



Sec. 4.1302  Acquisition of approved products and services for personal 
          identity verification.

    (a) In order to comply with FIPS PUB 201, agencies must purchase 
only approved personal identity verification products and services.
    (b) Agencies may acquire the approved products and services from the 
GSA, Federal Supply Schedule 70, Special Item Number (SIN) 132-62, HSPD-
12 Product and Service Components, in accordance with ordering 
procedures outlined in FAR Subpart 8.4.
    (c) When acquiring personal identity verification products and 
services not using the process in paragraph (b) of this section, 
agencies must ensure that the applicable products and services are 
approved as compliant with FIPS PUB 201 including--
    (1) Certifying the products and services procured meet all 
applicable Federal standards and requirements;
    (2) Ensuring interoperability and conformance to applicable Federal 
standards for the lifecycle of the components; and
    (3) Maintaining a written plan for ensuring ongoing conformance to 
applicable Federal standards for the lifecycle of the components.
    (d) For more information on personal identity verification products 
and services see http://www.idmanagement.gov.



Sec. 4.1303  Contract clause.

    The contracting officer shall insert the clause at 52.204-9, 
Personal Identity Verification of Contractor Personnel, in solicitations 
and contracts when contract performance requires contractors to have 
routine physical access to a Federally-controlled facility and/or 
routine access to a Federally-controlled information system. The clause 
shall not be used when contractors require only intermittent access to 
Federally-controlled facilities.

Subpart 4.14_Reporting Executive Compensation and First-Tier Subcontract 
                                 Awards

    Source: 75 FR 39419, July 8, 2010, unless otherwise noted.



Sec. 4.1400  Scope of subpart.

    This subpart implements section 2 of the Federal Funding 
Accountability and Transparency Act of 2006 (Pub. L. 109-282), as 
amended by section 6202 of the Government Funding Transparency Act of 
2008 (Pub. L. 110-252), which requires contractors to report subcontract 
award data and the total compensation of the five most highly 
compensated executives of the contractor and subcontractor. The public 
may view first-tier subcontract award data at http://usaspending.gov.



Sec. 4.1401  Applicability.

    (a) This subpart applies to all contracts with a value of $25,000 or 
more. Nothing in this subpart requires the disclosure of classified 
information.
    (b) Reporting of subcontract information will be limited to the 
first-tier subcontractor.

[77 FR 44058, July 26, 2012]



Sec. 4.1402  Procedures.

    (a) Agencies shall ensure that contractors comply with the reporting 
requirements of 52.204-10, Reporting Executive Compensation and First-
Tier Subcontract Awards. Agencies shall review contractor reports on a 
quarterly

[[Page 102]]

basis to ensure the information is consistent with contract information. 
The agency is not required to address data for which the agency would 
not normally have supporting information, such as the compensation 
information required of contractors and first-tier subcontractors. 
However, the agency shall inform the contractor of any inconsistencies 
with the contract information and require that the contractor correct 
the report, or provide a reasonable explanation as to why it believes 
the information is correct. Agencies may review the reports at http://
www.fsrs.gov.
    (b) When contracting officers report the contract action to the 
Federal Procurement Data System (FPDS) in accordance with FAR subpart 
4.6, certain data will then pre-populate from FPDS, to assist 
contractors in completing and submitting their reports. If data 
originating from FPDS is found by the contractor to be in error when the 
contractor completes the subcontract report, the contractor should 
notify the Government contracting officer, who is responsible for 
correcting the data in FPDS. Contracts reported using the generic DUNS 
number allowed at FAR 4.605(c)(2) will interfere with the contractor's 
ability to comply with this reporting requirement, because the data will 
not pre-populate from FPDS.
    (c) If the contractor fails to comply with the reporting 
requirements, the contracting officer shall exercise appropriate 
contractual remedies. In addition, the contracting officer shall make 
the contractor's failure to comply with the reporting requirements a 
part of the contractor's performance information under Subpart 42.15.
    (d) There is a reporting exception in 52.204-10(g) for contractors 
and subcontractors who had gross income in the previous tax year under 
$300,000.

[75 FR 39419, July 8, 2010, as amended at 77 FR 44058, July 26, 2012; 77 
FR 69718, Nov. 20, 2012]



Sec. 4.1403  Contract clause.

    (a) The contracting officer shall insert the clause at 52.204-10, 
Reporting Executive Compensation and First-Tier Subcontract Awards, in 
all solicitations and contracts of $25,000 or more.
    (b) The clause is not prescribed for contracts that are not required 
to be reported in the Federal Procurement Data System (FPDS) (see 
subpart 4.6).

[77 FR 44058, July 26, 2012]

     Subpart 4.15_American Recovery and Reinvestment Act_Reporting 
                              Requirements

    Source: 74 FR 14644, Mar. 31, 2009, unless otherwise noted.



Sec. 4.1500  Scope of subpart.

    This subpart implements section 1512(c) of Division A of the 
American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) (Recovery 
Act), which requires, as a condition of receipt of funds, quarterly 
reporting on the use of funds. The subpart also implements the data 
elements of the Federal Funding Accountability and Transparency Act of 
2006, as amended (Pub. L. 109-282). Contractors that receive awards (or 
modifications to existing awards) funded, in whole or in part by the 
Recovery Act, must report information including, but not limited to--
    (a) The dollar amount of contractor invoices;
    (b) The supplies delivered and services performed;
    (c) An assessment of the completion status of the work;
    (d) An estimate of the number of jobs created and the number of jobs 
retained as a result of the Recovery Act funds;
    (e) Names and total compensation of each of the five most highly 
compensated officers for the calendar year in which the contract is 
awarded; and
    (f) Specific information on first-tier subcontractors.



Sec. 4.1501  Procedures.

    (a) In any contract action funded in whole or in part by the 
Recovery Act, the contracting officer shall indicate that the contract 
action is being made under the Recovery Act, and indicate which products 
or services are funded under the Recovery Act. This requirement applies 
whenever Recovery Act funds are used, regardless of the contract 
instrument.

[[Page 103]]

    (b) To maximize transparency of Recovery Act funds that must be 
reported by the contractor, the contracting officer shall structure 
contract awards to allow for separately tracking Recovery Act funds. For 
example, the contracting officer may consider awarding dedicated 
separate contracts when using Recovery Act funds or establishing 
contract line item number (CLIN) structures to mitigate commingling of 
Recovery funds with other funds.
    (c) Contracting officers shall ensure that the contractor complies 
with the reporting requirements of 52.204-11, American Recovery and 
Reinvestment Act--Reporting Requirements. If the contractor fails to 
comply with the reporting requirements, the contracting officer shall 
exercise appropriate contractual remedies.
    (d) The contracting officer shall make the contractor's failure to 
comply with the reporting requirements a part of the contractor's 
performance information under Subpart 42.15.



Sec. 4.1502  Contract clause.

    Insert the clause at 52.204-11, American Recovery and Reinvestment 
Act--Reporting Requirements in all solicitations and contracts funded in 
whole or in part with Recovery Act funds, except classified 
solicitations and contracts. This includes, but is not limited to, 
Governmentwide Acquisition Contracts (GWACs), multi-agency contracts 
(MACs), Federal Supply Schedule (FSS) contracts, or agency indefinite-
delivery/indefinite-quantity (ID/IQ) contracts that will be funded with 
Recovery Act funds. Contracting officers shall include this clause in 
any existing contract or order that will be funded with Recovery Act 
funds. Contracting officers may not use Recovery Act funds on existing 
contracts and orders if the clause at 52.204-11 is not incorporated. 
This clause is not required for any existing contracts, or task and 
delivery orders issued under a contract, that contains the original 
clause FAR 52.204-11 (March 2009).

[75 FR 38686, July 2, 2010]

         Subpart 4.16_Unique Procurement Instrument Identifiers

    Source: 76 FR 39235, July 5, 2011, unless otherwise noted.



Sec. 4.1600  Scope of subpart.

    This subpart prescribes policies and procedures for assigning unique 
Procurement Instrument Identifiers (PIID) for each solicitation, 
contract, agreement, or order and related procurement instrument.



Sec. 4.1601  Policy.

    (a) Procurement Instrument Identifier (PIID). Agencies shall have in 
place a process that ensures that each PIID used to identify a 
solicitation or contract action is unique Governmentwide, and will 
remain so for at least 20 years from the date of contract award.
    (b) Agencies must submit their proposed identifier format to the 
General Services Administration's Integrated Acquisition Environment 
Program Office, which maintains a registry of the agency-unique 
identifier schemes.
    (c) The PIID shall consist of alpha characters in the first 
positions to indicate the agency, followed by alpha-numeric characters 
according to agency procedures.
    (d) The PIID shall be used to identify all solicitation and contract 
actions. The PIID shall also be used to identify solicitation and 
contract actions in designated support and reporting systems (e.g., 
Federal Procurement Data System, Past Performance Information Retrieval 
System), in accordance with regulations, applicable authorities, and 
agency policies and procedures.
    (e) Agencies shall not change the PIID, unless the conditions in 
paragraph (f) of this section exist.
    (f) If continued use of a PIID is not possible or is not in the 
Government's best interest solely for administrative reasons (e.g., for 
implementations of new agency contracting systems), the contracting 
officer may assign a new PIID by issuing a modification. The 
modification shall clearly identify both the original and the newly 
assigned PIID.

[[Page 104]]



Sec. 4.1602  Identifying the PIID and supplementary PIID.

    (a) Identifying the PIID in solicitation and contract award 
documentation (including forms and electronic generated formats). 
Agencies shall include all PIIDs for all related procurement actions as 
identified in paragraphs (a)(1) through (5) of this section.
    (1) Solicitation. Identify the PIID for all solicitations. For 
amendments to solicitations, identify a supplementary PIID, in 
conjunction with the PIID for the solicitation.
    (2) Contracts and purchase orders. Identify the PIID for contracts 
and purchase orders.
    (3) Delivery and task orders. For delivery and task orders placed by 
an agency under a contract (e.g., indefinite delivery indefinite 
quantity (IDIQ) contracts, multi-agency contracts (MAC), Governmentwide 
acquisition contracts (GWACs), or Multiple Award Schedule (MAS) 
contracts), identify the PIID for the delivery and task order and the 
PIID for the contract.
    (4) Blanket purchase agreements and basic ordering agreements. 
Identify the PIID for blanket purchase agreements issued in accordance 
with 13.303, and for basic agreements and basic ordering agreements 
issued in accordance with subpart 16.7. For blanket purchase agreements 
issued in accordance with subpart 8.4 under a MAS contract, identify the 
PIID for the blanket purchase agreement and the PIID for the MAS 
contract.
    (i) Orders. For orders against basic ordering agreements or blanket 
purchase agreements issued in accordance with 13.303, identify the PIID 
for the order and the PIID for the blanket purchase agreement or basic 
ordering agreement.
    (ii) Orders under subpart 8.4. For orders against a blanket purchase 
agreement established under a MAS contract, identify the PIID for the 
order, the PIID for the blanket purchase agreement, and the PIID for the 
MAS contract.
    (5) Modifications. For modifications to actions described in 
paragraphs (a)(2) through (4) of this section, and in accordance with 
agency procedures, identify a supplementary PIID for the modification in 
conjunction with the PIID for the contract, order, or agreement being 
modified.
    (b) Placement of the PIID on forms. When the form (including 
electronic generated format) does not provide spaces or fields for the 
PIID or supplementary PIID required in paragraph (a) of this section, 
identify the PIID in accordance with agency procedures.
    (c) Additional agency specific identification information. If agency 
procedures require additional identification information in 
solicitations, contracts, or other related procurement instruments for 
administrative purposes, identify it in such a manner so as to separate 
it clearly from the PIID.

[[Page 105]]

                    SUBCHAPTER B_ACQUISITION PLANNING

                   PART 5_PUBLICIZING CONTRACT ACTIONS

Sec.

Sec. 5.000 Scope of part.

Sec. 5.001 Definition.

Sec. 5.002 Policy.

Sec. 5.003 Governmentwide point of entry.

                Subpart 5.1_Dissemination of Information


Sec. 5.101 Methods of disseminating information.

Sec. 5.102 Availability of solicitations.

            Subpart 5.2_Synopses of Proposed Contract Actions


Sec. 5.201 General.

Sec. 5.202 Exceptions.

Sec. 5.203 Publicizing and response time.

Sec. 5.204 Presolicitation notices.

Sec. 5.205 Special situations.

Sec. 5.206 Notice of subcontracting opportunities.

Sec. 5.207 Preparation and transmittal of synopses.

                 Subpart 5.3_Synopses of Contract Awards


Sec. 5.301 General.

Sec. 5.302 Preparation and transmittal of synopses of awards.

Sec. 5.303 Announcement of contract awards.

                   Subpart 5.4_Release of Information


Sec. 5.401 General.

Sec. 5.402 General public.

Sec. 5.403 Requests from Members of Congress.

Sec. 5.404 Release of long-range acquisition estimates.

Sec. 5.404-1 Release procedures.

Sec. 5.404-2 Announcements of long-range acquisition estimates.

Sec. 5.405 Exchange of acquisition information.

Sec. 5.406 Public disclosure of justification documents for certain 
          contract actions.

                     Subpart 5.5_Paid Advertisements


Sec. 5.501 Definitions.

Sec. 5.502 Authority.

Sec. 5.503 Procedures.

Sec. 5.504 Use of advertising agencies.

           Subpart 5.6_Publicizing Multi-Agency Use Contracts


Sec. 5.601 Governmentwide database of contracts.

  Subpart 5.7_Publicizing Requirements under the American Recovery and 
                        Reinvestment Act of 2009


Sec. 5.701 Scope.

Sec. 5.702 Applicability.

Sec. 5.703 Definitions.

Sec. 5.704 Publicizing preaward.

Sec. 5.705 Publicizing postaward.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 
20113.

    Source: 48 FR 42119, Sept. 19, 1983, unless otherwise noted.



Sec. 5.000  Scope of part.

    This part prescribes policies and procedures for publicizing 
contract opportunities and award information.



Sec. 5.001  Definition.

    Contract action, as used in this part, means an action resulting in 
a contract, as defined in subpart 2.1, including actions for additional 
supplies or services outside the existing contract scope, but not 
including actions that are within the scope and under the terms of the 
existing contract, such as contract modifications issued pursuant to the 
Changes clause, or funding and other administrative changes.

[67 FR 13053, Mar. 20, 2002]



Sec. 5.002  Policy.

    Contracting officers must publicize contract actions in order to--
    (a) Increase competition;
    (b) Broaden industry participation in meeting Government 
requirements; and
    (c) Assist small business concerns, veteran-owned small business 
concerns, service-disabled veteran-owned small business concerns, 
HUBZone small business concerns, small disadvantaged business concerns, 
and women-owned

[[Page 106]]

small business concerns in obtaining contracts and subcontracts.

[50 FR 52429, Dec. 23, 1985, as amended at 60 FR 48259, Sept. 18, 1995; 
65 FR 60544, Oct. 11, 2000]



Sec. 5.003  Governmentwide point of entry.

    For any requirement in the FAR to publish a notice, the contracting 
officer must transmit the notices to the GPE.

[68 FR 56678, Oct. 1, 2003]

                Subpart 5.1_Dissemination of Information



Sec. 5.101  Methods of disseminating information.

    (a) As required by the Small Business Act (15 U.S.C. 637(e)) and the 
Office of Federal Procurement Policy Act (41 U.S.C. 416), contracting 
officers must disseminate information on proposed contract actions as 
follows:
    (1) For proposed contract actions expected to exceed $25,000, by 
synopsizing in the GPE (see 5.201).
    (2) For proposed contract actions expected to exceed $15,000, but 
not expected to exceed $25,000, by displaying in a public place, or by 
any appropriate electronic means, an unclassified notice of the 
solicitation or a copy of the solicitation satisfying the requirements 
of 5.207(c). The notice must include a statement that all responsible 
sources may submit a response which, if timely received, must be 
considered by the agency. The information must be posted not later than 
the date the solicitation is issued, and must remain posted for at least 
10 days or until after quotations have been opened, whichever is later.
    (i) If solicitations are posted instead of a notice, the contracting 
officer may employ various methods of satisfying the requirements of 
5.207(c). For example, the contracting officer may meet the requirements 
of 5.207(c) by stamping the solicitation, by a cover sheet to the 
solicitation, or by placing a general statement in the display room.
    (ii) The contracting officer need not comply with the display 
requirements of this section when the exemptions at 5.202(a)(1), (a)(4) 
through (a)(9), or (a)(11) apply, when oral solicitations are used, or 
when providing access to a notice of proposed contract action and 
solicitation through the GPE and the notice permits the public to 
respond to the solicitation electronically.
    (iii) Contracting officers may use electronic posting of 
requirements in a place accessible by the general public at the 
Government installation to satisfy the public display requirement. 
Contracting offices using electronic systems for public posting that are 
not accessible outside the installation must periodically publicize the 
methods for accessing the information.
    (b) In addition, one or more of the following methods may be used:
    (1) Preparing periodic handouts listing proposed contracts, and 
displaying them as in 5.101(a)(2).
    (2) Assisting local trade associations in disseminating information 
to their members.
    (3) Making brief announcements of proposed contracts to newspapers, 
trade journals, magazines, or other mass communication media for 
publication without cost to the Government.
    (4) Placing paid advertisements in newspapers or other 
communications media, subject to the following limitations:
    (i) Contracting officers shall place paid advertisements of proposed 
contracts only when it is anticipated that effective competition cannot 
be obtained otherwise (see 5.205(d)).
    (ii) Contracting officers shall not place advertisements of proposed 
contracts in a newspaper published and printed in the District of 
Columbia unless the supplies or services will be furnished, or the labor 
performed, in the District of Columbia or adjoining counties in Maryland 
or Virginia (44 U.S.C. 3701).
    (iii) Advertisements published in newspapers must be under proper 
written authority in accordance with 44 U.S.C. 3702 (see 5.502(a)).

[48 FR 42119, Sept. 19, 1983, as amended at 50 FR 1728, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 51 FR 27117, July 29, 1986; 52 FR 21885, 
June 9, 1987; 56 FR 41731, Aug. 22, 1991; 60 FR 34736, 34746, July 3, 
1995; 61 FR 39191, July 26, 1996; 62 FR 12692, Mar. 17, 1997; 63 FR 
58592, Oct. 30, 1998; 66 FR 27409, May 16, 2001; 68 FR 56678, Oct. 1, 
2003; 72 FR 63076, Nov. 7, 2007; 75 FR 53132, Aug. 30, 2010]

[[Page 107]]



Sec. 5.102  Availability of solicitations.

    (a)(1) Except as provided in paragraph (a)(5) of this section, the 
contracting officer must make available through the GPE solicitations 
synopsized through the GPE, including specifications, technical data, 
and other pertinent information determined necessary by the contracting 
officer. Transmissions to the GPE must be in accordance with the 
interface description available via the Internet at http://
www.fedbizopps.gov.
    (2) The contracting officer is encouraged, when practicable and 
cost-effective, to make accessible through the GPE additional 
information related to a solicitation.
    (3) The contracting officer must ensure that solicitations 
transmitted using electronic commerce are forwarded to the GPE to 
satisfy the requirements of paragraph (a)(1) of this section.
    (4) When an agency determines that a solicitation contains 
information that requires additional controls to monitor access and 
distribution (e.g., technical data, specifications, maps, building 
designs, schedules, etc.), the information shall be made available 
through the enhanced controls of the GPE, unless an exception in 
paragraph (a)(5) of this section applies. The GPE meets the synopsis and 
advertising requirements of this part.
    (5) The contracting officer need not make a solicitation available 
through the GPE as required in paragraph (a)(4) of this section, when--
    (i) Disclosure would compromise the national security (e.g., would 
result in disclosure of classified information, or information subject 
to export controls) or create other security risks. The fact that access 
to classified matter may be necessary to submit a proposal or perform 
the contract does not, in itself, justify use of this exception;
    (ii) The nature of the file (e.g., size, format) does not make it 
cost-effective or practicable for contracting officers to provide access 
to the solicitation through the GPE; or
    (iii) The agency's senior procurement executive makes a written 
determination that access through the GPE is not in the Government's 
interest.
    (6) When an acquisition contains brand name specifications, the 
contracting officer shall include with the solicitation the 
justification or documentation required by 6.302-1(c), 13.106-1(b), or 
13.501, redacted as necessary (see 6.305).
    (b) When the contracting officer does not make a solicitation 
available through the GPE pursuant to paragraph (a)(5) of this section, 
the contracting officer--
    (1) Should employ other electronic means (e.g., CD-ROM or electronic 
mail) whenever practicable and cost-effective. When solicitations are 
provided electronically on physical media (e.g., disks) or in paper 
form, the contracting officer must--
    (i) Maintain a reasonable number of copies of solicitations, 
including specifications and other pertinent information determined 
necessary by the contracting officer (upon request, potential sources 
not initially solicited should be mailed or provided copies of 
solicitations, if available);
    (ii) Provide copies on a ``first-come-first-served'' basis, for 
pickup at the contracting office, to publishers, trade associations, 
information services, and other members of the public having a 
legitimate interest (for construction, see 36.211); and
    (iii) Retain a copy of the solicitation and other documents for 
review by and duplication for those requesting copies after the initial 
number of copies is exhausted; and
    (2) May require payment of a fee, not exceeding the actual cost of 
duplication, for a copy of the solicitation document.
    (c) In addition to the methods of disseminating proposed contract 
information in 5.101(a) and (b), provide, upon request to small business 
concerns, as required by 15 U.S.C. 637(b)--
    (1) A copy of the solicitation and specifications. In the case of 
solicitations disseminated by electronic data interchange, solicitations 
may be furnished directly to the electronic address of the small 
business concern;
    (2) The name and telephone number of an employee of the contracting 
office who will answer questions on the solicitation; and

[[Page 108]]

    (3) Adequate citations to each applicable major Federal law or 
agency rule with which small business concerns must comply in performing 
the contract.
    (d) When electronic commerce (see subpart 4.5) is used in the 
solicitation process, availability of the solicitation may be limited to 
the electronic medium.
    (e) Provide copies of a solicitation issued under other than full 
and open competition to firms requesting copies that were not initially 
solicited, but only after advising the requester of the determination to 
limit the solicitation to a specified firm or firms as authorized under 
part 6.
    (f) This section 5.102 applies to classified contracts to the extent 
consistent with agency security requirements (see 5.202(a)(1)).

[66 FR 27409, May 16, 2001, as amended at 71 FR 20297, Apr. 19, 2006; 71 
FR 57359, Sept. 28, 2006; 72 FR 63076, Nov. 7, 2007; 74 FR 40460, Aug. 
11, 2009; 74 FR 52860, Oct. 14, 2009]

            Subpart 5.2_Synopses of Proposed Contract Actions



Sec. 5.201  General.

    (a) As required by the Small Business Act (15 U.S.C. 637(e)) and the 
Office of Federal Procurement Policy Act (41 U.S.C. 416), agencies must 
make notices of proposed contract actions available as specified in 
paragraph (b) of this section.
    (b)(1) For acquisitions of supplies and services, other than those 
covered by the exceptions in 5.202 and the special situations in 5.205, 
the contracting officer must transmit a notice to the GPE, for each 
proposed--
    (i) Contract action meeting the threshold in 5.101(a)(1);
    (ii) Modification to an existing contract for additional supplies or 
services that meets the threshold in 5.101(a)(1); or
    (iii) Contract action in any amount when advantageous to the 
Government.
    (2) When transmitting notices using electronic commerce, contracting 
officers must ensure the notice is forwarded to the GPE.
    (c) The primary purposes of the notice are to improve small business 
access to acquisition information and enhance competition by identifying 
contracting and subcontracting opportunities.
    (d) The GPE may be accessed via the Internet at http://
www.fedbizopps.gov.

[66 FR 27410, May 16, 2001, as amended at 68 FR 56678, Oct. 1, 2003; 72 
FR 63076, Nov. 7, 2007]



Sec. 5.202  Exceptions.

    The contracting officer need not submit the notice required by 5.201 
when--
    (a) The contracting officer determines that--
    (1) The synopsis cannot be worded to preclude disclosure of an 
agency's needs and such disclosure would compromise the national 
security (e.g., would result in disclosure of classified information). 
The fact that a proposed solicitation or contract action contains 
classified information, or that access to classified matter may be 
necessary to submit a proposal or perform the contract does not, in 
itself, justify use of this exception to synopsis;
    (2) The proposed contract action is made under the conditions 
described in 6.302-2 (or, for purchases conducted using simplified 
acquisition procedures, if unusual and compelling urgency precludes 
competition to the maximum extent practicable) and the Government would 
be seriously injured if the agency complies with the time periods 
specified in 5.203;
    (3) The proposed contract action is one for which either the written 
direction of a foreign government reimbursing the agency for the cost of 
the acquisition of the supplies or services for such government, or the 
terms of an international agreement or treaty between the United States 
and a foreign government or international organizations, has the effect 
of requiring that the acquisition shall be from specified sources;
    (4) The proposed contract action is expressly authorized or required 
by a statute to be made through another Government agency, including 
acquisitions from the Small Business Administration (SBA) using the 
authority of section 8(a) of the Small Business Act (but see 5.205(f)), 
or from a specific source such as a workshop for the blind under the 
rules of the Committee for

[[Page 109]]

the Purchase from the Blind and Other Severely Handicapped;
    (5) The proposed contract action is for utility services other than 
telecommunications services and only one source is available;
    (6) The proposed contract action is an order placed under subpart 
16.5. When the order contains brand-name specifications, see especially 
16.505(a)(4);
    (7) The proposed contract action results from acceptance of a 
proposal under the Small Business Innovation Development Act of 1982 
(Pub. L. 97-219);
    (8) The proposed contract action results from the acceptance of an 
unsolicited research proposal that demonstrates a unique and innovative 
concept (see 2.101) and publication of any notice complying with 5.207 
would improperly disclose the originality of thought or innovativeness 
of the proposed research, or would disclose proprietary information 
associated with the proposal. This exception does not apply if the 
proposed contract action results from an unsolicited research proposal 
and acceptance is based solely upon the unique capability of the source 
to perform the particular research services proposed (see 6.302-
1(a)(2)(i);
    (9) The proposed contract action is made for perishable subsistence 
supplies, and advance notice is not appropriate or reasonable;
    (10) The proposed contract action is made under conditions described 
in 6.302-3, or 6.302-5 with regard to brand name commercial items for 
authorized resale, or 6.302-7, and advance notice is not appropriate or 
reasonable;
    (11) The proposed contract action is made under the terms of an 
existing contract that was previously synopsized in sufficient detail to 
comply with the requirements of 5.207 with respect to the current 
proposed contract action;
    (12) The proposed contract action is by a Defense agency and the 
proposed contract action will be made and performed outside the United 
States and its outlying areas, and only local sources will be solicited. 
This exception does not apply to proposed contract actions covered by 
the World Trade Organization Government Procurement Agreement or a Free 
Trade Agreement (see Subpart 25.4);
    (13) The proposed contract action--
    (i) Is for an amount not expected to exceed the simplified 
acquisition threshold;
    (ii) Will be made through a means that provides access to the notice 
of proposed contract action through the GPE; and
    (iii) Permits the public to respond to the solicitation 
electronically; or
    (14) The proposed contract action is made under conditions described 
in 6.302-3 with respect to the services of an expert to support the 
Federal Government in any current or anticipated litigation or dispute.
    (b) The head of the agency determines in writing after consultation 
with the Administrator for Federal Procurement Policy and the 
Administrator of the Small Business Administration, that advance notice 
is not appropriate or reasonable.

[50 FR 1728, Jan. 11, 1985]

    Editorial Note: For Federal Register citations affecting 5.202, see 
the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and at www.fdsys.gov.



Sec. 5.203  Publicizing and response time.

    Whenever agencies are required to publicize notice of proposed 
contract actions under 5.201, they must proceed as follows:
    (a) An agency must transmit a notice of proposed contract action to 
the GPE (see 5.201). All publicizing and response times are calculated 
based on the date of publication. The publication date is the date the 
notice appears on the GPE. The notice must be published at least 15 days 
before issuance of a solicitation, or a proposed contract action the 
Government intends to solicit and negotiate with only one source under 
the authority of 6.302, except that, for acquisitions of commercial 
items, the contracting officer may--
    (1) Establish a shorter period for issuance of the solicitation; or
    (2) Use the combined synopsis and solicitation procedure (see 
12.603).
    (b) The contracting officer must establish a solicitation response 
time that will afford potential offerors a reasonable opportunity to 
respond to

[[Page 110]]

each proposed contract action, (including actions where the notice of 
proposed contract action and solicitation information is accessible 
through the GPE), in an amount estimated to be greater than $25,000, but 
not greater than the simplified acquisition threshold; or each contract 
action for the acquisition of commercial items in an amount estimated to 
be greater than $25,000. The contracting officer should consider the 
circumstances of the individual acquisition, such as the complexity, 
commerciality, availability, and urgency, when establishing the 
solicitation response time.
    (c) Except for the acquisition of commercial items (see 5.203(b)), 
agencies shall allow at least a 30-day response time for receipt of bids 
or proposals from the date of issuance of a solicitation, if the 
proposed contract action is expected to exceed the simplified 
acquisition threshold.
    (d) Agencies shall allow at least a 30 day response time from the 
date of publication of a proper notice of intent to contract for 
architect-engineer services or before issuance of an order under a basic 
ordering agreement or similar arrangement if the proposed contract 
action is expected to exceed the simplified acquisition threshold.
    (e) Agencies must allow at least a 45-day response time for receipt 
of bids or proposals from the date of publication of the notice required 
in 5.201 for proposed contract actions categorized as research and 
development if the proposed contract action is expected to exceed the 
simplified acquisition threshold.
    (f) Nothing in this subpart prohibits officers or employees of 
agencies from responding to requests for information.
    (g) Contracting officers may, unless they have evidence to the 
contrary, presume the notice was published one day after transmission to 
the GPE. This presumption does not negate the mandatory waiting or 
response times specified in paragraphs (a) through (d) of this section. 
Upon learning that a particular notice has not in fact been published 
within the presumed timeframes, contracting officers should consider 
whether the date for receipt of offers can be extended or whether 
circumstances have become sufficiently compelling to justify proceeding 
with the proposed contract action under the authority of 5.202(a)(2).
    (h) In addition to other requirements set forth in this section, for 
acquisitions covered by the World Trade Organization Government 
Procurement Agreement or a Free Trade Agreement (see subpart 25.4), the 
period of time between publication of the synopsis notice and receipt of 
offers must be no less than 40 days. However, if the acquisition falls 
within a general category identified in an annual forecast, the 
availability of which is published, the contracting officer may reduce 
this time period to as few as 10 days.

[50 FR 52430, Dec. 23, 1985, as amended at 51 FR 31425, Sept. 3, 1986; 
60 FR 34747, July 3, 1995; 60 FR 48236, Sept. 18, 1995; 61 FR 39192, 
July 26, 1996; 62 FR 263, Jan. 2, 1997; 62 FR 10710, Mar. 10, 1997; 63 
FR 58592, 58593, Oct. 30, 1998; 66 FR 27410, May 16, 2001; 68 FR 56678, 
Oct. 1, 2003; 69 FR 1053, Jan. 7, 2004; 69 FR 77872, Dec. 28, 2004; 72 
FR 63076, Nov. 7, 2007; 73 FR 10961, Feb. 28, 2008]



Sec. 5.204  Presolicitation notices.

    Contracting officers must provide access to presolicitation notices 
through the GPE (see 15.201 and 36.213-2). The contracting officer must 
synopsize a proposed contract action before issuing any resulting 
solicitation (see 5.201 and 5.203).

[66 FR 27411, May 16, 2001]



Sec. 5.205  Special situations.

    (a) Research and development (R&D) advance notices. Contracting 
officers may transmit to the GPE advance notices of their interest in 
potential R&D programs whenever market research does not produce a 
sufficient number of concerns to obtain adequate competition. Advance 
notices must not be used where security considerations prohibit such 
publication. Advance notices will enable potential sources to learn of 
R&D programs and provide these sources with an opportunity to submit 
information which will permit evaluation of their capabilities. 
Contracting officers must consider potential sources which respond to 
advance notices for a subsequent solicitation. Advanced notices must be 
entitled ``Research and Development Sources Sought'' and include the 
name and

[[Page 111]]

telephone number of the contracting officer or other contracting 
activity official from whom technical details of the project can be 
obtained. This will enable sources to submit information for evaluation 
of their R&D capabilities. Contracting officers must synopsize (see 
5.201) all subsequent solicitations for R&D contracts, including those 
resulting from a previously synopsized advance notice, unless one of the 
exceptions in 5.202 applies.
    (b) Federally Funded Research and Development Centers. Before 
establishing a Federally Funded Research and Development Center (FFRDC) 
(see Part 35) or before changing its basic purpose and mission, the 
sponsor must transmit at least three notices over a 90-day period to the 
GPE and the Federal Register, indicating the agency's intention to 
sponsor an FFRDC or change the basic purpose and mission of an FFRDC. 
The notice must indicate the scope and nature of the effort to be 
performed and request comments. Notice is not required where the action 
is required by law.
    (c) Special notices. Contracting officers may transmit to the GPE 
special notices of procurement matters such as business fairs, long-
range procurement estimates, prebid or preproposal conferences, 
meetings, and the availability of draft solicitations or draft 
specifications for review.
    (d) Architect-engineering services. Contracting officers must 
publish notices of intent to contract for architect-engineering services 
as follows:
    (1) Except when exempted by 5.202, contracting officers must 
transmit to the GPE a synopsis of each proposed contract action for 
which the total fee (including phases and options) is expected to exceed 
$25,000.
    (2) When the total fee is expected to exceed $15,000 but not exceed 
$25,000, the contracting officer must comply with 5.101(a)(2). When the 
proposed contract action is not required to be synopsized under 
paragraph (d)(1) of this section, the contracting officer must display a 
notice of the solicitation or a copy of the solicitation in a public 
place at the contracting office. Other optional publicizing methods are 
authorized in accordance with 5.101(b).
    (e) Public-private competitions under OMB Circular A-76. (1) The 
contracting officer shall make a formal public announcement for each 
streamlined or standard competition. The public announcement shall 
include, at a minimum, the agency, agency component, location, type of 
competition (streamlined or standard), activity being competed, 
incumbent service providers, number of Government personnel performing 
the activity, name of the Competitive Sourcing Official, name of the 
contracting officer, name of the Agency Tender Official, and projected 
end date of the competition.
    (2) The contracting officer shall announce the end of the 
streamlined or standard competition by making a formal public 
announcement of the performance decision. (See OMB Circular A-76.)
    (f) Section 8(a) competitive acquisition. When a national buy 
requirement is being considered for competitive acquisition limited to 
eligible 8(a) concerns under subpart 19.8, the contracting officer must 
transmit a synopsis of the proposed contract action to the GPE. The 
synopsis may be transmitted to the GPE concurrent with submission of the 
agency offering (see 19.804-2) to the Small Business Administration 
(SBA). The synopsis should also include information--
    (1) Advising that the acquisition is being offered for competition 
limited to eligible 8(a) concerns;
    (2) Specifying the North American Industry Classification System 
(NAICS) code;
    (3) Advising that eligibility to participate may be restricted to 
firms in either the developmental stage or the developmental and 
transitional stages; and
    (4) Encouraging interested 8(a) firms to request a copy of the 
solicitation as expeditiously as possible since the solicitation will be 
issued without further notice upon SBA acceptance of the requirement for 
the section 8(a) program.

[66 FR 27411, May 16, 2001, as amended at 68 FR 43856, July 24, 2003; 68 
FR 56678, Oct. 1, 2003; 71 FR 20299, Apr. 19, 2006; 73 FR 10961, Feb. 
28, 2008; 75 FR 53132, Aug. 30, 2010]

[[Page 112]]



Sec. 5.206  Notices of subcontracting opportunities.

    (a) The following entities may transmit a notice to the GPE to seek 
competition for subcontracts, to increase participation by qualified 
HUBZone small business, small, small disadvantaged, women-owned small 
business, veteran-owned small business and service-disabled veteran-
owned small business concerns, and to meet established subcontracting 
plan goals:
    (1) A contractor awarded a contract exceeding $150,000 that is 
likely to result in the award of any subcontracts.
    (2) A subcontractor or supplier, at any tier, under a contract 
exceeding $150,000, that has a subcontracting opportunity exceeding 
$15,000.
    (b) The notices must describe--
    (1) The business opportunity;
    (2) Any prequalification requirements; and
    (3) Where to obtain technical data needed to respond to the 
requirement.

[64 FR 72442, Dec. 27, 1999, as amended at 65 FR 46054, July 26, 2000; 
66 FR 27412, May 16, 2001; 68 FR 56678, Oct. 1, 2003; 69 FR 25275, May 
5, 2004; 75 FR 53132, Aug. 30, 2010]



Sec. 5.207  Preparation and transmittal of synopses.

    (a) Content. Each synopsis transmitted to the GPE must address the 
following data elements, as applicable:
    (1) Action Code.
    (2) Date.
    (3) Year.
    (4) Contracting Office Zip Code.
    (5) Classification Code.
    (6) Contracting Office Address.
    (7) Subject.
    (8) Proposed Solicitation Number.
    (9) Closing Response Date.
    (10) Contact Point or Contracting Officer.
    (11) Contract Award and Solicitation Number.
    (12) Contract Award Dollar Amount.
    (13) Contract Line Item Number.
    (14) Contract Award Date.
    (15) Contractor.
    (16) Description.
    (17) Place of Contract Performance.
    (18) Set-aside Status.
    (b) Transmittal. Transmissions to the GPE must be in accordance with 
the interface description available via the Internet at http://
www.fedbizopps.gov.
    (c) General format for ``Description.'' Prepare a clear and concise 
description of the supplies or services that is not unnecessarily 
restrictive of competition and will allow a prospective offeror to make 
an informed business judgment as to whether a copy of the solicitation 
should be requested including the following, as appropriate:
    (1) National Stock Number (NSN) if assigned.
    (2) Specification and whether an offeror, its product, or service 
must meet a qualification requirement in order to be eligible for award, 
and identification of the office from which additional information about 
the qualification requirement may be obtained (see subpart 9.2).
    (3) Manufacturer, including part number, drawing number, etc.
    (4) Size, dimensions, or other form, fit or functional description.
    (5) Predominant material of manufacture.
    (6) Quantity, including any options for additional quantities.
    (7) Unit of issue.
    (8) Destination information.
    (9) Delivery schedule.
    (10) Duration of the contract period.
    (11) Sustainable acquisition requirements (or a description of high-
performance sustainable building practices required, if for design, 
construction, renovation, repair, or deconstruction) (see parts 23 or 
36).
    (12) For a proposed contract action in an amount estimated to be 
greater than $25,000 but not greater than the simplified acquisition 
threshold, enter--
    (i) A description of the procedures to be used in awarding the 
contract (e.g., request for oral or written quotation or solicitation); 
and
    (ii) The anticipated award date.
    (13) For Architect-Engineer projects and other projects for which 
the supply or service codes are insufficient, provide brief details with 
respect to: location, scope of services required, cost range and 
limitations, type of contract, estimated starting and completion dates, 
and any significant evaluation factors.
    (14)(i) If the solicitation will include the FAR clause at 52.225-3, 
Buy American Act-Free Trade Agreements-

[[Page 113]]

Israeli Trade Act, or an equivalent agency clause, insert the following 
notice in the synopsis: ``One or more of the items under this 
acquisition is subject to Free Trade Agreements.''
    (ii) If the solicitation will include the FAR clause at 52.225-5, 
Trade Agreements, or an equivalent agency clause, insert the following 
notice in the synopsis: ``One or more of the items under this 
acquisition is subject to the World Trade Organization Government 
Procurement Agreement and Free Trade Agreements.''
    (iii) If the solicitation will include the FAR clause at 52.225-11, 
Buy American Act--Construction Materials under Trade Agreements, 52.225-
23, Required Use of American Iron, Steel, and Manufactured Goods--Buy 
American Act--Construction Materials under Trade Agreements, or an 
equivalent agency clause, insert the following notice in the synopsis: 
``One or more of the items under this acquisition is subject to the 
World Trade Organization Government Procurement Agreement and Free Trade 
Agreements.''
    (15) In the case of noncompetitive contract actions (including those 
that do not exceed the simplified acquisition threshold), identify the 
intended source and insert a statement of the reason justifying the lack 
of competition.
    (16)(i) Except when using the sole source authority at 6.302-1, 
insert a statement that all responsible sources may submit a bid, 
proposal, or quotation which shall be considered by the agency.
    (ii) When using the sole source authority at 6.302-1, insert a 
statement that all responsible sources may submit a capability 
statement, proposal, or quotation, which shall be considered by the 
agency.
    (17) If solicitations synopsized through the GPE will not be made 
available through the GPE, provide information on how to obtain the 
solicitation.
    (18) If the solicitation will be made available to interested 
parties through electronic data interchange, provide any information 
necessary to obtain and respond to the solicitation electronically.
    (19) If the technical data required to respond to the solicitation 
will not be furnished as part of such solicitation, identify the source 
in the Government, such as http://www.fedbizopps.gov, from which the 
technical data may be obtained.
    (d) Set-asides. When the proposed acquisition provides for a total 
or partial small business program set-aside, or when the proposed 
acquisition provides for a local area set-aside (see Subpart 26.2), the 
contracting officer shall identify the type of set-aside in the synopsis 
and in the solicitation.
    (e) Codes to be used in Synopses to identify services or supplies. 
Contracting officers must use one of the classification codes identified 
at http://www.fedbizopps.gov/ to identify services or supplies in 
synopses.
    (f) Notice of solicitation cancellation. Contracting officers may 
publish notices of solicitation cancellations (or indefinite 
suspensions) of proposed contract actions in the GPE.

[68 FR 56678, Oct. 1, 2003, as amended at 69 FR 25276, May 5, 2004; 71 
FR 220, Jan. 3, 2006; 71 FR 20298, Apr. 19, 2006; 72 FR 63086, Nov. 7, 
2007; 73 FR 10961, Feb. 28, 2008; 74 FR 14626, Mar. 31, 2009; 74 FR 
40460, Aug. 11, 2009; 75 FR 53165, Aug. 30, 2010; 76 FR 31398, May 31, 
2011]

                 Subpart 5.3_Synopses of Contract Awards



Sec. 5.301  General.

    (a) Except for contract actions described in paragraph (b) of this 
section and as provided in 5.003, contracting officers must synopsize 
through the GPE the following:
    (1) Contract awards exceeding $25,000 that are--
    (i) Covered by the World Trade Organization Government Procurement 
Agreement or a Free Trade Agreement (see subpart 25.4); or
    (ii) Likely to result in the award of any subcontracts. However, the 
dollar threshold is not a prohibition against publicizing an award of a 
smaller amount when publicizing would be advantageous to industry or to 
the Government.
    (2) Certain contract actions greater than the simplified acquisition 
threshold as follows--

[[Page 114]]

    (i) Federal Supply Schedule (FSS) orders or Blanket Purchase 
Agreements supported by a limited-source justification (excluding brand 
name) in accordance with 8.405-6; or
    (ii) Task or delivery orders awarded without providing fair 
opportunity in accordance with 16.505(b)(2).
    (3) A notice is not required under this section if the notice would 
disclose the executive agency's needs and the disclosure of such needs 
would compromise the national security.
    (b) A notice is not required under paragraph (a)(1) of this section 
if--
    (1) The award results from acceptance of an unsolicited research 
proposal that demonstrates a unique and innovative research concept and 
publication of any notice would disclose the originality of thought or 
innovativeness of the proposed research or would disclose proprietary 
information associated with the proposal;
    (2) The award results from a proposal submitted under the Small 
Business Innovation Development Act of 1982 (Pub. L. 97-219);
    (3) The contract action is an order placed under subpart 16.5 or 
8.4, except see paragraph (a)(2) of this section;
    (4) The award is made for perishable subsistence supplies;
    (5) The award is for utility services, other than telecommunications 
services, and only one source is available;
    (6) The contract action--
    (i) Is for an amount not greater than the simplified acquisition 
threshold;
    (ii) Was made through a means where access to the notice of proposed 
contract action was provided through the GPE; and
    (iii) Permitted the public to respond to the solicitation 
electronically; or
    (7) The award is for the services of an expert to support the 
Federal Government in any current or anticipated litigation or dispute 
pursuant to the exception to full and open competition authorized at 
6.302-3.
    (c) With respect to acquisitions covered by the World Trade 
Organization Government Procurement Agreement or a Free Trade Agreement, 
contracting officers must submit synopses in sufficient time to permit 
their publication in the GPE not later than 60 days after award.
    (d) Posting is required of the justifications for--
    (1) Contracts awarded using other than full and open competition in 
accordance with 6.305;
    (2) FSS orders or Blanket Purchase Agreements with an estimated 
value greater than the simplified acquisition threshold and supported by 
a limited-sources justification (see 8.405-6(a)); or
    (3) Task or delivery orders greater than the simplified acquisition 
threshold and awarded without providing for fair opportunity in 
accordance with 16.505(b)(2)(ii)(B) and (D).

[76 FR 14551, Mar. 16, 2011]



Sec. 5.302  Preparation and transmittal of synopses of awards.

    Contracting officers shall transmit synopses of contract awards in 
the same manner as prescribed in 5.207.

[55 FR 52790, Dec. 21, 1990]



Sec. 5.303  Announcement of contract awards.

    (a) Public announcement. Contracting officers shall make information 
available on awards over $4 million (unless another dollar amount is 
specified in agency acquisition regulations) in sufficient time for the 
agency concerned to announce it by 5 p.m. Washington, DC, time on the 
day of award. Agencies shall not release information on awards before 
the public release time of 5 p.m. Washington, DC time. Contracts 
excluded from this reporting requirement include--
    (1) Those placed with the Small Business Administration under 
section 8(a) of the Small Business Act;
    (2) Those placed with foreign firms when the place of delivery or 
performance is outside the United States and its outlying areas; and
    (3) Those for which synopsis was exempted under 5.202(a)(1).
    (b) Local announcement. Agencies may also release information on 
contract awards to the local press or other media. When local 
announcements are made for contract awards in excess of the simplified 
acquisition threshold, they shall include--
    (1) For awards after sealed bidding, a statement that the contract 
was awarded after competition by sealed

[[Page 115]]

bidding, the number of offers solicited and received, and the basis for 
selection (e.g., the lowest responsible bidder); or
    (2) For awards after negotiation, the information prescribed by 
15.503(b), and after competitive negotiation (either price or design 
competition), a statement to this effect, and in general terms the basis 
for selection.

[48 FR 42119, Sept. 19, 1983, as amended at 50 FR 1729, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 52 FR 30076, Aug. 12, 1987; 55 FR 3881, Feb. 
5, 1990; 56 FR 67128, Dec. 27, 1991; 59 FR 67017, Dec. 28, 1994; 60 FR 
34747, July 3, 1995; 60 FR 42653, Aug. 16, 1995; 61 FR 39190, July 26, 
1996; 61 FR 69289, Dec. 31, 1996; 62 FR 51270, Sept. 30, 1997; 68 FR 
28080, May 22, 2003; 71 FR 57365, Sept. 28, 2006; 75 FR 53132, Aug. 30, 
2010]

                   Subpart 5.4_Release of Information



Sec. 5.401  General.

    (a) A high level of business security must be maintained in order to 
preserve the integrity of the acquisition process. When it is necessary 
to obtain information from potential contractors and others outside the 
Government for use in preparing Government estimates, contracting 
officers shall ensure that the information is not publicized or 
discussed with potential contractors.
    (b) Contracting officers may make available maximum information to 
the public, except information--
    (1) On plans that would provide undue or discriminatory advantage to 
private or personal interests;
    (2) Received in confidence from an offeror;
    (3) Otherwise requiring protection under Freedom of Information Act 
(see subpart 24.2) or Privacy Act (see subpart 24.1); or
    (4) Pertaining to internal agency communications (e.g., technical 
reviews, contracting authority or other reasons, or recommendations 
referring thereto).
    (c) This policy applies to all Government personnel who participate 
directly or indirectly in any stage of the acquisition cycle.



Sec. 5.402  General public.

    Contracting officers shall process requests for specific information 
from the general public, including suppliers, in accordance with subpart 
24.1 or 24.2, as appropriate.



Sec. 5.403  Requests from Members of Congress.

    Contracting officers shall give Members of Congress, upon their 
request, detailed information regarding any particular contract. When 
responsiveness would result in disclosure of classified matter, business 
confidential information, or information prejudicial to competitive 
acquisition, the contracting officer shall refer the proposed reply, 
with full documentation, to the agency head and inform the legislative 
liaison office of the action.

[48 FR 42119, Sept. 19, 1983, as amended at 50 FR 1729, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 68 FR 43856, July 24, 2003]



Sec. 5.404  Release of long-range acquisition estimates.

    To assist industry planning and to locate additional sources of 
supply, it may be desirable to publicize estimates of unclassified long-
range acquisition requirements. Estimates may be publicized as far in 
advance as possible.



Sec. 5.404-1  Release procedures.

    (a) Application. The agency head, or a designee, may release long-
range acquisition estimates if the information will--
    (1) Assist industry in its planning and facilitate meeting the 
acquisition requirements;
    (2) Not encourage undesirable practices (e.g., attempts to corner 
the market or hoard industrial materials); and
    (3) Not indicate the existing or potential mobilization of the 
industry as a whole.
    (b) Conditions. The agency head shall ensure that--
    (1) Classified information is released through existing security 
channels in accordance with agency security regulations;
    (2) The information is publicized as widely as practicable to all 
parties simultaneously by any of the means described in this part;

[[Page 116]]

    (3) Each release states that (i) the estimate is based on the best 
information available, (ii) the information is subject to modification 
and is in no way binding on the Government, and (iii) more specific 
information relating to any individual item or class of items will not 
be furnished until the proposed action is synopsized through the GPE or 
the solicitation is issued;
    (4) Each release contains the name and address of the contracting 
officer that will process the acquisition;
    (5) Modifications to the original release are publicized as soon as 
possible, in the same manner as the original; and
    (6) Each release--
    (i) Is coordinated in advance with small business, public 
information, and public relations personnel, as appropriate;
    (ii) Contains, if applicable, a statement that small business set-
asides may be involved, but that a determination can be made only when 
acquisition action is initiated; and
    (iii) Contains the name or description of the item, and the 
estimated quantity to be acquired by calendar quarter, fiscal year, or 
other period. It may also contain such additional information as the 
number of units last acquired, the unit price, and the name of the last 
supplier.

[48 FR 42119, Sept. 19, 1983, as amended at 60 FR 48259, Sept. 18, 1995; 
66 FR 27412, May 16, 2001]



Sec. 5.404-2  Announcements of long-range acquisition estimates.

    Further publicizing, consistent with the needs of the individual 
case, may be accomplished by announcing through the GPE that long-range 
acquisition estimates have been published and are obtainable, upon 
request, from the contracting officer.

[66 FR 27412, May 16, 2001]



Sec. 5.405  Exchange of acquisition information.

    (a) When the same item or class of items is being acquired by more 
than one agency, or by more than one contracting activity within an 
agency, the exchange and coordination of pertinent information, 
particularly cost and pricing data, between these agencies or 
contracting activities is necessary to promote uniformity of treatment 
of major issues and the resolution of particularly difficult or 
controversial issues. The exchange and coordination of information is 
particularly beneficial during the period of acquisition planning, 
presolicitation, evaluation, and pre-award survey.
    (b) When substantial acquisitions of major items are involved or 
when the contracting activity deems it desirable, the contracting 
activity shall request appropriate information (on both the end item and 
on major subcontracted components) from other agencies or contracting 
activities responsible for acquiring similar items. Each agency or 
contracting activity receiving such a request shall furnish the 
information requested. The contracting officer, early in a negotiation 
of a contract, or in connection with the review of a subcontract, shall 
request the contractor to furnish information as to the contractor's or 
subcontractor's previous Government contracts and subcontracts for the 
same or similar end items and major subcontractor components.



Sec. 5.406  Public disclosure of justification documents for certain 
          contract actions.

    (a) Justifications and approvals for other than full and open 
competition must be posted in accordance with 6.305.
    (b) Limited-source justifications (excluding brand name) for FSS 
orders or blanket purchase agreements with an estimated value greater 
than the simplified acquisition threshold must be posted in accordance 
with 8.405-6(a)(2).
    (c) Justifications for task or delivery orders greater than the 
simplified acquisition threshold and awarded without providing for fair 
opportunity must be posted in accordance with 16.505(b)(2)(ii)(D).

[76 FR 14552, Mar. 16, 2011]

                     Subpart 5.5_Paid Advertisements



Sec. 5.501  Definitions.

    As used in this subpart--

[[Page 117]]

    Advertisement, means any single message prepared for placement in 
communication media, regardless of the number of placements.
    Publication, means (1) the placement of an advertisement in a 
newspaper, magazine, trade or professional journal, or any other printed 
medium, or (2) the broadcasting of an advertisement over radio or 
television.

[48 FR 42119, Sept. 19, 1983, as amended at 66 FR 2127, Jan. 10, 2001]



Sec. 5.502  Authority.

    (a) Newspapers. Authority to approve the publication of paid 
advertisements in newspapers is vested in the head of each agency (44 
U.S.C. 3702). This approval authority may be delegated (5 U.S.C. 302 
(b)). Contracting officers shall obtain written authorization in 
accordance with agency procedures before advertising in newspapers.
    (b) Other media. Unless the agency head determines otherwise, 
advance written authorization is not required to place advertisements in 
media other than newspapers.



Sec. 5.503  Procedures.

    (a) General. (1) Orders for paid advertisements may be placed 
directly with the media or through an advertising agency. Contracting 
officers shall give small, small disadvantaged, women-owned, veteran-
owned, HUBZone, and service-disabled veteran-owned small business 
concerns maximum opportunity to participate in these acquisitions.
    (2) The contracting officer shall use the SF 1449 for paper 
solicitations. The SF 1449 shall be used to make awards or place orders 
unless the award/order is made by using electronic commerce or by using 
the Governmentwide commercial purchase card for micropurchases.
    (b) Rates. Advertisements may be paid for at rates not over the 
commercial rates charged private individuals, with the usual discounts 
(44 U.S.C. 3703).
    (c) Proof of advertising. Every invoice for advertising shall be 
accompanied by a copy of the advertisement or an affidavit of 
publication furnished by the publisher, radio or television station, or 
advertising agency concerned (44 U.S.C. 3703). Paying offices shall 
retain the proof of advertising until the Government Accountability 
Office settles the paying office's account.
    (d) Payment. Upon receipt of an invoice supported by proof of 
advertising, the contracting officer shall attach a copy of the written 
authority (see 5.502(a)) and submit the invoice for payment under agency 
procedures.

[48 FR 42119, Sept. 19, 1983, as amended at 54 FR 48982, Nov. 28, 1989; 
60 FR 34747, July 3, 1995; 60 FR 48259, Sept. 18, 1995; 61 FR 39192, 
July 26, 1996; 63 FR 58593, Oct. 30, 1998; 70 FR 14954, Mar. 23, 2005; 
71 FR 57380, Sept. 28, 2006]



Sec. 5.504  Use of advertising agencies.

    (a) General. Basic ordering agreements may be placed with 
advertising agencies for assistance in producing and placing 
advertisements when a significant number will be placed in several 
publications and in national media. Services of advertising agencies 
include, but are not limited to, counseling as to selection of the media 
for placement of the advertisement, contacting the media in the interest 
of the Government, placing orders, selecting and ordering typography, 
copywriting, and preparing rough layouts.
    (b) Use of commission-paying media. The services of advertising 
agencies in placing advertising with media often can be obtained at no 
cost to the Government, over and above the space cost, as many media 
give advertising agencies a commission or discount on the space cost 
that is not given to the Government.
    (c) Use of noncommission-paying media. Some media do not grant 
advertising agencies a commission or discount, meaning the Government 
can obtain the same rate as the advertising agency. If the advertising 
agency agrees to place advertisements in noncommission-paying media as a 
no-cost service, the basic ordering agreement shall so provide. If the 
advertising agency will not agree to place advertisements at no cost, 
the agreement shall (1) provide that the Government may place orders 
directly with the media, or (2) specify an amount that the Government 
will pay if the agency places the orders.
    (d) Art work, supplies, and incidentals. The basic ordering 
agreement also may

[[Page 118]]

provide for the furnishing by the advertising agency of art work, 
supplies, and incidentals, including brochures and pamphlets, but not 
their printing. Incidentals may include telephone calls, telegrams, and 
postage incurred by the advertising agency on behalf of the Government.

           Subpart 5.6_Publicizing Multi-Agency Use Contracts

    Source: 68 FR 43862, July 24, 2003, unless otherwise noted.



Sec. 5.601  Governmentwide database of contracts.

    (a) A Governmentwide database of contracts and other procurement 
instruments intended for use by multiple agencies is available via the 
Internet at https://www.contractdirectory.gov/contractdirectory/.This 
searchable database is a tool that may be used to identify existing 
contracts and other procurement instruments that may be used to fulfill 
Government needs.
    (b) The contracting activity shall--
    (1) Enter the information specified at https://
www.contractdirectory.gov/contractdirectory/, in accordance with the 
instructions on that Web site, within ten days of award of a 
Governmentwide acquisition contract (GWAC), multi-agency contract, 
Federal Supply Schedule contract, or any other procurement instrument 
intended for use by multiple agencies, including blanket purchase 
agreements (BPAs) under Federal Supply Schedule contracts.
    (2) Enter the information specified at https://
www.contractdirectory.gov/contractdirectory/ in accordance with the 
instructions on that Web site by October 31, 2003, for all contracts and 
other procurement instruments intended for use by multiple agencies that 
were awarded before July 24, 2003.

[48 FR 42119, Sept. 19, 1983, as amended at 75 FR 77745, Dec. 13, 2010; 
78 FR 13768, Feb. 28, 2013]

  Subpart 5.7_Publicizing Requirements under the American Recovery and 
                        Reinvestment Act of 2009

    Source: 74 FR 14638, Mar. 31, 2009, unless otherwise noted.



Sec. 5.701  Scope.

    This subpart prescribes posting requirements for presolicitation and 
award notices for actions funded in whole or in part by the American 
Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) (Recovery Act). 
The requirements of this subpart enhance transparency to the public.



Sec. 5.702  Applicability.

    This subpart applies to all actions expected to exceed $25,000 
funded in whole or in part by the Recovery Act. Unlike subparts 5.2 and 
5.3, this subpart includes additional requirements for orders and for 
actions that are not both fixed-price and competitive.



Sec. 5.703  Definition.

    As used in this subpart--
    Task or delivery order contract means a ``delivery order contract,'' 
and a ``task order contract,'' as defined in 16.501-1. For example, it 
includes Governmentwide Acquisition Contracts (GWACs), multi-agency 
contracts (MACs), and other indefinite-delivery/indefinite-quantity 
contracts, whether single award or multiple award. It also includes 
Federal Supply Schedule contracts (including Blanket Purchase Agreements 
under Subpart 8.4).



Sec. 5.704  Publicizing preaward.

    (a)(1) Follow the publication procedures at 5.201.
    (2) In addition, notices of proposed contract actions are required 
for orders exceeding $25,000, funded in whole or in part by the Recovery 
Act, which are issued under task or delivery order contracts. This does 
not include modifications to existing orders, but these modifications 
are covered postaward, see 5.705. These notices are for ``informational 
purposes only,'' therefore, 5.203 does not apply. Contracting officers 
should concurrently use their usual solicitation practice (e.g., e-Buy).

[[Page 119]]

    (b) Contracting officers shall identify proposed contract actions, 
funded in whole or in part by the Recovery Act, by using the following 
instructions which are also available in the Recovery FAQs under 
``Buyers/Engineers'' at the Governmentwide Point of Entry (GPE) (https:/
/www.fedbizopps.gov):
    (1) If submitting notices electronically via ftp or email, enter the 
word ``Recovery'' as the first word in the title field.
    (2) If using the GPE directly, select the ``yes'' radio button for 
the ``Is this a Recovery and Reinvestment Act action'' field on the 
``Notice Details'' form (Step 2) located below the ``NAICS Code'' field. 
In addition, enter the word ``Recovery'' as the first word in the title 
field.
    (c) In preparing the description required by 5.207(a)(16), use clear 
and concise language to describe the planned procurement. Use 
descriptions of the goods and services (including construction), that 
can be understood by the general public. Avoid the use of acronyms or 
terminology that is not widely understood by the general public.

[74 FR 14638, Mar. 31, 2009, as amended at 75 FR 34272, June 16, 2010]



Sec. 5.705  Publicizing postaward.

    Follow usual publication procedures at 5.301, except that the 
following supersede the exceptions at 5.301(b)(2) through (7):
    (a)(1) Publicize the award notice for any action exceeding $500,000, 
funded in whole or in part by the Recovery Act, including--
    (i) Contracts;
    (ii) Modifications to existing contracts;
    (iii) Orders which are issued under task or delivery order 
contracts; and
    (iv) Modifications to orders under task or delivery order contracts.
    (2) Contracting officers shall identify contract actions, funded in 
whole or in part by the Recovery Act, by using the following 
instructions which are also available in the Recovery FAQS under 
``Buyers/Engineers'' at the Governmentwide Point of Entry (GPE) (https:/
/www.fedbizopps.gov):
    (i) If submitting notices electronically via ftp or email, enter the 
word ``Recovery'' as the first word in the title field.
    (ii) If using the GPE directly, select the ``yes'' radio button for 
the ``Is this a Recovery and Reinvestment Act action'' field on the 
``Notice Details'' form (Step 2) located below the ``NAICS Code'' field. 
In addition, enter the word ``Recovery'' as the first word in the title 
field.
    (3) In preparing the description required by 5.207(a)(16), use clear 
and concise language to describe the planned procurement. Use 
descriptions of the goods and services (including construction), that 
can be understood by the general public. Avoid the use of acronyms or 
terminology that is not widely understood by the general public.
    (b) Regardless of dollar value, if the contract action, including 
all modifications and orders under task or delivery order contracts, is 
not both fixed-price and competitively awarded, publicize the award 
notice and include in the description the rationale for using other than 
a fixed-priced and/or competitive approach. Include in the description a 
statement specifically noting if the contract action was not awarded 
competitively, or was not fixed-price, or was neither competitive nor 
fixed-price. These notices and the rationale will be available to the 
public at the GPE, so do not include any proprietary information or 
information that would compromise national security. The following table 
provides examples for when a rationale is required.

                     Posting of Rationale--Examples
------------------------------------------------------------------------
      Description of contract action             Rationale required
------------------------------------------------------------------------
(1) A contract is competitively awarded     Not Required.
 and is fixed-price.
(2) A contract is awarded that is not       Required
 fixed-price..
(3) A contract is awarded without           Required
 competition..
(4) An order is issued under a new or       Required if order is made
 existing single award IDIQ contract.        under a contract described
                                             in (2) or (3).

[[Page 120]]

 
(5) An order is issued under a new or       Required if one or both of
 existing multiple award IDIQ contract.      the following conditions
                                             exist:
                                            (i) The order is not fixed-
                                             price.
                                            (ii) The order is awarded
                                             pursuant to an exception to
                                             the competition
                                             requirements applicable to
                                             the underlying vehicle
                                             (e.g., award is made
                                             pursuant to an exception to
                                             the fair opportunity
                                             process).
(6) A modification is issued..............  Required if modification is
                                             made--
                                            (i) To a contract described
                                             in (2) or (3) above; or
                                            (ii) To an order requiring
                                             posting as described in (4)
                                             or (5) above.
(7) A contract or order is awarded          Required if one or both of
 pursuant to a small business contracting    the following conditions
 authority (e.g., SBA's section 8(a)         exist:
 program).                                  (i) The contract or order is
                                             not fixed-price;
                                            (ii) The contract or order
                                             was not awarded using
                                             competition (e.g., a non-
                                             competitive 8(a) award).
------------------------------------------------------------------------

    (c) Contracting officers shall use the instructions available in the 
Recovery FAQs under ``Buyers/Engineers'' at the GPE (https://
www.fedbizopps.gov) to identify actions funded in whole or in part by 
the Recovery Act.

[74 FR 14638, Mar. 31, 2009, as amended at 74 FR 22810, May 14, 2009; 75 
FR 34273, June 16, 2010; 76 FR 14552, Mar. 16, 2011]

                     PART 6_COMPETITION REQUIREMENTS

Sec.

Sec. 6.000 Scope of part.

Sec. 6.001 Applicability.

Sec. 6.002 Limitations.

Sec. 6.003 [Reserved]

                  Subpart 6.1_Full and Open Competition


Sec. 6.100 Scope of subpart.

Sec. 6.101 Policy.

Sec. 6.102 Use of competitive procedures.

    Subpart 6.2_Full and Open Competition After Exclusion of Sources


Sec. 6.200 Scope of subpart.

Sec. 6.201 Policy.

Sec. 6.202 Establishing or maintaining alternative sources.

Sec. 6.203 Set-asides for small business concerns.

Sec. 6.204 Section 8(a) competition.

Sec. 6.205 Set-asides for HUBZone small business concerns.

Sec. 6.206 Set-asides for service-disabled veteran-owned small business 
          concerns.

Sec. 6.207 Set-asides for economically disadvantaged women-owned small 
          business (EDWOSB) concerns or women-owned small business 
          (WOSB) concerns eligible under the WOSB Program.

Sec. 6.208 Set-asides for local firms during a major disaster or 
          emergency.

            Subpart 6.3_Other Than Full and Open Competition


Sec. 6.300 Scope of subpart.

Sec. 6.301 Policy.

Sec. 6.302 Circumstances permitting other than full and open 
          competition.

Sec. 6.302-1 Only one responsible source and no other supplies or 
          services will satisfy agency requirements.

Sec. 6.302-2 Unusual and compelling urgency.

Sec. 6.302-3 Industrial mobilization; engineering, developmental, or 
          research capability; or expert services.

Sec. 6.302-4 International agreement.

Sec. 6.302-5 Authorized or required by statute.

Sec. 6.302-6 National security.

Sec. 6.302-7 Public interest.

Sec. 6.303 Justifications.

Sec. 6.303-1 Requirements.

Sec. 6.303-2 Content.

Sec. 6.304 Approval of the justification.

Sec. 6.305 Availability of the justification.

          Subpart 6.4_Sealed Bidding and Competitive Proposals


Sec. 6.401 Sealed bidding and competitive proposals.

                    Subpart 6.5_Competition Advocates


Sec. 6.501 Requirement.

Sec. 6.502 Duties and responsibilities.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 
2473(c).

    Source: 50 FR 1729, Jan. 11, 1985; 50 FR 52429, Dec. 23, 1985, 
unless otherwise noted.



Sec. 6.000  Scope of part.

    This part prescribes policies and procedures to promote full and 
open competition in the acquisition process and to provide for full and 
open competition, full and open competition after exclusion of sources, 
other than full and open competition, and competition advocates. This 
part does not deal with the results of competition (e.g., adequate price 
competition), that are addressed in other parts (e.g., part 15).

[66 FR 2127, Jan. 10, 2001]

[[Page 121]]



Sec. 6.001  Applicability.

    This part applies to all acquisitions except--
    (a) Contracts awarded using the simplified acquisition procedures of 
part 13 (but see 13.501 for requirements pertaining to sole source 
acquisition of commercial items under subpart 13.5).
    (b) Contracts awarded using contracting procedures (other than those 
addressed in this part) that are expressly authorized by statute;
    (c) Contract modifications, that are within the scope of the 
contract, including the exercise of priced options that were evaluated 
as part of the original competition (see 17.207(f));
    (d) Orders placed under requirements contracts or definite-quantity 
contracts;
    (e) Orders placed under indefinite-quantity contracts that were 
entered into pursuant to this part when--
    (1) The contract was awarded under subpart 6.1 or 6.2 and all 
responsible sources were realistically permitted to compete for the 
requirements contained in the order; or
    (2) The contract was awarded under subpart 6.3 and the required 
justification and approval adequately covers the requirements contained 
in the order; or
    (f) Orders placed against task order and delivery order contracts 
entered into pursuant to subpart 16.5.

[50 FR 52431, Dec. 23, 1985, as amended at 55 FR 52790, Dec. 21, 1990; 
60 FR 34747, July 3, 1995; 60 FR 49725, Sept. 26, 1995; 62 FR 263, Jan. 
2, 1997; 62 FR 64917, Dec. 9, 1997]



Sec. 6.002  Limitations.

    No agency shall contract for supplies or services from another 
agency for the purpose of avoiding the requirements of this part.



Sec. 6.003  [Reserved]

                  Subpart 6.1_Full and Open Competition



Sec. 6.100  Scope of subpart.

    This subpart prescribes the policy and procedures that are to be 
used to promote and provide for full and open competition.



Sec. 6.101  Policy.

    (a) 10 U.S.C. 2304 and 41 U.S.C. 253 require, with certain limited 
exceptions (see subparts 6.2 and 6.3), that contracting officers shall 
promote and provide for full and open competition in soliciting offers 
and awarding Government contracts.
    (b) Contracting officers shall provide for full and open competition 
through use of the competitive procedure(s) contained in this subpart 
that are best suited to the circumstances of the contract action and 
consistent with the need to fulfill the Government's requirements 
efficiently (10 U.S.C. 2304 and 41 U.S.C. 253).

[50 FR 1729, Jan. 11, 1985, and 50 FR 52429, Dec. 23, 1985, as amended 
at 62 FR 51230, Sept. 30, 1997]



Sec. 6.102  Use of competitive procedures.

    The competitive procedures available for use in fulfilling the 
requirement for full and open competition are as follows:
    (a) Sealed bids. (See 6.401(a).)
    (b) Competitive proposals. (See 6.401(b).) If sealed bids are not 
appropriated under (a) above, contracting officers shall request 
competitive proposals or use the other competitive procedures under (c) 
or (d) below.
    (c) Combination of competitive procedures. If sealed bids are not 
appropriate, contracting officers may use any combination of competitive 
procedures (e.g., two-step sealed bidding).
    (d) Other competitive procedures. (1) Selection of sources for 
architect-engineer contracts in accordance with the provisions of 40 
U.S.C. 1102 et seq. is a competitive procedure (see subpart 36.6 for 
procedures).
    (2) Competitive selection of basic and applied research and that 
part of development not related to the development of a specific system 
or hardware procurement is a competitive procedure if award results 
from--
    (i) A broad agency announcement that is general in nature 
identifying areas of research interest, including criteria for selecting 
proposals, and soliciting the participation of all offerors capable of 
satisfying the Government's needs; and
    (ii) A peer of scientific review.

[[Page 122]]

    (3) Use of multiple award schedules issued under the procedures 
established by the Administrator of General Services consistent with the 
requirement of 41 U.S.C. 259(b)(3)(A) for the multiple award schedule 
program of the General Services Administration is a competitive 
procedure.

[50 FR 1729, Jan. 11, 1985; 50 FR 52429, Dec. 23, 1985, as amended at 53 
FR 27463, July 20, 1988; 59 FR 53716, Oct. 25, 1994; 70 FR 57454, Sept. 
30, 2005]

    Subpart 6.2_Full and Open Competition After Exclusion of Sources



Sec. 6.200  Scope of subpart.

    This subpart prescribes policies and procedures for providing for 
full and open competition after excluding one or more sources.



Sec. 6.201  Policy.

    Acquisitions made under this subpart require use of the competitive 
procedures prescribed in 6.102.

[64 FR 51831, Sept. 24, 1999]



Sec. 6.202  Establishing or maintaining alternative sources.

    (a) Agencies may exclude a particular source from a contract action 
in order to establish or maintain an alternative source or sources for 
the supplies or services being acquired if the agency head determines 
that to do so would--
    (1) Increase or maintain competition and likely result in reduced 
overall costs for the acquisition, or for any anticipated acquisition;
    (2) Be in the interest of national defense in having a facility (or 
a producer, manufacturer, or other supplier) available for furnishing 
the supplies or services in case of a national emergency or industrial 
mobilization;
    (3) Be in the interest of national defense in establishing or 
maintaining an essential engineering, research, or development 
capability to be provided by an educational or other nonprofit 
institution or a federally funded research and development center;
    (4) Ensure the continuous availability of a reliable source of 
supplies or services;
    (5) Satisfy projected needs based on a history of high demand; or
    (6) Satisfy a critical need for medical, safety, or emergency 
supplies.
    (b)(1) Every proposed contract action under the authority of 
paragraph (a) above shall be supported by a determination and findings 
(D&F) (see subpart 1.7) signed by the head of the agency or designee. 
This D&F shall not be made on a class basis.
    (2) Technical and requirements personnel are responsible for 
providing all necessary data to support their recommendation to exclude 
a particular source.
    (3) When the authority in (a)(1) above is cited, the findings shall 
include a description of the estimated reduction in overall costs and 
how the estimate was derived.

[50 FR 1729, Jan. 11, 1985, as amended at 60 FR 42653, Aug. 16, 1995]



Sec. 6.203  Set-asides for small business concerns.

    (a) To fulfill the statutory requirements relating to small business 
concerns, contracting officers may set aside solicitations to allow only 
such business concerns to compete. This includes contract actions 
conducted under the Small Business Innovation Research Program 
established under Pub. L. 97-219.
    (b) No separate justification or determination and findings is 
required under this part to set aside a contract action for small 
business concerns.
    (c) Subpart 19.5 prescribes policies and procedures that shall be 
followed with respect to set-asides.

[60 FR 48259, Sept. 18, 1995]



Sec. 6.204  Section 8(a) competition.

    (a) To fulfill statutory requirements relating to section 8(a) of 
the Small Business Act, as amended by Pub. L. 100-656, contracting 
officers may limit competition to eligible 8(a) contractors (see subpart 
19.8).
    (b) No separate justification or determination and findings is 
required under this part to limit competition to eligible 8(a) 
contractors. (But see 6.302-5 and

[[Page 123]]

6.303-1 for sole source 8(a) awards over $20 million.)

[54 FR 46005, Oct. 31, 1989, as amended at 76 FR 14561, Mar. 16, 2011]



Sec. 6.205  Set-asides for HUBZone small business concerns.

    (a) To fulfill the statutory requirements relating to the HUBZone 
Act of 1997 (15 U.S.C. 631 note), contracting officers in participating 
agencies (see 19.1302) may set aside solicitations to allow only 
qualified HUBZone small business concerns to compete (see 19.1305).
    (b) No separate justification or determination and findings is 
required under this part to set aside a contract action for qualified 
HUBZone small business concerns.

[63 FR 70267, Dec. 18, 1998]



Sec. 6.206  Set-asides for service-disabled veteran-owned small business 
          concerns.

    (a) To fulfill the statutory requirements relating to the Veterans 
Benefits Act of 2003 (15 U.S.C. 657f), contracting officers may set-
aside solicitations to allow only service-disabled veteran-owned small 
business concerns to compete (see 19.1405).
    (b) No separate justification or determination and findings are 
required under this part to set aside a contract action for service-
disabled veteran-owned small business concerns.

[69 FR 25276, May 5, 2004]



Sec. 6.207  Set-asides for economically disadvantaged women-owned small 
          business (EDWOSB) concerns or women-owned small business 
          (WOSB) concerns eligible under the WOSB Program.

    (a) To fulfill the statutory requirements relating to 15 U.S.C. 
637(m), contracting officers may set aside solicitations for only EDWOSB 
concerns or WOSB concerns eligible under the WOSB Program (see 19.1505).
    (b) No separate justification or determination and findings is 
required under this part to set aside a contract action for EDWOSB 
concerns or WOSB concerns eligible under the WOSB Program.

[76 FR 18308, Apr. 1, 2011]



Sec. 6.208  Set-asides for local firms during a major disaster or 
          emergency.

    (a) To fulfill the statutory requirements relating to 42 U.S.C. 
5150, contracting officers may set aside solicitations to allow only 
offerors residing or doing business primarily in the area affected by 
such major disaster or emergency to compete (see Subpart 26.2).
    (b) No separate justification or determination and findings is 
required under this part to set aside a contract action. The set-aside 
area specified by the contracting officer shall be a geographic area 
within the area identified in a Presidential declaration(s) of major 
disaster or emergency and any additional geographic areas identified by 
the Department of Homeland Security.

[72 FR 63086, Nov. 7, 2007. Redesignated at 76 FR 18308, Apr. 1, 2011]

            Subpart 6.3_Other Than Full and Open Competition



Sec. 6.300  Scope of subpart.

    This subpart prescribes policies and procedures, and identifies the 
statutory authorities, for contracting without providing for full and 
open competition.



Sec. 6.301  Policy.

    (a) 41 U.S.C. 253(c) and 10 U.S.C. 2304(c) each authorize, under 
certain conditions, contracting without providing for full and open 
competition. The Department of Defense, Coast Guard, and National 
Aeronautics and Space Administration are subject to 10 U.S.C. 2304(c). 
Other executive agencies are subject to 41 U.S.C. 253(c). Contracting 
without providing for full and open competition or full and open 
competition after exclusion of sources is a violation of statute, unless 
permitted by one of the exceptions in 6.302.
    (b) Each contract awarded without providing for full and open 
competition shall contain a reference to the specific authority under 
which it was so awarded. Contracting officers shall use the U.S. Code 
citation applicable to their agency. (See 6.302.)
    (c) Contracting without providing for full and open competition 
shall not be

[[Page 124]]

justified on the basis of (1) a lack of advance planning by the 
requiring activity or (2) concerns related to the amount of funds 
available (e.g., funds will expire) to the agency or activity for the 
acquisition of supplies or services.
    (d) When not providing for full and open competition, the 
contracting officer shall solicit offers from as many potential sources 
as is practicable under the circumstances.
    (e) For contracts under this subpart, the contracting officer shall 
use the contracting procedures prescribed in 6.102 (a) or (b), if 
appropriate, or any other procedures authorized by this regulation.



Sec. 6.302  Circumstances permitting other than full and open 
          competition.

    The following statutory authorities (including applications and 
limitations) permit contracting without providing for full and open 
competition. Requirements for justifications to support the use of these 
authorities are in 6.303.

[50 FR 52431, Dec. 23, 1985]



Sec. 6.302-1  Only one responsible source and no other supplies or 
          services will satisfy agency requirements.

    (a) Authority. (1) Citations: 10 U.S.C. 2304(c)(1) or 41 U.S.C. 
253(c)(1).
    (2) When the supplies or services required by the agency are 
available from only one responsible source, or, for DoD, NASA, and the 
Coast Guard, from only one or a limited number of responsible sources, 
and no other type of supplies or services will satisfy agency 
requirements, full and open competition need not be provided for.
    (i) Supplies or services may be considered to be available from only 
one source if the source has submitted an unsolicited research proposal 
that:
    (A) Demonstrates a unique and innovative concept (see definition at 
2.101), or, demonstrates a unique capability of the source to provide 
the particular research services proposed;
    (B) Offers a concept or services not otherwise available to the 
Government; and
    (C) Does not resemble the substance of a pending competitive 
acquisition. (See 10 U.S.C. 2304(d)(1)(A) and 41 U.S.C. 253(d)(1)(A).)
    (ii) Supplies may be deemed to be available only from the original 
source in the case of a follow-on contract for the continued development 
or production of a major system or highly specialized equipment, 
including major components thereof, when it is likely that award to any 
other source would result in (A) substantial duplication of cost to the 
Government that is not expected to be recovered through competition, or 
(B) unacceptable delays in fulfilling the agency's requirements. (See 10 
U.S.C. 2304(d)(1)(B) or 41 U.S.C. 253(d)(1)(B).)
    (iii) For DoD, NASA, and the Coast Guard, services may be deemed to 
be available only from the original source in the case of follow-on 
contracts for the continued provision of highly specialized services 
when it is likely that award to any other source would result in (A) 
substantial duplication of cost to the Government that is not expected 
to be recovered through competition, or (B) unacceptable delays in 
fulfilling the agency's requirements. (See 10 U.S.C. 2304(d)(1)(B)).
    (b) Application. This authority shall be used, if appropriate, in 
preference to the authority in 6.302-7; it shall not be used when any of 
the other circumstances is applicable. Use of this authority may be 
appropriate in situations such as the following (these examples are not 
intended to be all-inclusive and do not consitute authority in and of 
themselves):
    (1) When there is a reasonable basis to conclude that the agency's 
minimum needs can only be satisfied by (i) unique supplies or services 
available from only one source or only one supplier with unique 
capabilities; or, (ii) for DoD, NASA, and the Coast Guard, unique 
supplies or services available from only one or a limited number of 
sources or from only one or a limited number of suppliers with unique 
capabilities.
    (2) The existence of limited rights in data, patent rights, 
copyrights, or secret processes; the control of basic raw material; or 
similar circumstances, make the supplies and services available from 
only one source (however, the mere existence of such rights or

[[Page 125]]

circumstances does not in and of itself justify the use of these 
authorities) (see part 27).
    (3) When acquiring utility services (see 41.101), circumstances may 
dictate that only one supplier can furnish the service (see 41.202); or 
when the contemplated contract is for construction of a part of a 
utility system and the utility company itself is the only source 
available to work on the system.
    (4) When the agency head has determined in accordance with the 
agency's standardization program that only specified makes and models of 
technical equipment and parts will satisfy the agency's needs for 
additional units or replacement items, and only one source is available.
    (c) Application for brand-name descriptions. (1) An acquisition or 
portion of an acquisition that uses a brand-name description or other 
purchase description to specify a particular brand-name, product, or 
feature of a product, peculiar to one manufacturer--
    (i) Does not provide for full and open competition, regardless of 
the number of sources solicited; and
    (ii) Shall be justified and approved in accordance with 6.303 and 
6.304.
    (A) If only a portion of the acquisition is for a brand-name product 
or item peculiar to one manufacturer, the justification and approval is 
to cover only the portion of the acquisition which is brand-name or 
peculiar to one manufacturer. The justification should state it is 
covering only the portion of the acquisition which is brand-name or 
peculiar to one manufacturer, and the approval level requirements will 
then only apply to that portion;
    (B) The justification should indicate that the use of such 
descriptions in the acquisition or portion of an acquisition is 
essential to the Government's requirements, thereby precluding 
consideration of a product manufactured by another company; and
    (C) The justification shall be posted with the solicitation (see 
5.102(a)(6)).
    (2) Brand-name or equal descriptions, and other purchase 
descriptions that permit prospective contractors to offer products other 
than those specifically referenced by brand-name, provide for full and 
open competition and do not require justifications and approvals to 
support their use.
    (d) Limitations. (1) Contracts awarded using this authority shall be 
supported by the written justifications and approvals described in 6.303 
and 6.304.
    (2) For contracts awarded using this authority, the notices required 
by 5.201 shall have been published and any bids, proposals, quotations, 
or capability statements must have been considered.

[50 FR 52431, Dec. 23, 1985, as amended at 52 FR 21886, June 9, 1987; 53 
FR 27463, July 20, 1988; 56 FR 29127, June 25, 1991; 59 FR 67018, Dec. 
28, 1994; 66 FR 2128, Jan. 10, 2001; 71 FR 57359, Sept. 28, 2006; 73 FR 
10962, Feb. 28, 2008; 77 FR 193, Jan. 3, 2012]



Sec. 6.302-2  Unusual and compelling urgency.

    (a) Authority. (1) Citations: 10 U.S.C. 2304(c)(2) or 41 U.S.C. 
253(c)(2).
    (2) When the agency's need for the supplies or services is of such 
an unusual and compelling urgency that the Government would be seriously 
injured unless the agency is permitted to limit the number of sources 
from which it solicits bids or proposals, full and open competition need 
not be provided for.
    (b) Application. This authority applies in those situations where 
(1) an unusual and compelling urgency precludes full and open 
competition, and (2) delay in award of a contract would result in 
serious injury, financial or other, to the Government.
    (c) Limitations. (1) Contracts awarded using this authority shall be 
supported by the written justifications and approvals described in 6.303 
and 6.304. These justifications may be made and approved after contract 
award when preparation and approval prior to award would unreasonably 
delay the acquisition.
    (2) This statutory authority requires that agencies shall request 
offers from as many potential sources as is practicable under the 
circumstances.
    (d) Period of Performance. (1) The total period of performance of a 
contract awarded using this authority--
    (i) May not exceed the time necessary--
    (A) To meet the unusual and compelling requirements of the work to 
be performed under the contract; and

[[Page 126]]

    (B) For the agency to enter into another contract for the required 
goods and services through the use of competitive procedures; and
    (ii) May not exceed one year unless the head of the agency entering 
into the contract determines that exceptional circumstances apply.
    (2) The requirements in paragraph (d)(1) of this section shall apply 
to any contract in an amount greater than the simplified acquisition 
threshold.
    (3) The determination of exceptional circumstances is in addition to 
the approval of the justification in 6.304.
    (4) The determination may be made after contract award when making 
the determination prior to award would unreasonably delay the 
acquisition.

[50 FR 52431, Dec. 23, 1985, as amended at 74 FR 52851, Oct. 14, 2009; 
74 FR 65615, Dec. 10, 2009]



Sec. 6.302-3  Industrial mobilization; engineering, developmental, or 
          research capability; or expert services.

    (a) Authority. (1) Citations: 10 U.S.C. 2304(c)(3) or 41 U.S.C. 
253(c)(3).
    (2) Full and open competition need not to be provided for when it is 
necessary to award the contract to a particular source or sources in 
order--
    (i) To maintain a facility, producer, manufacturer, or other 
supplier available for furnishing supplies or services in case of a 
national emergency or to achieve industrial mobilization,
    (ii) To establish or maintain an essential engineering, research, or 
development capability to be provided by an educational or other 
nonprofit institution or a federally funded research and development 
center, or
    (iii) To acquire the services of an expert or neutral person for any 
current or anticipated litigation or dispute.
    (b) Application. (1) Use of the authority in paragraph (a)(2)(i) 
above may be appropriate when it is necessary to--
    (i) Keep vital facilities or suppliers in business or make them 
available in the event of a national emergency;
    (ii) Train a selected supplier in the furnishing of critical 
supplies or services, prevent the loss of a supplier's ability and 
employees' skills, or maintain active engineering, research, or 
development work;
    (iii) Maintain properly balanced sources of supply for meeting the 
requirements of acquisition programs in the interest of industrial 
mobilization (when the quantity required is substantially larger than 
the quantity that must be awarded in order to meet the objectives of 
this authority, that portion not required to meet such objectives will 
be acquired by providing for full and open competition as appropriate 
under this part);
    (iv) Create or maintain the required domestic capability for 
production of critical supplies by limiting competition to items 
manufactured in--
    (A) The United States or its outlying areas; or
    (B) The United States, its outlying areas, or Canada.
    (v) Continue in production, contractors that are manufacturing 
critical items, where there would otherwise be a break in production; or
    (vi) Divide current production requirements among two or more 
contractors to provide for an adequate industrial mobilization base.
    (2) Use of the authority in paragraph (a)(2)(ii) above may be 
appropriate when it is necessary to--
    (i) Establish or maintain an essential capability for theoretical 
analyses, exploratory studies, or experiments in any field of science or 
technology;
    (ii) Establish or maintain an essential capability for engineering 
or developmental work calling for the practical application of 
investigative findings and theories of a scientific or technical nature; 
or
    (iii) Contract for supplies or services as are necessary incident to 
paragraphs (b)(2)(i) or (ii) above.
    (3) Use of the authority in paragraph (a)(2)(iii) of this section 
may be appropriate when it is necessary to acquire the services of 
either--
    (i) An expert to use, in any litigation or dispute (including any 
reasonably foreseeable litigation or dispute) involving the Government 
in any trial, hearing, or proceeding before any court, administrative 
tribunal, or agency, whether or not the expert is expected to testify. 
Examples of such services include, but are not limited to:
    (A) Assisting the Government in the analysis, presentation, or 
defense of

[[Page 127]]

any claim or request for adjustment to contract terms and conditions, 
whether asserted by a contractor or the Government, which is in 
litigation or dispute, or is anticipated to result in dispute or 
litigation before any court, administrative tribunal, or agency, or
    (B) Participating in any part of an alternative dispute resolution 
process, including but not limited to evaluators, fact finders, or 
witnesses, regardless of whether the expert is expected to testify; or
    (ii) A neutral person, e.g., mediators or arbitrators, to facilitate 
the resolution of issues in an alternative dispute resolution process.
    (c) Limitations. Contracts awarded using this authority shall be 
supported by the written justifications and approvals described in 6.303 
and 6.304.

[50 FR 52431, Dec. 23, 1985, as amended at 60 FR 42654, Aug. 16, 1995; 
60 FR 44548, Aug. 28, 1995; 62 FR 235, Jan. 2, 1997; 63 FR 58594, 58602, 
Oct. 30, 1998; 66 FR 2128, Jan. 10, 2001; 68 FR 28080, May 22, 2003; 77 
FR 56741, Sept. 13, 2012]



Sec. 6.302-4  International agreement.

    (a) Authority. (1) Citations: 10 U.S.C. 2304(c)(4) or 41 U.S.C. 
253(c)(4).
    (2) Full and open competition need not be provided for when 
precluded by the terms of an international agreement or a treaty between 
the United States and a foreign government or international 
organization, or the written directions of a foreign government 
reimbursing the agency for the cost of the acquisition of the supplies 
or services for such government.
    (b) Application. This authority may be used in circumstances such 
as--
    (1) When a contemplated acquisition is to be reimbursed by a foreign 
country that requires that the product be obtained from a particular 
firm as specified in official written direction such as a Letter of 
Offer and Acceptance; or
    (2) When a contemplated acquisition is for services to be performed, 
or supplies to be used, in the sovereign territory of another country 
and the terms of a treaty or agreement specify or limit the sources to 
be solicited.
    (c) Limitations. Except for DoD, NASA, and the Coast Guard, 
contracts awarded using this authority shall be supported by written 
justifications and approvals described in 6.303 and 6.304.

[50 FR 52432, Dec. 23, 1985, as amended at 55 FR 52790, Dec. 21, 1990]



Sec. 6.302-5  Authorized or required by statute.

    (a) Authority. (1) Citations: 10 U.S.C. 2304(c)(5) or 41 U.S.C. 
253(c)(5).
    (2) Full and open competition need not be provided for when (i) a 
statute expressly authorizes or requires that the acquisition be made 
through another agency or from a specified source, or (ii) the agency's 
need is for a brand name commercial item for authorized resale.
    (b) Application. This authority may be used when statutes, such as 
the following, expressly authorize or require that acquisition be made 
from a specified source or through another agency:
    (1) Federal Prison Industries (UNICOR)--18 U.S.C. 4124 (see subpart 
8.6);
    (2) Qualified Nonprofit Agencies for the Blind or other Severely 
Disabled--41 U.S.C. 46-48c (see subpart 8.7);
    (3) Government Printing and Binding--44 U.S.C. 501-504, 1121 (see 
subpart 8.8);
    (4) Sole source awards under the 8(a) Program (15 U.S.C. 637), but 
see 6.303 for requirements for justification and approval of sole-source 
8(a) awards over $20 million. (See subpart 19.8.)
    (5) Sole source awards under the HUBZone Act of 1997--15 U.S.C. 657a 
(see 19.1306).
    (6) Sole source awards under the Veterans Benefits Act of 2003 (15 
U.S.C. 657f).
    (c) Limitations. (1) This authority shall not be used when a 
provision of law requires an agency to award a new contract to a 
specified non-Federal Government entity unless the provision of law 
specifically--
    (i) Identifies the entity involved;
    (ii) Refers to 10 U.S.C. 2304(j) for armed services acquisitions or 
section 303(h) of the Federal Property and Administrative Services Act 
of 1949 for civilian agency acquisitions; and
    (iii) States that award to that entity shall be made in 
contravention of the merit-based selection procedures in 10 U.S.C. 
2304(j) or section 303(h) of the Federal Property and Administrative

[[Page 128]]

Services Act, as appropriate. However, this limitation does not apply--
    (A) When the work provided for in the contract is a continuation of 
the work performed by the specified entity under a preceding contract; 
or
    (B) To any contract requiring the National Academy of Sciences to 
investigate, examine, or experiment upon any subject of science or art 
of significance to an executive agency and to report on those matters to 
the Congress or any agency of the Federal Government.
    (2) Contracts awarded using this authority shall be supported by the 
written justifications and approvals described in 6.303 and 6.304, 
except for--
    (i) Contracts awarded under (a)(2)(ii) or (b)(2) of this subsection;
    (ii) Contracts awarded under (a)(2)(i) of this subsection when the 
statute expressly requires that the procurement be made from a specified 
source. (Justification and approval requirements apply when the statute 
authorizes, but does not require, that the procurement be made from a 
specified source); or
    (iii) Contracts less than or equal to $20 million awarded under 
(b)(4) of this subsection.
    (3) The authority in (a)(2)(ii) of this subsection may be used only 
for purchases of brand-name commercial items for resale through 
commissaries or other similar facilities. Ordinarily, these purchases 
will involve articles desired or preferred by customers of the selling 
activities (but see 6.301(d)).

[50 FR 52432, Dec. 23, 1985, as amended at 51 FR 36971, Oct. 16, 1986; 
54 FR 46005, Oct. 31, 1989; 60 FR 42654, Aug. 16, 1995; 61 FR 39200, 
July 26, 1996; 63 FR 70267, Dec. 18, 1998; 67 FR 13068, Mar. 20, 2002; 
69 FR 25276, May 5, 2004; 71 FR 44547, Aug. 4, 2006; 76 FR 14561, Mar. 
16, 2011]



Sec. 6.302-6  National security.

    (a) Authority. (1) Citations: 10 U.S.C. 2304(c)(6) or 41 U.S.C. 
253(c)(6).
    (2) Full and open competition need not be provided for when the 
disclosure of the agency's needs would compromise the national security 
unless the agency is permitted to limit the number of sources from which 
it solicits bids or proposals.
    (b) Application. This authority may be used for any acquisition when 
disclosure of the Government's needs would compromise the national 
security (e.g., would violate security requirements); it shall not be 
used merely because the acquisition is classified, or merely because 
access to classified matter will be necessary to submit a proposal or to 
perform the contract.
    (c) Limitations. (1) Contracts awarded using this authority shall be 
supported by the written justifications and approvals described in 6.303 
and 6.304.
    (2) See 5.202(a)(1) for synopsis requirements.
    (3) This statutory authority requires that agencies shall request 
offers from as many potential sources as is practicable under the 
circumstances.

[50 FR 52432, Dec. 23, 1985]



Sec. 6.302-7  Public interest.

    (a) Authority. (1) Citations: 10 U.S.C. 2304(c)(7) or 41 U.S.C. 
253(c)(7).
    (2) Full and open competition need not be provided for when the 
agency head determines that it is not in the public interest in the 
particular acquisition concerned.
    (b) Application. This authority may be used when none of the other 
authorities in 6.302 apply.
    (c) Limitations. (1) A written determination to use this authority 
shall be made in accordance with subpart 1.7, by (i) the Secretary of 
Defense, the Secretary of the Army, the Secretary of the Navy, the 
Secretary of the Air Force, the Secretary of Homeland Security for the 
Coast Guard, or the Administrator of the National Aeronautics and Space 
Administration; or (ii) the head of any other executive agency. This 
authority may not be delegated.
    (2) The Congress shall be notified in writing of such determination 
not less than 30 days before award of the contract.
    (3) If required by the head of the agency, the contracting officer 
shall prepare a justification to support the determination under 
paragraph (c)(1) above.
    (4) This Determination and Finding (D & F) shall not be made on a 
class basis.

[50 FR 52432, Dec. 23, 1985, as amended at 68 FR 69258, Dec. 11, 2003]

[[Page 129]]



Sec. 6.303  Justifications.



Sec. 6.303-1  Requirements.

    (a) A contracting officer shall not commence negotiations for a sole 
source contract, commence negotiations for a contract resulting from an 
unsolicited proposal, or award any other contract without providing for 
full and open competition unless the contracting officer--
    (1) Justifies, if required in 6.302, the use of such actions in 
writing;
    (2) Certifies the accuracy and completeness of the justification; 
and
    (3) Obtains the approval required by 6.304.
    (b) The contracting officer shall not award a sole-source contract 
under the 8(a) authority (15 U.S.C. 637(a)) for an amount exceeding $20 
million unless--
    (1) The contracting officer justifies the use of a sole-source 
contract in writing in accordance with 6.303-2;
    (2) The justification is approved by the appropriate official 
designated at 6.304; and
    (3) The justification and related information are made public after 
award in accordance with 6.305.
    (c) Technical and requirements personnel are responsible for 
providing and certifying as accurate and complete necessary data to 
support their recommendation for other than full and open competition.
    (d) Justifications required by paragraph (a) above may be made on an 
individual or class basis. Any justification for contracts awarded under 
the authority of 6.302-7 shall only be made on an individual basis. 
Whenever a justification is made and approved on a class basis, the 
contracting officer must ensure that each contract action taken pursuant 
to the authority of the class justification and approval is within the 
scope of the class justification and approval and shall document the 
contract file for each contract action accordingly.
    (e) The justifications for contracts awarded under the authority 
cited in 6.302-2 may be prepared and approved within a reasonable time 
after contract award when preparation and approval prior to award would 
unreasonably delay the acquisitions.

[50 FR 1729, Jan. 11, 1985, as amended at 50 FR 52433, Dec. 23, 1985; 55 
FR 25526, June 21, 1990; 64 FR 72418, Dec. 27, 1999; 69 FR 77872, Dec. 
28, 2004; 76 FR 14561, Mar. 16, 2011]



Sec. 6.303-2  Content.

    (a) Each justification shall contain sufficient facts and rationale 
to justify the use of the specific authority cited.
    (b) As a minimum, each justification, except those for sole-source 
8(a) contracts over $20 million (see paragraph (d) of this section), 
shall include the following information:
    (1) Identification of the agency and the contracting activity, and 
specific identification of the document as a ``Justification for other 
than full and open competition.''
    (2) Nature and/or description of the action being approved.
    (3) A description of the supplies or services required to meet the 
agency's needs (including the estimated value).
    (4) An identification of the statutory authority permitting other 
than full and open competition.
    (5) A demonstration that the proposed contractor's unique 
qualifications or the nature of the acquisition requires use of the 
authority cited.
    (6) A description of efforts made to ensure that offers are 
solicited from as many potential sources as is practicable, including 
whether a notice was or will be publicized as required by subpart 5.2 
and, if not, which exception under 5.202 applies.
    (7) A determination by the contracting officer that the anticipated 
cost to the Government will be fair and reasonable.
    (8) A description of the market research conducted (see part 10) and 
the results or a statement of the reason market research was not 
conducted.
    (9) Any other facts supporting the use of other than full and open 
competition, such as:
    (i) Explanation of why technical data packages, specifications, 
engineering descriptions, statements of work, or purchase descriptions 
suitable for full and open competition have not been developed or are 
not available.
    (ii) When 6.302-1 is cited for follow-on acquisitions as described 
in 6.302-

[[Page 130]]

1(a)(2)(ii), an estimate of the cost to the Government that would be 
duplicated and how the estimate was derived.
    (iii) When 6.302-2 is cited, data, estimated cost, or other 
rationale as to the extent and nature of the harm to the Government.
    (10) A listing of the sources, if any, that expressed, in writing, 
an interest in the acquisition.
    (11) A statement of the actions, if any, the agency may take to 
remove or overcome any barriers to competition before any subsequent 
acquisition for the supplies or services required.
    (12) Contracting officer certification that the justification is 
accurate and complete to the best of the contracting officer's knowledge 
and belief.
    (c) Each justification shall include evidence that any supporting 
data that is the responsibility of technical or requirements personnel 
(e.g., verifying the Government's minimum needs or schedule requirements 
or other rationale for other than full and open competition) and which 
form a basis for the justification have been certified as complete and 
accurate by the technical or requirements personnel.
    (d) As a minimum, each justification for a sole-source 8(a) contract 
over $20 million shall include the following information:
    (1) A description of the needs of the agency concerned for the 
matters covered by the contract.
    (2) A specification of the statutory provision providing the 
exception from the requirement to use competitive procedures in entering 
into the contract (see 19.805-1).
    (3) A determination that the use of a sole-source contract is in the 
best interest of the agency concerned.
    (4) A determination that the anticipated cost of the contract will 
be fair and reasonable.
    (5) Such other matters as the head of the agency concerned shall 
specify for purposes of this section.

[50 FR 1729, Jan. 11, 1985, as amended at 50 FR 52433, Dec. 23, 1985; 60 
FR 48236, Sept. 18, 1995; 66 FR 27412, May 16, 2001; 76 FR 14562, Mar. 
16, 2011]



Sec. 6.304  Approval of the justification.

    (a) Except for paragraph (b) of this section, the justification for 
other than full and open competition shall be approved in writing--
    (1) For a proposed contract not exceeding $650,000, the contracting 
officer's certification required by 6.303-2(b)(12) will serve as 
approval unless a higher approving level is established in agency 
procedures.
    (2) For a proposed contract over $650,000 but not exceeding $12.5 
million, by the competition advocate for the procuring activity 
designated pursuant to 6.501 or an official described in paragraph 
(a)(3) or (a)(4) of this section. This authority is not delegable.
    (3) For a proposed contract over $12.5 million, but not exceeding 
$62.5 million, or, for DoD, NASA, and the Coast Guard, not exceeding 
$85.5 million, by the head of the procuring activity, or a designee 
who--
    (i) If a member of the armed forces, is a general or flag officer; 
or
    (ii) If a civilian, is serving in a position in a grade above GS-15 
under the General Schedule (or in a comparable or higher position under 
another schedule).
    (4) For a proposed contract over $62.5 million or, for DoD, NASA, 
and the Coast Guard, over $85.5 million, by the senior procurement 
executive of the agency designated pursuant to the OFPP Act (41 U.S.C. 
414(3)) in accordance with agency procedures. This authority is not 
delegable except in the case of the Under Secretary of Defense for 
Acquisition, Technology, and Logistics, acting as the senior procurement 
executive for the Department of Defense.
    (b) Any justification for a contract awarded under the authority of 
6.302-7, regardless of dollar amount, shall be considered approved when 
the determination required by 6.302-7(c)(1) is made.
    (c) A class justification for other than full and open competition 
shall be approved in writing in accordance with agency procedures. The 
approval level shall be determined by the estimated total value of the 
class.

[[Page 131]]

    (d) The estimated dollar value of all options shall be included in 
determining the approval level of a justification.

[50 FR 1729, Jan. 11, 1985, as amended at 50 FR 52433, Dec. 23, 1985; 54 
FR 13023, Mar. 29, 1989; 55 FR 3881, Feb. 5, 1990; 55 FR 52790, Dec. 21, 
1990; 60 FR 42654, 42665, Aug. 16, 1995; 61 FR 31618, June 20, 1996; 65 
FR 24325, Apr. 25, 2000; 70 FR 11739, Mar. 9, 2005; 71 FR 57366, Sept. 
28, 2006; 75 FR 53132, Aug. 30, 2010; 76 FR 14562, Mar. 16, 2011]



Sec. 6.305  Availability of the justification.

    (a) The agency shall make publicly available the justification 
required by 6.303-1 as required by 10 U.S.C. 2304(l) and 41 U.S.C. 
253(j). Except for the circumstances in paragraphs (b) and (c) of this 
section, the justification shall be made publicly available within 14 
days after contract award.
    (b) In the case of a contract award permitted under 6.302-2, the 
justification shall be posted within 30 days after contract award.
    (c) In the case of a brand name justification under 6.302-1(c), the 
justification shall be posted with the solicitation (see 5.102(a)(6)).
    (d) The justifications shall be made publicly available--
    (1) At the Government Point of Entry (GPE) www.fedbizopps.gov;
    (2) On the website of the agency, which may provide access to the 
justifications by linking to the GPE; and
    (3) Must remain posted for a minimum of 30 days.
    (e) Contracting officers shall carefully screen all justifications 
for contractor proprietary data and remove all such data, and such 
references and citations as are necessary to protect the proprietary 
data, before making the justifications available for public inspection. 
Contracting officers shall also be guided by the exemptions to 
disclosure of information contained in the Freedom of Information Act (5 
U.S.C. 552) and the prohibitions against disclosure in 24.202 in 
determining whether the justification, or portions of it, are exempt 
from posting. Although the submitter notice process set out in EO 12600, 
entitled ``Predisclosure Notification Procedures for Confidential 
Commercial Information,'' does not apply, if the justification appears 
to contain proprietary data, the contracting officer should provide the 
contractor that submitted the information an opportunity to review the 
justification for proprietary data, before making the justification 
available for public inspection, redacted as necessary. This process 
must not prevent or delay the posting of the justification in accordance 
with the timeframes required in paragraphs (a) through (c).
    (f) The requirements of paragraphs (a) through (d) do not apply if 
posting the justification would disclose the executive agency's needs 
and disclosure of such needs would compromise national security or 
create other security risks.

[75 FR 34276, June 16, 2010]

          Subpart 6.4_Sealed Bidding and Competitive Proposals



Sec. 6.401  Sealed bidding and competitive proposals.

    Sealed bidding and competitive proposals, as described in Parts 14 
and 15, are both acceptable procedures for use under Subparts 6.1, 6.2; 
and, when appropriate, under Subpart 6.3.
    (a) Sealed bids. (See part 14 for procedures.) Contracting officers 
shall solicit sealed bids if--
    (1) Time permits the solicitation, submission, and evaluation of 
sealed bids;
    (2) The award will be made on the basis of price and other price-
related factors;
    (3) It is not necessary to conduct discussions with the responding 
offerors about their bids; and
    (4) There is reasonable expectation of receiving more than one 
sealed bid.
    (b) Competitive proposals. (See part 15 for procedures.)
    (1) Contracting officers may request competitive proposals if sealed 
bids are not appropriate under paragraph (a) above.
    (2) Because of differences in areas such as law, regulations, and 
business practices, it is generally necessary to conduct discussions 
with offerors relative to proposed contracts to be made and performed 
outside the United

[[Page 132]]

States and its outlying areas. Competitive proposals will therefore be 
used for these contracts unless discussions are not required and the use 
of sealed bids is otherwise appropriate.

[50 FR 1729, Jan. 11, 1985; 50 FR 4221, Jan. 30, 1985; 50 FR 52429, Dec. 
23, 1985; 54 FR 5054, Jan. 31, 1989; 64 FR 51833, Sept. 24, 1999; 68 FR 
28080, May 22, 2003]

                    Subpart 6.5_Competition Advocates



Sec. 6.501  Requirement.

    As required by section 20 of the Office of Federal Procurement 
Policy Act, the head of each executive agency shall designate a 
competition advocate for the agency and for each procuring activity of 
the agency. The competition advocates shall--
    (a) Be in positions other than that of the agency senior procurement 
executive;
    (b) Not be assigned any duties or responsibilities that are 
inconsistent with 6.502 below; and
    (c) Be provided with staff or assistance (e.g., specialists in 
engineering, technical operations, contract administration, financial 
management, supply management, and utilization of small business 
concerns), as may be necessary to carry out the advocate's duties and 
responsibilities.

[50 FR 1729, Jan. 11, 1985, and 50 FR 52429, Dec. 23, 1985, as amended 
at 60 FR 48259, Sept. 18, 1995]



Sec. 6.502  Duties and responsibilities.

    (a) Agency and procuring activity competition advocates are 
responsible for promoting the acquisition of commercial items, promoting 
full and open competition, challenging requirements that are not stated 
in terms of functions to be performed, performance required or essential 
physical characteristics, and challenging barriers to the acquisition of 
commercial items and full and open competition such as unnecessarily 
restrictive statements of work, unnecessarily detailed specifications, 
and unnecessarily burdensome contract clauses.
    (b) Agency competition advocates shall--
    (1) Review the contracting operations of the agency and identify and 
report to the agency senior procurement executive and the chief 
acquisition officer--
    (i) Opportunities and actions taken to acquire commercial items to 
meet the needs of the agency;
    (ii) Opportunities and actions taken to achieve full and open 
competition in the contracting operations of the agency;
    (iii) Actions taken to challenge requirements that are not stated in 
terms of functions to be performed, performance required or essential 
physical characteristics;
    (iv) Any condition or action that has the effect of unnecessarily 
restricting the acquisition of commercial items or competition in the 
contract actions of the agency;
    (2) Prepare and submit an annual report to the agency senior 
procurement executive and the chief acquisition officer in accordance 
with agency procedures, describing--
    (i) Such advocate's activities under this subpart;
    (ii) New initiatives required to increase the acquisition of 
commercial items;
    (iii) New initiatives required to increase competition;
    (iv) New initiatives to ensure requirements are stated in terms of 
functions to be performed, performance required or essential physical 
characteristics;
    (v) Any barriers to the acquisition of commercial items or 
competition that remain;
    (vi) Other ways in which the agency has emphasized the acquisition 
of commercial items and competition in areas such as acquisition 
training and research; and
    (vii) Initiatives that ensure task and delivery orders over 
$1,000,000 issued under multiple award contracts are properly planned, 
issued, and comply with 8.405 and 16.505.
    (3) Recommend goals and plans for increasing competition on a fiscal 
year basis to the agency senior procurement executive and the chief 
acquisition officer; and
    (4) Recommend to the agency senior procurement executive and the 
chief acquisition officer a system of personal and organizational 
accountability for

[[Page 133]]

competition, which may include the use of recognition and awards to 
motivate program managers, contracting officers, and others in authority 
to promote competition in acquisition.

[60 FR 48236, Sept. 18, 1995, as amended at 67 FR 13053, Mar. 20, 2002; 
73 FR 53997, Sept. 17, 2008]

                       PART 7_ACQUISITION PLANNING

Sec.

Sec. 7.000 Scope of part.

                      Subpart 7.1_Acquisition Plans


Sec. 7.101 Definitions.

Sec. 7.102 Policy.

Sec. 7.103 Agency-head responsibilities.

Sec. 7.104 General procedures.

Sec. 7.105 Contents of written acquisition plans.

Sec. 7.106 Additional requirements for major systems.

Sec. 7.107 Additional requirements for acquisitions involving bundling.

Sec. 7.108 Additional requirements for telecommuting.

Subpart 7.2_Planning for the Purchase of Supplies in Economic Quantities


Sec. 7.200 Scope of subpart.

Sec. 7.201 [Reserved]

Sec. 7.202 Policy.

Sec. 7.203 Solicitation provision.

Sec. 7.204 Responsibilities of contracting officers.

          Subpart 7.3_Contractor Versus Government Performance


Sec. 7.300 [Reserved]

Sec. 7.301 Definitions.

Sec. 7.302 Policy.

Sec. 7.303-7.304 [Reserved]

Sec. 7.305 Solicitation provisions and contract clause.

                 Subpart 7.4_Equipment Lease or Purchase


Sec. 7.400 Scope of subpart.

Sec. 7.401 Acquisition considerations.

Sec. 7.402 Acquisition methods.

Sec. 7.403 General Services Administration assistance.

Sec. 7.404 Contract clause.

              Subpart 7.5_Inherently Governmental Functions


Sec. 7.500 Scope of subpart.

Sec. 7.501 [Reserved]

Sec. 7.502 Applicability.

Sec. 7.503 Policy.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 
20113.

    Source: 48 FR 42124, Sept. 19, 1983, unless otherwise noted.



Sec. 7.000  Scope of part.

    This part prescribes policies and procedures for--
    (a) Developing acquisition plans;
    (b) Determining whether to use commercial or Government resources 
for acquisition of supplies or services;
    (c) Deciding whether it is more economical to lease equipment rather 
than purchase it; and
    (d) Determining whether functions are inherently governmental.

[48 FR 42124, Sept. 19, 1983, as amended at 61 FR 2628, Jan. 26, 1996]

                      Subpart 7.1_Acquisition Plans



Sec. 7.101  Definitions.

    As used in this subpart--
    Acquisition streamlining, means any effort that results in more 
efficient and effective use of resources to design and develop, or 
produce quality systems. This includes ensuring that only necessary and 
cost-effective requirements are included, at the most appropriate time 
in the acquisition cycle, in solicitations and resulting contracts for 
the design, development, and production of new systems, or for 
modifications to existing systems that involve redesign of systems or 
subsystems.
    Life-cycle cost means the total cost to the Government of acquiring, 
operating, supporting, and (if applicable) disposing of the items being 
acquired.
    Order means an order placed under a--
    (1) Federal Supply Schedule contract; or
    (2) Task-order contract or delivery-order contract awarded by 
another agency, (i.e., Governmentwide acquisition contract or multi-
agency contract).
    Planner, means the designated person or office responsible for 
developing and maintaining a written plan, or for the

[[Page 134]]

planning function in those acquisitions not requiring a written plan.

[48 FR 42124, Sept. 19, 1983, as amended at 50 FR 1735, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 53 FR 34226, Sept. 2, 1988; 60 FR 48236, 
Sept. 18, 1995; 66 FR 2128, Jan. 10, 2001; 67 FR 56118, Aug. 30, 2002]



Sec. 7.102  Policy.

    (a) Agencies shall perform acquisition planning and conduct market 
research (see part 10) for all acquisitions in order to promote and 
provide for--
    (1) Acquisition of commercial items or, to the extent that 
commercial items suitable to meet the agency's needs are not available, 
nondevelopmental items, to the maximum extent practicable (10 U.S.C. 
2377 and 41 U.S.C. 251, et seq.); and
    (2) Full and open competition (see part 6) or, when full and open 
competition is not required in accordance with part 6, to obtain 
competition to the maximum extent practicable, with due regard to the 
nature of the supplies or services to be acquired (10 U.S.C. 2301(a)(5) 
and 41 U.S.C. 253a(a)(1)).
    (3) Selection of appropriate contract type in accordance with part 
16.
    (b) This planning shall integrate the efforts of all personnel 
responsible for significant aspects of the acquisition. The purpose of 
this planning is to ensure that the Government meets its needs in the 
most effective, economical, and timely manner. Agencies that have a 
detailed acquisition planning system in place that generally meets the 
requirements of 7.104 and 7.105 need not revise their system to 
specifically meet all of these requirements.

[60 FR 48236, Sept. 18, 1995, as amended at 76 FR 14546, Mar. 16, 2011]



Sec. 7.103  Agency-head responsibilities.

    The agency head or a designee shall prescribe procedures for--
    (a) Promoting and providing for full and open competition (see part 
6) or, when full and open competition is not required in accordance with 
part 6, for obtaining competition to the maximum extent practicable, 
with due regard to the nature of the supplies and services to be 
acquired (41 U.S.C. 253a(a)(1)).
    (b) Encouraging offerors to supply commercial items, or to the 
extent that commercial items suitable to meet the agency needs are not 
available, nondevelopmental items in response to agency solicitations 
(10 U.S.C. 2377 and 41 U.S.C. 251, et seq.); and
    (c) Ensuring that acquisition planners address the requirement to 
specify needs, develop specifications, and to solicit offers in such a 
manner to promote and provide for full and open competition with due 
regard to the nature of the supplies and services to be acquired (10 
U.S.C. 2305(a)(1)(A) and 41 U.S.C. 253A(a)(1)). (See part 6 and 10.002.)
    (d) Ensuring that acquisition planners document the file to support 
the selection of the contract type in accordance with subpart 16.1.
    (e) Establishing criteria and thresholds at which increasingly 
greater detail and formality in the planning process is required as the 
acquisition becomes more complex and costly, including for cost-
reimbursement and other high-risk contracts (e.g., other than firm-
fixed-price contracts) requiring a written acquisition plan. A written 
plan shall be prepared for cost reimbursement and other high-risk 
contracts other than firm-fixed-price contracts, although written plans 
may be required for firm-fixed-price contracts as appropriate.
    (f) Ensuring that the statement of work is closely aligned with 
performance outcomes and cost estimates.
    (g) Writing plans either on a systems basis, on an individual 
contract basis, or on an individual order basis, depending upon the 
acquisition.
    (h) Ensuring that the principles of this subpart are used, as 
appropriate, for those acquisitions that do not require a written plan 
as well as for those that do;
    (i) Designating planners for acquisitions;
    (j) Reviewing and approving acquisition plans and revisions to these 
plans to ensure compliance with FAR requirements including 7.104 and 
part 16. For other than firm-fixed-price contracts, ensuring that the 
plan is approved and signed at least one level above the contracting 
officer.

[[Page 135]]

    (k) Establishing criteria and thresholds at which design-to-cost and 
life-cycle-cost techniques will be used;
    (l) Establishing standard acquisition plan formats, if desired, 
suitable to agency needs; and
    (m) Waiving requirements of detail and formality, as necessary, in 
planning for acquisitions having compressed delivery or performance 
schedules because of the urgency of the need.
    (n) Assuring that the contracting officer, prior to contracting, 
reviews:
    (1) The acquisition history of the supplies and services; and
    (2) A description of the supplies, including, when necessary for 
adequate description, a picture, drawing, diagram, or other graphic 
representation.
    (o) Ensuring that agency planners include use of the metric system 
of measurement in proposed acquisitions in accordance with 15 U.S.C. 
205b (see 11.002(b)) and agency metric plans and guidelines.
    (p) Ensuring that agency planners--
    (1) Specify needs for printing and writing paper consistent with the 
30 percent postconsumer fiber minimum content standards specified in 
section 2(d)(ii) of Executive Order 13423 of January 24, 2007, 
Strengthening Federal Environmental, Energy, and Transportation 
Management, and section 2(e)(iv) of Executive Order 13514 of October 5, 
2009 (see 11.303);
    (2) Comply with the policy in 11.002(d) regarding procurement of: 
biobased products, products containing recovered materials, 
environmentally preferable products and services (including Electronic 
Product Environmental Assessment Tool (EPEAT)-registered electronic 
products, nontoxic or low-toxic alternatives), ENERGY STAR [supreg] and 
Federal Energy Management Program-designated products, renewable energy, 
water-efficient products, and non-ozone depleting products;
    (3) Comply with the Guiding Principles for Federal Leadership in 
High-Performance and Sustainable Buildings (Guiding Principles), for the 
design, construction, renovation, repair, or deconstruction of Federal 
buildings. The Guiding Principles can be accessed at http://
www.wbdg.org/pdfs/hpsb--guidance.pdf; and
    (4) Require contractor compliance with Federal environmental 
requirements, when the contractor is operating Government-owned 
facilities or vehicles, to the same extent as the agency would be 
required to comply if the agency operated the facilities or vehicles.
    (q) Ensuring that acquisition planners specify needs and develop 
plans, drawings, work statements, specifications, or other product 
descriptions that address Electronic and Information Technology 
Accessibility Standards (see 36 CFR part 1194) in proposed acquisitions 
(see 11.002(e)) and that these standards are included in requirements 
planning, as appropriate (see subpart 39.2).
    (r) Making a determination, prior to issuance of a solicitation for 
advisory and assistance services involving the analysis and evaluation 
of proposals submitted in response to a solicitation, that a sufficient 
number of covered personnel with the training and capability to perform 
an evaluation and analysis of proposals submitted in response to a 
solicitation are not readily available within the agency or from another 
Federal agency in accordance with the guidelines at 37.204.
    (s) Ensuring that no purchase request is initiated or contract 
entered into that would result in the performance of an inherently 
governmental function by a contractor and that all contracts or orders 
are adequately managed so as to ensure effective official control over 
contract or order performance.
    (t) Ensuring that knowledge gained from prior acquisitions is used 
to further refine requirements and acquisition strategies. For services, 
greater use of performance-based acquisition methods should occur for 
follow-on acquisitions.
    (u) Ensuring that acquisition planners, to the maximum extent 
practicable--
    (1) Structure contract requirements to facilitate competition by and 
among small business concerns; and
    (2) Avoid unnecessary and unjustified bundling that precludes small 
business participation as contractors (see 7.107) (15 U.S.C. 631(j)).
    (v) Ensuring that agency planners on information technology 
acquisitions

[[Page 136]]

comply with the capital planning and investment control requirements in 
40 U.S.C. 11312 and OMB Circular A-130.
    (w) Ensuring that agency planners on information technology 
acquisitions comply with the information technology security 
requirements in the Federal Information Security Management Act (44 
U.S.C. 3544), OMB's implementing policies including Appendix III of OMB 
Circular A-130, and guidance and standards from the Department of 
Commerce's National Institute of Standards and Technology.
    (x) Encouraging agency planners to consider the use of a project 
labor agreement (see subpart 22.5).
    (y) Ensuring that contracting officers consult the Disaster Response 
Registry via https://www.acquisition.govas a part of acquisition 
planning for debris removal, distribution of supplies, reconstruction, 
and other disaster or emergency relief activities inside the United 
States and outlying areas. (See 26.205).

[48 FR 42124, Sept. 19, 1983]

    Editorial Note: For Federal Register citations affecting 7.103, see 
the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and at www.fdsys.gov.



Sec. 7.104  General procedures.

    (a) Acquisition planning should begin as soon as the agency need is 
identified, preferably well in advance of the fiscal year in which 
contract award or order placement is necessary. In developing the plan, 
the planner shall form a team consisting of all those who will be 
responsible for significant aspects of the acquisition, such as 
contracting, fiscal, legal, and technical personnel. If contract 
performance is to be in a designated operational area or supporting a 
diplomatic or consular mission, the planner shall also consider 
inclusion of the combatant commander or chief of mission, as 
appropriate. The planner should review previous plans for similar 
acquisitions and discuss them with the key personnel involved in those 
acquisitions. At key dates specified in the plan or whenever significant 
changes occur, and no less often than annually, the planner shall review 
the plan and, if appropriate, revise it.
    (b) Requirements and logistics personnel should avoid issuing 
requirements on an urgent basis or with unrealistic delivery or 
performance schedules, since it generally restricts competition and 
increases prices. Early in the planning process, the planner should 
consult with requirements and logistics personnel who determine type, 
quality, quantity, and delivery requirements.
    (c) The planner shall coordinate with and secure the concurrence of 
the contracting officer in all acquisition planning. If the plan 
proposes using other than full and open competition when awarding a 
contract, the plan shall also be coordinated with the cognizant 
competition advocate.
    (d)(1) The planner shall coordinate the acquisition plan or strategy 
with the cognizant small business specialist when the strategy 
contemplates an acquisition meeting the dollar amounts in paragraph 
(d)(2) of this section unless the contract or order is entirely reserved 
or set-aside for small business under part 19. The small business 
specialist shall notify the agency Office of Small and Disadvantaged 
Business Utilization if the strategy involves contract bundling that is 
unnecessary, unjustified, or not identified as bundled by the agency. If 
the strategy involves substantial bundling, the small business 
specialist shall assist in identifying alternative strategies that would 
reduce or minimize the scope of the bundling.
    (2)(i) The strategy shall be coordinated with the cognizant small 
business specialist in accordance with paragraph (d)(1) of this section 
if the estimated contract or order value is--
    (A) $8 million or more for the Department of Defense;
    (B) $6 million or more for the National Aeronautics and Space 
Administration, the General Services Administration, and the Department 
of Energy; and
    (C) $2.5 million or more for all other agencies.
    (ii) If the strategy contemplates the award of multiple contracts or 
orders, the thresholds in paragraph (d)(2)(i) of this section apply to 
the cumulative maximum potential value, including options, of the 
contracts and orders.

[[Page 137]]

    (e) The planner shall ensure that a COR is nominated as early as 
practicable in the acquisition process by the requirements official or 
in accordance with agency procedures. The contracting officer shall 
designate and authorize a COR as early as practicable after the 
nomination. See 1.602-2(d).

[48 FR 42124, Sept. 19, 1983, as amended at 50 FR 1735, Jan. 11, 1985; 
50 FR 52433, Dec. 23, 1985; 67 FR 56118, Aug. 30, 2002; 68 FR 60005, 
Oct. 20, 2003; 71 FR 57366, Sept. 28, 2006; 73 FR 10956, Feb. 28, 2008; 
75 FR 53132, Aug. 30, 2010; 76 FR 14546, Mar. 16, 2011; 77 FR 12926, 
Mar. 2, 2012; 78 FR 37676, June 21, 2013]



Sec. 7.105  Contents of written acquisition plans.

    In order to facilitate attainment of the acquisition objectives, the 
plan must identify those milestones at which decisions should be made 
(see paragraph (b)(21) below). The plan must address all the technical, 
business, management, and other significant considerations that will 
control the acquisition. The specific content of plans will vary, 
depending on the nature, circumstances, and stage of the acquisition. In 
preparing the plan, the planner must follow the applicable instructions 
in paragraphs (a) and (b) below, together with the agency's implementing 
procedures. Acquisition plans for service contracts or orders must 
describe the strategies for implementing performance-based acquisition 
methods or must provide rationale for not using those methods (see 
subpart 37.6).
    (a) Acquisition background and objectives--(1) Statement of need. 
Introduce the plan by a brief statement of need. Summarize the technical 
and contractual history of the acquisition. Discuss feasible acquisition 
alternatives, the impact of prior acquisitions on those alternatives, 
and any related in-house effort.
    (2) Applicable conditions. State all significant conditions 
affecting the acquisition, such as (i) requirements for compatibility 
with existing or future systems or programs and (ii) any known cost, 
schedule, and capability or performance constraints.
    (3) Cost. Set forth the established cost goals for the acquisition 
and the rationale supporting them, and discuss related cost concepts to 
be employed, including, as appropriate, the following items:
    (i) Life-cycle cost. Discuss how life-cycle cost will be considered. 
If it is not used, explain why. If appropriate, discuss the cost model 
used to develop life-cycle-cost estimates.
    (ii) Design-to-cost. Describe the design-to-cost objective(s) and 
underlying assumptions, including the rationale for quantity, learning-
curve, and economic adjustment factors. Describe how objectives are to 
be applied, tracked, and enforced. Indicate specific related 
solicitation and contractual requirements to be imposed.
    (iii) Application of should-cost. Describe the application of 
should-cost analysis to the acquisition (see 15.407-4).
    (4) Capability or performance. Specify the required capabilities or 
performance characteristics of the supplies or the performance standards 
of the services being acquired and state how they are related to the 
need.
    (5) Delivery or performance-period requirements. Describe the basis 
for establishing delivery or performance-period requirements (see 
subpart 11.4). Explain and provide reasons for any urgency if it results 
in concurrency of development and production or constitutes 
justification for not providing for full and open competition.
    (6) Trade-offs. Discuss the expected consequences of trade-offs 
among the various cost, capability or performance, and schedule goals.
    (7) Risks. Discuss technical, cost, and schedule risks and describe 
what efforts are planned or underway to reduce risk and the consequences 
of failure to achieve goals. If concurrency of development and 
production is planned, discuss its effects on cost and schedule risks.
    (8) Acquisition streamlining. If specifically designated by the 
requiring agency as a program subject to acquisition streamlining, 
discuss plans and procedures to:
    (i) Encourage industry participation by using draft solicitations, 
presolicitation conferences, and other means of stimulating industry 
involvement during design and development in recommending the most 
appropriate

[[Page 138]]

application and tailoring of contract requirements;
    (ii) Select and tailor only the necessary and cost-effective 
requirements; and
    (iii) State the timeframe for identifying which of those 
specifications and standards, originally provided for guidance only, 
shall become mandatory.
    (b) Plan of action--(1) Sources. Indicate the prospective sources of 
supplies or services that can meet the need. Consider required sources 
of supplies or services (see Part 8) and sources identifiable through 
databases including the Governmentwide database of contracts and other 
procurement instruments intended for use by multiple agencies available 
at https://www.contractdirectory.gov/contractdirectory/. Include 
consideration of small business, veteran-owned small business, service-
disabled veteran-owned small business, HUBZone small business, small 
disadvantaged business, and women-owned small business concerns (see 
part 19), and the impact of any bundling that might affect their 
participation in the acquisition (see 7.107) (15 U.S.C. 644(e)). When 
the proposed acquisition strategy involves bundling, identify the 
incumbent contractors and contracts affected by the bundling. Address 
the extent and results of the market research and indicate their impact 
on the various elements of the plan (see part 10).
    (2) Competition. (i) Describe how competition will be sought, 
promoted, and sustained throughout the course of the acquisition. If 
full and open competition is not contemplated cite the authority in 
6.302, discuss the basis for the application of that authority, identify 
the source(s), and discuss why full and open competition cannot be 
obtained.
    (ii) Identify the major components or subsystems. Discuss component 
breakout plans relative to these major components or subsystems. 
Describe how competition will be sought, promoted, and sustained for 
these components or subsystems.
    (iii) Describe how competition will be sought, promoted, and 
sustained for spares and repair parts. Identify the key logistic 
milestones, such as technical data delivery schedules and acquisition 
method coding conferences, that affect competition.
    (iv) When effective subcontract competition is both feasible and 
desirable, describe how such subcontract competition will be sought, 
promoted, and sustained throughout the course of the acquisition. 
Identify any known barriers to increasing subcontract competition and 
address how to overcome them.
    (3) Contract type selection. Discuss the rationale for the selection 
of contract type. For other than firm-fixed-price contracts, see 
16.103(d) for additional documentation guidance. Acquisition personnel 
shall document the acquisition plan with findings that detail the 
particular facts and circumstances, (e.g., complexity of the 
requirements, uncertain duration of the work, contractor's technical 
capability and financial responsibility, or adequacy of the contractor's 
accounting system), and associated reasoning essential to support the 
contract type selection. The contracting officer shall ensure that 
requirements and technical personnel provide the necessary documentation 
to support the contract type selection.
    (4) Source-selection procedures. Discuss the source-selection 
procedures for the acquisition, including the timing for submission and 
evaluation of proposals, and the relationship of evaluation factors to 
the attainment of the acquisition objectives (see Subpart 15.3). When an 
EVMS is required (see FAR 34.202(a)) and a pre-award IBR is 
contemplated, the acquisition plan must discuss--
    (i) How the pre-award IBR will be considered in the source selection 
decision;
    (ii) How it will be conducted in the source selection process (see 
FAR 15.306); and
    (iii) Whether offerors will be directly compensated for the costs of 
participating in a pre-award IBR.
    (5) Acquisition considerations. (i) For each contract contemplated, 
discuss use of multiyear contracting, options, or other special 
contracting methods (see part 17); any special clauses, special 
solicitation provisions, or FAR deviations required (see subpart 1.4); 
whether sealed bidding or negotiation

[[Page 139]]

will be used and why; whether equipment will be acquired by lease or 
purchase (see subpart 7.4) and why; and any other contracting 
considerations. Provide rationale if a performance-based acquisition 
will not be used or if a performance-based acquisition for services is 
contemplated on other than a firm-fixed-price basis (see 37.102(a), 
16.103(d), and 16.505(a)(3)).
    (ii) For each order contemplated, discuss--
    (A) For information technology acquisitions, how the capital 
planning and investment control requirements of 40 U.S.C. 11312 and OMB 
Circular A-130 will be met (see 7.103(v) and part 39); and
    (B) Why this action benefits the Government, such as when--
    (1) The agency can accomplish its mission more efficiently and 
effectively (e.g., take advantage of the servicing agency's specialized 
expertise; or gain access to contractors with needed expertise); or
    (2) Ordering through an indefinite delivery contract facilitates 
access to small business concerns, including small disadvantaged 
business concerns, 8(a) contractors, women-owned small business 
concerns, HUBZone small business concerns, veteran-owned small business 
concerns, or service-disabled veteran-owned small business concerns.
    (iii) For information technology acquisitions using Internet 
Protocol, discuss whether the requirements documents include the 
Internet Protocol compliance requirements specified in 11.002(g) or a 
waiver of these requirements has been granted by the agency's Chief 
Information Officer.
    (iv) For each contract (and order) contemplated, discuss the 
strategy to transition to firm-fixed-price contracts to the maximum 
extent practicable. During the requirements development stage, consider 
structuring the contract requirements, e.g., contract line items 
(CLINS), in a manner that will permit some, if not all, of the 
requirements to be awarded on a firm-fixed-price basis, either in the 
current contract, future option years, or follow-on contracts. This will 
facilitate an easier transition to a firm-fixed-price contact because a 
cost history will be developed for a recurring definitive requirement.
    (6) Budgeting and funding. Include budget estimates, explain how 
they were derived, and discuss the schedule for obtaining adequate funds 
at the time they are required (see subpart 32.7).
    (7) Product or service descriptions. Explain the choice of product 
or service description types (including performance-based acquisition 
descriptions) to be used in the acquisition.
    (8) Priorities, allocations, and allotments. When urgency of the 
requirement dictates a particularly short delivery or performance 
schedule, certain priorities may apply. If so, specify the method for 
obtaining and using priorities, allocations, and allotments, and the 
reasons for them (see subpart 11.6).
    (9) Contractor versus Government performance. Address the 
consideration given to OMB Circular No. A-76 (see subpart 7.3).
    (10) Inherently governmental functions. Address the consideration 
given to Subpart 7.5.
    (11) Management information requirements. Discuss, as appropriate, 
what management system will be used by the Government to monitor the 
contractor's effort. If an Earned Value Management System is to be used, 
discuss the methodology the Government will employ to analyze and use 
the earned value data to assess and monitor contract performance. In 
addition, discuss how the offeror's/contractor's EVMS will be verified 
for compliance with the American National Standards Institute/
Electronics Industries Alliance (ANSI/EIA) Standard-748, Earned Value 
Management Systems, and the timing and conduct of integrated baseline 
reviews (whether prior to or post award). (See 34.202.)
    (12) Make or buy. Discuss any consideration given to make-or-buy 
programs (see subpart 15.407-2).
    (13) Test and evaluation. To the extent applicable, describe the 
test program of the contractor and the Government. Describe the test 
program for each major phase of a major system acquisition. If 
concurrency is planned, discuss the extent of testing to be accomplished 
before production release.

[[Page 140]]

    (14) Logistics considerations. Describe--
    (i) The assumptions determining contractor or agency support, both 
initially and over the life of the acquisition, including consideration 
of contractor or agency maintenance and servicing (see Subpart 7.3), 
support for contracts to be performed in a designated operational area 
or supporting a diplomatic or consular mission (see 25.301-3); and 
distribution of commercial items;
    (ii) The reliability, maintainability, and quality assurance 
requirements, including any planned use of warranties (see part 46);
    (iii) The requirements for contractor data (including repurchase 
data) and data rights, their estimated cost, and the use to be made of 
the data (see part 27); and
    (iv) Standardization concepts, including the necessity to designate, 
in accordance with agency procedures, technical equipment as standard so 
that future purchases of the equipment can be made from the same 
manufacturing source.
    (15) Government-furnished property. Indicate any Government property 
to be furnished to contractors, and discuss any associated 
considerations, such as its availability or the schedule for its 
acquisition (see 45.102).
    (16) Government-furnished information. Discuss any Government 
information, such as manuals, drawings, and test data, to be provided to 
prospective offerors and contractors. Indicate which information that 
requires additional controls to monitor access and distribution (e.g., 
technical specifications, maps, building designs, schedules, etc.), as 
determined by the agency, is to be posted via the enhanced controls of 
the GPE at http://www.fedbizopps.gov (see 5.102(a)).
    (17) Environmental and energy conservation objectives. Discuss all 
applicable environmental and energy conservation objectives associated 
with the acquisition (see part 23), the applicability of an 
environmental assessment or environmental impact statement (see 40 CFR 
part 1502), the proposed resolution of environmental issues, and any 
environmentally-related requirements to be included in solicitations and 
contracts (see 11.002 and 11.303).
    (18) Security considerations. For acquisitions dealing with 
classified matters, discuss how adequate security will be established, 
maintained, and monitored (see Subpart 4.4). For information technology 
acquisitions, discuss how agency information security requirements will 
be met. For acquisitions requiring routine contractor physical access to 
a Federally-controlled facility and/or routine access to a Federally-
controlled information system, discuss how agency requirements for 
personal identity verification of contractors will be met (see Subpart 
4.13).
    (19) Contract administration. Describe how the contract will be 
administered. In contracts for services, include how inspection and 
acceptance corresponding to the work statement's performance criteria 
will be enforced.
    (20) Other considerations. Discuss, as applicable:
    (i) Standardization concepts;
    (ii) The industrial readiness program;
    (iii) The Defense Production Act;
    (iv) The Occupational Safety and Health Act;
    (v) Support Anti-terrorism by Fostering Effective Technologies Act 
of 2002 (SAFETY Act) (see Subpart 50.2);
    (vi) Foreign sales implications;
    (vii) Special requirements for contracts to be performed in a 
designated operational area or supporting a diplomatic or consular 
mission; and
    (viii) Any other matters germane to the plan not covered elsewhere.
    (21) Milestones for the acquisition cycle. Address the following 
steps and any others appropriate:

    Acquisition plan approval.
    Statement of work.
    Specifications.
    Data requirements.
    Completion of acquisition-package preparation.
    Purchase request.
    Justification and approval for other than full and open competition 
where applicable and/or any required D&F approval.
    Issuance of synopsis.
    Issuance of solicitation.
    Evaluations of proposals, audits, and field reports.
    Beginning and completion of negotiations.
    Contract preparation, review, and clearance.

[[Page 141]]

    Contract award.

    (22) Identification of participants in acquisition plan preparation. 
List the individuals who participated in preparing the acquisition plan, 
giving contact information for each.

[48 FR 42124, Sept. 19, 1983]

    Editorial Note: For Federal Register citations affecting section 
7.105, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.fdsys.gov.



Sec. 7.106  Additional requirements for major systems.

    (a) In planning for the solicitation of a major system (see part 34) 
development contract, planners shall consider requiring offerors to 
include, in their offers, proposals to incorporate in the design of a 
major system--
    (1) Items which are currently available within the supply system of 
the agency responsible for the major system, available elsewhere in the 
national supply system, or commercially available from more than one 
source; and
    (2) Items which the Government will be able to acquire competitively 
in the future if they are likely to be needed in substantial quantities 
during the system's service life.
    (b) In planning for the solicitation of a major system (see part 34) 
production contract, planners shall consider requiring offerors to 
include, in their offers, proposals identifying opportunities to assure 
that the Government will be able to obtain, on a competitive basis, 
items acquired in connection with the system that are likely to be 
acquired in substantial quantities during the service life of the 
system. Proposals submitted in response to such requirements may include 
the following:
    (1) Proposals to provide the Government the right to use technical 
data to be provided under the contract for competitive future 
acquisitions, together with the cost to the Government, if any, of 
acquiring such technical data and the right to use such data.
    (2) Proposals for the qualification or development of multiple 
sources of supply for competitive future acquisitions.
    (c) In determining whether to apply paragraphs (a) and (b) above, 
planners shall consider the purposes for which the system is being 
acquired and the technology necessary to meet the system's required 
capabilities. If such proposals are required, the contracting officer 
shall consider them in evaluating competing offers. In noncompetitive 
awards, the factors in paragraphs (a) and (b) above, may be considered 
by the contracting officer as objectives in negotiating the contract.

[50 FR 27561, July 3, 1985 and 51 FR 27116, July 29, 1986]



Sec. 7.107  Additional requirements for acquisitions involving bundling.

    (a) Bundling may provide substantial benefits to the Government. 
However, because of the potential impact on small business 
participation, the head of the agency must conduct market research to 
determine whether bundling is necessary and justified (15 U.S.C. 
644(e)(2)). Market research may indicate that bundling is necessary and 
justified if an agency or the Government would derive measurably 
substantial benefits (see 10.001(a)(2)(iv) and (a)(3)(vi)).
    (b) Measurably substantial benefits may include, individually or in 
any combination or aggregate, cost savings or price reduction, quality 
improvements that will save time or improve or enhance performance or 
efficiency, reduction in acquisition cycle times, better terms and 
conditions, and any other benefits. The agency must quantify the 
identified benefits and explain how their impact would be measurably 
substantial. Except as provided in paragraph (d) of this section, the 
agency may determine bundling to be necessary and justified if, as 
compared to the benefits that it would derive from contracting to meet 
those requirements if not bundled, it would derive measurably 
substantial benefits equivalent to--
    (1) Ten percent of the estimated contract or order value (including 
options) if the value is $94 million or less; or
    (2) Five percent of the estimated contract or order value (including 
options) or $9.4 million, whichever is greater, if the value exceeds $94 
million.

[[Page 142]]

    (c) Without power of delegation, the service acquisition executive 
for the military departments, the Under Secretary of Defense for 
Acquisition, Technology and Logistics for the defense agencies, or the 
Deputy Secretary or equivalent for the civilian agencies may determine 
that bundling is necessary and justified when--
    (1) The expected benefits do not meet the thresholds in paragraphs 
(b)(1) and (b)(2) of this section but are critical to the agency's 
mission success; and
    (2) The acquisition strategy provides for maximum practicable 
participation by small business concerns.
    (d) Reduction of administrative or personnel costs alone is not 
sufficient justification for bundling unless the cost savings are 
expected to be at least 10 percent of the estimated contract or order 
value (including options) of the bundled requirements.
    (e) Substantial bundling is any bundling that results in a contract 
or order that meets the dollar amounts specified in 7.104(d)(2). When 
the proposed acquisition strategy involves substantial bundling, the 
acquisition strategy must additionally--
    (1) Identify the specific benefits anticipated to be derived from 
bundling;
    (2) Include an assessment of the specific impediments to 
participation by small business concerns as contractors that result from 
bundling;
    (3) Specify actions designed to maximize small business 
participation as contractors, including provisions that encourage small 
business teaming;
    (4) Specify actions designed to maximize small business 
participation as subcontractors (including suppliers) at any tier under 
the contract, or order, that may be awarded to meet the requirements;
    (5) Include a specific determination that the anticipated benefits 
of the proposed bundled contract or order justify its use; and
    (6) Identify alternative strategies that would reduce or minimize 
the scope of the bundling, and the rationale for not choosing those 
alternatives.
    (f) The contracting officer must justify bundling in acquisition 
strategy documentation.
    (g) In assessing whether cost savings would be achieved through 
bundling, the contracting officer must consider the cost that has been 
charged or, where data is available, could be charged by small business 
concerns for the same or similar work.
    (h) The requirements of this section, except for paragraph (e), do 
not apply if a cost comparison analysis will be performed in accordance 
with OMB Circular A-76.

[64 FR 72443, Dec. 27, 1999, as amended at 65 FR 46054, July 26, 2000; 
68 FR 60005, Oct. 20, 2003; 71 FR 57366, Sept. 28, 2006; 75 FR 53132, 
Aug. 30, 2010]



Sec. 7.108  Additional requirements for telecommuting.

    In accordance with section 1428 of Public Law 108-136, an agency 
shall generally not discourage a contractor from allowing its employees 
to telecommute in the performance of Government contracts. Therefore, 
agencies shall not--
    (a) Include in a solicitation a requirement that prohibits an 
offeror from permitting its employees to telecommute unless the 
contracting officer first determines that the requirements of the 
agency, including security requirements, cannot be met if telecommuting 
is permitted. The contracting officer shall document the basis for the 
determination in writing and specify the prohibition in the 
solicitation; or
    (b) When telecommuting is not prohibited, unfavorably evaluate an 
offer because it includes telecommuting, unless the contracting officer 
first determines that the requirements of the agency, including security 
requirements, would be adversely impacted if telecommuting is permitted. 
The contracting officer shall document the basis for the determination 
in writing and address the evaluation procedures in the solicitation.

[69 FR 58702, Oct. 5, 2004]

Subpart 7.2_Planning for the Purchase of Supplies in Economic Quantities

    Source: 50 FR 35475, Aug. 30, 1985, unless otherwise noted.

[[Page 143]]



Sec. 7.200  Scope of subpart.

    This subpart prescribes policies and procedures for gathering 
information from offerors to assist the Government in planning the most 
advantageous quantities in which supplies should be purchased.



Sec. 7.201  [Reserved]



Sec. 7.202  Policy.

    (a) Agencies are required by 10 U.S.C. 2384(a) and 41 U.S.C. 253(f) 
to procure supplies in such quantity as (1) will result in the total 
cost and unit cost most advantageous to the Government, where 
practicable, and (2) does not exceed the quantity reasonably expected to 
be required by the agency.
    (b) Each solicitation for a contract for supplies is required, if 
practicable, to include a provision inviting each offeror responding to 
the solicitation (1) to state an opinion on whether the quantity of the 
supplies proposed to be acquired is economically advantageous to the 
Government, and (2) if applicable, to recommend a quantity or quantities 
which would be more economically advantageous to the Government. Each 
such recommendation is required to include a quotation of the total 
price and the unit price for supplies procured in each recommended 
quantity.



Sec. 7.203  Solicitation provision.

    Contracting officers shall insert the provision at 52.207-4, 
Economic Purchase Quantity--Supplies, in solicitations for supplies. The 
provision need not be inserted if the solicitation is for a contract 
under the General Services Administration's multiple award schedule 
contract program, or if the contracting officer determines that (a) the 
Government already has the data, (b) the data is otherwise readily 
available, or (c) it is impracticable for the Government to vary its 
future requirements.

[52 FR 30076, Aug. 12, 1987]



Sec. 7.204  Responsibilities of contracting officers.

    (a) Contracting officers are responsible for transmitting offeror 
responses to the solicitation provision at 52.207-4 to appropriate 
inventory management/requirements development activities in accordance 
with agency procedures. The economic purchase quantity data so obtained 
are intended to assist inventory managers in establishing and evaluating 
economic order quantities for supplies under their cognizance.
    (b) In recognition of the fact that economic purchase quantity data 
furnished by offerors are only one of many data inputs required for 
determining the most economical order quantities, contracting officers 
should generally take no action to revise quantities to be acquired in 
connection with the instant procurement. However, if a significant price 
variation is evident from offeror responses, and the potential for 
significant savings is apparent, the contracting officer shall consult 
with the cognizant inventory manager or requirements development 
activity before proceeding with an award or negotiations. If this 
consultation discloses that the Government should be ordering an item of 
supply in different quantities and the inventory manager/requirements 
development activity concurs, the solicitation for the item should be 
amended or canceled and a new requisition should be obtained.

          Subpart 7.3_Contractor Versus Government Performance

    Source: 71 FR 20299, Apr. 19, 2006, unless otherwise noted.



Sec. 7.300  [Reserved]



Sec. 7.301  Definitions.

    Definitions of ``inherently governmental activity'' and other terms 
applicable to this subpart are set forth at Attachment D of the Office 
of Management and Budget Circular No. A-76 (Revised), Performance of 
Commercial Activities, dated May 29, 2003 (the Circular).



Sec. 7.302  Policy.

    (a) The Circular provides that it is the policy of the Government 
to--
    (1) Perform inherently governmental activities with Government 
personnel; and
    (2) Subject commercial activities to the forces of competition.

[[Page 144]]

    (b) As provided in the Circular, agencies shall--
    (1) Not use contractors to perform inherently governmental 
activities;
    (2) Conduct public-private competitions in accordance with the 
provisions of the Circular and, as applicable, these regulations;
    (3) Give appropriate consideration relative to cost when making 
performance decisions between agency and contractor performance in 
public-private competitions;
    (4) Consider the Agency Tender Official an interested party in 
accordance with 31 U.S.C. 3551 to 3553 for purposes of filing a protest 
at the Government Accountability Office; and
    (5) Hear contests in accordance with OMB Circular A-76, Attachment 
B, Paragraph F.
    (c) When using sealed bidding in public-private competitions under 
OMB Circular A-76, contracting officers shall not hold discussions to 
correct deficiencies.



Sec. 7.303-7.304  [Reserved]



Sec. 7.305  Solicitation provisions and contract clause.

    (a) The contracting officer shall, when soliciting offers and 
tenders, insert in solicitations issued for standard competitions the 
provision at 52.207-1, Notice of Standard Competition.
    (b) The contracting officer shall, when soliciting offers, insert in 
solicitations issued for streamlined competitions the provision at 
52.207-2, Notice of Streamlined Competition.
    (c) The contracting officer shall insert the clause at 52.207-3, 
Right of First Refusal of Employment, in all solicitations which may 
result in a conversion from in-house performance to contract performance 
of work currently being performed by the Government and in contracts 
that result from the solicitations, whether or not a public-private 
competition is conducted. The 10-day period in the clause may be varied 
by the contracting officer up to a period of 90 days.

                 Subpart 7.4_Equipment Lease or Purchase



Sec. 7.400  Scope of subpart.

    This subpart provides guidance pertaining to the decision to acquire 
equipment by lease or purchase. It applies to both the initial 
acquisition of equipment and the renewal or extension of existing 
equipment leases.



Sec. 7.401  Acquisition considerations.

    (a) Agencies should consider whether to lease or purchase equipment 
based on a case-by-case evaluation of comparative costs and other 
factors. The following factors are the minimum that should be 
considered:
    (1) Estimated length of the period the equipment is to be used and 
the extent of use within that period.
    (2) Financial and operating advantages of alternative types and 
makes of equipment.
    (3) Cumulative rental payments for the estimated period of use.
    (4) Net purchase price.
    (5) Transportation and installation costs.
    (6) Maintenance and other service costs.
    (7) Potential obsolescence of the equipment because of imminent 
technological improvements.
    (b) The following additional factors should be considered, as 
appropriate, depending on the type, cost, complexity, and estimated 
period of use of the equipment:
    (1) Availability of purchase options.
    (2) Potential for use of the equipment by other agencies after its 
use by the acquiring agency is ended.
    (3) Trade-in or salvage value.
    (4) Imputed interest.
    (5) Availability of a servicing capability, especially for highly 
complex equipment; e.g., can the equipment be serviced by the Government 
or other sources if it is purchased?



Sec. 7.402  Acquisition methods.

    (a) Purchase method. (1) Generally, the purchase method is 
appropriate if the equipment will be used beyond the point in time when 
cumulative leasing costs exceed the purchase costs.

[[Page 145]]

    (2) Agencies should not rule out the purchase method of equipment 
acquisition in favor of leasing merely because of the possibility that 
future technological advances might make the selected equipment less 
desirable.
    (b) Lease method. (1) The lease method is appropriate if it is to 
the Government's advantage under the circumstances. The lease method may 
also serve as an interim measure when the circumstances--
    (i) Require immediate use of equipment to meet program or system 
goals; but
    (ii) Do not currently support acquisition by purchase.
    (2) If a lease is justified, a lease with option to purchase is 
preferable.
    (3) Generally, a long term lease should be avoided, but may be 
appropriate if an option to purchase or other favorable terms are 
included.
    (4) If a lease with option to purchase is used, the contract shall 
state the purchase price or provide a formula which shows how the 
purchase price will be established at the time of purchase.

[50 FR 35475, Aug. 30, 1985, as amended at 59 FR 67026, Dec. 28, 1994]



Sec. 7.403  General Services Administration assistance.

    (a) When requested by an agency, the General Services Administration 
(GSA) will assist in lease or purchase decisions by providing 
information such as--
    (1) Pending price adjustments to Federal Supply Schedule contracts;
    (2) Recent or imminent technological developments;
    (3) New techniques; and
    (4) Industry or market trends.
    (b) Agencies may request information from the following GSA office: 
U.S. General Services Administration, Federal Acquisition Service, 
Office of Acquisition Management, 2200 Crystal Drive, Room 806, 
Arlington, VA. 22202. Email: [email protected].

[48 FR 42124, Sept. 19, 1983, as amended at 54 FR 29280, July 11, 1989; 
61 FR 41468, Aug. 8, 1996; 62 FR 40236, July 25, 1997; 77 FR 56743, 
Sept. 13, 2012]



Sec. 7.404  Contract clause.

    The contracting officer shall insert a clause substantially the same 
as the clause in 52.207-5, Option to Purchase Equipment, in 
solicitations and contracts involving a lease with option to purchase.

[59 FR 67026, Dec. 28, 1994]

              Subpart 7.5_Inherently Governmental Functions

    Source: 61 FR 2628, Jan. 26, 1996, unless otherwise noted.



Sec. 7.500  Scope of subpart.

    The purpose of this subpart is to prescribe policies and procedures 
to ensure that inherently governmental functions are not performed by 
contractors.

[61 FR 2628, Jan. 26, 1996, as amended at 71 FR 20300, Apr. 19, 2006]



Sec. 7.501  [Reserved]



Sec. 7.502  Applicability.

    The requirements of this subpart apply to all contracts for 
services. This subpart does not apply to services obtained through 
either personnel appointments, advisory committees, or personal services 
contracts issued under statutory authority.



Sec. 7.503  Policy.

    (a) Contracts shall not be used for the performance of inherently 
governmental functions.
    (b) Agency decisions which determine whether a function is or is not 
an inherently governmental function may be reviewed and modified by 
appropriate Office of Management and Budget officials.
    (c) The following is a list of examples of functions considered to 
be inherently governmental functions or which shall be treated as such. 
This list is not all inclusive:
    (1) The direct conduct of criminal investigations.
    (2) The control of prosecutions and performance of adjudicatory 
functions other than those relating to arbitration or other methods of 
alternative dispute resolution.

[[Page 146]]

    (3) The command of military forces, especially the leadership of 
military personnel who are members of the combat, combat support, or 
combat service support role.
    (4) The conduct of foreign relations and the determination of 
foreign policy.
    (5) The determination of agency policy, such as determining the 
content and application of regulations, among other things.
    (6) The determination of Federal program priorities for budget 
requests.
    (7) The direction and control of Federal employees.
    (8) The direction and control of intelligence and counter-
intelligence operations.
    (9) The selection or non-selection of individuals for Federal 
Government employment, including the interviewing of individuals for 
employment.
    (10) The approval of position descriptions and performance standards 
for Federal employees.
    (11) The determination of what Government property is to be disposed 
of and on what terms (although an agency may give contractors authority 
to dispose of property at prices within specified ranges and subject to 
other reasonable conditions deemed appropriate by the agency).
    (12) In Federal procurement activities with respect to prime 
contracts--
    (i) Determining what supplies or services are to be acquired by the 
Government (although an agency may give contractors authority to acquire 
supplies at prices within specified ranges and subject to other 
reasonable conditions deemed appropriate by the agency);
    (ii) Participating as a voting member on any source selection 
boards;
    (iii) Approving any contractual documents, to include documents 
defining requirements, incentive plans, and evaluation criteria;
    (iv) Awarding contracts;
    (v) Administering contracts (including ordering changes in contract 
performance or contract quantities, taking action based on evaluations 
of contractor performance, and accepting or rejecting contractor 
products or services);
    (vi) Terminating contracts;
    (vii) Determining whether contract costs are reasonable, allocable, 
and allowable; and
    (viii) Participating as a voting member on performance evaluation 
boards.
    (13) The approval of agency responses to Freedom of Information Act 
requests (other than routine responses that, because of statute, 
regulation, or agency policy, do not require the exercise of judgment in 
determining whether documents are to be released or withheld), and the 
approval of agency responses to the administrative appeals of denials of 
Freedom of Information Act requests.
    (14) The conduct of Administrative hearings to determine the 
eligibility of any person for a security clearance, or involving actions 
that affect matters of personal reputation or eligibility to participate 
in Government programs.
    (15) The approval of Federal licensing actions and inspections.
    (16) The determination of budget policy, guidance, and strategy.
    (17) The collection, control, and disbursement of fees, royalties, 
duties, fines, taxes, and other public funds, unless authorized by 
statute, such as 31 U.S.C. 952 (relating to private collection 
contractors) and 31 U.S.C. 3718 (relating to private attorney collection 
services), but not including--
    (i) Collection of fees, fines, penalties, costs, or other charges 
from visitors to or patrons of mess halls, post or base exchange 
concessions, national parks, and similar entities or activities, or from 
other persons, where the amount to be collected is easily calculated or 
predetermined and the funds collected can be easily controlled using 
standard case management techniques; and
    (ii) Routine voucher and invoice examination.
    (18) The control of the treasury accounts.
    (19) The administration of public trusts.
    (20) The drafting of Congressional testimony, responses to 
Congressional correspondence, or agency responses to audit reports from 
the Inspector General, the Government Accountability Office, or other 
Federal audit entity.
    (d) The following is a list of examples of functions generally not 
considered

[[Page 147]]

to be inherently governmental functions. However, certain services and 
actions that are not considered to be inherently governmental functions 
may approach being in that category because of the nature of the 
function, the manner in which the contractor performs the contract, or 
the manner in which the Government administers contractor performance. 
This list is not all inclusive:
    (1) Services that involve or relate to budget preparation, including 
workload modeling, fact finding, efficiency studies, and should-cost 
analyses, etc.
    (2) Services that involve or relate to reorganization and planning 
activities.
    (3) Services that involve or relate to analysis, feasibility 
studies, and strategy options to be used by agency personnel in 
developing policy.
    (4) Services that involve or relate to the development of 
regulations.
    (5) Services that involve or relate to the evaluation of another 
contractor's performance.
    (6) Services in support of acquisition planning.
    (7) Contractors providing assistance in contract management (such as 
where the contractor might influence official evaluations of other 
contractors).
    (8) Contractors providing technical evaluation of contract 
proposals.
    (9) Contractors providing assistance in the development of 
statements of work.
    (10) Contractors providing support in preparing responses to Freedom 
of Information Act requests.
    (11) Contractors working in any situation that permits or might 
permit them to gain access to confidential business information and/or 
any other sensitive information (other than situations covered by the 
National Industrial Security Program described in 4.402(b)).
    (12) Contractors providing information regarding agency policies or 
regulations, such as attending conferences on behalf of an agency, 
conducting community relations campaigns, or conducting agency training 
courses.
    (13) Contractors participating in any situation where it might be 
assumed that they are agency employees or representatives.
    (14) Contractors participating as technical advisors to a source 
selection board or participating as voting or nonvoting members of a 
source evaluation board.
    (15) Contractors serving as arbitrators or providing alternative 
methods of dispute resolution.
    (16) Contractors constructing buildings or structures intended to be 
secure from electronic eavesdropping or other penetration by foreign 
governments.
    (17) Contractors providing inspection services.
    (18) Contractors providing legal advice and interpretations of 
regulations and statutes to Government officials.
    (19) Contractors providing special non-law enforcement, security 
activities that do not directly involve criminal investigations, such as 
prisoner detention or transport and non-military national security 
details.
    (e) Agency implementation shall include procedures requiring the 
agency head or designated requirements official to provide the 
contracting officer, concurrent with transmittal of the statement of 
work (or any modification thereof), a written determination that none of 
the functions to be performed are inherently governmental. This 
assessment should place emphasis on the degree to which conditions and 
facts restrict the discretionary authority, decision-making 
responsibility, or accountability of Government officials using 
contractor services or work products. Disagreements regarding the 
determination will be resolved in accordance with agency procedures 
before issuance of a solicitation.

[61 FR 2628, Jan. 26, 1996, as amended at 62 FR 40236, July 25, 1997; 71 
FR 57380, Sept. 28, 2006]

            PART 8_REQUIRED SOURCES OF SUPPLIES AND SERVICES

Sec.

Sec. 8.000 Scope of part.

Sec. 8.001 General.

Sec. 8.002 Priorities for use of Government supply sources.

Sec. 8.003 Use of other Government supply sources.

Sec. 8.004 Contract clause.

[[Page 148]]

                  Subpart 8.1_Excess Personal Property


Sec. 8.101 [Reserved]

Sec. 8.102 Policy.

Sec. 8.103 Information on available excess personal property.

Sec. 8.104 Obtaining nonreportable property.

Subparts 8.2-8.3 [Reserved]

                  Subpart 8.4_Federal Supply Schedules


Sec. 8.401 Definitions.

Sec. 8.402 General.

Sec. 8.403 Applicability.

Sec. 8.404 Use of Federal Supply Schedules.

Sec. 8.405 Ordering procedures for Federal Supply Schedules.

Sec. 8.405-1 Ordering procedures for supplies, and services not 
          requiring a statement of work.

Sec. 8.405-2 Ordering procedures for services requiring a statement of 
          work.

Sec. 8.405-3 Blanket purchase agreements (BPAs).

Sec. 8.405-4 Price reductions.

Sec. 8.405-5 Small business.

Sec. 8.405-6 Limiting sources.

Sec. 8.405-7 Payment.

Sec. 8.406 Ordering activity responsibilities.

Sec. 8.406-1 Order placement.

Sec. 8.406-2 Inspection and acceptance.

Sec. 8.406-3 Remedies for nonconformance.

Sec. 8.406-4 Termination for cause.

Sec. 8.406-5 Termination for the Government's convenience.

Sec. 8.406-6 Disputes.

Sec. 8.406-7 Contractor Performance Evaluation.

                    Subpart 8.5_Acquisition of Helium


Sec. 8.500 Scope of subpart.

Sec. 8.501 Definitions.

Sec. 8.502 Policy.

Sec. 8.503 Exception.

Sec. 8.504 Procedures.

Sec. 8.505 Contract clause.

      Subpart 8.6_Acquisition from Federal Prison Industries, Inc.


Sec. 8.601 General.

Sec. 8.602 Policy.

Sec. 8.603 Purchase priorities.

Sec. 8.604 Waivers.

Sec. 8.605 Exceptions.

Sec. 8.606 Evaluating FPI performance.

Sec. 8.607 Performance as a subcontractor.

Sec. 8.608 Protection of classified and sensitive information.

Subpart 8.7_Acquisition From Nonprofit Agencies Employing People Who Are 
                       Blind or Severely Disabled


Sec. 8.700 Scope of subpart.

Sec. 8.701 Definitions.

Sec. 8.702 General.

Sec. 8.703 Procurement list.

Sec. 8.704 Purchase priorities.

Sec. 8.705 Procedures.

Sec. 8.705-1 General.

Sec. 8.705-2 Direct-order process.

Sec. 8.705-3 Allocation process.

Sec. 8.705-4 Compliance with orders.

Sec. 8.706 Purchase exceptions.

Sec. 8.707 Prices.

Sec. 8.708 Shipping.

Sec. 8.709 Payments.

Sec. 8.710 Quality of merchandise.

Sec. 8.711 Quality complaints.

Sec. 8.712 Specification changes.

Sec. 8.713 Optional acquisition of supplies and services.

Sec. 8.714 Communications with the central nonprofit agencies and the 
          Committee.

Sec. 8.715 Replacement commodities.

Sec. 8.716 Change-of-name and successor in interest procedures.

        Subpart 8.8_Acquisition of Printing and Related Supplies


Sec. 8.800 Scope of subpart.

Sec. 8.801 Definitions.

Sec. 8.802 Policy.

Subparts 8.9-8.10 [Reserved]

                 Subpart 8.11_Leasing of Motor Vehicles


Sec. 8.1100 Scope of subpart.

Sec. 8.1101 Definitions.

Sec. 8.1102 Presolicitation requirements.

Sec. 8.1103 Contract requirements.

Sec. 8.1104 Contract clauses.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 
20113.

    Source: 48 FR 42129, Sept. 19, 1983, unless otherwise noted.



Sec. 8.000  Scope of part.

    This part deals with the acquisition of supplies and services from 
or through Government supply sources.



Sec. 8.001  General.

    Regardless of the source of supplies or services to be acquired, 
information technology acquisitions shall comply with capital planning 
and investment control requirements in 40 U.S.C. 11312 and OMB Circular 
A-130.

[67 FR 56119, Aug. 30, 2002, as amended at 70 FR 57454, Sept. 30, 2005]



Sec. 8.002  Priorities for use of Government supply sources.

    (a) Except as required by 8.003, or as otherwise provided by law, 
agencies shall satisfy requirements for supplies

[[Page 149]]

and services from or through the sources and publications listed below 
in descending order of priority--
    (1) Supplies. (i) Agency inventories;
    (ii) Excess from other agencies (see subpart 8.1);
    (iii) Federal Prison Industries, Inc. (see subpart 8.6);
    (iv) Supplies which are on the Procurement List maintained by the 
Committee for Purchase From People Who Are Blind or Severely Disabled 
(see Subpart 8.7);
    (v) Wholesale supply sources, such as stock programs of the General 
Services Administration (GSA) (see 41 CFR 101-26.3), the Defense 
Logistics Agency (see 41 CFR 101-26.6), the Department of Veterans 
Affairs (see 41 CFR 101-26.704), and military inventory control points;
    (vi) Mandatory Federal Supply Schedules (see subpart 8.4);
    (vii) Optional use Federal Supply Schedules (see subpart 8.4); and
    (viii) Commercial sources (including educational and nonprofit 
institutions).
    (2) Services. (i) Services which are on the Procurement List 
maintained by the Committee for Purchase From People Who Are Blind or 
Severely Disabled (see Subpart 8.7);
    (ii) Mandatory Federal Supply Schedules (see subpart 8.4);
    (iii) Optional use Federal Supply Schedules (see subpart 8.4); and
    (iv) Federal Prison Industries, Inc. (see subpart 8.6), or 
commercial sources (including educational and nonprofit institutions).
    (b) Sources other than those listed in paragraph (a) may be used as 
prescribed in 41 CFR 101-26.301 and in an unusual and compelling urgency 
as prescribed in 6.302-2 and in 41 CFR 101-25.101-5.
    (c) The statutory obligation for Government agencies to satisfy 
their requirements for supplies available from the Committee for 
Purchase From People Who Are Blind or Severely Disabled also applies 
when contractors purchase the supply items for Government use.

[48 FR 42129, Sept. 19, 1983, as amended at 50 FR 1735, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 54 FR 29280, July 11, 1989; 56 FR 15148, 
Apr. 15, 1991; 59 FR 53716, Oct. 25, 1994; 59 FR 67027, Dec. 28, 1994; 
61 FR 2630, Jan. 26, 1996; 66 FR 65367, Dec. 1, 2001. Redesignated and 
amended at 67 FR 56119, Aug. 30, 2002; 69 FR 34229, June 18, 2004]



Sec. 8.003  Use of other Government supply sources.

    Agencies shall satisfy requirements for the following supplies or 
services from or through specified sources, as applicable:
    (a) Public utility services (see part 41);
    (b) Printing and related supplies (see subpart 8.8);
    (c) Leased motor vehicles (see subpart 8.11);
    (d) Strategic and critical materials (e.g., metals and ores) from 
inventories exceeding National Defense Stockpile requirements (detailed 
information is available from the Defense National Stockpile Center, 
8725 John J. Kingman Rd., Suite 3229, Fort Belvior, VA 22060-6223; and
    (e) Helium (see subpart 8.5--Acquisition of Helium).

[48 FR 42129, Sept. 19, 1983, as amended at 57 FR 60576, Dec. 21, 1992; 
59 FR 67018, Dec. 28, 1994; 59 FR 67030, Dec. 28, 1994; 61 FR 41468, 
Aug. 8, 1996; 62 FR 235, Jan. 2, 1997. Redesignated at 67 FR 56119, Aug. 
30, 2002; 69 FR 34244, June 18, 2004]



Sec. 8.004  Contract clause.

    Insert the clause at 52.208-9, Contractor Use of Mandatory Sources 
of Supply and Services, in solicitations and contracts that require a 
contractor to provide supplies or services for Government use that are 
on the Procurement List maintained by the Committee for Purchase from 
People Who Are Blind or Severely Disabled. The contracting officer shall 
identify in the contract schedule the supplies or services that must be 
purchased from a mandatory source and the specific source.

[66 FR 65368, Dec. 18, 2001. Redesignated and amended at 67 FR 56119, 
Aug. 30, 2002; 69 FR 34230, June 18, 2004]

[[Page 150]]

                  Subpart 8.1_Excess Personal Property



Sec. 8.101  [Reserved]



Sec. 8.102  Policy.

    When practicable, agencies must use excess personal property as the 
first source of supply for agency and cost-reimbursement contractor 
requirements. Agency personnel must make positive efforts to satisfy 
agency requirements by obtaining and using excess personal property 
(including that suitable for adaptation or substitution) before 
initiating a contract action.

[67 FR 13053, Mar. 20, 2002]



Sec. 8.103  Information on available excess personal property.

    Information regarding the availability of excess personal property 
can be obtained through--
    (a) Review of excess personal property catalogs and bulletins issued 
by the General Services Administration (GSA);
    (b) Personal contact with GSA or the activity holding the property;
    (c) Submission of supply requirements to the regional offices of GSA 
(GSA Form 1539, Request for Excess Personal Property, is available for 
this purpose); and
    (d) Examination and inspection of reports and samples of excess 
personal property in GSA regional offices.



Sec. 8.104  Obtaining nonreportable property.

    GSA will assist agencies in meeting their requirements for supplies 
of the types excepted from reporting as excess by the Federal Management 
Regulations (41 CFR 102-36.90). Federal agencies requiring such supplies 
should contact the appropriate GSA regional office.

[48 FR 42129, Sept. 19, 1983, as amended at 69 FR 17745, Apr. 5, 2004]

Subparts 8.2-8.3 [Reserved]

                  Subpart 8.4_Federal Supply Schedules

    Source: At 69 FR 34234, June 18, 2004, unless otherwise noted.



Sec. 8.401  Definitions.

    As used in this subpart--
    Ordering activity means an activity that is authorized to place 
orders, or establish blanket purchase agreements (BPA), against the 
General Services Administration's (GSA) Multiple Award Schedule 
contracts. A list of eligible ordering activities is available at http:/
/www.gsa.gov/schedules (click ``For Customers Ordering from Schedules'' 
and then ``Eligibility to Use GSA Sources'').
    Multiple Award Schedule (MAS) means contracts awarded by GSA or the 
Department of Veterans Affairs (VA) for similar or comparable supplies, 
or services, established with more than one supplier, at varying prices. 
The primary statutory authorities for the MAS program are Title III of 
the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 
251, et seq.) and Title 40 U.S.C. 501, Services for Executive Agencies.
    Requiring agency means the agency needing the supplies or services.
    Schedules e-Library means the on-line source for GSA and VA Federal 
Supply Schedule contract award information. Schedules e-Library may be 
accessed at http://www.gsa.gov/elibrary.
    Special Item Number (SIN) means a group of generically similar (but 
not identical) supplies or services that are intended to serve the same 
general purpose or function.

[69 FR 34234, June 18, 2004, as amended at 70 FR 43578, July 27, 2005]



Sec. 8.402  General.

    (a) The Federal Supply Schedule program is also known as the GSA 
Schedules Program or the Multiple Award Schedule Program. The Federal 
Supply Schedule program is directed and managed by GSA and provides 
Federal agencies (see 8.002) with a simplified process for obtaining 
commercial supplies and services at prices associated with volume 
buying. Indefinite delivery contracts are awarded to provide supplies 
and services at stated prices for given periods of time. GSA may 
delegate certain responsibilities to other agencies (e.g., GSA has 
delegated authority to the VA to procure medical supplies under the VA 
Federal Supply

[[Page 151]]

Schedules program). Orders issued under the VA Federal Supply Schedule 
program are covered by this subpart. Additionally, the Department of 
Defense (DoD) manages similar systems of schedule-type contracting for 
military items; however, DoD systems are not covered by this subpart.
    (b) GSA schedule contracts require all schedule contractors to 
publish an ``Authorized Federal Supply Schedule Pricelist'' (pricelist). 
The pricelist contains all supplies and services offered by a schedule 
contractor. In addition, each pricelist contains the pricing and the 
terms and conditions pertaining to each Special Item Number that is on 
schedule. The schedule contractor is required to provide one copy of its 
pricelist to any ordering activity upon request. Also, a copy of the 
pricelist may be obtained from the Federal Supply Service by submitting 
a written e-mail request to [email protected] or by telephone 
at 1-800-488-3111. This subpart, together with the pricelists, contain 
necessary information for placing delivery or task orders with schedule 
contractors. In addition, the GSA schedule contracting office issues 
Federal Supply Schedules publications that contain a general overview of 
the Federal Supply Schedule (FSS) program and address pertinent topics. 
Ordering activities may request copies of schedules publications by 
contacting the Centralized Mailing List Service through the Internet at 
http://www.gsa.gov/cmls, submitting written e-mail requests to 
[email protected]; or by completing GSA Form 457, FSS Publications Mailing 
List Application, and mailing it to the GSA Centralized Mailing List 
Service (7SM), P.O. Box 6477, Fort Worth, TX 76115. Copies of GSA Form 
457 may also be obtained from the above-referenced points of contact.
    (c)(1) GSA offers an on-line shopping service called ``GSA 
Advantage!'' through which ordering activities may place orders against 
Schedules. (Ordering activities may also use GSA Advantage! to place 
orders through GSA's Global Supply System, a GSA wholesale supply 
source, formerly known as ``GSA Stock'' or the ``Customer Supply 
Center.'' FAR Subpart 8.4 is not applicable to orders placed through the 
GSA Global Supply System.) Ordering activities may access GSA Advantage! 
through the GSA Federal Supply Service Home Page (http://www.gsa.gov/
fas) or the GSA Federal Supply Schedule Home Page at http://www.gsa.gov/
schedules.
    (2) GSA Advantage! enables ordering activities to search specific 
information (i.e., national stock number, part number, common name), 
review delivery options, place orders directly with Schedule contractors 
(except see 8.405-6) and pay for orders using the Governmentwide 
commercial purchase card.
    (d)(1) e-Buy, GSA's electronic Request for Quotation (RFQ) system, 
is a part of a suite of on-line tools which complement GSA Advantage!. 
E-Buy allows ordering activities to post requirements, obtain quotes, 
and issue orders electronically. Posting an RFQ on e-Buy--
    (i) Is one medium for providing fair notice to all schedule 
contractors offering such supplies and services as required by 8.405-1, 
8.405-2, and 8.405-3; and
    (ii) Is required when an order contains brand-name specifications 
(see 8.405-6).
    (2) Ordering activities may access e-Buy at http://www.ebuy.gsa.gov. 
For more information or assistance on either GSA Advantage! or e-Buy, 
contact GSA at Internet e-mail address [email protected].
    (e) For more information or assistance regarding the Federal Supply 
Schedule Program, review the following Web site: http://www.gsa.gov/
schedules. Additionally, for on-line training courses regarding the 
Schedules Program, review the following Web site: http://www.gsa.gov/
training.
    (f) For administrative convenience, an ordering activity contracting 
officer may add items not on the Federal Supply Schedule (also referred 
to as open market items) to a Federal Supply Schedule blanket purchase 
agreement (BPA) or an individual task or delivery order only if--
    (1) All applicable acquisition regulations pertaining to the 
purchase of the items not on the Federal Supply Schedule have been 
followed (e.g., publicizing (Part 5), competition requirements (Part 6), 
acquisition of commercial

[[Page 152]]

items (Part 12), contracting methods (Parts 13, 14, and 15), and small 
business programs (Part 19));
    (2) The ordering activity contracting officer has determined the 
price for the items not on the Federal Supply Schedule is fair and 
reasonable;
    (3) The items are clearly labeled on the order as items not on the 
Federal Supply Schedule; and
    (4) All clauses applicable to items not on the Federal Supply 
Schedule are included in the order.
    (g) When using the Governmentwide commercial purchase card as a 
method of payment, orders at or below the micro-purchase threshold are 
exempt from verification in the System for Award Management database as 
to whether the contractor has a delinquent debt subject to collection 
under the Treasury Offset Program (TOP).

[69 FR 34234, June 18, 2004, as amended at 71 FR 57359, Sept. 28, 2006; 
74 FR 65604, Dec. 10, 2009; 76 FR 14552, Mar. 16, 2011; 77 FR 204, Jan. 
3, 2012; 78 FR 37678, June 21, 2013]



Sec. 8.403  Applicability.

    (a) Procedures in this subpart apply to--
    (1) Individual orders for supplies or services placed against 
Federal Supply Schedules contracts; and
    (2) BPAs established against Federal Supply Schedule contracts.
    (b) GSA may establish special ordering procedures for a particular 
schedule. In this case, that schedule will specify those special 
ordering procedures. Unless otherwise noted, special ordering procedures 
established for a Federal Supply Schedule take precedence over the 
procedures in 8.405.
    (c) In accordance with section 1427(b) of Public Law 108-136, for 
requirements that substantially or to a dominant extent specify 
performance of architect-engineer services (as defined in 2.101), 
agencies--
    (1) Shall use the procedures at Subpart 36.6; and
    (2) Shall not place orders for such requirements under a Federal 
Supply Schedule.

[69 FR 34234, June 18, 2004, as amended at 70 FR 11738, Mar. 9, 2005]



Sec. 8.404  Use of Federal Supply Schedules.

    (a) General. Parts 13 (except 13.303-2(c)(3)), 14, 15, and 19 
(except for the requirement at 19.202-1(e)(1)(iii)) do not apply to BPAs 
or orders placed against Federal Supply Schedules contracts (but see 
8.405-5). BPAs and orders placed against a MAS, using the procedures in 
this subpart, are considered to be issued using full and open 
competition (see 6.102(d)(3)). Therefore, when establishing a BPA (as 
authorized by 13.303-2(c)(3)), or placing orders under Federal Supply 
Schedule contracts using the procedures of 8.405, ordering activities 
shall not seek competition outside of the Federal Supply Schedules or 
synopsize the requirement; but see paragraph (g) of this section.
    (b)(1) The contracting officer, when placing an order or 
establishing a BPA, is responsible for applying the regulatory and 
statutory requirements applicable to the agency for which the order is 
placed or the BPA is established. The requiring agency shall provide the 
information on the applicable regulatory and statutory requirements to 
the contracting officer responsible for placing the order.
    (2) For orders over $500,000, see subpart 17.5 for additional 
requirements for interagency acquisitions. For example, the requiring 
agency shall make a determination that use of the Federal Supply 
Schedule is the best procurement approach, in accordance with 17.502-
1(a).
    (c) Acquisition planning. Orders placed under a Federal Supply 
Schedule contract--
    (1) Are not exempt from the development of acquisition plans (see 
subpart 7.1), and an information technology acquisition strategy (see 
Part 39);
    (2) Must comply with all FAR requirements for a bundled contract 
when the order meets the definition of ``bundled contract'' (see 
2.101(b)); and
    (3) Must, whether placed by the requiring agency, or on behalf of 
the requiring agency, be consistent with the requiring agency's 
statutory and regulatory requirements applicable to the acquisition of 
the supply or service.
    (d) Pricing. Supplies offered on the schedule are listed at fixed 
prices. Services offered on the schedule are priced either at hourly 
rates, or at a

[[Page 153]]

fixed price for performance of a specific task (e.g., installation, 
maintenance, and repair). GSA has already determined the prices of 
supplies and fixed-price services, and rates for services offered at 
hourly rates, under schedule contracts to be fair and reasonable. 
Therefore, ordering activities are not required to make a separate 
determination of fair and reasonable pricing, except for a price 
evaluation as required by 8.405-2(d). By placing an order against a 
schedule contract using the procedures in 8.405, the ordering activity 
has concluded that the order represents the best value (as defined in 
FAR 2.101) and results in the lowest overall cost alternative 
(considering price, special features, administrative costs, etc.) to 
meet the Government's needs. Although GSA has already negotiated fair 
and reasonable pricing, ordering activities may seek additional 
discounts before placing an order (see 8.405-4).
    (e) The procedures under subpart 33.1 are applicable to the issuance 
of an order or the establishment of a BPA against a schedule contract.
    (f) If the ordering activity issues an RFQ, the ordering activity 
shall provide the RFQ to any schedule contractor that requests a copy of 
it.
    (g)(1) Ordering activities shall publicize contract actions funded 
in whole or in part by the American Recovery and Reinvestment Act of 
2009 (Pub. L. 111-5):
    (i) Notices of proposed MAS orders (including orders issued under 
BPAs) that are for ``informational purposes only'' exceeding $25,000 
shall follow the procedures in 5.704 for posting orders.
    (ii) Award notices for MAS orders (including orders issued under 
BPAs) shall follow the procedures in 5.705.
    (2) When an order is awarded or a Blanket Purchase Agreement is 
established with an estimated value greater than the simplified 
acquisition threshold and supported by a limited-source justification at 
8.405-6(a), the ordering activity contracting officer must--
    (i) Publicize the action (see 5.301); and
    (ii) Post the justification in accordance with 8.405-6(a)(2).
    (h) Type-of-order preference for services. (1) The ordering activity 
shall specify the order type (i.e., firm-fixed price, time-and-
materials, or labor-hour) for the services offered on the schedule 
priced at hourly rates.
    (2) Agencies shall use fixed-price orders for the acquisition of 
commercial services to the maximum extent practicable.
    (3)(i) A time-and-materials or labor-hour order may be used for the 
acquisition of commercial services only when it is not possible at the 
time of placing the order to estimate accurately the extent or duration 
of the work or to anticipate costs with any reasonable degree of 
confidence.
    (ii) Prior to the issuance of a time-and-materials or labor-hour 
order, the contracting officer shall--
    (A) Execute a determination and findings (D&F) for the order, in 
accordance with paragraph (h)(3)(iii) of this section that a fixed-price 
order is not suitable;
    (B) Include a ceiling price in the order that the contractor exceeds 
at its own risk; and
    (C) When the total performance period, including options, is more 
than three years, the D&F prepared in accordance with this paragraph 
shall be signed by the contracting officer and approved by the head of 
the contracting activity prior to the execution of the base period.
    (iii) The D&F required by paragraph (h)(3)(ii)(A) of this section 
shall contain sufficient facts and rationale to justify that a fixed-
price order is not suitable. At a minimum, the D&F shall--
    (A) Include a description of the market research conducted (see 
8.404(c) and 10.002(e));
    (B) Establish that it is not possible at the time of placing the 
order to accurately estimate the extent or duration of the work or 
anticipate costs with any reasonable degree of confidence;
    (C) Establish that the current requirement has been structured to 
maximize the use of fixed-price orders (e.g., by limiting the value or 
length of the time-and-materials/labor-hour order; or, establishing 
fixed prices for portions of the requirement) on future acquisitions for 
the same or similar requirements; and

[[Page 154]]

    (D) Describe actions to maximize the use of fixed-price orders on 
future acquisitions for the same requirements.
    (iv) Prior to an increase in the ceiling price of a time-and-
materials or labor-hour order, the ordering activity shall--
    (A) Conduct an analysis of pricing and other relevant factors to 
determine if the action is in the best interest of the Government and 
document the order file;
    (B) Follow the procedures at 8.405-6 for a change that modifies the 
general scope of the order; and
    (C) Comply with the requirements at 8.402(f) when modifying an order 
to add open market items.

[69 FR 34234, June 18, 2004, as amended at 74 FR 14638, Mar. 31, 2009; 
75 FR 77735, Dec. 13, 2010; 76 FR 14552, Mar. 16, 2011; 77 FR 196, Jan. 
3, 2012; 78 FR 13767, Feb. 28, 2013]



Sec. 8.405  Ordering procedures for Federal Supply Schedules.

    Ordering activities shall use the ordering procedures of this 
section when placing an order or establishing a BPA for supplies or 
services. The procedures in this section apply to all schedules. For 
establishing BPAs and for orders under BPAs see 8.405-3.

[69 FR 34234, June 18, 2004, as amended at 76 FR 14552, Mar. 16, 2011]



Sec. 8.405-1  Ordering procedures for supplies, and services not 
          requiring a statement of work.

    (a) Ordering activities shall use the procedures of this subsection 
when ordering supplies and services that are listed in the schedules 
contracts at a fixed price for the performance of a specific task, where 
a statement of work is not required (e.g., installation, maintenance, 
and repair). For establishing BPAs and for orders under BPAs see 8.405-
3.
    (b) Orders at or below the micro-purchase threshold. Ordering 
activities may place orders at, or below, the micro-purchase threshold 
with any Federal Supply Schedule contractor that can meet the agency's 
needs. Although not required to solicit from a specific number of 
schedule contractors, ordering activities should attempt to distribute 
orders among contractors.
    (c) Orders exceeding the micro-purchase threshold but not exceeding 
the simplified acquisition threshold. Ordering activities shall place 
orders with the schedule contractor that can provide the supply or 
service that represents the best value. Before placing an order, an 
ordering activity shall:
    (1) Consider reasonably available information about the supply or 
service offered under MAS contracts by surveying at least three schedule 
contractors through the GSA Advantage! on-line shopping service, by 
reviewing the catalogs or pricelists of at least three schedule 
contractors, or by requesting quotations from at least three schedule 
contractors (see 8.405-5); or
    (2) Document the circumstances for restricting consideration to 
fewer than three schedule contractors based on one of the reasons at 
8.405-6(a).
    (d) For proposed orders exceeding the simplified acquisition 
threshold. (1) Each order shall be placed on a competitive basis in 
accordance with (d)(2) and (3) of this section, unless this requirement 
is waived on the basis of a justification that is prepared and approved 
in accordance with 8.405-6.
    (2) The ordering activity contracting officer shall provide an RFQ 
that includes a description of the supplies to be delivered or the 
services to be performed and the basis upon which the selection will be 
made (see 8.405-1(f)).
    (3) The ordering activity contracting officer shall--
    (i) Post the RFQ on e-Buy to afford all schedule contractors 
offering the required supplies or services under the appropriate 
multiple award schedule(s) an opportunity to submit a quote; or
    (ii) Provide the RFQ to as many schedule contractors as practicable, 
consistent with market research appropriate to the circumstances, to 
reasonably ensure that quotes will be received from at least three 
contractors that can fulfill the requirements. When fewer than three 
quotes are received from schedule contractors that can fulfill the 
requirement, the contracting officer shall prepare a written 
determination explaining that no additional contractors capable of 
fulfilling the requirement could be identified despite reasonable 
efforts to do so. The determination must clearly explain efforts

[[Page 155]]

made to obtain quotes from at least three schedule contractors.
    (4) The ordering activity contracting officer shall ensure that all 
quotes received are fairly considered and award is made in accordance 
with the basis for selection in the RFQ.
    (e) When an order contains brand-name specifications, the 
contracting officer shall post the RFQ on e-Buy along with the 
justification or documentation, as required by 8.405-6. An RFQ is 
required when a purchase description specifies a brand-name.
    (f) In addition to price (see 8.404(d) and 8.405-4), when 
determining best value, the ordering activity may consider, among other 
factors, the following:
    (1) Past performance.
    (2) Special features of the supply or service required for effective 
program performance.
    (3) Trade-in considerations.
    (4) Probable life of the item selected as compared with that of a 
comparable item.
    (5) Warranty considerations.
    (6) Maintenance availability.
    (7) Environmental and energy efficiency considerations.
    (8) Delivery terms.
    (g) Minimum documentation. The ordering activity shall document--
    (1) The schedule contracts considered, noting the contractor from 
which the supply or service was purchased;
    (2) A description of the supply or service purchased;
    (3) The amount paid;
    (4) When an order exceeds the simplified acquisition threshold, 
evidence of compliance with the ordering procedures at 8.405-1(d); and
    (5) The basis for the award decision.

[69 FR 34234, June 18, 2004, as amended at 70 FR 43578, July 27, 2005; 
71 FR 57359, Sept. 28, 2006; 76 FR 14552, Mar. 16, 2011; 77 FR 193, Jan. 
3, 2012]



Sec. 8.405-2  Ordering procedures for services requiring a statement of 
          work.

    (a) General. Ordering activities shall use the procedures in this 
subsection when ordering services priced at hourly rates as established 
by the schedule contracts. The applicable services will be identified in 
the Federal Supply Schedule publications and the contractor's 
pricelists. For establishing BPAs and for orders under BPAs see 8.405-3.
    (b) Statements of Work (SOWs). All Statements of Work shall include 
a description of work to be performed; location of work; period of 
performance; deliverable schedule; applicable performance standards; and 
any special requirements (e.g., security clearances, travel, special 
knowledge). To the maximum extent practicable, agency requirements shall 
be performance-based statements (see subpart 37.6).
    (c) Request for Quotation procedures. The ordering activity must 
provide the Request for Quotation (RFQ), which includes the statement of 
work and evaluation criteria (e.g., experience and past performance), to 
schedule contractors that offer services that will meet the agency's 
needs. The RFQ may be posted to GSA's electronic RFQ system, e-Buy (see 
8.402(d)).
    (1) Orders at, or below, the micro-purchase threshold. Ordering 
activities may place orders at, or below, the micro-purchase threshold 
with any Federal Supply Schedule contractor that can meet the agency's 
needs. The ordering activity should attempt to distribute orders among 
contractors.
    (2) For orders exceeding the micro-purchase threshold, but not 
exceeding the simplified acquisition threshold. (i) The ordering 
activity shall develop a statement of work, in accordance with 8.405-
2(b).
    (ii) The ordering activity shall provide the RFQ (including the 
statement of work and evaluation criteria) to at least three schedule 
contractors that offer services that will meet the agency's needs or 
document the circumstances for restricting consideration to fewer than 
three schedule contractors based on one of the reasons at 8.405-6(a).
    (iii) The ordering activity shall specify the type of order (i.e., 
firm-fixed-price, labor-hour) for the services identified in the 
statement of work. The contracting officer should establish firm-fixed-
prices, as appropriate.
    (3) For proposed orders exceeding the simplified acquisition 
threshold. In addition to meeting the requirements of 8.405-2(c)(2)(i) 
and (iii), the following procedures apply:

[[Page 156]]

    (i) Each order shall be placed on a competitive basis in accordance 
with (c)(3)(ii) and (iii) of this section, unless this requirement is 
waived on the basis of a justification that is prepared and approved in 
accordance with 8.405-6.
    (ii) The ordering activity contracting officer shall provide an RFQ 
that includes a statement of work and the evaluation criteria.
    (iii) The ordering activity contracting officer shall--
    (A) Post the RFQ on e-Buy to afford all schedule contractors 
offering the required services under the appropriate multiple-award 
schedule(s) an opportunity to submit a quote; or
    (B) Provide the RFQ to as many schedule contractors as practicable, 
consistent with market research appropriate to the circumstances, to 
reasonably ensure that quotes will be received from at least three 
contractors that can fulfill the requirements. When fewer than three 
quotes are received from schedule contractors that can fulfill the 
requirements, the contracting officer shall prepare a written 
determination to explain that no additional contractors capable of 
fulfilling the requirements could be identified despite reasonable 
efforts to do so. The determination must clearly explain efforts made to 
obtain quotes from at least three schedule contractors.
    (C) Ensure all quotes received are fairly considered and award is 
made in accordance with the evaluation criteria in the RFQ.
    (4) The ordering activity shall provide the RFQ (including the 
statement of work and the evaluation criteria) to any schedule 
contractor who requests a copy of it.
    (d) Evaluation. The ordering activity shall evaluate all responses 
received using the evaluation criteria provided to the schedule 
contractors. The ordering activity is responsible for considering the 
level of effort and the mix of labor proposed to perform a specific task 
being ordered, and for determining that the total price is reasonable. 
Place the order with the schedule contractor that represents the best 
value (see 8.404(d) and 8.405-4). After award, ordering activities 
should provide timely notification to unsuccessful offerors. If an 
unsuccessful offeror requests information on an award that was based on 
factors other than price alone, a brief explanation of the basis for the 
award decision shall be provided.
    (e) Use of time-and-materials and labor-hour orders for services. 
When placing a time-and-materials or labor-hour order for services, see 
8.404(h).
    (f) Minimum documentation. The ordering activity shall document--
    (1) The schedule contracts considered, noting the contractor from 
which the service was purchased;
    (2) A description of the service purchased;
    (3) The amount paid;
    (4) The evaluation methodology used in selecting the contractor to 
receive the order;
    (5) The rationale for any tradeoffs in making the selection;
    (6) The price reasonableness determination required by paragraph (d) 
of this subsection;
    (7) The rationale for using other than--
    (i) A firm-fixed price order; or
    (ii) A performance-based order; and .
    (8) When an order exceeds the simplified acquisition threshold, 
evidence of compliance with the ordering procedures at 8.405-2(c).

[69 FR 34234, June 18, 2004, as amended at 70 FR 43579, July 27, 2005; 
76 FR 14553, Mar. 16, 2011; 77 FR 197, Jan. 3, 2012]



Sec. 8.405-3  Blanket purchase agreements (BPAs).

    (a) Establishment. (1) Ordering activities may establish BPAs under 
any schedule contract to fill repetitive needs for supplies or services. 
Ordering activities shall establish the BPA with the schedule 
contractor(s) that can provide the supply or service that represents the 
best value.
    (2) In addition to price (see 8.404(d) and 8.405-4), when 
determining best value, the ordering activity may consider, among other 
factors, the following:
    (i) Past performance.
    (ii) Special features of the supply or service required for 
effective program performance.
    (iii) Trade-in considerations.

[[Page 157]]

    (iv) Probable life of the item selected as compared with that of a 
comparable item.
    (v) Warranty considerations.
    (vi) Maintenance availability.
    (vii) Environmental and energy efficiency considerations.
    (viii) Delivery terms.
    (3)(i) The ordering activity contracting officer shall, to the 
maximum extent practicable, give preference to establishing multiple-
award BPAs, rather than establishing a single-award BPA.
    (ii) No single-award BPA with an estimated value exceeding $103 
million (including any options), may be awarded unless the head of the 
agency determines in writing that--
    (A) The orders expected under the BPA are so integrally related that 
only a single source can reasonably perform the work;
    (B) The BPA provides only for firm-fixed priced orders for--
    (1) Products with unit prices established in the BPA; or
    (2) Services with prices established in the BPA for specific tasks 
to be performed;
    (C) Only one source is qualified and capable of performing the work 
at a reasonable price to the Government; or
    (D) It is necessary in the public interest to award the BPA to a 
single source for exceptional circumstances.
    (iii) The requirement for a determination for a single-award BPA 
greater than $103 million is in addition to any applicable requirement 
for a limited-source justification at 8.405-6. However, the two 
documents may be combined into one document.
    (iv) In determining how many multiple-award BPAs to establish or 
that a single-award BPA is appropriate, the contracting officer should 
consider the following factors and document the decision in the 
acquisition plan or BPA file:
    (A) The scope and complexity of the requirement(s);
    (B) The benefits of on-going competition and the need to 
periodically compare multiple technical approaches or prices;
    (C) The administrative costs of BPAs; and
    (D) The technical qualifications of the schedule contractor(s).
    (4) BPAs shall address the frequency of ordering, invoicing, 
discounts, requirements (e.g., estimated quantities, work to be 
performed), delivery locations, and time.
    (5) When establishing multiple-award BPAs, the ordering activity 
shall specify the procedures for placing orders under the BPAs in 
accordance with 8.405-3(c)(2).
    (6) Establishment of a multi-agency BPA against a Federal Supply 
Schedule contract is permitted if the multi-agency BPA identifies the 
participating agencies and their estimated requirements at the time the 
BPA is established.
    (7) Minimum documentation. The ordering activity contracting officer 
shall include in the BPA file documentation the--
    (i) Schedule contracts considered, noting the contractor to which 
the BPA was awarded;
    (ii) Description of the supply or service purchased;
    (iii) Price;
    (iv) Required justification for a limited-source BPA (see 8.405-6), 
if applicable;
    (v) Determination for a single-award BPA exceeding $103 million, if 
applicable (see (a)(3)(ii));
    (vi) Documentation supporting the decision to establish multiple-
award BPAs or a single-award BPA (see (a)(3)(iv));
    (vii) Evidence of compliance with paragraph (b) of this section, for 
competitively awarded BPAs, if applicable; and
    (viii) Basis for the award decision. This should include the 
evaluation methodology used in selecting the contractor, the rationale 
for any tradeoffs in making the selection, and a price reasonableness 
determination for services requiring a statement of work.
    (b) Competitive procedures for establishing a BPA. This paragraph 
applies to the establishment of a BPA, in addition to applicable 
instructions in paragraph (a).

[[Page 158]]

    (1) For supplies, and for services not requiring a statement of 
work. The procedures of this paragraph apply when establishing a BPA for 
supplies and services that are listed in the schedule contract at a 
fixed price for the performance of a specific task, where a statement of 
work is not required (e.g., installation, maintenance, and repair).
    (i) If the estimated value of the BPA does not exceed the simplified 
acquisition threshold. (A) The ordering activity shall:
    (1) Consider reasonably available information about the supply or 
service offered under MAS contracts by surveying at least three schedule 
contractors through the GSA Advantage! on-line shopping service, by 
reviewing the catalogs or pricelists of at least three schedule 
contractors, or by requesting quotations from at least three schedule 
contractors (see 8.405-5); or
    (2) Document the circumstances for restricting consideration to 
fewer than three schedule contractors based on one of the reasons at 
8.405-6(a).
    (B) The ordering activity shall establish the BPA with the schedule 
contractor(s) that can provide the best value.
    (ii) If the estimated value of the BPA exceeds the simplified 
acquisition threshold. The ordering activity contracting officer:
    (A) Shall provide an RFQ that includes a description of the supplies 
to be delivered or the services to be performed and the basis upon which 
the selection will be made.
    (B)(1) Shall post the RFQ on e-Buy to afford all schedule 
contractors offering the required supplies or services under the 
appropriate multiple award schedule(s) an opportunity to submit a quote; 
or
    (2) Shall provide the RFQ to as many schedule contractors as 
practicable, consistent with market research appropriate to the 
circumstances, to reasonably ensure that quotes will be received from at 
least three contractors that can fulfill the requirements. When fewer 
than three quotes are received from schedule contractors that can 
fulfill the requirements, the contracting officer shall prepare a 
written determination explaining that no additional contractors capable 
of fulfilling the requirements could be identified despite reasonable 
efforts to do so. The determination must clearly explain efforts made to 
obtain quotes from at least three schedule contractors.
    (C) Shall ensure all quotes received are fairly considered and award 
is made in accordance with the basis for selection in the RFQ. After 
seeking price reductions (see 8.405-4), establish the BPA with the 
schedule contractor(s) that provides the best value.
    (D) The BPA must be established in accordance with paragraphs 
(b)(1)(ii)(B) and (C) of this section, unless the requirement is waived 
on the basis of a justification that is prepared and approved in 
accordance with 8.405-6.
    (2) For services requiring a statement of work. This applies when 
establishing a BPA that requires services priced at hourly rates, as 
provided by the schedule contract. The applicable services will be 
identified in the Federal Supply Schedule publications and the 
contractor's pricelists.
    (i) Statements of Work (SOWs). The ordering activity shall develop a 
statement of work. All Statements of Work shall include a description of 
work to be performed; location of work; period of performance; 
deliverable schedule; applicable performance standards; and any special 
requirements (e.g., security clearances, travel, and special knowledge). 
To the maximum extent practicable, agency requirements shall be 
performance-based statements (see subpart 37.6).
    (ii) Type-of-order preference. The ordering activity shall specify 
the order type (i.e., firm-fixed price, time-and-materials, or labor-
hour) for the services identified in the statement of work. The 
contracting officer should establish firm-fixed priced orders to the 
maximum extent practicable. For time-and-materials and labor-hour 
orders, the contracting officer shall follow the procedures at 8.404(h).
    (iii) Request for Quotation procedures. The ordering activity must 
provide a RFQ, which includes the statement of work and evaluation 
criteria (e.g., experience and past performance), to schedule 
contractors that offer services that will meet the agency's needs. The 
RFQ may be posted to GSA's electronic RFQ system, e-Buy (see 8.402(d)).

[[Page 159]]

    (iv) If the estimated value of the BPA does not exceed the 
simplified acquisition threshold. The ordering activity shall provide 
the RFQ (including the statement of work and evaluation criteria) to at 
least three schedule contractors that offer services that will meet the 
agency's needs.
    (v) If estimated value of the BPA exceeds the simplified acquisition 
threshold. The ordering activity contracting officer--
    (A) Shall post the RFQ on e-Buy to afford all schedule contractors 
offering the required supplies or services under the appropriate 
multiple-award schedule an opportunity to submit a quote; or
    (B) Shall provide the RFQ, which includes the statement of work and 
evaluation criteria, to as many schedule contractors as practicable, 
consistent with market research appropriate to the circumstances, to 
reasonably ensure that quotes will be received from at least three 
contractors that can fulfill the requirements. When fewer than three 
quotes are received from schedule contractors that can fulfill the 
requirements, the contracting officer shall document the file. The 
contracting officer shall prepare a written determination explaining 
that no additional contractors capable of fulfilling the requirements 
could be identified despite reasonable efforts to do so. The 
determination must clearly explain efforts made to obtain quotes from at 
least three schedule contractors.
    (vi) The ordering activity contracting officer shall ensure all 
quotes received are fairly considered and award is made in accordance 
with the basis for selection in the RFQ. The ordering activity is 
responsible for considering the level of effort and the mix of labor 
proposed to perform, and for determining that the proposed price is 
reasonable.
    (vii) The BPA must be established in accordance with paragraph 
(b)(2)(iv) or (v), and with paragraph (b)(2)(vi) of this section, unless 
the requirement is waived on the basis of a justification that is 
prepared and approved in accordance with 8.405-6.
    (viii) The ordering activity contracting officer shall establish the 
BPA with the schedule contractor(s) that represents the best value (see 
8.404(d) and 8.405-4).
    (3) After award, ordering activities should provide timely 
notification to unsuccessful offerors. If an unsuccessful offeror 
requests information on an award that was based on factors other than 
price alone, a brief explanation of the basis for the award decision 
shall be provided.
    (c) Ordering from BPAs. The procedures in this paragraph (c) are not 
required for BPAs established on or before May 16, 2011. However, 
ordering activities are encouraged to use the procedures for such BPAs.
    (1) Single-award BPA. If the ordering activity establishes a single-
award BPA, authorized users may place the order directly under the 
established BPA when the need for the supply or service arises.
    (2) Multiple-award BPAs. (i) Orders at or below the micro-purchase 
threshold. The ordering activity may place orders at or below the micro-
purchase threshold with any BPA holder that can meet the agency needs. 
The ordering activity should attempt to distribute any such orders among 
the BPA holders.
    (ii) Orders exceeding the micro-purchase threshold but not exceeding 
the simplified acquisition threshold. (A) The ordering activity must 
provide each multiple-award BPA holder a fair opportunity to be 
considered for each order exceeding the micro-purchase threshold, but 
not exceeding the simplified acquisition threshold unless one of the 
exceptions at 8.405-6(a)(1)(i) applies.
    (B) The ordering activity need not contact each of the multiple-
award BPA holders before placing an order if information is available to 
ensure that each BPA holder is provided a fair opportunity to be 
considered for each order.
    (C) The ordering activity contracting officer shall document the 
circumstances when restricting consideration to less than all multiple-
award BPA holders offering the required supplies and services.
    (iii) Orders exceeding the simplified acquisition threshold. (A) The 
ordering activity shall place an order in accordance with paragraphs 
(c)(2)(iii)(A)(1), (2) and (3) of this paragraph, unless the requirement 
is waived on the basis of a

[[Page 160]]

justification that is prepared and approved in accordance with 8.405-6. 
The ordering activity shall--
    (1) Provide an RFQ to all BPA holders offering the required supplies 
or services under the multiple-award BPAs, to include a description of 
the supplies to be delivered or the services to be performed and the 
basis upon which the selection will be made;
    (2) Afford all BPA holders responding to the RFQ an opportunity to 
submit a quote; and
    (3) Fairly consider all responses received and make award in 
accordance with the selection procedures.
    (B) The ordering activity shall document evidence of compliance with 
these procedures and the basis for the award decision.
    (3) BPAs for hourly-rate services. If the BPA is for hourly-rate 
services, the ordering activity shall develop a statement of work for 
each order covered by the BPA. Ordering activities should place these 
orders on a firm-fixed price basis to the maximum extent practicable. 
For time-and-materials and labor-hour orders, the contracting officer 
shall follow the procedures at 8.404(h). All orders under the BPA shall 
specify a price for the performance of the tasks identified in the 
statement of work. The ordering activity is responsible for considering 
the level of effort and the mix of labor proposed to perform a specific 
task being ordered, and for determining that the total price is 
reasonable through appropriate analysis techniques, and documenting the 
file accordingly.
    (d) Duration of BPAs. (1) Multiple-award BPAs generally should not 
exceed five years in length, but may do so to meet program requirements.
    (2) A single-award BPA shall not exceed one year. It may have up to 
four one-year options. See paragraph (e) of this section for 
requirements associated with option exercise.
    (3) Contractors may be awarded BPAs that extend beyond the current 
term of their GSA Schedule contract, so long as there are option periods 
in their GSA Schedule contract that, if exercised, will cover the BPA's 
period of performance.
    (e) Review of BPAs. (1) The ordering activity contracting officer 
shall review the BPA and determine in writing, at least once a year 
(e.g., at option exercise), whether--
    (i) The schedule contract, upon which the BPA was established, is 
still in effect;
    (ii) The BPA still represents the best value (see 8.404(d)); and
    (iii) Estimated quantities/amounts have been exceeded and additional 
price reductions can be obtained.
    (2) The determination shall be included in the BPA file 
documentation.

[76 FR 14553, Mar. 16, 2011, as amended 77 FR 197, Jan. 3, 2012; 77 FR 
12929, Mar. 2, 2012]



Sec. 8.405-4  Price reductions.

    Ordering activities may request a price reduction at any time before 
placing an order, establishing a BPA, or in conjunction with the annual 
BPA review. However, the ordering activity shall seek a price reduction 
when the order or BPA exceeds the simplified acquisition threshold. 
Schedule contractors are not required to pass on to all schedule users a 
price reduction extended only to an individual ordering activity for a 
specific order or BPA.

[76 FR 14555, Mar. 16, 2011]



Sec. 8.405-5  Small business.

    (a) Although the preference programs of part 19 are not mandatory in 
this subpart, in accordance with section 1331 of Public Law 111-240 (15 
U.S.C. 644(r))--
    (1) Ordering activity contracting officers may, at their 
discretion--
    (i) Set aside orders for any of the small business concerns 
identified in 19.000(a)(3); and
    (ii) Set aside BPAs for any of the small business concerns 
identified in 19.000(a)(3).
    (2) When setting aside orders and BPAs--
    (i) Follow the ordering procedures for Federal Supply Schedules at 
8.405-1, 8.405-2, and 8.405-3; and
    (ii) The specific small business program eligibility requirements 
identified in part 19 apply.
    (b) Orders placed against schedule contracts may be credited toward 
the ordering activity's small business goals. For purposes of reporting 
an order placed with a small business

[[Page 161]]

schedule contractor, an ordering agency may only take credit if the 
awardee meets a size standard that corresponds to the work performed. 
Ordering activities should rely on the small business representations 
made by schedule contractors at the contract level.
    (c) Ordering activities may consider socio-economic status when 
identifying contractor(s) for consideration or competition for award of 
an order or BPA. At a minimum, ordering activities should consider, if 
available, at least one small business, veteran-owned small business, 
service disabled veteran-owned small business, HUBZone small business, 
women-owned small business, or small disadvantaged business schedule 
contractor(s). GSA Advantage! and Schedules e-Library at http://
www.gsa.gov/fas contain information on the small business 
representations of Schedule contractors.
    (d) For orders exceeding the micro-purchase threshold, ordering 
activities should give preference to the items of small business 
concerns when two or more items at the same delivered price will satisfy 
the requirement.

[69 FR 34234, June 18, 2004, as amended at 76 FR 68034, Nov. 2, 2011; 77 
FR 204, Jan. 3, 2012]



Sec. 8.405-6  Limiting sources.

    Orders placed or BPAs established under Federal Supply Schedules are 
exempt from the requirements in part 6. However, an ordering activity 
must justify its action when restricting consideration in accordance 
with paragraphs (a) or (b) of this section--
    (a) Orders or BPAs exceeding the micro-purchase threshold based on a 
limited sources justification--(1) Circumstances justifying limiting the 
source. (i) For a proposed order or BPA with an estimated value 
exceeding the micro-purchase threshold not placed or established in 
accordance with the procedures in 8.405-1, 8.405-2, or 8.405-3, the only 
circumstances that may justify the action are--
    (A) An urgent and compelling need exists, and following the 
procedures would result in unacceptable delays;
    (B) Only one source is capable of providing the supplies or services 
required at the level of quality required because the supplies or 
services are unique or highly specialized; or
    (C) In the interest of economy and efficiency, the new work is a 
logical follow-on to an original Federal Supply Schedule order provided 
that the original order was placed in accordance with the applicable 
Federal Supply Schedule ordering procedures. The original order or BPA 
must not have been previously issued under sole-source or limited-
sources procedures.
    (ii) See 8.405-6(c) for the content of the justification for an 
order or BPA exceeding the simplified acquisition threshold.
    (2) Posting. (i) Within 14 days after placing an order or 
establishing a BPA exceeding the simplified acquisition threshold that 
is supported by a limited-sources justification permitted under any of 
the circumstances under paragraph (a)(1) of this section, the ordering 
activity shall--
    (A) Publish a notice in accordance with 5.301; and
    (B) Post the justification--
    (1) At the GPE http://www.fedbizopps.gov;
    (2) On the Web site of the ordering activity agency, which may 
provide access to the justification by linking to the GPE; and
    (3) For a minimum of 30 days.
    (ii) In the case of an order or BPA permitted under paragraph 
(a)(1)(i)(A) of this section, the justification shall be posted within 
30 days after award.
    (iii) Contracting officers shall carefully screen all justifications 
for contractor proprietary data and remove all such data, and such 
references and citations as are necessary to protect the proprietary 
data, before making the justifications available for public inspection. 
Contracting officers shall also be guided by the exemptions to 
disclosure of information contained in the Freedom of Information Act (5 
U.S.C. 552) and the prohibitions against disclosure in 24.202 in 
determining whether other data should be removed. Although the submitter 
notice process set out in Executive Order 12600 ``Predisclosure 
Notification Procedures for Confidential Commercial Information'' does 
not apply, if the justification appears to contain proprietary data, the 
contracting officer should provide the contractor that submitted

[[Page 162]]

the information an opportunity to review the justification for 
proprietary data before making the justification available for public 
inspection, redacted as necessary. This process must not prevent or 
delay the posting of the justification in accordance with the timeframes 
required in paragraphs (a)(2)(i) and (ii) of this section.
    (iv) This posting requirement does not apply when disclosure would 
compromise the national security (e.g., would result in disclosure of 
classified information) or create other security risks.
    (b) Items peculiar to one manufacturer. An item peculiar to one 
manufacturer can be a particular brand name, product, or a feature of a 
product, peculiar to one manufacturer. A brand name item, whether 
available on one or more schedule contracts, is an item peculiar to one 
manufacturer.
    (1) Brand name specifications shall not be used unless the 
particular brand name, product, or feature is essential to the 
Government's requirements, and market research indicates other 
companies' similar products, or products lacking the particular feature, 
do not meet, or cannot be modified to meet, the agency's needs.
    (2) Documentation. (i) For proposed orders or BPAs with an estimated 
value exceeding the micro-purchase threshold, but not exceeding the 
simplified acquisition threshold, the ordering activity contracting 
officer shall document the basis for restricting consideration to an 
item peculiar to one manufacturer.
    (ii) For proposed orders or BPAs with an estimated value exceeding 
the simplified acquisition threshold, see paragraph (c) of this section.
    (iii) The documentation or justification must be completed and 
approved at the time the requirement for a brand-name item is 
determined. In addition, the justification for a brand-name item is 
required at the order level when a justification for the brand-name item 
was not completed for the BPA or does not adequately cover the 
requirements in the order.
    (3) Posting. (i) The ordering activity shall post the following 
information along with the Request for Quotation (RFQ) to e-Buy (http://
www.ebuy.gsa.gov):
    (A) For proposed orders or BPAs with an estimated value exceeding 
$25,000, but not exceeding the simplified acquisition threshold, the 
documentation required by paragraph (b)(2)(i) of this section.
    (B) For proposed orders or BPAs with an estimated value exceeding 
the simplified acquisition threshold, the justification required by 
paragraph (c) of this section.
    (C) The documentation in paragraph (b)(2)(i) and the justification 
in paragraph (c) of this subsection is subject to the screening 
requirement in paragraph (a)(2)(iii) of this section.
    (ii) The posting requirement of paragraph (b)(3)(i) of this section 
does not apply when--
    (A) Disclosure would compromise the national security (e.g., would 
result in disclosure of classified information) or create other security 
risks. The fact that access to classified matter may be necessary to 
submit a proposal or perform the contract does not, in itself, justify 
use of this exception;
    (B) The nature of the file (e.g., size, format) does not make it 
cost-effective or practicable for contracting officers to provide access 
through e-Buy; or
    (C) The agency's senior procurement executive makes a written 
determination that access through e-Buy is not in the Government's 
interest.
    (4) When applicable, the documentation and posting requirements in 
paragraphs (b)(2) and (3) of this subsection apply only to the portion 
of the order or BPA that requires a brand-name item. If the 
justification and approval is to cover only the portion of the 
acquisition which is brand-name, then it should so state; the approval 
level requirements will then only apply to that portion.
    (c) An order or BPA with an estimated value exceeding the simplified 
acquisition threshold. (1) For a proposed order or BPA exceeding the 
simplified acquisition threshold, the requiring activity shall assist 
the ordering activity contracting officer in the preparation of the 
justification. The justification

[[Page 163]]

shall cite that the acquisition is conducted under the authority of the 
Multiple-Award Schedule Program (see 8.401).
    (2) At a minimum, each justification shall include the following 
information:
    (i) Identification of the agency and the contracting activity, and 
specific identification of the document as a ``Limited-Sources 
Justification.''
    (ii) Nature and/or description of the action being approved.
    (iii) A description of the supplies or services required to meet the 
agency's needs (including the estimated value).
    (iv) The authority and supporting rationale (see 8.405-6(a)(1)(i) 
and (b)(1)) and, if applicable, a demonstration of the proposed 
contractor's unique qualifications to provide the required supply or 
service.
    (v) A determination by the ordering activity contracting officer 
that the order represents the best value consistent with 8.404(d).
    (vi) A description of the market research conducted among schedule 
holders and the results or a statement of the reason market research was 
not conducted.
    (vii) Any other facts supporting the justification.
    (viii) A statement of the actions, if any, the agency may take to 
remove or overcome any barriers that led to the restricted consideration 
before any subsequent acquisition for the supplies or services is made.
    (ix) The ordering activity contracting officer's certification that 
the justification is accurate and complete to the best of the 
contracting officer's knowledge and belief.
    (x) Evidence that any supporting data that is the responsibility of 
technical or requirements personnel (e.g., verifying the Government's 
minimum needs or requirements or other rationale for limited sources) 
and which form a basis for the justification have been certified as 
complete and accurate by the technical or requirements personnel.
    (xi) For justifications under 8.405-6(a)(1), a written determination 
by the approving official identifying the circumstance that applies.
    (d) Justification approvals. (1) For a proposed order or BPA with an 
estimated value exceeding the simplified acquisition threshold, but not 
exceeding $650,000, the ordering activity contracting officer's 
certification that the justification is accurate and complete to the 
best of the ordering activity contracting officer's knowledge and belief 
will serve as approval, unless a higher approval level is established in 
accordance with agency procedures.
    (2) For a proposed order or BPA with an estimated value exceeding 
$650,000, but not exceeding $12.5 million, the justification must be 
approved by the competition advocate of the activity placing the order, 
or by an official named in paragraph (d)(3) or (d)(4) of this section. 
This authority is not delegable.
    (3) For a proposed order or BPA with an estimated value exceeding 
$12.5 million, but not exceeding $62.5 million (or, for DoD, NASA, and 
the Coast Guard, not exceeding $85.5 million), the justification must be 
approved by--
    (i) The head of the procuring activity placing the order;
    (ii) A designee who--
    (A) If a member of the armed forces, is a general or flag officer;
    (B) If a civilian, is serving in a position in a grade above GS-15 
under the General Schedule (or in a comparable or higher position under 
another schedule); or
    (iii) An official named in paragraph (d)(4) of this section.
    (4) For a proposed order or BPA with an estimated value exceeding 
$62.5 million (or, for DoD, NASA, and the Coast Guard, over $85.5 
million), the justification must be approved by the senior procurement 
executive of the agency placing the order. This authority is not 
delegable, except in the case of the Under Secretary of Defense for 
Acquisition, Technology, and Logistics, acting as the senior procurement 
executive for the Department of Defense.

[76 FR 14555, Mar. 16, 2011, as amended at 77 FR 193, Jan. 3, 2012]

[[Page 164]]



Sec. 8.405-7  Payment.

    Agencies may make payments for oral or written orders by any 
authorized means, including the Governmentwide commercial purchase card 
(but see 32.1108(b)(2)).

[74 FR 65604, Dec. 10, 2009]



Sec. 8.406  Ordering activity responsibilities.



Sec. 8.406-1  Order placement.

    (a) Ordering activities may place orders orally, except for--
    (1) Supplies and services not requiring a statement of work 
exceeding the simplified acquisition threshold;
    (2) Services requiring a statement of work (SOW); and
    (3) Orders containing brand-name specifications that exceed $25,000.
    (b) Ordering activities may use Optional Form 347, an agency-
prescribed form, or an established electronic communications format to 
order supplies or services from schedule contracts.
    (c) The ordering activity shall place an order directly with the 
contractor in accordance with the terms and conditions of the pricelists 
(see 8.402(b)). Prior to placement of the order, the ordering activity 
shall ensure that the regulatory and statutory requirements of the 
requiring agency have been applied.
    (d) Orders shall include the following information in addition to 
any information required by the schedule contract:
    (1) Complete shipping and billing addresses.
    (2) Contract number and date.
    (3) Agency order number.
    (4) F.o.b. delivery point; i.e., origin or destination.
    (5) Discount terms.
    (6) Delivery time or period of performance.
    (7) Special item number or national stock number.
    (8) A statement of work for services, when required, or a brief, 
complete description of each item (when ordering by model number, 
features and options such as color, finish, and electrical 
characteristics, if available, must be specified).
    (9) Quantity and any variation in quantity.
    (10) Number of units.
    (11) Unit price.
    (12) Total price of order.
    (13) Points of inspection and acceptance.
    (14) Other pertinent data; e.g., delivery instructions or receiving 
hours and size-of-truck limitation.
    (15) Marking requirements.
    (16) Level of preservation, packaging, and packing.

[76 FR 14557, Mar. 16, 2011]



Sec. 8.406-2  Inspection and acceptance.

    (a) Supplies. (1) Consignees shall inspect supplies at destination 
except when--
    (i) The schedule contract indicates that mandatory source inspection 
is required by the schedule contracting agency; or
    (ii) A schedule item is covered by a product description, and the 
ordering activity determines that the schedule contracting agency's 
inspection assistance is needed (based on the ordering volume, the 
complexity of the supplies, or the past performance of the supplier).
    (2) When the schedule contracting agency performs the inspection, 
the ordering activity will provide two copies of the order specifying 
source inspection to the schedule contracting agency. The schedule 
contracting agency will notify the ordering activity of acceptance or 
rejection of the supplies.
    (3) Material inspected at source by the schedule contracting agency, 
and determined to conform with the product description of the schedule, 
shall not be reinspected for the same purpose. The consignee shall limit 
inspection to kind, count, and condition on receipt.
    (4) Unless otherwise provided in the schedule contract, acceptance 
is conclusive, except as regards latent defects, fraud, or such gross 
mistakes as amount to fraud.
    (b) Services. The ordering activity has the right to inspect all 
services in accordance with the contract requirements and as called for 
by the order. The ordering activity shall perform inspections and tests 
as specified in the order's quality assurance surveillance plan in a 
manner that will not unduly delay the work.

[[Page 165]]



Sec. 8.406-3  Remedies for nonconformance.

    (a) If a contractor delivers a supply or service, but it does not 
conform to the order requirements, the ordering activity shall take 
appropriate action in accordance with the inspection and acceptance 
clause of the contract, as supplemented by the order.
    (b) If the contractor fails to perform an order, or take appropriate 
corrective action, the ordering activity may terminate the order for 
cause or modify the order to establish a new delivery date (after 
obtaining consideration, as appropriate). Ordering activities shall 
follow the procedures at 8.406-4 when terminating an order for cause.



Sec. 8.406-4  Termination for cause.

    (a)(1) An ordering activity contracting officer may terminate 
individual orders for cause. Termination for cause shall comply with FAR 
12.403, and may include charging the contractor with excess costs 
resulting from repurchase.
    (2) The schedule contracting office shall be notified of all 
instances where an ordering activity contracting officer has terminated 
for cause an individual order to a Federal Supply Schedule contractor, 
or if fraud is suspected.
    (b) If the contractor asserts that the failure was excusable, the 
ordering activity contracting officer shall follow the procedures at 
8.406-6, as appropriate.
    (c) If the contractor is charged excess costs, the following apply:
    (1) Any repurchase shall be made at as low a price as reasonable, 
considering the quality required by the Government, delivery 
requirement, and administrative expenses. Copies of all repurchase 
orders, except the copy furnished to the contractor or any other 
commercial concern, shall include the notation:

Repurchase against the account of -------- [insert contractor's name] 
under Order -------- [insert number] under Contract -------- [insert 
number].

    (2) When excess costs are anticipated, the ordering activity may 
withhold funds due the contractor as offset security. Ordering 
activities shall minimize excess costs to be charged against the 
contractor and collect or set-off any excess costs owed.
    (3) If an ordering activity is unable to collect excess repurchase 
costs, it shall notify the schedule contracting office after final 
payment to the contractor.
    (i) The notice shall include the following information about the 
terminated order:
    (A) Name and address of the contractor.
    (B) Schedule, contract, and order number.
    (C) National stock or special item number(s), and a brief 
description of the item(s).
    (D) Cost of schedule items involved.
    (E) Excess costs to be collected.
    (F) Other pertinent data.
    (ii) The notice shall also include the following information about 
the purchase contract:
    (A) Name and address of the contractor.
    (B) Item repurchase cost.
    (C) Repurchase order number and date of payment.
    (D) Contract number, if any.
    (E) Other pertinent data.
    (d) Only the schedule contracting officer may modify the contract to 
terminate for cause any, or all, supplies or services covered by the 
schedule contract. If the schedule contracting officer has terminated 
any supplies or services covered by the schedule contract, no further 
orders may be placed for those items. Orders placed prior to termination 
for cause shall be fulfilled by the contractor, unless terminated for 
the convenience of the Government by the ordering activity contracting 
officer.
    (e) Reporting. An ordering activity contracting officer, in 
accordance with agency procedures, shall ensure that information related 
to termination for cause notices and any amendments are reported. In the 
event the termination for cause is subsequently converted to a 
termination for convenience, or is otherwise withdrawn, the contracting 
officer shall ensure that a notice of the conversion or withdrawal is 
reported. All reporting shall be in accordance with 42.1503(h).

[69 FR 34234, June 18, 2004, as amended at 75 FR 60260, Sept. 29, 2010; 
78 FR 46787, Aug. 1, 2013]

[[Page 166]]



Sec. 8.406-5  Termination for the Government's convenience.

    (a) An ordering activity contracting officer may terminate 
individual orders for the Government's convenience. Terminations for the 
Government's convenience shall comply with FAR 12.403.
    (b) Before terminating orders for the Government's convenience, the 
ordering activity contracting officer shall endeavor to enter into a 
``no cost'' settlement agreement with the contractor.
    (c) Only the schedule contracting officer may modify the schedule 
contract to terminate any, or all, supplies or services covered by the 
schedule contract for the Government's convenience.



Sec. 8.406-6  Disputes.

    (a) Disputes pertaining to the performance of orders under a 
schedule contract. (1) Under the Disputes clause of the schedule 
contract, the ordering activity contracting officer may--
    (i) Issue final decisions on disputes arising from performance of 
the order (but see paragraph (b) of this section); or
    (ii) Refer the dispute to the schedule contracting officer.
    (2) The ordering activity contracting officer shall notify the 
schedule contracting officer promptly of any final decision.
    (b) Disputes pertaining to the terms and conditions of schedule 
contracts. The ordering activity contracting officer shall refer all 
disputes that relate to the contract terms and conditions to the 
schedule contracting officer for resolution under the Disputes clause of 
the contract and notify the schedule contractor of the referral.
    (c) Appeals. Contractors may appeal final decisions to either the 
Board of Contract Appeals servicing the agency that issued the final 
decision or the U.S. Court of Federal Claims.
    (d) Alternative dispute resolution. The contracting officer should 
use the alternative dispute resolution (ADR) procedures, to the maximum 
extent practicable (see 33.204 and 33.214).



Sec. 8.406-7  Contractor Performance Evaluation.

    Ordering activities must prepare at least annually and at the time 
the work under the order is completed, an evaluation of contractor 
performance for each order that exceeds the simplified acquisition 
threshold in accordance with 42.1502(c).

[78 FR 46787, Aug. 1, 2013]

                    Subpart 8.5_Acquisition of Helium

    Source: 67 FR 13064, Mar. 20, 2002, unless otherwise noted.



Sec. 8.500  Scope of subpart.

    This subpart implements the requirements of the Helium Act (50 
U.S.C. 167, et seq.) concerning the acquisition of liquid or gaseous 
helium by Federal agencies or by Government contractors or 
subcontractors for use in the performance of a Government contract (also 
see 43 CFR part 3195).



Sec. 8.501  Definitions.

    As used in this subpart--
    Bureau of Land Management means the Department of the Interior, 
Bureau of Land Management, Amarillo Field Office, Helium Operations, 801 
South Fillmore Street, Suite 500, Amarillo, TX 79101-3545.
    Federal helium supplier means a private helium vendor that has an 
in-kind crude helium sales contract with the Bureau of Land Management 
(BLM) and that is on the BLM Amarillo Field Office's Authorized List of 
Federal Helium Suppliers available via the Internet at http://blm.gov/
8pjd.
    Major helium requirement means an estimated refined helium 
requirement greater than 200,000 standard cubic feet (scf) (measured at 
14.7 pounds per square inch absolute pressure and 70 degrees Fahrenheit 
temperature) of gaseous helium or 7510 liters of liquid helium delivered 
to a helium use location per year.

[67 FR 13064, Mar. 20, 2002, as amended at 76 FR 68044, Nov. 2, 2011]



Sec. 8.502  Policy.

    Agencies and their contractors and subcontractors must purchase 
major

[[Page 167]]

helium requirements from Federal helium suppliers, to the extent that 
supplies are available.



Sec. 8.503  Exception.

    The requirements of this subpart do not apply to contracts or 
subcontracts in which the helium was acquired by the contractor prior to 
award of the contract or subcontract.



Sec. 8.504  Procedures.

    The contracting officer must forward the following information to 
the Bureau of Land Management within 45 days of the close of each fiscal 
quarter:
    (a) The name of any company that supplied a major helium 
requirement.
    (b) The amount of helium purchased.
    (c) The delivery date(s).
    (d) The location where the helium was used.



Sec. 8.505  Contract clause.

    Insert the clause at 52.208-8, Required Sources for Helium and 
Helium Usage Data, in solicitations and contracts if it is anticipated 
that performance of the contract involves a major helium requirement.

      Subpart 8.6_Acquisition From Federal Prison Industries, Inc.

    Source: 69 FR 16149, Mar. 26, 2004, unless otherwise noted.



Sec. 8.601  General.

    (a) Federal Prison Industries, Inc. (FPI), also referred to as 
UNICOR, is a self-supporting, wholly owned Government corporation of the 
District of Columbia.
    (b) FPI provides training and employment for prisoners confined in 
Federal penal and correctional institutions through the sale of its 
supplies and services to Government agencies (18 U.S.C. 4121-4128).
    (c) FPI diversifies its supplies and services to minimize adverse 
impact on private industry.
    (d) Supplies manufactured and services performed by FPI are listed 
in the FPI Schedule, which can be accessed at http://www.unicor.gov or 
by submitting a written request to Federal Prison Industries, Inc., 
Department of Justice, Washington, DC 20534.
    (e) Agencies are encouraged to purchase FPI supplies and services to 
the maximum extent practicable.

[69 FR 16149, Mar. 26, 2004, as amended at 70 FR 18958, Apr. 11, 2005]



Sec. 8.602  Policy.

    (a) In accordance with 10 U.S.C. 2410n and Section 637 of Division H 
of the Consolidated Appropriations Act, 2005 (Pub. L. 108-447), and 
except as provided in paragraph (b) of this section, agencies shall--
    (1) Before purchasing an item of supply listed in the FPI Schedule, 
conduct market research to determine whether the FPI item is comparable 
to supplies available from the private sector that best meet the 
Government's needs in terms of price, quality, and time of delivery. 
This is a unilateral determination made at the discretion of the 
contracting officer. The arbitration provisions of 18 U.S.C. 4124(b) do 
not apply;
    (2) Prepare a written determination that includes supporting 
rationale explaining the assessment of price, quality, and time of 
delivery, based on the results of market research comparing the FPI item 
to supplies available from the private sector;
    (3) If the FPI item is comparable, purchase the item from FPI 
following the ordering procedures at http://www.unicor.gov, unless a 
waiver is obtained in accordance with 8.604; and
    (4) If the FPI item is not comparable in one or more of the areas of 
price, quality, and time of delivery--
    (i) Acquire the item using--
    (A) Competitive procedures (e.g., the procedures in 6.102, the set-
aside procedures in subpart 19.5, or competition conducted in accordance 
with part 13); or
    (B) The fair opportunity procedures in 16.505, if placing an order 
under a multiple award delivery-order contract;
    (ii) Include FPI in the solicitation process and consider a timely 
offer from FPI for award in accordance with the item description or 
specifications, and evaluation factors in the solicitation--
    (A) If the solicitation is available through the Governmentwide 
point of

[[Page 168]]

entry (FedBizOpps), it is not necessary to provide a separate copy of 
the solicitation to FPI;
    (B) If the solicitation is not available through FedBizOpps, provide 
a copy of the solicitation to FPI;
    (iii) When using a multiple award schedule issued under the 
procedures in Subpart 8.4 or when using the fair opportunity procedures 
in 16.505--
    (A) Establish and communicate to FPI the item description or 
specifications, and evaluation factors that will be used as the basis 
for selecting a source, so that an offer from FPI can be evaluated on 
the same basis as the contract or schedule holder; and
    (B) Consider a timely offer from FPI;
    (iv) Award to the source offering the item determined by the agency 
to provide the best value to the Government; and
    (v) When the FPI item is determined to provide the best value to the 
Government as a result of FPI's response to a competitive solicitation, 
follow the ordering procedures at http://www.unicor.gov.
    (b) The procedures in paragraph (a) of this section do not apply if 
an exception in 8.605(b) through (g) applies.
    (c) In some cases where FPI and an AbilityOne participating 
nonprofit agency produce identical items (see 8.603), FPI grants a 
waiver to permit the Government to purchase a portion of its requirement 
from the AbilityOne participating nonprofit agency. When this occurs, 
the portion of the requirement for which FPI has granted a waiver--
    (1) Shall be purchased from the AbilityOne participating nonprofit 
agency using the procedures in Subpart 8.7; and
    (2) Shall not be subject to the procedures in paragraph (a) of this 
section.
    (d) Disputes regarding price, quality, character, or suitability of 
supplies produced by FPI, except for determinations under paragraph 
(a)(1) of this section, are subject to arbitration as specified in 18 
U.S.C. 4124. The statute provides that the arbitration shall be 
conducted by a board consisting of the Comptroller General of the United 
States, the Administrator of General Services, and the President, or 
their representatives. The decisions of the board are final and binding 
on all parties.

[69 FR 16149, Mar. 26, 2004, as amended at 70 FR 18958, Apr. 11, 2005; 
71 FR 222, Jan. 3, 2006; 73 FR 53994, Sept. 17, 2008]



Sec. 8.603  Purchase priorities.

    FPI and nonprofit agencies participating in the AbilityOne Program 
under the Javits-Wagner-O'Day Act (see Subpart 8.7) may produce 
identical supplies or services. When this occurs, ordering offices shall 
purchase supplies and services in the following priorities:
    (a) Supplies. (1) Federal Prison Industries, Inc. (41 U.S.C. 48).
    (2) AbilityOne participating nonprofit agencies.
    (3) Commercial sources.
    (b) Services. (1) AbilityOneparticipating nonprofit agencies.
    (2) Federal Prison Industries, Inc., or commercial sources.

[69 FR 16149, Mar. 26, 2004, as amended at 73 FR 53994, Sept. 17, 2008]



Sec. 8.604  Waivers.

    FPI may grant a waiver for purchase of supplies in the FPI Schedule 
from another source. FPI waivers ordinarily are of the following types:
    (a) General or blanket waivers issued when classes of supplies are 
not available from FPI.
    (b) Formal waivers issued in response to requests from offices 
desiring to acquire, from other sources, supplies listed in the FPI 
Schedule and not covered by a general waiver. Agencies shall process 
waiver requests in accordance with the procedures at http://
www.unicor.gov.



Sec. 8.605  Exceptions.

    Purchase from FPI is not mandatory and a waiver is not required if--
    (a)(1) The contracting officer makes a determination that the FPI 
item of supply is not comparable to supplies available from the private 
sector that best meet the Government's needs in terms of price, quality, 
and time of delivery; and
    (2) The item is acquired in accordance with 8.602(a)(4);
    (b) Public exigency requires immediate delivery or performance;

[[Page 169]]

    (c) Suitable used or excess supplies are available;
    (d) The supplies are acquired and used outside the United States;
    (e) Acquiring listed items totaling $3,000 or less;
    (f) Acquiring items that FPI offers exclusively on a competitive 
(non-mandatory) basis, as identified in the FPI Schedule; or
    (g) Acquiring services.

[69 FR 16149, Mar. 26, 2004, as amended at 70 FR 18958, Apr. 11, 2005; 
71 FR 223, Jan. 3, 2006; 73 FR 53994, Sept. 17, 2008]



Sec. 8.606  Evaluating FPI performance.

    Agencies shall evaluate FPI contract performance in accordance with 
subpart 42.15. Performance evaluations do not negate the requirements of 
8.602 and 8.604, but they may be used to support a waiver request in 
accordance with 8.604.



Sec. 8.607  Performance as a subcontractor.

    Agencies shall not require a contractor, or subcontractor at any 
tier, to use FPI as a subcontractor for performance of a contract by any 
means, including means such as--
    (a) A solicitation provision requiring a potential contractor to 
offer to make use of FPI supplies or services;
    (b) A contract specification requiring the contractor to use 
specific supplies or services (or classes of supplies or services) 
offered by FPI; or
    (c) Any contract modification directing the use of FPI supplies or 
services.



Sec. 8.608  Protection of classified and sensitive information.

    Agencies shall not enter into any contract with FPI that allows an 
inmate worker access to any--
    (a) Classified data;
    (b) Geographic data regarding the location of--
    (1) Surface and subsurface infrastructure providing communications 
or water or electrical power distribution;
    (2) Pipelines for the distribution of natural gas, bulk petroleum 
products, or other commodities; or
    (3) Other utilities; or
    (c) Personal or financial information about any individual private 
citizen, including information relating to such person's real property 
however described, without the prior consent of the individual.

Subpart 8.7_Acquisition From Nonprofit Agencies Employing People Who Are 
                       Blind or Severely Disabled



Sec. 8.700  Scope of subpart.

    This subpart prescribes the policies and procedures for implementing 
the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) and the rules of the 
Committee for Purchase from People Who Are Blind or Severely Disabled 
(41 CFR Chapter 51) which implements the AbilityOne Program.

[73 FR 53994, Sept. 17, 2008]



Sec. 8.701  Definitions.

    As used in this subpart--
    Allocation, means an action taken by a central nonprofit agency to 
designate the AbilityOne participating nonprofit agencies that will 
furnish definite quantities of supplies or perform specific services 
upon receipt of orders from ordering offices.
    Central nonprofit agency, means National Industries for the Blind 
(NIB), which has been designated to represent people who are blind; or 
NISH, which has been designated to represent AbilityOne participating 
nonprofit agencies serving people with severe disabilities other than 
blindness.
    Committee, means the Committee for Purchase from People Who Are 
Blind or Severely Disabled.
    Government or entity of the Government means any entity of the 
legislative or judicial branch, any executive agency, military 
department, Government corporation, or independent establishment, the 
U.S. Postal Service, or any nonappropriated-fund instrumentality of the 
Armed Forces.
    Ordering office means any activity in an entity of the Government 
that places orders for the purchase of supplies or services under the 
JWOD Program.
    Procurement List, means a list of supplies (including military 
resale commodities) and services that the Committee has determined are 
suitable for purchase by the Government under the Javits-Wagner-O'Day 
Act.

[[Page 170]]

    Nonprofit agency serving people who are blind or nonprofit agency 
serving people with other severe disabilities (referred to jointly as 
AbilityOne participating nonprofit agencies) means a qualified nonprofit 
agency employing people who are blind or have other severe disabilities 
approved by the Committee to furnish a commodity or a service to the 
Government under the Act.

[59 FR 67027, Dec. 28, 1994, as amended at 66 FR 2128, Jan. 10, 2001; 73 
FR 53995, Sept. 17, 2008]



Sec. 8.702  General.

    The Committee is an independent Government activity with members 
appointed by the President of the United States. It is responsible for--
    (a) Determining those supplies and services to be purchased by all 
entities of the Government from AbilityOne participating nonprofit 
agencies;
    (b) Establishing prices for the supplies and services; and
    (c) Establishing rules and regulations to implement the Javits-
Wagner-O-Day Act.

[59 FR 67028, Dec. 28, 1994, as amended at 73 FR 53995, Sept. 17, 2008]



Sec. 8.703  Procurement list.

    The Committee maintains a Procurement List of all supplies and 
services required to be purchased from AbilityOne participating 
nonprofit agencies. The Procurement List may be accessed at: http://
www.abilityone.gov. Questions concerning whether a supply item or 
service is on the Procurement List may be submitted at Internet email 
address [email protected] or referred to the Committee offices at the 
following address and telephone number: Committee for Purchase From 
People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 
10800, Arlington, VA 22202-3259, 703-603-7740.
    Many items on the Procurement List are identified in the General 
Services Administration (GSA) Supply Catalog and GSA's Customer Service 
Center Catalogs with a black square and the words ``NIB/NISH Mandatory 
Source,'' and in similar catalogs issued by the Defense Logistics Agency 
(DLA) and the Department of Veterans Affairs (VA). GSA, DLA, and VA are 
central supply agencies from which other Federal agencies are required 
to purchase certain supply items on the Procurement List.

[59 FR 67028, Dec. 28, 1994, as amended at 69 FR 34230, June 18, 2004; 
73 FR 53995, Sept. 17, 2008; 74 FR 65615, Dec. 10, 2009; 77 FR 204, Jan. 
3, 2012; 78 FR 37698, June 21, 2013]



Sec. 8.704  Purchase priorities.

    (a) The Javits-Wagner-O'Day Act requires the Government to purchase 
supplies or services on the Procurement List, at prices established by 
the Committee, from AbilityOne participating nonprofit agencies if they 
are available within the period required. When identical supplies or 
services are on the Procurement List and the Schedule of Products issued 
by Federal Prison Industries, Inc., ordering offices shall purchase 
supplies and services in the following priorities:
    (1) Supplies:
    (i) Federal Prison Industries, Inc. (41 U.S.C. 48).
    (ii) AbilityOne participating nonprofit agencies.
    (iii) Commercial sources.
    (2) Services:
    (i) AbilityOne participating nonprofit agencies.
    (ii) Federal Prison Industries, Inc., or commercial sources.
    (b) No other provision of the FAR shall be construed as permitting 
an exception to the mandatory purchase of items on the Procurement List.
    (c) The Procurement List identifies those supplies for which the 
ordering office must obtain a formal waiver (8.604) from Federal Prison 
Industries, Inc., before making any purchases from AbilityOne 
participating nonprofit agencies.

[48 FR 42129, Sept. 19, 1983, as amended at 51 FR 19713, May 30, 1986; 
56 FR 15149, Apr. 15, 1991; 59 FR 67028, Dec. 28, 1994; 69 FR 16150, 
Mar. 26, 2004; 73 FR 53995, Sept. 17, 2008]



Sec. 8.705  Procedures.



Sec. 8.705-1  General.

    (a) Ordering offices shall obtain supplies and services on the 
Procurement List from the central nonprofit agency or its designated 
AbilityOne participating nonprofit agencies, except that

[[Page 171]]

supplies identified on the Procurement List as available from DLA, GSA, 
or VA supply distribution facilities shall be obtained through DLA, GSA, 
or VA procedures. If a distribution facility cannot provide the 
supplies, it shall inform the ordering office, which shall then order 
from the AbilityOne participating nonprofit agency designated by the 
Committee.
    (b) Supply distribution facilities in DLA and GSA shall obtain 
supplies on the Procurement List from the central nonprofit agency 
identified or its designated AbilityOneparticipating nonprofit agency.

[48 FR 42129, Sept. 19, 1983, as amended at 59 FR 67028, 67029, Dec. 28, 
1994; 73 FR 53995, Sept. 17, 2008]



Sec. 8.705-2  Direct-order process.

    Central nonprofit agencies may authorize ordering offices to 
transmit orders for specific supplies or services directly to a 
AbilityOne participating nonprofit agency. The written authorization 
remains valid until it is revoked by the central nonprofit agency or the 
Committee. The central nonprofit agency shall specify the normal 
delivery or performance lead time required by the nonprofit agency. The 
ordering office shall reflect this lead time in its orders.

[48 FR 42129, Sept. 19, 1983, as amended at 56 FR 67136, Dec. 27, 1991; 
59 FR 67029, Dec. 28, 1994; 73 FR 53995, Sept. 17, 2008]



Sec. 8.705-3  Allocation process.

    (a) When the direct order process has not been authorized, the 
ordering office shall submit a written request for allocation 
(requesting the designation of the AbilityOneparticipating nonprofit 
agency to produce the supplies or perform the service) to the central 
nonprofit agency designated in the Procurement List. Ordering offices 
shall request allocations in sufficient time for a reply, for orders to 
be placed, and for the nonprofit agency to produce the supplies or 
provide the service within the required delivery or performance 
schedule.
    (b) The ordering office's request to the central nonprofit agency 
for allocation shall include the following information:
    (1) For supplies--Item name, stock number, latest specification, 
quantity, unit price, date delivery is required, and destination to 
which delivery is to be made.
    (2) For services--Type and location of service required, latest 
specification, work to be performed, estimated volume, and required date 
or dates for completion.
    (3) Other requirements; e.g., packing, marking, as necessary.
    (c) When an allocation is received, the ordering office shall 
promptly issue an order to the specified AbilityOne participating 
nonprofit agency or to the central nonprofit agency, as instructed by 
the allocation. If the issuance of an order is to be delayed for more 
than 15 days beyond receipt of the allocation, or canceled, the ordering 
office shall advise the central nonprofit agency immediately.
    (d) Ordering offices may issue orders without limitation as to 
dollar amount and shall record them upon issuance as obligations. Each 
order shall include, as a minimum, the information contained in the 
request for allocation. Ordering offices shall also include additional 
instructions necessary for performance under the order; e.g., on the 
handling of Government-furnished property, reports required, and 
notification of shipment.

[48 FR 42129, Sept. 19, 1983, as amended at 59 FR 67029, Dec. 28, 1994; 
60 FR 34737, July 3, 1995; 73 FR 53995, Sept. 17, 2008]



Sec. 8.705-4  Compliance with orders.

    (a) The central nonprofit agency shall inform the ordering office of 
changes in lead time experienced by its AbilityOne participating 
nonprofit agencies to minimize requests for extensions once the ordering 
office places an order.
    (b) The ordering office shall grant a request by a central nonprofit 
agency or AbilityOne participating nonprofit agency for revision in the 
delivery or completion schedule, if feasible. If extension of the 
delivery or completion date is not feasible, the ordering office shall 
notify the appropriate central nonprofit agency and request that it 
reallocate the order, or grant a purchase exception authorizing 
acquisition from commercial sources.

[[Page 172]]

    (c) When an AbilityOne participating nonprofit agency fails to 
perform under the terms of an order, the ordering office shall make 
every effort to resolve the noncompliance with the nonprofit agency 
involved and to negotiate an adjustment before taking action to cancel 
the order. If the problem cannot be resolved with the nonprofit agency, 
the ordering office shall refer the matter for resolution first to the 
central nonprofit agency and then, if necessary, to the Committee.
    (d) When, after complying with 8.705-4(c), the ordering office 
determines that it must cancel an order, it shall notify the central 
nonprofit agency and, if practical, request a reallocation of the order. 
When the central nonprofit agency cannot reallocate the order, it shall 
grant a purchase exception permitting use of commercial sources, subject 
to approval by the Committee when the value of the purchase exception is 
$25,000 or more.

[48 FR 42129, Sept. 19, 1983, as amended at 56 FR 67136, Dec. 27, 1991; 
59 FR 67028, 67029, Dec. 28, 1994; 73 FR 53995, Sept. 17, 2008]



Sec. 8.706  Purchase exceptions.

    (a) Ordering offices may acquire supplies or services on the 
Procurement List from commercial sources only if the acquisition is 
specifically authorized in a purchase exception granted by the 
designated central nonprofit agency.
    (b) The central nonprofit agency shall promptly grant purchase 
exceptions when--
    (1) The AbilityOne participating nonprofit agencies cannot provide 
the supplies or services within the time required, and commercial 
sources can provide them significantly sooner in the quantities 
required; or
    (2) The quantity required cannot be produced or provided 
economically by the AbilityOne participating nonprofit agencies.
    (c) The central nonprofit agency granting the exception shall 
specify the quantity and delivery or performance period covered by the 
exception.
    (d) When a purchase exception is granted, the contracting officer 
shall--
    (1) Initiate purchase action within 15 days following the date of 
the exception or any extension granted by the central nonprofit agency; 
and
    (2) Provide a copy of the solicitation to the central nonprofit 
agency when it is issued.
    (e) The Committee may also grant a purchase exception, under any 
circumstances it considers appropriate.

[48 FR 42129, Sept. 19, 1983, as amended at 59 FR 67028, 67029, Dec. 28, 
1994; 73 FR 53995, Sept. 17, 2008]



Sec. 8.707  Prices.

    (a) The prices of items on the Procurement List are fair market 
prices established by the Committee. All prices for supplies ordered 
under this subpart are f.o.b. origin.
    (b) Prices for supplies are normally adjusted semiannually. Prices 
for services are normally adjusted annually.
    (c) The Committee may request the agency responsible for acquiring 
the supplies or service to assist it in establishing or revising the 
fair market price. The Committee has the authority to establish prices 
without prior coordination with the responsible contracting office.
    (d) Price changes shall normally apply to all orders received by the 
AbilityOne participating nonprofit agency on or after the effective date 
of the change. In special cases, after considering the views of the 
ordering office, the Committee may make price changes applicable to 
orders received by the AbilityOne participating nonprofit agency prior 
to the effective date of the change.
    (e) If an ordering office desires packing, packaging, or marking of 
supplies other than the standard pack as provided on the Procurement 
List, any difference in costs shall be included as a separate item on 
the nonprofit agency's invoice. The ordering office shall reimburse the 
nonprofit agency for these costs.
    (f) Ordering offices may make recommendations to the Committee at 
any time for price revisions for supplies and services on the 
Procurement List.

[48 FR 42129, Sept. 19, 1983, as amended at 59 FR 67028, 67029, Dec. 28, 
1994; 73 FR 53995, Sept. 17, 2008]

[[Page 173]]



Sec. 8.708  Shipping.

    (a) Delivery is accomplished when a shipment is placed aboard the 
vehicle of the initial carrier. The time of delivery is the date 
shipment is released to and accepted by the initial carrier.
    (b) Shipment is normally under Government bills of lading. However, 
for small orders, ordering offices may specify other shipment methods.
    (c) When shipments are under Government bills of lading, the bills 
of lading may accompany orders or be otherwise furnished promptly. 
Failure of an ordering office to furnish bills of lading or to designate 
a method of transportation may result in an excusable delay in delivery.
    (d) AbilityOne participating nonprofit agencies shall include 
transportation costs for small shipments paid by the nonprofit agencies 
as an item on the invoice. The ordering office shall reimburse the 
nonprofit agencies for these costs.

[48 FR 42129, Sept. 19, 1983, as amended at 51 FR 19713, May 30, 1986; 
59 FR 67028, Dec. 28, 1994; 73 FR 53995, Sept. 17, 2008]



Sec. 8.709  Payments.

    The ordering office shall make payments for supplies or services on 
the Procurement List within 30 days after shipment or after receipt of a 
proper invoice or voucher.

[59 FR 67028, Dec. 28, 1994]



Sec. 8.710  Quality of merchandise.

    Supplies and services provided by AbilityOne participating nonprofit 
agencies shall comply with the applicable Government specifications and 
standards cited in the order. When no specifications or standards 
exist--
    (a) Supplies shall be of the highest quality and equal to similar 
items available on the commercial market; and
    (b) Services shall conform to good commercial practices.

[48 FR 42129, Sept. 19, 1983, as amended at 59 FR 67029, Dec. 28, 1994; 
73 FR 53995, Sept. 17, 2008]



Sec. 8.711  Quality complaints.

    (a) When the quality of supplies or services received is 
unsatisfactory, the using activity shall take the following actions:
    (1) For supplies received from DLA supply centers, GSA supply 
distribution facilities, or Department of Veterans Affairs distribution 
division, notify the supplying agency.
    (2) For supplies or services received from AbilityOne participating 
nonprofit agencies, address complaints to the individual nonprofit 
agency involved, with a copy to the appropriate central nonprofit 
agency.
    (b) When quality problems cannot be resolved by the AbilityOne 
participating nonprofit agency and the ordering office, the ordering 
office shall first contact the central nonprofit agency and then, if 
necessary, the Committee for resolution.

[48 FR 42129, Sept. 19, 1983, as amended at 59 FR 67029, Dec. 28, 1994; 
73 FR 53995, Sept. 17, 2008]



Sec. 8.712  Specification changes.

    (a) The contracting activity shall notify the AbilityOne 
participating nonprofit agency and appropriate central nonprofit agency 
of any change in specifications or descriptions. In the absence of such 
written notification, the AbilityOneparticipating nonprofit agency shall 
furnish the supplies or services under the specification or description 
cited in the order.
    (b) The contracting activity shall provide 90-days advance 
notification to the Committee and the central nonprofit agency on 
actions that affect supplies on the Procurement List and shall permit 
them to comment before action is taken, particularly when it involves--
    (1) Changes that require new national stock numbers or item 
designations;
    (2) Deleting items from the supply system;
    (3) Standardization; or
    (4) Developing new items to replace items on the Procurement List.
    (c) For services, the contracting activity shall notify the 
AbiiltyOneparticipating nonprofit agency and central nonprofit agency 
concerned at least 90 days prior to the date that any changes in the 
scope of work or other conditions will be required.

[[Page 174]]

    (d) When, in order to meet its emergency needs, a contracting 
activity is unable to give the 90-day notification required in 
paragraphs (b) and (c) of this section, the contracting activity shall, 
at the time it places the order or change notice, inform the AbilityOne 
participating nonprofit agency and the central nonprofit agency in 
writing of the reasons that it cannot meet the 90-day notification 
requirement.

[48 FR 42129, Sept. 19, 1983, as amended at 51 FR 19714, May 30, 1986; 
59 FR 67029, Dec. 28, 1994; 73 FR 53995, Sept. 17, 2008]



Sec. 8.713  Optional acquisition of supplies and services.

    (a) Ordering offices may acquire supplies and services not included 
on the Procurement List from a AbilityOne participating nonprofit agency 
that is the low responsive, responsible offeror under a solicitation 
issued by other authorized acquisition methods.
    (b) Ordering offices should forward solicitations to AbilityOne 
participating nonprofit agencies that may be qualified to provide the 
supplies or services required.

[48 FR 42129, Sept. 19, 1983, as amended at 59 FR 67029, Dec. 28, 1994; 
73 FR 53995, Sept. 17, 2008]



Sec. 8.714  Communications with the central nonprofit agencies and the 
          Committee.

    (a) The addresses of the central nonprofit agencies are:
    (1) National Industries for the Blind, 1310 Braddock Place, 
Alexandria, VA 22314-1691, (703) 310-0500; and
    (2) NISH, 8401 Old Courthouse Road, Vienna, VA 22182, (571) 226-
4660.
    (b) Any matter requiring referral to the Committee shall be 
addressed to the Executive Director of the Committee, 1401 S. Clark 
Street, Suite 10800, Arlington, VA 22202-3259.

[59 FR 67029, Dec. 28, 1994, as amended at 69 FR 34230, June 18, 2004; 
71 FR 36941, June 28, 2006; 78 FR 37698, June 21, 2013]



Sec. 8.715  Replacement commodities.

    When a commodity on the Procurement List is replaced by another 
commodity which has not been previously acquired, and a qualified 
AbilityOne participating nonprofit agency can furnish the replacement 
commodity in accordance with the Government's quality standards and 
delivery schedules and at a fair market price, the replacement commodity 
is automatically on the Procurement List and shall be acquired from the 
AbilityOne participating nonprofit agency designated by the Committee. 
The commodity being replaced shall continue to be included on the 
Procurement List until there is no longer a requirement for that 
commodity.

[51 FR 19714, May 30, 1986, as amended at 59 FR 67029, Dec. 28, 1994; 73 
FR 53995, Sept. 17, 2008]



Sec. 8.716  Change-of-name and successor in interest procedures.

    When the Committee recognizes a name change or a successor in 
interest for an AbilityOneparticipating nonprofit agency providing 
supplies or services on the Procurement List--
    (a) The Committee will provide a notice of a change to the 
Procurement List to the cognizant contracting officers; and
    (b) Upon receipt of a notice of a change to the Procurement List 
from the Committee, the contracting officer must--
    (1) Prepare a Standard Form (SF) 30, Amendment of Solicitation/
Modification of Contract, incorporating a summary of the notice and 
attaching a list of contracts affected; and
    (2) Distribute the SF 30, including a copy to the Committee.

[64 FR 51834, Sept. 24, 1999, as amended at 73 FR 53995, Sept. 17, 2008]

        Subpart 8.8_Acquisition of Printing and Related Supplies



Sec. 8.800  Scope of subpart.

    This subpart provides policy for the acquisition of Government 
printing and related supplies.

[52 FR 9037, Mar. 20, 1987]



Sec. 8.801  Definitions.

    As used in this subpart--
    Government printing means printing, binding, and blankbook work for 
the use of an executive department, independent agency, or establishment 
of the Government.

[[Page 175]]

    Related supplies, means supplies that are used and equipment that is 
usable in printing and binding operations.

[48 FR 42129, Sept. 19, 1983, as amended at 52 FR 9037, Mar. 20, 1987; 
66 FR 2128, Jan. 10, 2001]



Sec. 8.802  Policy.

    (a) Government printing must be done by or through the Government 
Printing Office (GPO) (44 U.S.C. 501), unless--
    (1) The GPO cannot provide the printing service (44 U.S.C. 504);
    (2) The printing is done in field printing plants operated by an 
executive agency (44 U.S.C. 501(2));
    (3) The printing is acquired by an executive agency from allotments 
for contract field printing (44 U.S.C. 501(2)); or
    (4) The printing is specifically authorized by statute to be done 
other than by the GPO.
    (b) The head of each agency shall designate a central printing 
authority; that central printing authority may serve as the liaison with 
the Congressional Joint Committee on Printing (JCP) and the Public 
Printer on matters related to printing. Contracting officers shall 
obtain approval from their designated central printing authority before 
contracting in any manner, whether directly or through contracts for 
other supplies or services, for the items defined in 8.801 and for 
composition, platemaking, presswork, binding, and micrographics (when 
used as a substitute for printing).
    (c)(1) Further, 44 U.S.C. 1121 provides that the Public Printer may 
acquire and furnish paper and envelopes (excluding envelopes printed in 
the course of manufacture) in common use by two or more Government 
departments, establishments, or services within the District of 
Columbia, and provides for reimbursement of the Public Printer from 
available appropriations or funds. Paper and envelopes that are 
furnished by the Public Printer may not be acquired in any other manner.
    (2) Paper and envelopes for use by Executive agencies outside the 
District of Columbia and stocked by GSA shall be requisitioned from GSA 
in accordance with the procedures listed in Federal Property Management 
Regulations (FPMR) 41 CFR part 101, subpart 101-26.3.

[48 FR 42129, Sept. 19, 1983, as amended at 52 FR 9037, Mar. 20, 1987; 
54 FR 48982, Nov. 28, 1989; 59 FR 67032, Dec. 28, 1994]

Subparts 8.9-8.10 [Reserved]

                 Subpart 8.11_Leasing of Motor Vehicles



Sec. 8.1100  Scope of subpart.

    This subpart covers the procedures for the leasing, from commercial 
concerns, of motor vehicles that comply with Federal Motor Vehicle 
Safety Standards and applicable State motor vehicle safety regulations. 
It does not apply to motor vehicles leased outside the United States and 
its outlying areas.

[48 FR 42129, Sept. 19, 1983, as amended at 68 FR 28080, May 22, 2003]



Sec. 8.1101  Definitions.

    As used in this subpart--
    Leasing, means the acquisition of motor vehicles, other than by 
purchase from private or commercial sources, and includes the synonyms 
hire and rent.
    Motor vehicle means an item of equipment, mounted on wheels and 
designed for highway and/or land use, that (1) derives power from a 
self-contained power unit or (2) is designed to be towed by and used in 
conjunction with self-propelled equipment.

[48 FR 42129, Sept. 19, 1983, as amended at 66 FR 2128, Jan. 10, 2001]



Sec. 8.1102  Presolicitation requirements.

    (a) Except as specified in 8.1102(b), before preparing solicitations 
for leasing of motor vehicles, contracting officers shall obtain from 
the requiring activity a written certification that--
    (1) The vehicles requested are of maximum fuel efficiency and 
minimum body size, engine size, and equipment (if any) necessary to 
fulfill operational needs, and meet prescribed fuel economy standards;
    (2) The head of the requiring agency, or a designee, has certified 
that the requested passenger automobiles (sedans and station wagons) 
larger than Type

[[Page 176]]

IA, IB, or II (small, subcompact, or compact) are essential to the 
agency's mission;
    (3) Internal approvals have been received; and
    (4) The General Services Administration has advised that it cannot 
furnish the vehicles.
    (b) With respect to requirements for leasing motor vehicles for a 
period of less than 60 days, the contracting officer need not obtain the 
certification specified in 8.1102(a)--
    (1) If the requirement is for type 1A, 1B, or II vehicles, which are 
by definition fuel efficient; or
    (2) If the requirement is for passenger vehicles larger than 1A, 1B, 
or II, and the agency has established procedures for advance approval, 
on a case-by-case basis, of such requirements.
    (c) Generally, solicitations shall not be limited to current-year 
production models. However, with the prior approval of the head of the 
contracting office, solicitations may be limited to current models on 
the basis of overall economy.

[48 FR 42129, Sept. 19, 1983, as amended at 55 FR 25527, June 21, 1990]



Sec. 8.1103  Contract requirements.

    Contracting officers shall include the following items in each 
contract for leasing motor vehicles:
    (a) Scope of contract.
    (b) Method of computing payments.
    (c) A listing of the number and type of vehicles required, and the 
equipment and accessories to be provided with each vehicle.
    (d) Responsibilities of the contractor or the Government for 
furnishing gasoline, motor oil, antifreeze, and similar items.
    (e) Unless it is determined that it will be more economical for the 
Government to perform the work, a statement that the contractor shall 
perform all maintenance on the vehicles.
    (f) A statement as to the applicability of pertinent State and local 
laws and regulations, and the responsibility of each party for 
compliance with them.
    (g) Responsibilities of the contractor or the Government for 
emergency repairs and services.



Sec. 8.1104  Contract clauses.

    Insert the following clauses in solicitations and contracts for 
leasing of motor vehicles, unless the motor vehicles are leased in 
foreign countries:
    (a) The clause at 52.208-4, Vehicle Lease Payments.
    (b) The clause at 52.208-5, Condition of Leased Vehicles.
    (c) The clause at 52.208-6, Marking of Leased Vehicles.
    (d) A clause substantially the same as the clause at 52.208-7, 
Tagging of Leased Vehicles, for vehicles leased over 60 days (see 
subpart B of 41 CFR 102-34).
    (e) The provisions and clauses prescribed elsewhere in the FAR for 
solicitations and contracts for supplies when a fixed-price contract is 
contemplated, but excluding--
    (1) The clause at 52.211-16, Variation in Quantity;
    (2) The clause at 52.232-1, Payments;
    (3) The clause at 52.222-20, Walsh-Healey Public Contracts Act; and
    (4) The clause at 52.246-16, Responsibility for Supplies.

[48 FR 42129, Sept. 19, 1983, as amended at 51 FR 19714, May 30, 1986; 
60 FR 48237, Sept. 18, 1995; 68 FR 28080, May 22, 2003]

                    PART 9_CONTRACTOR QUALIFICATIONS

Sec.

Sec. 9.000 Scope of part.

             Subpart 9.1_Responsible Prospective Contractors


Sec. 9.100 Scope of subpart.

Sec. 9.101 Definitions.

Sec. 9.102 Applicability.

Sec. 9.103 Policy.

Sec. 9.104 Standards.

Sec. 9.104-1 General standards.

Sec. 9.104-2 Special standards.

Sec. 9.104-3 Application of standards.

Sec. 9.104-4 Subcontractor responsibility.

Sec. 9.104-5 Certification regarding responsibility matters.

Sec. 9.104-6 Federal Awardee Performance and Integrity Information 
          System.

Sec. 9.104-7 Solicitation provisions and contract clauses.

Sec. 9.105 Procedures.

Sec. 9.105-1 Obtaining information.

Sec. 9.105-2 Determinations and documentation.

Sec. 9.105-3 Disclosure of preaward information.

Sec. 9.106 Preaward surveys.

[[Page 177]]


Sec. 9.106-1 Conditions for preaward surveys.

Sec. 9.106-2 Requests for preaward surveys.

Sec. 9.106-3 Interagency preaward surveys.

Sec. 9.106-4 Reports.

Sec. 9.107 Surveys of nonprofit agencies participating in the AbilityOne 
          Program under the Javits-Wagner-O'Day Act.

Sec. 9.108 Prohibition on contracting with inverted domestic 
          corporations.

Sec. 9.108-1 Definitions.

Sec. 9.108-2 Prohibition.

Sec. 9.108-3 Representation by the offeror.

Sec. 9.108-4 Waiver.

Sec. 9.108-5 Solicitation provision and contract clause.

                 Subpart 9.2_Qualifications Requirements


Sec. 9.200 Scope of subpart.

Sec. 9.201 Definitions.

Sec. 9.202 Policy.

Sec. 9.203 QPL's, QML's, and QBL's.

Sec. 9.204 Responsibilities for establishment of a qualification 
          requirement.

Sec. 9.205 Opportunity for qualification before award.

Sec. 9.206 Acquisitions subject to qualification requirements.

Sec. 9.206-1 General.

Sec. 9.206-2 Contract clause.

Sec. 9.206-3 Competition.

Sec. 9.207 Changes in status regarding qualification requirements.

             Subpart 9.3_First Article Testing and Approval


Sec. 9.301 Definition.

Sec. 9.302 General.

Sec. 9.303 Use.

Sec. 9.304 Exceptions.

Sec. 9.305 Risk.

Sec. 9.306 Solicitation requirements.

Sec. 9.307 Government administration procedures.

Sec. 9.308 Contract clauses.

Sec. 9.308-1 Testing performed by the contractor.

Sec. 9.308-2 Testing performed by the Government.

          Subpart 9.4_Debarment, Suspension, and Ineligibility


Sec. 9.400 Scope of subpart.

Sec. 9.401 Applicability.

Sec. 9.402 Policy.

Sec. 9.403 Definitions.

Sec. 9.404 System for Award Management Exclusions.

Sec. 9.405 Effect of listing.

Sec. 9.405-1 Continuation of current contracts.

Sec. 9.405-2 Restrictions on subcontracting.

Sec. 9.406 Debarment.

Sec. 9.406-1 General.

Sec. 9.406-2 Causes for debarment.

Sec. 9.406-3 Procedures.

Sec. 9.406-4 Period of debarment.

Sec. 9.406-5 Scope of debarment.

Sec. 9.407 Suspension.

Sec. 9.407-1 General.

Sec. 9.407-2 Causes for suspension.

Sec. 9.407-3 Procedures.

Sec. 9.407-4 Period of suspension.

Sec. 9.407-5 Scope of suspension.

Sec. 9.408 [Reserved]

Sec. 9.409 Contract clause.

     Subpart 9.5_Organizational and Consultant Conflicts of Interest


Sec. 9.500 Scope of subpart.

Sec. 9.501 Definition.

Sec. 9.502 Applicability.

Sec. 9.503 Waiver.

Sec. 9.504 Contracting officer responsibilities.

Sec. 9.505 General rules.

Sec. 9.505-1 Providing systems engineering and technical direction.

Sec. 9.505-2 Preparing specifications or work statements.

Sec. 9.505-3 Providing evaluation services.

Sec. 9.505-4 Obtaining access to proprietary information.

Sec. 9.506 Procedures.

Sec. 9.507 Solicitation provisions and contract clause.

Sec. 9.507-1 Solicitation provisions.

Sec. 9.507-2 Contract clause.

Sec. 9.508 Examples.

                Subpart 9.6_Contractor Team Arrangements


Sec. 9.601 Definition.

Sec. 9.602 General.

Sec. 9.603 Policy.

Sec. 9.604 Limitations.

 Subpart 9.7_Defense Production Pools and Research and Development Pools


Sec. 9.701 Definition.

Sec. 9.702 Contracting with pools.

Sec. 9.703 Contracting with individual pool members.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 
20113.

    Source: 48 FR 42142, Sept. 19, 1983, unless otherwise noted.



Sec. 9.000  Scope of part.

    This part prescribes policies, standards, and procedures pertaining 
to prospective contractors' responsibility; debarment, suspension, and 
ineligibility; qualified products; first article testing and approval; 
contractor team arrangements; defense production pools and research and 
development pools; and organizational conflicts of interest.

[[Page 178]]

             Subpart 9.1_Responsible Prospective Contractors



Sec. 9.100  Scope of subpart.

    This subpart prescribes policies, standards, and procedures for 
determining whether prospective contractors and subcontractors are 
responsible.



Sec. 9.101  Definitions.

    Administrative proceeding means a non-judicial process that is 
adjudicatory in nature in order to make a determination of fault or 
liability (e.g., Securities and Exchange Commission Administrative 
Proceedings, Civilian Board of Contract Appeals Proceedings, and Armed 
Services Board of Contract Appeals Proceedings). This includes 
administrative proceedings at the Federal and state level but only in 
connections with performance of a Federal contract or grant. It does not 
include agency actions such as contract audits, site visits, corrective 
plans, or inspection of deliverables.
    Surveying activity, as used in this subpart, means the cognizant 
contract administration office or, if there is no such office, another 
organization designated by the agency to conduct preaward surveys.

[48 FR 42142, Sept. 19, 1983, as amended at 66 FR 2128, Jan. 10, 2001; 
75 FR 14065, Mar. 23, 2010]



Sec. 9.102  Applicability.

    (a) This subpart applies to all proposed contracts with any 
prospective contractor that is located--
    (1) In the United States or its outlying areas; or
    (2) Elsewhere, unless application of the subpart would be 
inconsistent with the laws or customs where the contractor is located.
    (b) This subpart does not apply to proposed contracts with (1) 
foreign, State, or local governments; (2) other U.S. Government agencies 
or their instrumentalities; or (3) agencies for the blind or other 
severely handicapped (see subpart 8.7).

[48 FR 42142, Sept. 19, 1983, as amended at 68 FR 28080, May 22, 2003]



Sec. 9.103  Policy.

    (a) Purchases shall be made from, and contracts shall be awarded to, 
responsible prospective contractors only.
    (b) No purchase or award shall be made unless the contracting 
officer makes an affirmative determination of responsibility. In the 
absence of information clearly indicating that the prospective 
contractor is responsible, the contracting officer shall make a 
determination of nonresponsibility. If the prospective contractor is a 
small business concern, the contracting officer shall comply with 
subpart 19.6, Certificates of Competency and Determinations of 
Responsibility. (If Section 8(a) of the Small Business Act (15 U.S.C. 
637) applies, see subpart 19.8.)
    (c) The award of a contract to a supplier based on lowest evaluated 
price alone can be false economy if there is subsequent default, late 
deliveries, or other unsatisfactory performance resulting in additional 
contractual or administrative costs. While it is important that 
Government purchases be made at the lowest price, this does not require 
an award to a supplier solely because that supplier submits the lowest 
offer. A prospective contractor must affirmatively demonstrate its 
responsibility, including, when necessary, the responsibility of its 
proposed subcontractors.

[48 FR 42142, Sept. 19, 1983, as amended at 61 FR 67410, Dec. 20, 1996; 
62 FR 44819, Aug. 22, 1997; 62 FR 48921, Sept. 17, 1997; 65 FR 80264, 
Dec. 20, 2000; 66 FR 17755, Apr. 3, 2001; 66 FR 66986, 66989, Dec. 27, 
2001]



Sec. 9.104  Standards.



Sec. 9.104-1  General standards.

    To be determined responsible, a prospective contractor must--
    (a) Have adequate financial resources to perform the contract, or 
the ability to obtain them (see 9.104-3(a));
    (b) Be able to comply with the required or proposed delivery or 
performance schedule, taking into consideration all existing commercial 
and governmental business commitments;
    (c) Have a satisfactory performance record (see 48 CFR 9.104-3(b) 
and part 42, subpart 42.15). A prospective contractor shall not be 
determined responsible or nonresponsible solely on the

[[Page 179]]

basis of a lack of relevant performance history, except as provided in 
9.104-2;
    (d) Have a satisfactory record of integrity and business ethics (for 
example, see Subpart 42.15).
    (e) Have the necessary organization, experience, accounting and 
operational controls, and technical skills, or the ability to obtain 
them (including, as appropriate, such elements as production control 
procedures, property control systems, quality assurance measures, and 
safety programs applicable to materials to be produced or services to be 
performed by the prospective contractor and subcontractors) (see 9.104-
3(a));
    (f) Have the necessary production, construction, and technical 
equipment and facilities, or the ability to obtain them (see 9.104-
3(a)); and
    (g) Be otherwise qualified and eligible to receive an award under 
applicable laws and regulations (see also inverted domestic corporation 
prohibition at 9.108).

[48 FR 42142, Sept. 19, 1983, as amended at 51 FR 27119, July 29, 1986; 
56 FR 55374, Oct. 25, 1991; 60 FR 16718, Mar. 31, 1995; 61 FR 67410, 
Dec. 20, 1996; 65 FR 80264, Dec. 20, 2000; 66 FR 17756, Apr. 3, 2001; 66 
FR 66986, 66989, Dec. 27, 2001; 73 FR 67091, Nov. 12, 2008; 74 FR 31563, 
July 1, 2009; 76 FR 31413, May 31, 2011]



Sec. 9.104-2  Special standards.

    (a) When it is necessary for a particular acquisition or class of 
acquisitions, the contracting officer shall develop, with the assistance 
of appropriate specialists, special standards of responsibility. Special 
standards may be particularly desirable when experience has demonstrated 
that unusual expertise or specialized facilities are needed for adequate 
contract performance. The special standards shall be set forth in the 
solicitation (and so identified) and shall apply to all offerors.
    (b) Contracting officers shall award contracts for subsistence only 
to those prospective contractors that meet the general standards in 
9.104-1 and are approved in accordance with agency sanitation standards 
and procedures.



Sec. 9.104-3  Application of standards.

    (a) Ability to obtain resources. Except to the extent that a 
prospective contractor has sufficient resources or proposes to perform 
the contract by subcontracting, the contracting officer shall require 
acceptable evidence of the prospective contractor's ability to obtain 
required resources (see 9.104-1(a), (e), and (f)). Acceptable evidence 
normally consists of a commitment or explicit arrangement, that will be 
in existence at the time of contract award, to rent, purchase, or 
otherwise acquire the needed facilities, equipment, other resources, or 
personnel. Consideration of a prime contractor's compliance with 
limitations on subcontracting shall take into account the time period 
covered by the contract base period or quantities plus option periods or 
quantities, if such options are considered when evaluating offers for 
award.
    (b) Satisfactory performance record. A prospective contractor that 
is or recently has been seriously deficient in contract performance 
shall be presumed to be nonresponsible, unless the contracting officer 
determines that the circumstances were properly beyond the contractor's 
control, or that the contractor has taken appropriate corrective action. 
Past failure to apply sufficient tenacity and perseverance to perform 
acceptably is strong evidence of nonresponsibility. Failure to meet the 
quality requirements of the contract is a significant factor to consider 
in determining satisfactory performance. The contracting officer shall 
consider the number of contracts involved and the extent of deficient 
performance in each contract when making this determination. If the 
pending contract requires a subcontracting plan pursuant to Subpart 
19.7, The Small Business Subcontracting Program, the contracting officer 
shall also consider the prospective contractor's compliance with 
subcontracting plans under recent contracts.
    (c) Affiliated concerns. Affiliated concerns (see Concern in 19.001 
and Affiliates in 19.101) are normally considered separate entities in 
determining whether the concern that is to perform the contract meets 
the applicable standards for responsibility. However, the contracting 
officer shall consider the affiliate's past performance and integrity 
when they may adversely affect the prospective contractor's 
responsibility.

[[Page 180]]

    (d)(1) Small business concerns. Upon making a determination of 
nonresponsibility with regard to a small business concern, the 
contracting officer shall refer the matter to the Small Business 
Administration, which will decide whether to issue a Certificate of 
Competency (see subpart 19.6).
    (2) A small business that is unable to comply with the limitations 
on subcontracting at 52.219-14 may be considered nonresponsible.

[48 FR 42142, Sept. 19, 1983, as amended at 53 FR 27463, July 20, 1988; 
53 FR 34226, Sept. 2, 1988; 56 FR 55378, Oct. 25, 1991; 60 FR 48260, 
Sept. 18, 1995; 61 FR 67410, Dec. 20, 1996; 62 FR 44820, Aug. 22, 1997; 
63 FR 70267, Dec. 18, 1998; 65 FR 80264, Dec. 20, 2000; 66 FR 66989, 
Dec. 27, 2001; 67 FR 13068, Mar. 20, 2002; 75 FR 14065, Mar. 23, 2010]



Sec. 9.104-4  Subcontractor responsibility.

    (a) Generally, prospective prime contractors are responsible for 
determining the responsibility of their prospective subcontractors (but 
see 9.405 and 9.405-2 regarding debarred, ineligible, or suspended 
firms). Determinations of prospective subcontractor responsibility may 
affect the Government's determination of the prospective prime 
contractor's responsibility. A prospective contractor may be required to 
provide written evidence of a proposed subcontractor's responsibility.
    (b) When it is in the Government's interest to do so, the 
contracting officer may directly determine a prospective subcontractor's 
responsibility (e.g., when the prospective contract involves medical 
supplies, urgent requirements, or substantial subcontracting). In this 
case, the same standards used to determine a prime contractor's 
responsibility shall be used by the Government to determine 
subcontractor responsibility.



Sec. 9.104-5  Certification regarding responsibility matters.

    (a) When an offeror provides an affirmative response in paragraph 
(a)(1) of the provision at 52.209-5, Certification Regarding 
Responsibility Matters, or paragraph (h) of provision 52.212-3, the 
contracting officer shall--
    (1) Promptly, upon receipt of offers, request such additional 
information from the offeror as the offeror deems necessary in order to 
demonstrate the offeror's responsibility to the contracting officer (but 
see 9.405); and
    (2) Notify, prior to proceeding with award, in accordance with 
agency procedures (see 9.406-3(a) and 9.407-3(a)), the agency official 
responsible for initiating debarment or suspension action, where an 
offeror indicates the existence of an indictment, charge, conviction, or 
civil judgment, or Federal tax delinquency in an amount that exceeds 
$3,000.
    (b) Offerors who do not furnish the certification or such 
information as may be requested by the contracting officer shall be 
given an opportunity to remedy the deficiency. Failure to furnish the 
certification or such information may render the offeror nonresponsible.

[73 FR 21798, Apr. 22, 2008]



Sec. 9.104-6  Federal Awardee Performance and Integrity Information 
          System.

    (a) Before awarding a contract in excess of the simplified 
acquisition threshold, the contracting officer shall review the Federal 
Awardee Performance and Integrity Information System (FAPIIS), 
(available at www.ppirs.gov, then select FAPIIS).
    (b) The contracting officer shall consider all the information in 
FAPIIS and other past performance information (see subpart 42.15) when 
making a responsibility determination. For source selection evaluations 
of past performance, see 15.305(a)(2). Contracting officers shall use 
sound judgment in determining the weight and relevance of the 
information contained in FAPIIS and how it relates to the present 
acquisition. Since FAPIIS may contain information on any of the 
offeror's previous contracts and information covering a five-year 
period, some of that information may not be relevant to a determination 
of present responsibility, e.g., a prior administrative action such as 
debarment or suspension that has expired or otherwise been resolved, or 
information relating to contracts for completely different products or 
services.

[[Page 181]]

    (c) If the contracting officer obtains relevant information from 
FAPIIS regarding criminal, civil, or administrative proceedings in 
connection with the award or performance of a Government contract; 
terminations for default or cause; determinations of nonresponsibility 
because the contractor does not have a satisfactory performance record 
or a satisfactory record of integrity and business ethics; or comparable 
information relating to a grant, the contracting officer shall, unless 
the contractor has already been debarred or suspended--
    (1) Promptly request such additional information from the offeror as 
the offeror deems necessary in order to demonstrate the offeror's 
responsibility to the contracting officer (but see 9.405); and
    (2) Notify, prior to proceeding with award,in accordance with agency 
procedures (see 9.406-3(a) and 9.407-3(a)), the agency official 
responsible for initiating debarment or suspension action, if the 
information appears appropriate for the official's consideration.
    (d) The contracting officer shall document the contract file for 
each contract in excess of the simplified acquisition threshold to 
indicate how the information in FAPIIS was considered in any 
responsibility determination, as well as the action that was taken as a 
result of the information. A contracting officer who makes a 
nonresponsibility determination is required to document that information 
in FAPIIS in accordance with 9.105-2 (b)(2).

[75 FR 14065, Mar. 23, 2010]



Sec. 9.104-7  Solicitation provisions and contract clauses.

    (a) The contracting officer shall insert the provision at 52.209-5, 
Certification Regarding Responsibility Matters, in solicitations where 
the contract value is expected to exceed the simplified acquisition 
threshold.
    (b) The contracting officer shall insert the provision at 52.209-7, 
Information Regarding Responsibility Matters, in solicitations where the 
resultant contract value is expected to exceed $500,000.
    (c)The contracting officer shall insert the clause at 52.209-9, 
Updates of Publicly Available Information Regarding Responsibility 
Matters--
    (1) In solicitations where the resultant contract value is expected 
to exceed $500,000; and
    (2) In contracts in which the offeror checked ``has'' in paragraph 
(b) of the provision 52.209-7.

[73 FR 21798, Apr. 22, 2008. Redesignated and amended at 75 FR 14065, 
Mar. 23, 2010;77 FR 201, Jan. 3, 2012]



Sec. 9.105  Procedures.



Sec. 9.105-1  Obtaining information.

    (a) Before making a determination of responsibility, the contracting 
officer shall possess or obtain information sufficient to be satisfied 
that a prospective contractor currently meets the applicable standards 
in 9.104.
    (b)(1) Generally, the contracting officer shall obtain information 
regarding the responsibility of prospective contractors, including 
requesting preaward surveys when necessary (see 9.106), promptly after a 
bid opening or receipt of offers. However, in negotiated contracting, 
especially when research and development is involved, the contracting 
officer may obtain this information before issuing the request for 
proposals. Requests for information shall ordinarily be limited to 
information concerning (i) the low bidder or (ii) those offerors in 
range for award.
    (2) Preaward surveys shall be managed and conducted by the surveying 
activity.
    (i) If the surveying activity is a contract administration office--
    (A) That office shall advise the contracting officer on prospective 
contractors' financial competence and credit needs; and
    (B) The administrative contracting officer shall obtain from the 
auditor any information required concerning the adequacy of prospective 
contractors' accounting systems and these systems' suitability for use 
in administering the proposed type of contract.
    (ii) If the surveying activity is not a contract administration 
office, the contracting officer shall obtain from the auditor any 
information required concerning prospective contractors' financial 
competence and credit needs,

[[Page 182]]

the adequacy of their accounting systems, and these systems' suitability 
for use in administering the proposed type of contract.
    (3) Information on financial resources and performance capability 
shall be obtained or updated on as current a basis as is feasible up to 
the date of award.
    (c) In making the determination of responsibility, the contracting 
officer shall consider information in FAPIIS (see 9.104-6), including 
information that is linked to FAPIIS such as from the System for Award 
Management Exclusions and the Past Performance Information Retrieval 
System (PPIRS), and any other relevant past performance information (see 
9.104-1(c) and subpart 42.15). In addition, the contracting officer 
should use the following sources of information to support such 
determinations:
    (1) Records and experience data, including verifiable knowledge of 
personnel within the contracting office, audit offices, contract 
administration offices, and other contracting offices.
    (2) The prospective contractor--including bid or proposal 
information (including the certification at 52.209-5 or 52.212-3(h) (see 
9.104-5)), questionnaire replies, financial data, information on 
production equipment, and personnel information.
    (3) Commercial sources of supplier information of a type offered to 
buyers in the private sector.
    (4) Preaward survey reports (see 9.106).
    (5) Other sources such as publications; suppliers, subcontractors, 
and customers of the prospective contractor; financial institutions; 
Government agencies; and business and trade associations.
    (d) Contracting offices and cognizant contract administration 
offices that become aware of circumstances casting doubt on a 
contractor's ability to perform contracts successfully shall promptly 
exchange relevant information.

[48 FR 42142, Sept. 19, 1983, as amended at 51 FR 27119, July 29, 1986; 
52 FR 9038, Mar. 20, 1987; 54 FR 19813, May 8, 1989; 60 FR 16718, Mar. 
31, 1995; 60 FR 33065, June 26, 1995; 61 FR 39201, July 26, 1996; 69 FR 
76349, Dec. 20, 2004; 73 FR 21798, Apr. 22, 2008; 74 FR 31560, July 1, 
2009; 75 FR 14066, Mar. 23, 2010; 78 FR 37678, June 21, 2013]



Sec. 9.105-2  Determinations and documentation.

    (a) Determinations. (1) The contracting officer's signing of a 
contract constitutes a determination that the prospective contractor is 
responsible with respect to that contract. When an offer on which an 
award would otherwise be made is rejected because the prospective 
contractor is found to be nonresponsible, the contracting officer shall 
make, sign, and place in the contract file a determination of 
nonresponsibility, which shall state the basis for the determination.
    (2) If the contracting officer determines that a responsive small 
business lacks certain elements of responsibility, the contracting 
officer shall comply with the procedures in subpart 19.6. When a 
Certificate of Competency is issued for a small business concern (see 
subpart 19.6), the contracting officer shall accept the Small Business 
Administration's decision to issue a Certificate of Competency and award 
the contract to the concern.
    (b) Support documentation. (1) Documents and reports supporting a 
determination of responsibility or nonresponsibility, including any 
preaward survey reports, the use of FAPIIS information (see 9.104-6), 
and any applicable Certificate of Competency, must be included in the 
contract file.
    (2)(i) The contracting officer shall document the determination of 
nonresponsibility in FAPIIS (available at www.cpars.csd.disa.mil, then 
select FAPIIS) if--
    (A) The contract is valued at more than the simplified acquisition 
threshold;
    (B) The determination of nonresponsibility is based on lack of 
satisfactory performance record or satisfactory record of integrity and 
business ethics; and
    (C) The Small Business Administration does not issue a Certificate 
of Competency.
    (ii) The contracting officer is responsible for the timely 
submission, within 3 working days, and sufficiency, and accuracy of the 
documentation regarding the nonresponsibility determination.
    (iii) As required by section 3010 of the Supplemental Appropriations 
Act, 2010

[[Page 183]]

(Pub. L. 111-212), all information posted in FAPIIS on or after April 
15, 2011, except past performance reviews, will be publicly available. 
FAPIIS consists of two segments--
    (A) The non-public segment, into which Government officials and 
contractors post information, which can only be viewed by--
    (1) Government personnel and authorized users performing business on 
behalf of the Government; or
    (2) An offeror or contractor, when viewing data on itself; and
    (B) The publicly-available segment, to which all data in the non-
public segment of FAPIIS is automatically transferred after a waiting 
period of 14 calendar days, except for--
    (1) Past performance reviews required by subpart 42.15;
    (2) Information that was entered prior to April 15, 2011; or
    (3) Information that is withdrawn during the 14-calendar-day waiting 
period by the Government official who posted it in accordance with 
paragraph (b)(2)(iv) of this section.
    (iv) The contracting officer, or any other Government official, 
shall not post any information in the non-public segment of FAPIIS that 
is covered by a disclosure exemption under the Freedom of Information 
Act. If the contractor asserts within 7 calendar days, to the Government 
official who posted the information, that some of the information posted 
to the non-public segment of FAPIIS is covered by a disclosure exemption 
under the Freedom of Information Act, the Government official who posted 
the information must within 7 calendar days remove the posting from 
FAPIIS and resolve the issue in accordance with agency Freedom of 
Information Act procedures, prior to reposting the releasable 
information.

[48 FR 42142, Sept. 19, 1983, as amended at 75 FR 14066, Mar. 23, 2010; 
77 FR 201, Jan. 3, 2012]



Sec. 9.105-3  Disclosure of preaward information.

    (a) Except as provided in subpart 24.2, Freedom of Information Act, 
information (including the preaward survey report) accumulated for 
purposes of determining the responsibility of a prospective contractor 
shall not be released or disclosed outside the Government.
    (b) The contracting officer may discuss preaward survey information 
with the prospective contractor before determining responsibility. After 
award, the contracting officer or, if it is appropriate, the head of the 
surveying activity or a designee may discuss the findings of the 
preaward survey with the company surveyed.
    (c) Preaward survey information may contain proprietary or source 
selection information and should be marked with the appropriate legend 
and protected accordingly (see 3.104-4).

[48 FR 42142, Sept. 19, 1983, as amended at 54 FR 20496, May 11, 1989; 
62 FR 232, Jan. 2, 1997; 67 FR 13063, Mar. 20, 2002]



Sec. 9.106  Preaward surveys.



Sec. 9.106-1  Conditions for preaward surveys.

    (a) A preaward survey is normally required only when the information 
on hand or readily available to the contracting officer, including 
information from commercial sources, is not sufficient to make a 
determination regarding responsibility. In addition, if the contemplated 
contract will have a fixed price at or below the simplified acquisition 
threshold or will involve the acquisition of commercial items (see part 
12), the contracting officer should not request a preaward survey unless 
circumstances justify its cost.
    (b) When a cognizant contract administration office becomes aware of 
a prospective award to a contractor about which unfavorable information 
exists and no preaward survey has been requested, it shall promptly 
obtain and transmit details to the contracting officer.
    (c) Before beginning a preaward survey, the surveying activity shall 
ascertain whether the prospective contractor is debarred, suspended, or 
ineligible (see subpart 9.4). If the prospective contractor is debarred, 
suspended, or ineligible, the surveying activity shall advise the 
contracting officer promptly and not proceed with the

[[Page 184]]

preaward survey unless specifically requested to do so by the 
contracting officer.

[48 FR 42142, Sept. 19, 1983, as amended at 51 FR 27489, July 31, 1986; 
60 FR 48237, Sept. 18, 1995; 61 FR 39201, July 26, 1996]



Sec. 9.106-2  Requests for preaward surveys.

    The contracting officer's request to the surveying activity 
(Preaward Survey of Prospective Contractor (General), SF 1403) shall--
    (a) Identify additional factors about which information is needed;
    (b) Include the complete solicitation package (unless it has 
previously been furnished), and any information indicating prior 
unsatisfactory performance by the prospective contractor;
    (c) State whether the contracting office will participate in the 
survey;
    (d) Specify the date by which the report is required. This date 
should be consistent with the scope of the survey requested and normally 
shall allow at least 7 working days to conduct the survey; and
    (e) When appropriate, limit the scope of the survey.



Sec. 9.106-3  Interagency preaward surveys.

    When the contracting office and the surveying activity are in 
different agencies, the procedures of this section 9.106 and subpart 
42.1 shall be followed along with the regulations of the agency in which 
the surveying activity is located, except that reasonable special 
requests by the contracting office shall be accommodated (also see 
subpart 17.5).

[48 FR 42142, Sept. 19, 1983, as amended at 54 FR 20496, May 11, 1989; 
55 FR 36795, Sept. 6, 1990; 62 FR 232, Jan. 2, 1997, 75 FR 77735, Dec. 
13, 2010]



Sec. 9.106-4  Reports.

    (a) The surveying activity shall complete the applicable parts of SF 
1403, Preaward Survey of Prospective Contractor (General); SF 1404, 
Preaward Survey of Prospective Contractor--Technical; SF 1405, Preaward 
Survey of Prospective Contractor--Production; SF 1406, Preaward Survey 
of Prospective Contractor--Quality Assurance; SF 1407, Preaward Survey 
of Prospective Contractor--Financial Capability; and SF 1408, Preaward 
Survey of Prospective Contractor--Accounting System; and provide a 
narrative discussion sufficient to support both the evaluation ratings 
and the recommendations.
    (b) When the contractor surveyed is a small business that has 
received preferential treatment on an ongoing contract under Section 
8(a) of the Small Business Act (15 U.S.C. 637) or has received a 
Certificate of Competency during the last 12 months, the surveying 
activity shall consult the appropriate Small Business Administration 
field office before making an affirmative recommendation regarding the 
contractor's responsibility or nonresponsibility.
    (c) When a preaward survey discloses previous unsatisfactory 
performance, the surveying activity shall specify the extent to which 
the prospective contractor plans, or has taken, corrective action. Lack 
of evidence that past failure to meet contractual requirements was the 
prospective contractor's fault does not necessarily indicate 
satisfactory performance. The narrative shall report any persistent 
pattern of need for costly and burdensome Government assistance (e.g., 
engineering, inspection, or testing) provided in the Government's 
interest but not contractually required.
    (d) When the surveying activity possesses information that supports 
a recommendation of complete award without an on-site survey and no 
special areas for investigation have been requested, the surveying 
activity may provide a short-form preaward survey report. The short-form 
report shall consist solely of the Preaward Survey of Prospective 
Contractor (General), SF 1403. Sections III and IV of this form shall be 
completed and block 21 shall be checked to show that the report is a 
short-form preaward report.



Sec. 9.107  Surveys of nonprofit agencies participating in the 
          AbilityOne Program under the Javits-Wagner-O'Day Act.

    (a) The Committee for Purchase From People Who Are Blind or Severely 
Disabled (Committee), as authorized by 41 U.S.C. 46-48c, determines what 
supplies and services Federal agencies are required to purchase from

[[Page 185]]

AbilityOne participating nonprofit agencies serving people who are blind 
or have other severe disabilities (see Subpart 8.7). The Committee is 
required to find an AbilityOne participating nonprofit agency capable of 
furnishing the supplies or services before the nonprofit agency can be 
designated as a mandatory source under the AbilityOne Program. The 
Committee may request a contracting office to assist in assessing the 
capabilities of a nonprofit agency.
    (b) The contracting office, upon request from the Committee, shall 
request a capability survey from the activity responsible for performing 
preaward surveys, or notify the Committee that the AbilityOne 
participating nonprofit agency is capable, with supporting rationale, 
and that the survey is waived. The capability survey will focus on the 
technical and production capabilities and applicable preaward survey 
elements to furnish specific supplies or services being considered for 
addition to the Procurement List.
    (c) The contracting office shall use the Standard Form 1403 to 
request a capability survey of organizations employing people who are 
blind or have other severe disabilities.
    (d) The contracting office shall furnish a copy of the completed 
survey, or notice that the AbilityOne participating nonprofit agency is 
capable and the survey is waived, to the Executive Director, Committee 
for Purchase from People Who Are Blind or Severely Disabled.

[59 FR 67029, Dec. 28, 1994, as amended at 73 FR 53995, Sept. 17, 2008]



Sec. 9.108  Prohibition on contracting with inverted domestic 
          corporations.



Sec. 9.108-1  Definitions.

    As used in this section--
    Inverted domestic corporation means a foreign incorporated entity 
which is treated as an inverted domestic corporation under 6 U.S.C. 
395(b), i.e., a corporation that used to be incorporated in the United 
States, or used to be a partnership in the United States, but now is 
incorporated in a foreign country, or is a subsidiary whose parent 
corporation is incorporated in a foreign country, that meets the 
criteria specified in 6 U.S.C. 395(b), applied in accordance with the 
rules and definitions of 6 U.S.C. 395(c). An inverted domestic 
corporation as herein defined does not meet the definition of an 
inverted domestic corporation as defined by the Internal Revenue Code at 
26 U.S.C. 7874.
    Subsidiary means an entity in which more than 50 percent of the 
entity is owned--
    (1) Directly by a parent corporation; or
    (2) Through another subsidiary of a parent corporation.

[76 FR 31413, May 31, 2011]



Sec. 9.108-2  Prohibition.

    (a) Section 738 of Division C of the Consolidated Appropriations 
Act, 2012 (Pub. L. 112-74) prohibits the use of 2012 appropriated funds 
for contracting with any foreign incorporated entity that is treated as 
an inverted domestic corporation, or with a subsidiary of such a 
corporation. The same Governmentwide restriction was also contained in 
the Fiscal Year 2008 through 2010 appropriations acts. Agency-specific 
restrictions on contracting with inverted domestic corporations also 
existed in FY 2006 and FY 2007 appropriations for United States 
Departments of Transportation and Treasury, Housing and Urban 
Development, the Judiciary and Independent Agencies (including Public 
Laws 109-115 and 109-289).
    (b) This prohibition does not apply as follows:
    (1) When using Fiscal Year 2008 funds for any contract entered into 
before December 26, 2007, or for any order issued pursuant to such 
contract.
    (2) When using Fiscal Year 2009 funds for any contract entered into 
before March 11, 2009, or for any order issued pursuant to such 
contract.
    (3) When using Fiscal Year 2010 funds for any contract entered into 
before December 16, 2009, or for any order issued pursuant to such 
contract.
    (4) When using Fiscal Year 2012 funds for any contract entered into 
before December 23, 2011, or for any order issued pursuant to such 
contract.

[76 FR 31413, May 31, 2011, as amended at 77 FR 27548, May 10, 2012]

[[Page 186]]



Sec. 9.108-3  Representation by the offeror.

    (a) In order to be eligible for contract award when using Fiscal 
Year 2008 through Fiscal Year 2010 funds or Fiscal Year 2012 funds, an 
offeror must represent that it is not an inverted domestic corporation 
or subsidiary. Any offeror that cannot so represent is ineligible for 
award of a contract using such appropriated funds.
    (b) The contracting officer may rely on an offeror's representation 
that it is not an inverted domestic corporation unless the contracting 
officer has reason to question the representation.

[76 FR 31413, May 31, 2011, as amended at 77 FR 27548, May 10, 2012]



Sec. 9.108-4  Waiver.

    Any agency head may waive the prohibition in subsection 9.108-2 and 
the requirement of subsection 9.108-3 for a specific contract if the 
agency head determines in writing that the waiver is required in the 
interest of national security, documents the determination, and reports 
it to the Congress.

[76 FR 31413, May 31, 2011]



Sec. 9.108-5  Solicitation provision and contract clause.

    When using funds appropriated in Fiscal Year 2008 through Fiscal 
Year 2010 or in Fiscal Year 2012, unless waived in accordance with FAR 
9.108-4, the contracting officer shall--
    (a) Include the provision at 52.209-2, Prohibition on Contracting 
with Inverted Domestic Corporations--Representation, in each 
solicitation for the acquisition of products or services (including 
construction); and
    (b) Include the clause at 52.209-10, Prohibition on Contracting with 
Inverted Domestic Corporations, in each solicitation and contract for 
the acquisition of products or services (including construction).

[76 FR 31413, May 31, 2011, as amended at 77 FR 27548, May 10, 2012]

                 Subpart 9.2_Qualifications Requirements

    Source: 50 FR 35476, Aug. 30, 1985, unless otherwise noted.



Sec. 9.200  Scope of subpart.

    This subpart implements 10 U.S.C. 2319 and 41 U.S.C. 253(e) and 
prescribes policies and procedures regarding qualification requirements 
and the acquisitions that are subject to such requirements.



Sec. 9.201  Definitions.

    As used in this subpart--
    Qualified bidders list (QBL) means a list of bidders who have had 
their products examined and tested and who have satisfied all applicable 
qualification requirements for that product or have otherwise satisfied 
all applicable qualification requirements.
    Qualified manufacturers list (QML) means a list of manufacturers who 
have had their products examined and tested and who have satisfied all 
applicable qualification requirements for that product.

[50 FR 35476, Aug. 30, 1985, as amended at 53 FR 34227, Sept. 2, 1988; 
66 FR 2128, Jan. 10, 2001]



Sec. 9.202  Policy.

    (a)(1) The head of the agency or designee shall, before establishing 
a qualification requirement, prepare a written justification--
    (i) Stating the necessity for establishing the qualification 
requirement and specifying why the qualification requirement must be 
demonstrated before contract award;
    (ii) Estimating the likely costs for testing and evaluation which 
will be incurred by the potential offeror to become qualified; and
    (iii) Specifying all requirements that a potential offeror (or its 
product) must satisfy in order to become qualified. Only those 
requirements which are the least restrictive to meet the purposes 
necessitating the establishment of the qualification requirements shall 
be specified.
    (2) Upon request to the contracting activity, potential offerors 
shall be provided--
    (i) All requirements that they or their products must satisfy to 
become qualified;

[[Page 187]]

    (ii) At their expense (but see 9.204(a)(2) with regard to small 
businesses), a prompt opportunity to demonstrate their abilities to meet 
the standards specified for qualification using qualified personnel and 
facilities of the agency concerned, or of another agency obtained 
through interagency agreements, or under contract, or other methods 
approved by the agency (including use of approved testing and evaluation 
services not provided under contract to the agency).
    (3) If the services in (a)(2)(ii) above are provided by contract, 
the contractors selected to provide testing and evaluation services 
shall be--
    (i) Those that are not expected to benefit from an absence of 
additional qualified sources; and
    (ii) Required by their contracts to adhere to any restriction on 
technical data asserted by the potential offeror seeking qualification.
    (4) A potential offeror seeking qualification shall be promptly 
informed as to whether qualification is attained and, in the event it is 
not, promptly furnished specific reasons why qualification was not 
attained.
    (b) When justified under the circumstances, the agency activity 
responsible for establishing a qualification requirement shall submit to 
the competition advocate for the procuring activity responsible for 
purchasing the item subject to the qualification requirement, a 
determination that it is unreasonable to specify the standards for 
qualification which a prospective offeror (or its product) must satisfy. 
After considering any comments of the competition advocate reviewing the 
determination, the head of the procuring activity may waive the 
requirements of 9.202(a)(1)(ii) through (4) above for up to 2 years with 
respect to the item subject to the qualification requirement. A copy of 
the waiver shall be furnished to the head of the agency or other 
official responsible for actions under 9.202(a)(1). The waiver authority 
provided in this paragraph does not apply with respect to qualification 
requirements contained in a QPL, QML, or QBL.
    (c) If a potential offeror can demonstrate to the satisfaction of 
the contracting officer that the potential offeror (or its product) 
meets the standards established for qualification or can meet them 
before the date specified for award of the contract, a potential offeror 
may not be denied the opportunity to submit and have considered an offer 
for a contract solely because the potential offeror--
    (1) Is not on a QPL, QML, or QBL maintained by the Department of 
Defense (DOD) or the National Aeronautics and Space Administration 
(NASA); or
    (2) Has not been identified as meeting a qualification requirement 
established after October 19, 1984, by DOD or NASA; or
    (3) Has not been identified as meeting a qualification requirement 
established by a civilian agency (not including NASA).
    (d) The procedures in subpart 19.6 for referring matters to the 
Small Business Administration are not mandatory on the contracting 
officer when the basis for a referral would involve a challenge by the 
offeror to either the validity of the qualification requirement or the 
offeror's compliance with such requirement.
    (e) The contracting officer need not delay a proposed award in order 
to provide a potential offeror with an opportunity to demonstrate its 
ability to meet the standards specified for qualification. In addition, 
when approved by the head of an agency or designee, a procurement need 
not be delayed in order to comply with 9.202(a).
    (f) Within 7 years following enforcement of a QPL, QML, or QBL by 
DOD or NASA, or within 7 years after any qualification requirement was 
originally established by a civilian agency other than NASA, the 
qualification requirement shall be examined and revalidated in 
accordance with the requirements of 9.202(a). For DOD and NASA, 
qualification requirements, other than QPL's, QML's, and QBL's, shall be 
examined and revalidated within 7 years after establishment of the 
requirement under 9.202(a). Any periods for which a waiver under 
9.202(b) is in effect shall be excluded in computing the 7 years within 
which review and revalidation must occur.

[50 FR 35476, Aug. 30, 1985, as amended at 53 FR 34227, Sept. 2, 1988]

[[Page 188]]



Sec. 9.203  QPL's, QML's, and QBL's.

    (a) Qualification and listing in a QPL, QML, or QBL is the process 
by which products are obtained from manufacturers or distributors, 
examined and tested for compliance with specification requirements, or 
manufacturers or potential offerors, are provided an opportunity to 
demonstrate their abilities to meet the standards specified for 
qualification. The names of successful products, manufacturers, or 
potential offerors are included on lists evidencing their status. 
Generally, qualification is performed in advance and independently of 
any specific acquisition action. After qualification, the products, 
manufacturers, or potential offerors are included in a Federal or 
Military QPL, QML, or QBL. (See 9.202(a)(2) with regard to any product, 
manufacturer, or potential offeror not yet included on an applicable 
list.)
    (b) Specifications requiring a qualified product are included in the 
following publications:
    (1) GSA Index of Federal Specifications, Standards and Commercial 
Item Descriptions.
    (2) Department of Defense Acquisition Streamlining and 
Standardization Information System (ASSIST) at (http://
assist.daps.dla.mil).
    (c) Instructions concerning qualification procedures are included in 
the following publications:
    (1) Federal Standardization Manual, FSPM-0001.
    (2) Defense Standardization Manual 4120.24-M, Appendix 2, as amended 
by Military Standards 961 and 962.
    (d) The publications listed in paragraphs (b) and (c) of this 
section are sold to the public. The publications in paragraphs (b)(1) 
and (c)(1) of this section may be obtained from the addressee in 
11.201(d)(1). The publications in paragraphs (b)(2) and (c)(2) of this 
section may be obtained from the addressee in 11.201(d)(2).

[50 FR 35476, Aug. 30, 1985, as amended at 53 FR 17857, May 18, 1988; 63 
FR 34062, June 22, 1998; 67 FR 6120, Feb. 8, 2002; 71 FR 227, Jan. 3, 
2006]



Sec. 9.204  Responsibilities for establishment of a qualification 
          requirement.

    The responsibilities of agency activities that establish 
qualification requirements include the following:
    (a) Arranging publicity for the qualification requirements. If 
active competition on anticipated future qualification requirements is 
likely to be fewer than two manufacturers or the products of two 
manufacturers, the activity responsible for establishment of the 
qualification requirements must--
    (1) Periodically furnish through the Governmentwide point of entry 
(GPE) a notice seeking additional sources or products for qualification 
unless the contracting officer determines that such publication would 
compromise the national security.
    (2) Bear the cost of conducting the specified testing and evaluation 
(excluding the costs associated with producing the item or establishing 
the production, quality control, or other system to be tested and 
evaluated) for a small business concern or a product manufactured by a 
small business concern which has met the standards specified for 
qualification and which could reasonably be expected to compete for a 
contract for that requirement. However, such costs may be borne only if 
it is determined in accordance with agency procedures that such 
additional qualified sources or products are likely to result in cost 
savings from increased competition for future requirements sufficient to 
amortize the costs incurred by the agency within a reasonable period of 
time, considering the duration and dollar value of anticipated future 
requirements. A prospective contractor requesting the United States to 
bear testing and evaluation costs must certify as to its status as a 
small business concern under section 3 of the Small Business Act in 
order to receive further consideration.
    (b) Qualifying products that meet specification requirements.
    (c) Listing manufacturers and suppliers whose products are qualified 
in accordance with agency procedures.
    (d) Furnishing QPL's, OML's, or QBL's or the qualification 
requirements themselves to prospective

[[Page 189]]

offerors and the public upon request (see 9.202(a)(2)(i) above).
    (e) Clarifying, as necessary, qualification requirements.
    (f) In appropriate cases, when requested by the contracting officer, 
providing concurrence in a decision not to enforce a qualification 
requirement for a solicitation.
    (g) Withdrawing or omitting qualification of a listed product, 
manufacturer or offeror, as necessary.
    (h) Advising persons furnished any list of products, manufacturers 
or offerors meeting a qualification requirement and suppliers whose 
products are on any such list that--
    (1) The list does not constitute endorsement of the product, 
manufacturer, or other source by the Government;
    (2) The products or sources listed have been qualified under the 
latest applicable specification;
    (3) The list may be amended without notice;
    (4) The listing of a product or source does not release the supplier 
from compliance with the specification; and
    (5) Use of the list for advertising or publicity is permitted. 
However, it must not be stated or implied that a particular product or 
source is the only product or source of that type qualified, or that the 
Government in any way recommends or endorses the products or the sources 
listed.
    (i) Reexamining a qualified product or manufacturer when--
    (1) The manufacturer has modified its product, or changed the 
material or the processing sufficiently so that the validity of previous 
qualification is questionable;
    (2) The requirements in the specification have been amended or 
revised sufficiently to affect the character of the product; or
    (3) It is otherwise necessary to determine that the quality of the 
product is maintained in conformance with the specification.

[50 FR 35476, Aug. 30, 1985, as amended at 66 FR 27413, May 16, 2001; 68 
FR 56679, Oct. 1, 2003]



Sec. 9.205  Opportunity for qualification before award.

    (a) If an agency determines that a qualification requirement is 
necessary, the agency activity responsible for establishing the 
requirement must urge manufacturers and other potential sources to 
demonstrate their ability to meet the standards specified for 
qualification and, when possible, give sufficient time to arrange for 
qualification before award. The responsible agency activity must, before 
establishing any qualification requirement, furnish notice through the 
GPE. The notice must include--
    (1) Intent to establish a qualification requirement;
    (2) The specification number and name of the product;
    (3) The name and address of the activity to which a request for the 
information and opportunity described in 9.202(a)(2) should be 
submitted;
    (4) The anticipated date that the agency will begin awarding 
contracts subject to the qualification requirement;
    (5) A precautionary notice that when a product is submitted for 
qualification testing, the applicant must furnish any specific 
information that may be requested of the manufacturer before testing 
will begin; and
    (6) The approximate time period following submission of a product 
for qualification testing within which the applicant will be notified 
whether the product passed or failed the qualification testing (see 
9.202(a)(4)).
    (b) The activity responsible for establishing a qualification 
requirement must keep any list maintained of those already qualified 
open for inclusion of additional products, manufacturers, or other 
potential sources.

[50 FR 35476, Aug. 30, 1985, as amended at 64 FR 72418, Dec. 27, 1999; 
66 FR 27413, May 16, 2001; 68 FR 56679, Oct. 1, 2003; 69 FR 77872, Dec. 
28, 2004]



Sec. 9.206  Acquisitions subject to qualification requirements.



Sec. 9.206-1  General.

    (a) Agencies may not enforce any QPL, QML, or QBL without first 
complying with the requirements of

[[Page 190]]

9.202(a). However, qualification requirements themselves, whether or not 
previously embodied in a QPL, QML, or QBL, may be enforced without 
regard to 9.202(a) if they are in either of the following categories:
    (1) Any qualification requirement established by statute prior to 
October 30, 1984, for civilian agencies (not including NASA); or
    (2) Any qualification requirement established by statute or 
administrative action prior to October 19, 1984, for DOD or NASA. 
Qualification requirements established after the above dates must comply 
with 9.202(a) to be enforceable.
    (b) Except when the agency head or designee determines that an 
emergency exists, whenever an agency elects, whether before or after 
award, not to enforce a qualification requirement which it established, 
the requirement may not thereafter be enforced unless the agency 
complies with 9.202(a).
    (c) If a qualification requirement applies, the contracting officer 
need consider only those offers identified as meeting the requirement or 
included on the applicable QPL, QML, or QBL, unless an offeror can 
satisfactorily demonstrate to the contracting officer that it or its 
product or its subcontractor or its product can meet the standards 
established for qualification before the date specified for award.
    (d) If a product subject to a qualification requirement is to be 
acquired as a component of an end item, the contracting officer must 
assure that all such components and their qualification requirements are 
properly identified in the solicitation since the product or source must 
meet the standards specified for qualification before award.
    (e) In acquisitions subject to qualification requirements, the 
contracting officer shall take the following steps:
    (1) Use presolicitation notices in appropriate cases to advise 
potential suppliers before issuing solicitations involving qualification 
requirements. The notices shall identify the specification containing 
the qualification requirement and establish an allowable time period, 
consistent with delivery requirements, for prospective offerors to 
demonstrate their abilities to meet the standards specified for 
qualification. The notice shall be publicized in accordance with 5.204. 
Whether or not a presolicitation notice is used, the general synopsizing 
requirements of subpart 5.2 apply.
    (2) Distribute solicitations to prospective contractors whether or 
not they have been identified as meeting applicable qualification 
requirements.
    (3) When appropriate, request in accordance with agency procedures 
that a qualification requirement not be enforced in a particular 
acquisition and, if granted, so specify in the solicitation (see 9.206-
1(b)).
    (4) Forward requests from potential suppliers for information on a 
qualification requirement to the agency activity responsible for 
establishing the requirement.
    (5) Allow the maximum time, consistent with delivery requirements, 
between issuing the solicitation and the contract award. As a minimum, 
contracting officers shall comply with the time frames specified in 
5.203 when applicable.

[50 FR 35476, Aug. 30, 1985, as amended at 53 FR 34227, Sept. 2, 1988]



Sec. 9.206-2  Contract clause.

    The contracting officer shall insert the clause at 52.209-1, 
Qualification Requirements, in solicitations and contracts when the 
acquisition is subject to a qualification requirement.

[53 FR 34227, Sept. 2, 1988]



Sec. 9.206-3  Competition.

    (a) Presolicitation. If a qualification requirement applies to an 
acquisition, the contracting officer shall review the applicable QPL, 
QML, or QBL or other identification of those sources which have met the 
requirement before issuing a solicitation to ascertain whether the 
number of sources is adequate for competition. (See 9.204(a) for duties 
of the agency activity responsible for establishment of the 
qualification requirement.) If the number of sources is inadequate, the 
contracting officer shall request the agency activity which established 
the requirement to--

[[Page 191]]

    (1) Indicate the anticipated date on which any sources presently 
undergoing evaluation will have demonstrated their abilities to meet the 
qualification requirement so that the solicitation could be rescheduled 
to allow as many additional sources as possible to qualify; or
    (2) Indicate whether a means other than the qualification 
requirement is feasible for testing or demonstrating quality assurance.
    (b) Postsolicitation. The contracting officer shall submit to the 
agency activity which established the qualification requirement the 
names and addresses of concerns which expressed interest in the 
acquisition but are not included on the applicable QPL, QML, or QBL or 
identified as meeting the qualification requirement. The activity will 
then assist interested concerns in meeting the standards specified for 
qualification (see 9.202(a) (2) and (4)).

[50 FR 35476, Aug. 30, 1985, as amended at 60 FR 34737, July 3, 1995]



Sec. 9.207  Changes in status regarding qualification requirements.

    (a) The contracting officer shall promptly report to the agency 
activity which established the qualification requirement any conditions 
which may merit removal or omission from a QPL, QML, or QBL or affect 
whether a source should continue to be otherwise identified as meeting 
the requirement. These conditions exist when--
    (1) Products or services are submitted for inspection or acceptance 
that do not meet the qualification requirement;
    (2) Products or services were previously rejected and the defects 
were not corrected when resubmitted for inspection or acceptance;
    (3) A supplier fails to request reevaluation following change of 
location or ownership of the plant where the product which met the 
qualification requirement was manufactured (see the clause at 52.209-1, 
Qualification Requirements);
    (4) A manufacturer of a product which met the qualification 
requirement has discontinued manufacture of the product;
    (5) A source requests removal from a QPL, QML, or QBL;
    (6) A condition of meeting the qualification requirement was 
violated; e.g., advertising or publicity contrary to 9.204(h)(5);
    (7) A revised specification imposes a new qualification requirement;
    (8) Manufacturing or design changes have been incorporated in the 
qualification requirement;
    (9) The source is listed in the System for Award Management 
Exclusions (see Subpart 9.4); or
    (10) Performance of a contract subject to a qualification 
requirement is otherwise unsatisfactory.
    (b) After considering any of the above or other conditions 
reasonably related to whether a product or source continues to meet the 
standards specified for qualification, an agency may take appropriate 
action without advance notification. The agency shall, however, promptly 
notify the affected parties if a product or source is removed from a 
QPL, QML, or QBL, or will no longer be identified as meeting the 
standards specified for qualification. This notice shall contain 
specific information why the product or source no longer meets the 
qualification requirement.

[50 FR 35476, Aug. 30, 1985, as amended at 53 FR 34227, Sept. 2, 1988; 
56 FR 15149, Apr. 15, 1991; 60 FR 33065, June 26, 1995; 69 FR 76349, 
Dec. 20, 2004; 78 FR 37678, June 21, 2013]

             Subpart 9.3_First Article Testing and Approval



Sec. 9.301  Definition.

    Approval, as used in this subpart, means the contracting officer's 
written notification to the contractor accepting the test results of the 
first article.

[48 FR 42142, Sept. 19, 1983, as amended at 66 FR 2128, Jan. 10, 2001]



Sec. 9.302  General.

    First article testing and approval (hereafter referred to as testing 
and approval) ensures that the contractor can furnish a product that 
conforms to all contract requirements for acceptance. Before requiring 
testing and approval, the contracting officer shall consider the--
    (a) Impact on cost or time of delivery;

[[Page 192]]

    (b) Risk to the Government of foregoing such test; and
    (c) Availability of other, less costly, methods of ensuring the 
desired quality.



Sec. 9.303  Use.

    Testing and approval may be appropriate when--
    (a) The contractor has not previously furnished the product to the 
Government;
    (b) The contractor previously furnished the product to the 
Government, but--
    (1) There have been subsequent changes in processes or 
specifications;
    (2) Production has been discontinued for an extended period of time; 
or
    (3) The product acquired under a previous contract developed a 
problem during its life.
    (c) The product is described by a performance specification; or
    (d) It is essential to have an approved first article to serve as a 
manufacturing standard.



Sec. 9.304  Exceptions.

    Normally, testing and approval is not required in contracts for--
    (a) Research or development;
    (b) Products requiring qualification before award (e.g., when an 
applicable qualified products list exists (see subpart 9.2));
    (c) Products normally sold in the commercial market; or
    (d) Products covered by complete and detailed technical 
specifications, unless the requirements are so novel or exacting that it 
is questionable whether the products would meet the requirements without 
testing and approval.



Sec. 9.305  Risk.

    Before first article approval, the acquisition of materials or 
components, or commencement of production, is normally at the sole risk 
of the contractor. To minimize this risk, the contracting officer shall 
provide sufficient time in the delivery schedule for acquisition of 
materials and components, and for production after receipt of first 
article approval. When Government requirements preclude this action, the 
contracting officer may, before approval of the first article, authorize 
the contractor to acquire specific materials or components or commence 
production to the extent essential to meet the delivery schedule (see 
Alternate II of the clause at 52.209-3, First Article Approval--
Contractor Testing, and Alternate II of the clause at 52.209-4, First 
Article Approval--Government Testing. Costs incurred based on this 
authorization are allocable to the contract for (1) progress payments 
and (2) termination settlements if the contract is terminated for the 
convenience of the Government.



Sec. 9.306  Solicitation requirements.

    Solicitations containing a testing and approval requirement shall--
    (a) Provide, in the circumstance where the contractor is to be 
responsible for the first article approval testing--
    (1) The performance or other characteristics that the first article 
must meet for approval;
    (2) The detailed technical requirements for the tests that must be 
performed for approval; and
    (3) The necessary data that must be submitted to the Government in 
the first article approval test report.
    (b) Provide, in the circumstance where the Government is to be 
responsible for the first article approval testing--
    (1) The performance or other characteristics that the first article 
must meet for approval; and
    (2) The tests to which the first article will be subjected for 
approval.
    (c) Inform offerors that the requirement may be waived when supplies 
identical or similar to those called for have previously been delivered 
by the offeror and accepted by the Government (see 52.209-3(h) and 
52.209-4(i);
    (d) Permit the submission of alternative offers, one including 
testing and approval and the other excluding testing and approval (if 
eligible under 9.306(c));
    (e) State clearly the first article's relationship to the contract 
quantity (see paragraph (e) of the clause at 52.209-3, First Article 
Approval--Contractor Testing, or 52.209-4, First Article Approval--
Government Testing);

[[Page 193]]

    (f) Contain a delivery schedule for the production quantity (see 
11.404). The delivery schedule may--
    (1) Be the same whether or not testing and approval is waived; or
    (2) Provide for earlier delivery when testing and approval is waived 
and the Government desires earlier delivery. In the latter case, any 
resulting difference in delivery schedules shall not be a factor in 
evaluation for award. The clause at 52.209-4, First Article Approval--
Government Testing, shall contain the delivery schedule for the first 
article;
    (g) Provide for the submission of contract numbers, if any, to 
document the offeror's eligibility under 9.306(c);
    (h) State whether the approved first article will serve as a 
manufacturing standard; and
    (i) Include, when the Government is responsible for first article 
testing, the Government's estimated testing costs as a factor for use in 
evaluating offers (when appropriate).
    (j) Inform offerors that the prices for first articles and first 
article tests in relation to production quantities shall not be 
materially unbalanced (see 15.404-1(g)) if first article test items or 
tests are to be separately priced.

[48 FR 42142, Sept. 19, 1983, as amended at 54 FR 34753, Aug. 21, 1989; 
55 FR 25527, June 21, 1990; 60 FR 48237, Sept. 18, 1995; 62 FR 51270, 
Sept. 30, 1997]



Sec. 9.307  Government administration procedures.

    (a) Before the contractor ships the first article, or the first 
article test report, to the Government laboratory or other activity 
responsible for approval at the address specified in the contract, the 
contract administration office shall provide that activity with as much 
advance notification as is feasible of the forthcoming shipment, and--
    (1) Advise that activity of the contractual requirements for testing 
and approval, or evaluation, as appropriate;
    (2) Call attention to the notice requirement in paragraph (b) of the 
clause at 52.209-3, First Article Approval--Contractor Testing, or 
52.209-4, First Article Approval--Government Testing; and
    (3) Request that the activity inform the contract administration 
office of the date when testing or evaluation will be completed.
    (b) The Government laboratory or other activity responsible for 
first article testing or evaluation shall inform the contracting office 
whether to approve, conditionally approve, or disapprove the first 
article. The contracting officer shall then notify the contractor of the 
action taken and furnish a copy of the notice to the contract 
administration office. The notice shall include the first article 
shipment number, when available, and the applicable contract line item 
number. Any changes in the drawings, designs, or specifications 
determined by the contracting officer to be necessary shall be made 
under the Changes clause, and not by the notice of approval, conditional 
approval, or disapproval furnished the contractor.



Sec. 9.308  Contract clauses.



Sec. 9.308-1  Testing performed by the contractor.

    (a)(1) The contracting officer shall insert the clause at 52.209-3, 
First Article Approval--Contractor Testing, in solicitations and 
contracts when a fixed-price contract is contemplated and it is intended 
that the contract require (i) first article approval and (ii) that the 
contractor be required to conduct the first article testing.
    (2) If it is intended that the contractor be required to produce the 
first article and the production quantity at the same facility, the 
contracting officer shall use the clause with its Alternate I.
    (3) If it is necessary to authorize the contractor to purchase 
material or to commence production before first article approval, the 
contracting officer shall use the clause with its Alternate II.
    (b)(1) The contracting officer shall insert a clause substantially 
the same as the clause at 52.209-3, First Article Approval--Contractor 
Testing, in solicitations and contracts when a cost-reimbursement 
contract is contemplated and it is intended that the contract require 
(i) first article approval and (ii) that the contractor be required to 
conduct the first article test.

[[Page 194]]

    (2) If it is intended that the contractor be required to produce the 
first article and the production quantity at the same facility, the 
contracting officer shall use a clause substantially the same as the 
clause at 52.209-3, First Article Approval--Contractor Testing, with its 
Alternate I.
    (3) If it is necessary to authorize the contractor to purchase 
material or to commence production before first article approval, the 
contracting officer shall use a clause substantially the same as the 
clause at 52.209-3, First Article Approval--Contractor Testing, with its 
Alternate II.



Sec. 9.308-2  Testing performed by the Government.

    (a)(1) The contracting officer shall insert the clause at 52.209-4, 
First Article Approval--Government Testing, in solicitations and 
contracts when a fixed-price contract is contemplated and it is intended 
that the contract require first article approval and that the Government 
will be responsible for conducting the first article test.
    (2) If it is intended that the contractor be required to produce the 
first article and the production quantity at the same facility, the 
contracting officer shall use the basic clause with its Alternate I.
    (3) If it is necessary to authorize the contractor to purchase 
material or to commence production before first article approval, the 
contracting officer shall use the basic clause with its Alternate II.
    (b)(1) The contracting officer shall insert a clause substantially 
the same as the clause at 52.209-4, First Article Approval--Government 
Testing, in solicitations and contracts when a cost-reimbursement 
contract is contemplated and it is intended that the contract require 
first article approval and that the Government be responsible for 
conducting the first article test.
    (2) If it is intended that the contractor be required to produce the 
first article and the production quantity at the same facility, the 
contracting officer shall use a clause substantially the same as the 
clause at 52.209-4, First Article Approval--Government Testing, with its 
Alternate I.
    (3) If it is necessary to authorize the contractor to purchase 
material or to commence production before first article approval, the 
contracting officer shall use a clause substantially the same as the 
clause at 52.209-4, First Article Approval--Government Testing, with its 
Alternate II.

          Subpart 9.4_Debarment, Suspension, and Ineligibility



Sec. 9.400  Scope of subpart.

    (a) This subpart--
    (1) Prescribes policies and procedures governing the debarment and 
suspension of contractors by agencies for the causes given in 9.406-2 
and 9.407-2;
    (2) Provides for the listing of contractors debarred, suspended, 
proposed for debarment, and declared ineligible (see the definition of 
ineligible in 2.101); and
    (3) Sets forth the consequences of this listing.
    (b) Although this subpart does cover the listing of ineligible 
contractors (9.404) and the effect of this listing (9.405(b)), it does 
not prescribe policies and procedures governing declarations of 
ineligibility.

[48 FR 42142, Sept. 19, 1983, as amended at 54 FR 19814, May 8, 1989; 66 
FR 2128, Jan. 10, 2001]



Sec. 9.401  Applicability.

    In accordance with Public Law 103-355, Section 2455 (31 U.S.C. 6101, 
note), and Executive Order 12689, any debarment, suspension or other 
Government-wide exclusion initiated under the Nonprocurement Common Rule 
implementing Executive Order 12549 on or after August 25, 1995 shall be 
recognized by and effective for Executive Branch agencies as a debarment 
or suspension under this subpart. Similarly, any debarment, suspension, 
proposed debarment or other Government-wide exclusion initiated on or 
after August 25, 1995 under this subpart shall also be recognized by and 
effective for those agencies and participants as an exclusion under the 
Nonprocurement Common Rule.

[60 FR 33065, June 26, 1995]

[[Page 195]]



Sec. 9.402  Policy.

    (a) Agencies shall solicit offers from, award contracts to, and 
consent to subcontracts with responsible contractors only. Debarment and 
suspension are discretionary actions that, taken in accordance with this 
subpart, are appropriate means to effectuate this policy.
    (b) The serious nature of debarment and suspension requires that 
these sanctions be imposed only in the public interest for the 
Government's protection and not for purposes of punishment. Agencies 
shall impose debarment or suspension to protect the Government's 
interest and only for the causes and in accordance with the procedures 
set forth in this subpart.
    (c) Agencies are encouraged to establish methods and procedures for 
coordinating their debarment or suspension actions.
    (d) When more than one agency has an interest in the debarment or 
suspension of a contractor, the Interagency Committee on Debarment and 
Suspension, established under Executive Order 12549, and authorized by 
Section 873 of the National Defense Authorization Act for Fiscal Year 
2009 (Pub. L. 110-417), shall resolve the lead agency issue and 
coordinate such resolution among all interested agencies prior to the 
initiation of any suspension, debarment, or related administrative 
action by any agency.
    (e) Agencies shall establish appropriate procedures to implement the 
policies and procedures of this subpart.

[48 FR 42142, Sept. 19, 1983, as amended at 54 FR 19814, May 8, 1989; 74 
FR 31565, July 1, 2009]



Sec. 9.403  Definitions.

    As used in this subpart--
    Affiliates. Business concerns, organizations, or individuals are 
affiliates of each other if, directly or indirectly, (1) either one 
controls or has the power to control the other, or (2) a third party 
controls or has the power to control both. Indicia of control include, 
but are not limited to, interlocking management or ownership, identity 
of interests among family members, shared facilities and equipment, 
common use of employees, or a business entity organized following the 
debarment, suspension, or proposed debarment of a contractor which has 
the same or similar management, ownership, or principal employees as the 
contract or that was debarred, suspended, or proposed for debarment.
    Agency means any executive department, military department or 
defense agency, or other agency or independent establishment of the 
executive branch.
    Civil judgment means a judgment or finding of a civil offense by any 
court of competent jurisdiction.
    Contractor means any individual or other legal entity that--
    (1) Directly or indirectly (e.g., through an affiliate), submits 
offers for or is awarded, or reasonably may be expected to submit offers 
for or be awarded, a Government contract, including a contract for 
carriage under Government or commercial bills of lading, or a 
subcontract under a Government contract; or
    (2) Conducts business, or reasonably may be expected to conduct 
business, with the Government as an agent or representative of another 
contractor.
    Debarring official means (1) an agency head or (2) a designee 
authorized by the agency head to impose debarment.
    Indictment means indictment for a criminal offense. An information 
or other filing by competent authority charging a criminal offense is 
given the same effect as an indictment.
    Legal proceedings means any civil judicial proceeding to which the 
Government is a party or any criminal proceeding. The term includes 
appeals from such proceedings.
    Nonprocurement Common Rule means the procedures used by Federal 
Executive Agencies to suspend, debar, or exclude individuals or entities 
from participation in nonprocurement transactions under Executive Order 
12549. Examples of nonprocurement transactions are grants, cooperative 
agreements, scholarships, fellowships, contracts of assistance, loans, 
loan guarantees, subsidies, insurance, payments for specified use, and 
donation agreements.
    Suspending official means (1) an agency head or (2) a designee 
authorized by the agency head to impose suspension.

[[Page 196]]

    Unfair trade practices means the commission of any of the following 
acts by a contractor:
    (1) A violation of section 337 of the Tariff Act of 1930 (19 U.S.C. 
1337) as determined by the International Trade Commission.
    (2) A violation, as determined by the Secretary of Commerce, of any 
agreement of the group known as the ``Coordination Committee'' for 
purposes of the Export Administration Act of 1979 (50 U.S.C. App. 2401, 
et seq.) or any similar bilateral or multilateral export control 
agreement.
    (3) A knowingly false statement regarding a material element of a 
certification concerning the foreign content of an item of supply, as 
determined by the Secretary of the Department or the head of the agency 
to which such certificate was furnished.

[48 FR 42142, Sept. 19, 1983, as amended at 54 FR 19814, May 8, 1989; 56 
FR 15149, Apr. 15, 1991; 59 FR 11372, Mar. 10, 1994; 60 FR 33065, June 
26, 1995; 66 FR 2128, Jan. 10, 2001]



Sec. 9.404  System for Award Management Exclusions.

    (a) The General Services Administration (GSA)--
    (1) Operates the web-based System for Award Management (SAM) 
Exclusions; and
    (2) Provides technical assistance to Federal agencies in the use of 
SAM.
    (b) The SAM Exclusions contains the--
    (1) Names and addresses of all contractors debarred, suspended, 
proposed for debarment, declared ineligible, or excluded or disqualified 
under the nonprocurement common rule, with cross-references when more 
than one name is involved in a single action;
    (2) Name of the agency or other authority taking the action;
    (3) Cause for the action (see 9.406-2 and 9.407-2 for causes 
authorized under this subpart) or other statutory or regulatory 
authority;
    (4) Effect of the action;
    (5) Termination date for each listing;
    (6) Data Universal Numbering System number;
    (7) Social Security Number (SSN), Employer Identification Number 
(EIN), or other Taxpayer Identification Number (TIN), if available; and
    (8) Name and telephone number of the agency point of contact for the 
action.
    (c) Each agency must--
    (1) Obtain password(s) from GSA to access SAM for data entry;
    (2) Notify GSA in the event a password needs to be rescinded (e.g., 
when an agency employee leaves or changes function);
    (3) Enter the information required by paragraph (b) of this section 
within 3 working days after the action becomes effective;
    (4) Determine whether it is legally permitted to enter the SSN, EIN, 
or other TIN, under agency authority to suspend or debar;
    (5) Update SAM Exclusions, generally within 5 working days after 
modifying or rescinding an action;
    (6) In accordance with internal retention procedures, maintain 
records relating to each debarment, suspension, or proposed debarment 
taken by the agency;
    (7) Establish procedures to ensure that the agency does not solicit 
offers from, award contracts to, or consent to subcontracts with 
contractors whose names are in SAM Exclusions, except as otherwise 
provided in this subpart;
    (8) Direct inquiries concerning listed contractors to the agency or 
other authority that took the action; and
    (9) Contact GSA for technical assistance with SAM, via the support 
email address or on the technical support phone line available at the 
SAM Web site provided in paragraph (d) of this section.
    (d) SAM is available via https://www.acquisition.gov.

[78 FR 37678, June 21, 2013]



Sec. 9.405  Effect of listing.

    (a) Contractors debarred, suspended, or proposed for debarment are 
excluded from receiving contracts, and agencies shall not solicit offers 
from, award contracts to, or consent to subcontracts with these 
contractors, unless the agency head determines that there is a 
compelling reason for such action (see 9.405-1(b), 9.405-2, 9.406-1(c), 
9.407-1(d), and 23.506(e)). Contractors debarred, suspended, or proposed 
for debarment are also excluded from conducting business with the 
Government as

[[Page 197]]

agents or representatives of other contractors.
    (b) Contractors included in the SAM Exclusions as having been 
declared ineligible on the basis of statutory or other regulatory 
procedures are excluded from receiving contracts, and if applicable, 
subcontracts, under the conditions and for the period set forth in the 
statute or regulation. Agencies shall not solicit offers from, award 
contracts to, or consent to subcontracts with these contractors under 
those conditions and for that period.
    (c) Contractors debarred, suspended, or proposed for debarment are 
excluded from acting as individual sureties (see part 28).
    (d)(1) After the opening of bids or receipt of proposals, the 
contracting officer shall review the SAM Exclusions.
    (2) Bids received from any listed contractor in response to an 
invitation for bids shall be entered on the abstract of bids, and 
rejected unless the agency head determines in writing that there is a 
compelling reason to consider the bid.
    (3) Proposals, quotations, or offers received from any listed 
contractor shall not be evaluated for award or included in the 
competitive range, nor shall discussions be conducted with a listed 
offeror during a period of ineligibility, unless the agency head 
determines, in writing, that there is a compelling reason to do so. If 
the period of ineligibility expires or is terminated prior to award, the 
contracting officer may, but is not required to, consider such 
proposals, quotations, or offers.
    (4) Immediately prior to award, the contracting officer shall again 
review the SAM Exclusions to ensure that no award is made to a listed 
contractor.

[48 FR 42142, Sept. 19, 1983, as amended at 52 FR 9038, Mar. 20, 1987; 
54 FR 19814, May 8, 1989; 54 FR 48982, Nov. 28, 1989; 55 FR 21707, May 
25, 1990; 56 FR 29127, June 25, 1991; 59 FR 67033, Dec. 28, 1994; 60 FR 
33065, June 26, 1995; 65 FR 16286, Mar. 27, 2000; 68 FR 69251, Dec. 11, 
2003; 69 FR 76349, Dec. 20, 2004; 78 FR 37678, June 21, 2013]



Sec. 9.405-1  Continuation of current contracts.

    (a) Notwithstanding the debarment, suspension, or proposed debarment 
of a contractor, agencies may continue contracts or subcontracts in 
existence at the time the contractor was debarred, suspended, or 
proposed for debarment unless the agency head directs otherwise. A 
decision as to the type of termination action, if any, to be taken 
should be made only after review by agency contracting and technical 
personnel and by counsel to ensure the propriety of the proposed action.
    (b) For contractors debarred, suspended, or proposed for debarment, 
unless the agency head makes a written determination of the compelling 
reasons for doing so, ordering activities shall not--
    (1) Place orders exceeding the guaranteed minimum under indefinite 
quantity contracts;
    (2) Place orders under optional use Federal Supply Schedule 
contracts, blanket purchase agreements, or basic ordering agreements; or
    (3) Add new work, exercise options, or otherwise extend the duration 
of current contracts or orders.

[54 FR 19815, May 8, 1989, as amended at 59 FR 67033, Dec. 28, 1994; 68 
FR 69251, Dec. 11, 2003]



Sec. 9.405-2  Restrictions on subcontracting.

    (a) When a contractor debarred, suspended, or proposed for debarment 
is proposed as a subcontractor for any subcontract subject to Government 
consent (see subpart 44.2), contracting officers shall not consent to 
subcontracts with such contractors unless the agency head states in 
writing the compelling reasons for this approval action. (See 9.405(b) 
concerning declarations of ineligibility affecting subcontracting.)
    (b) The Government suspends or debars contractors to protect the 
Government's interests. By operation of the clause at 52.209-6, 
Protecting the Government's Interests When Subcontracting with 
Contractors Debarred, Suspended or Proposed for Debarment, contractors 
shall not enter into any subcontract in excess of $30,000, other than a 
subcontract for a commercially available off-the-shelf item, with a 
contractor that has been debarred, suspended, or proposed for debarment 
unless there is a compelling reason to do so. If a contractor intends to 
enter into a subcontract in excess of $30,000, other

[[Page 198]]

than a subcontract for a commercially available off-the-shelf item, with 
a party that is debarred, suspended, or proposed for debarment as 
evidenced by the parties' listing in SAM Exclusions (see 9.404), a 
corporate officer or designee of the contractor is required by operation 
of the clause at 52.209-6, Protecting the Government's Interests when 
Subcontracting with Contractors Debarred, Suspended, or Proposed for 
Debarment, to notify the contracting officer, in writing, before 
entering into such subcontract. For contracts for the acquisition of 
commercial items, the notification requirement applies only for first-
tier subcontracts. For all other contracts, the notification requirement 
applies to subcontracts at any tier. The notice must provide the 
following:
    (1) The name of the subcontractor;
    (2) The contractor's knowledge of the reasons for the subcontractor 
being listed in SAM Exclusions;
    (3) The compelling reason(s) for doing business with the 
subcontractor notwithstanding its listing in SAM Exclusions; and
    (4) The systems and procedures the contractor has established to 
ensure that it is fully protecting the Government's interests when 
dealing with such subcontractor in view of the specific basis for the 
party's debarment, suspension, or proposed debarment.
    (c) The contractor's compliance with the requirements of 52.209-6 
will be reviewed during Contractor Purchasing System Reviews (see 
subpart 44.3).

[54 FR 19815, May 8, 1989, as amended at 56 FR 29127, June 25, 1991; 59 
FR 67033, Dec. 28, 1994; 60 FR 33066, June 26, 1995; 60 FR 48237, Sept. 
18, 1995; 68 FR 69251, Dec. 11, 2003; 69 FR 76349, Dec. 20, 2004; 71 FR 
57366, Sept. 28, 2006; 75 FR 77740, Dec. 13, 2010; 76 FR 39238, July 5, 
2011; 78 FR 37678, June 21, 2013]



Sec. 9.406  Debarment.



Sec. 9.406-1  General.

    (a) It is the debarring official's responsibility to determine 
whether debarment is in the Government's interest. The debarring 
official may, in the public interest, debar a contractor for any of the 
causes in 9.406-2, using the procedures in 9.406-3. The existence of a 
cause for debarment, however, does not necessarily require that the 
contractor be debarred; the seriousness of the contractor's acts or 
omissions and any remedial measures or mitigating factors should be 
considered in making any debarment decision. Before arriving at any 
debarment decision, the debarring official should consider factors such 
as the following:
    (1) Whether the contractor had effective standards of conduct and 
internal control systems in place at the time of the activity which 
constitutes cause for debarment or had adopted such procedures prior to 
any Government investigation of the activity cited as a cause for 
debarment.
    (2) Whether the contractor brought the activity cited as a cause for 
debarment to the attention of the appropriate Government agency in a 
timely manner.
    (3) Whether the contractor has fully investigated the circumstances 
surrounding the cause for debarment and, if so, made the result of the 
investigation available to the debarring official.
    (4) Whether the contractor cooperated fully with Government agencies 
during the investigation and any court or administrative action.
    (5) Whether the contractor has paid or has agreed to pay all 
criminal, civil, and administrative liability for the improper activity, 
including any investigative or administrative costs incurred by the 
Government, and has made or agreed to make full restitution.
    (6) Whether the contractor has taken appropriate disciplinary action 
against the individuals responsible for the activity which constitutes 
cause for debarment.
    (7) Whether the contractor has implemented or agreed to implement 
remedial measures, including any identified by the Government.
    (8) Whether the contractor has instituted or agreed to institute new 
or revised review and control procedures and ethics training programs.
    (9) Whether the contractor has had adequate time to eliminate the 
circumstances within the contractor's organization that led to the cause 
for debarment.
    (10) Whether the contractor's management recognizes and understands

[[Page 199]]

the seriousness of the misconduct giving rise to the cause for debarment 
and has implemented programs to prevent recurrence.

The existence or nonexistence of any mitigating factors or remedial 
measures such as set forth in this paragraph (a) is not necessarily 
determinative of a contractor's present responsibility. Accordingly, if 
a cause for debarment exists, the contractor has the burden of 
demonstrating, to the satisfaction of the debarring official, its 
present responsibility and that debarment is not necessary.
    (b) Debarment constitutes debarment of all divisions or other 
organizational elements of the contractor, unless the debarment decision 
is limited by its terms to specific divisions, organizational elements, 
or commodities. The debarring official may extend the debarment decision 
to include any affiliates of the contractor if they are (1) specifically 
named and (2) given written notice of the proposed debarment and an 
opportunity to respond (see 9.406-3(c)).
    (c) A contractor's debarment, or proposed debarment, shall be 
effective throughout the executive branch of the Government, unless the 
agency head or a designee (except see 23.506(e)) states in writing the 
compelling reasons justifying continued business dealings between that 
agency and the contractor.
    (d)(1) When the debarring official has authority to debar 
contractors from both acquisition contracts pursuant to this regulation 
and contracts for the purchase of Federal personal property pursuant to 
the Federal Property Management Regulations (FPMR) 101-45.6, that 
official shall consider simultaneously debarring the contractor from the 
award of acquisition contracts and from the purchase of Federal personal 
property.
    (2) When debarring a contractor from the award of acquisition 
contracts and from the purchase of Federal personal property, the 
debarment notice shall so indicate and the appropriate FAR and FPMR 
citations shall be included.

[48 FR 42142, Sept. 19, 1983, as amended at 52 FR 6121, Feb. 27, 1987; 
54 FR 19815, May 8, 1989; 55 FR 21707, May 25, 1990; 55 FR 30465, July 
26, 1990; 56 FR 67129, Dec. 27, 1991; 59 FR 67033, Dec. 28, 1994]



Sec. 9.406-2  Causes for debarment.

    The debarring official may debar--
    (a) A contractor for a conviction of or civil judgment for--
    (1) Commission of fraud or a criminal offense in connection with (i) 
obtaining, (ii) attempting to obtain, or (iii) performing a public 
contract or subcontract;
    (2) Violation of Federal or State antitrust statutes relating to the 
submission of offers;
    (3) Commission of embezzlement, theft, forgery, bribery, 
falsification or destruction of records, making false statements, tax 
evasion, violating Federal criminal tax laws, or receiving stolen 
property;
    (4) Intentionally affixing a label bearing a ``Made in America'' 
inscription (or any inscription having the same meaning) to a product 
sold in or shipped to the United States or its outlying areas, when the 
product was not made in the United States or its outlying areas (see 
Section 202 of the Defense Production Act (Public Law 102-558)); or
    (5) Commission of any other offense indicating a lack of business 
integrity or business honesty that seriously and directly affects the 
present responsibility of a Government contractor or subcontractor.
    (b)(1) A contractor, based upon a preponderance of the evidence, for 
any of the following--
    (i) Violation of the terms of a Government contract or subcontract 
so serious as to justify debarment, such as--
    (A) Willful failure to perform in accordance with the terms of one 
or more contracts; or
    (B) A history of failure to perform, or of unsatisfactory 
performance of, one or more contracts.
    (ii) Violations of the Drug-Free Workplace Act of 1988 (Public Law 
100-690), as indicated by--
    (A) Failure to comply with the requirements of the clause at 52.223-
6, Drug-Free Workplace; or
    (B) Such a number of contractor employees convicted of violations of 
criminal drug statutes occurring in the workplace as to indicate that 
the contractor has failed to make a good faith effort to provide a drug-
free workplace (see 23.504).

[[Page 200]]

    (iii) Intentionally affixing a label bearing a ``Made in America'' 
inscription (or any inscription having the same meaning) to a product 
sold in or shipped to the United States or its outlying areas, when the 
product was not made in the United States or its outlying areas (see 
Section 202 of the Defense Production Act (Public Law 102-558)).
    (iv) Commission of an unfair trade practice as defined in 9.403 (see 
Section 201 of the Defense Production Act (Public Law 102-558)).
    (v) Delinquent Federal taxes in an amount that exceeds $3,000.
    (A) Federal taxes are considered delinquent for purposes of this 
provision if both of the following criteria apply:
    (1) The tax liability is finally determined. The liability is 
finally determined if it has been assessed. A liability is not finally 
determined if there is a pending administrative or judicial challenge. 
In the case of a judicial challenge to the liability, the liability is 
not finally determined until all judicial appeal rights have been 
exhausted.
    (2) The taxpayer is delinquent in making payment. A taxpayer is 
delinquent if the taxpayer has failed to pay the tax liability when full 
payment was due and required. A taxpayer is not delinquent in cases 
where enforced collection action is precluded.
    (B) Examples. (1) The taxpayer has received a statutory notice of 
deficiency, under I.R.C.Sec. 6212, which entitles the taxpayer to seek 
Tax Court review of a proposed tax deficiency. This is not a delinquent 
tax because it is not a final tax liability. Should the taxpayer seek 
Tax Court review, this will not be a final tax liability until the 
taxpayer has exercised all judicial appeal rights.
    (2) The IRS has filed a notice of Federal tax lien with respect to 
an assessed tax liability, and the taxpayer has been issued a notice 
under I.R.C.Sec. 6320 entitling the taxpayer to request a hearing with 
the IRS Office of Appeals contesting the lien filing, and to further 
appeal to the Tax Court if the IRS determines to sustain the lien 
filing. In the course of the hearing, the taxpayer is entitled to 
contest the underlying tax liability because the taxpayer has had no 
prior opportunity to contest the liability. This is not a delinquent tax 
because it is not a final tax liability. Should the taxpayer seek tax 
court review, this will not be a final tax liability until the taxpayer 
has exercised all judicial appeal rights.
    (3) The taxpayer has entered into an installment agreement pursuant 
to I.R.C.Sec. 6159. The taxpayer is making timely payments and is in 
full compliance with the agreement terms. The taxpayer is not delinquent 
because the taxpayer is not currently required to make full payment.
    (4) The taxpayer has filed for bankruptcy protection. The taxpayer 
is not delinquent because enforced collection action is stayed under 11 
U.S.C. 362 (the Bankruptcy Code).
    (vi) Knowing failure by a principal, until 3 years after final 
payment on any Government contract awarded to the contractor, to timely 
disclose to the Government, in connection with the award, performance, 
or closeout of the contract or a subcontract thereunder, credible 
evidence of--
    (A) Violation of Federal criminal law involving fraud, conflict of 
interest, bribery, or gratuity violations found in Title 18 of the 
United States Code;
    (B) Violation of the civil False Claims Act (31 U.S.C. 3729-3733); 
or
    (C) Significant overpayment(s) on the contract, other than 
overpayments resulting from contract financing payments as defined in 
32.001.
    (2) A contractor, based on a determination by the Secretary of 
Homeland Security or the Attorney General of the United States, that the 
contractor is not in compliance with Immigration and Nationality Act 
employment provisions (see Executive Order 12989, as amended by 
Executive Order 13286). Such determination is not reviewable in the 
debarment proceedings.
    (c) A contractor or subcontractor based on any other cause of so 
serious or compelling a nature that it affects the present 
responsibility of the contractor or subcontractor.

[48 FR 42142, Sept. 19, 1983, as amended at 54 FR 4968, Jan. 31 ,1989; 
54 FR 19815, May 8, 1989; 55 FR 21707, May 25, 1990; 59 FR 11372, Mar. 
10, 1994; 61 FR 2633, Jan. 26, 1996; 61 FR 41473, Aug. 8, 1996; 61 FR 
69291, Dec. 31, 1996; 68 FR 28080, May 22, 2003; 69 FR 34230, June 18, 
2004; 73 FR 21798, Apr. 22, 2008; 73 FR 67091, Nov. 12, 2008]

[[Page 201]]



Sec. 9.406-3  Procedures.

    (a) Investigation and referral. Agencies shall establish procedures 
for the prompt reporting, investigation, and referral to the debarring 
official of matters appropriate for that official's consideration.
    (b) Decisionmaking process. (1) Agencies shall establish procedures 
governing the debarment decisionmaking process that are as informal as 
is practicable, consistent with principles of fundamental fairness. 
These procedures shall afford the contractor (and any specifically named 
affiliates) an opportunity to submit, in person, in writing, or through 
a representative, information and argument in opposition to the proposed 
debarment.
    (2) In actions not based upon a conviction or civil judgment, if it 
is found that the contractor's submission in opposition raises a genuine 
dispute over facts material to the proposed debarment, agencies shall 
also--
    (i) Afford the contractor an opportunity to appear with counsel, 
submit documentary evidence, present witnesses, and confront any person 
the agency presents; and
    (ii) Make a transcribed record of the proceedings and make it 
available at cost to the contractor upon request, unless the contractor 
and the agency, by mutual agreement, waive the requirement for a 
transcript.
    (c) Notice of proposal to debar. A notice of proposed debarment 
shall be issued by the debarring official advising the contractor and 
any specifically named affiliates, by certified mail, return receipt 
requested--
    (1) That debarment is being considered;
    (2) Of the reasons for the proposed debarment in terms sufficient to 
put the contractor on notice of the conduct or transaction(s) upon which 
it is based;
    (3) Of the cause(s) relied upon under 9.406-2 for proposing 
debarment;
    (4) That, within 30 days after receipt of the notice, the contractor 
may submit, in person, in writing, or through a representative, 
information and argument in opposition to the proposed debarment, 
including any additional specific information that raises a genuine 
dispute over the material facts;
    (5) Of the agency's procedures governing debarment decisionmaking;
    (6) Of the effect of the issuance of the notice of proposed 
debarment; and
    (7) Of the potential effect of an actual debarment.
    (d) Debarring official's decision. (1) In actions based upon a 
conviction or judgment, or in which there is no genuine dispute over 
material facts, the debarring official shall make a decision on the 
basis of all the information in the administrative record, including any 
submission made by the contractor. If no suspension is in effect, the 
decision shall be made within 30 working days after receipt of any 
information and argument submitted by the contractor, unless the 
debarring official extends this period for good cause.
    (2)(i) In actions in which additional proceedings are necessary as 
to disputed material facts, written findings of fact shall be prepared. 
The debarring official shall base the decision on the facts as found, 
together with any information and argument submitted by the contractor 
and any other information in the administrative record.
    (ii) The debarring official may refer matters involving disputed 
material facts to another official for findings of fact. The debarring 
official may reject any such findings, in whole or in part, only after 
specifically determining them to be arbitrary and capricious or clearly 
erroneous.
    (iii) The debarring official's decision shall be made after the 
conclusion of the proceedings with respect to disputed facts.
    (3) In any action in which the proposed debarment is not based upon 
a conviction or civil judgment, the cause for debarment must be 
established by a preponderance of the evidence.
    (e) Notice of debarring official's decision. (1) If the debarring 
official decides to impose debarment, the contractor and any affiliates 
involved shall be given prompt notice by certified mail, return receipt 
requested--
    (i) Referring to the notice of proposed debarment;
    (ii) Specifying the reasons for debarment;
    (iii) Stating the period of debarment, including effective dates; 
and

[[Page 202]]

    (iv) Advising that the debarment is effective throughout the 
executive branch of the Government unless the head of an agency or a 
designee makes the statement called for by 9.406-1(c).
    (2) If debarment is not imposed, the debarring official shall 
promptly notify the contractor and any affiliates involved, by certified 
mail, return receipt requested.
    (f)(1) If the contractor enters into an administrative agreement 
with the Government in order to resolve a debarment proceeding, the 
debarring official shall access the website (available at 
www.cpars.csd.disa.mil, then select FAPIIS) and enter the requested 
information.
    (2) The debarring official is responsible for the timely submission, 
within 3 working days, and accuracy of the documentation regarding the 
administrative agreement.
    (3) With regard to information that may be covered by a disclosure 
exemption under the Freedom of Information Act, the debarring official 
shall follow the procedures at 9.105-2(b)(2)(iv).

[48 FR 42142, Sept. 19, 1983, as amended at 54 FR 19815, May 8, 1989; 59 
FR 67033, Dec. 28, 1994; 75 FR 14066, Mar. 23, 2010; 77 FR 201, Jan. 3, 
2012]



Sec. 9.406-4  Period of debarment.

    (a)(1) Debarment shall be for a period commensurate with the 
seriousness of the cause(s). Generally, debarment should not exceed 3 
years, except that--
    (i) Debarment for violation of the provisions of the Drug-Free 
Workplace Act of 1988 (see 23.506) may be for a period not to exceed 5 
years; and
    (ii) Debarments under 9.406-2(b)(2) shall be for one year unless 
extended pursuant to paragraph (b) of this subsection.
    (2) If suspension precedes a debarment, the suspension period shall 
be considered in determining the debarment period.
    (b) The debarring official may extend the debarment for an 
additional period, if that official determines that an extension is 
necessary to protect the Government's interest. However, a debarment may 
not be extended solely on the basis of the facts and circumstances upon 
which the initial debarment action was based. Debarments under 9.406-
2(b)(2) may be extended for additional periods of one year if the 
Secretary of Homeland Security or the Attorney General determines that 
the contractor continues to be in violation of the employment provisions 
of the Immigration and Nationality Act. If debarment for an additional 
period is determined to be necessary, the procedures of 9.406-3 shall be 
followed to extend the debarment.
    (c) The debarring official may reduce the period or extent of 
debarment, upon the contractor's request, supported by documentation, 
for reasons such as--
    (1) Newly discovered material evidence;
    (2) Reversal of the conviction or civil judgment upon which the 
debarment was based;
    (3) Bona fide change in ownership or management;
    (4) Elimination of other causes for which the debarment was imposed; 
or
    (5) Other reasons the debarring offical deems appropriate.

[48 FR 42142, Sept. 19, 1983, as amended at 54 FR 4968, Jan. 31 ,1989; 
54 FR 19815, May 8, 1989; 55 FR 21707, May 25, 1990; 61 FR 41473, Aug. 
8, 1996; 69 FR 34231, June 18, 2004]



Sec. 9.406-5  Scope of debarment.

    (a) The fraudulent, criminal, or other seriously improper conduct of 
any officer, director, shareholder, partner, employee, or other 
individual associated with a contractor may be imputed to the contractor 
when the conduct occurred in connection with the individual's 
performance of duties for or on behalf of the contractor, or with the 
contractor's knowledge, approval, or acquiescence. The contractor's 
acceptance of the benefits derived from the conduct shall be evidence of 
such knowledge, approval, or acquiescence.
    (b) The fraudulent, criminal, or other seriously improper conduct of 
a contractor may be imputed to any officer, director, shareholder, 
partner, employee, or other individual associated with the contractor 
who participated in, knew of, or had reason to know of the contractor's 
conduct.
    (c) The fraudulent, criminal, or other seriously improper conduct of 
one contractor participating in a joint venture

[[Page 203]]

or similar arrangement may be imputed to other participating contractors 
if the conduct occurred for or on behalf of the joint venture or similar 
arrangement, or with the knowledge, approval, or acquiescence of these 
contractors. Acceptance of the benefits derived from the conduct shall 
be evidence of such knowledge, approval, or acquiescence.



Sec. 9.407  Suspension.



Sec. 9.407-1  General.

    (a) The suspending official may, in the public interest, suspend a 
contractor for any of the causes in 9.407-2, using the procedures in 
9.407-3.
    (b)(1) Suspension is a serious action to be imposed on the basis of 
adequate evidence, pending the completion of investigation or legal 
proceedings, when it has been determined that immediate action is 
necessary to protect the Government's interest. In assessing the 
adequacy of the evidence, agencies should consider how much information 
is available, how credible it is given the circumstances, whether or not 
important allegations are corroborated, and what inferences can 
reasonably be drawn as a result. This assessment should include an 
examination of basic documents such as contracts, inspection reports, 
and correspondence.
    (b)(2) The existence of a cause for suspension does not necessarily 
require that the contractor be suspended. The suspending official should 
consider the seriousness of the contractor's acts or omissions and may, 
but is not required to, consider remedial measures or mitigating 
factors, such as those set forth in 9.406-1(a). A contractor has the 
burden of promptly presenting to the suspending official evidence of 
remedial measures or mitigating factors when it has reason to know that 
a cause for suspension exists. The existence or nonexistence of any 
remedial measures or mitigating factors is not necessarily determinative 
of a contractor's present responsibility.
    (c) Suspension constitutes suspension of all divisions or other 
organizational elements of the contractor, unless the suspension 
decision is limited by its terms to specific divisions, organizational 
elements, or commodities. The suspending official may extend the 
suspension decision to include any affiliates of the contractor if they 
are (1) specifically named and (2) given written notice of the 
suspension and an opportunity to respond (see 9.407-3(c)).
    (d) A contractor's suspension shall be effective throughout the 
executive branch of the Government, unless the agency head or a designee 
(except see 23.506(e)) states in writing the compelling reasons 
justifying continued business dealings between that agency and the 
contractor.
    (e)(1) When the suspending official has authority to suspend 
contractors from both acquisition contracts pursuant to this regulation 
and contracts for the purchase of Federal personal property pursuant to 
FPMR 101-45.6, that official shall consider simultaneously suspending 
the contractor from the award of acquisition contracts and from the 
purchase of Federal personal property.
    (2) When suspending a contractor from the award of acquisition 
contracts and from the purchase of Federal personal property, the 
suspension notice shall so indicate and the appropriate FAR and FPMR 
citations shall be included.

[48 FR 42142, Sept. 19, 1983, as amended at 54 FR 4968, Jan. 31, 1989; 
54 FR 19816, May 8, 1989; 56 FR 67130, Dec. 27, 1991; 59 FR 67033, Dec. 
28, 1994]



Sec. 9.407-2  Causes for suspension.

    (a) The suspending official may suspend a contractor suspected, upon 
adequate evidence, of--
    (1) Commission of fraud or a criminal offense in connection with (i) 
obtaining, (ii) attempting to obtain, or (iii) performing a public 
contract or subcontract;
    (2) Violation of Federal or State antitrust statutes relating to the 
submission of offers;
    (3) Commission of embezzlement, theft, forgery, bribery, 
falsification or destruction of records, making false statements, tax 
evasion, violating Federal criminal tax laws, or receiving stolen 
property; or
    (4) Violations of the Drug-Free Workplace Act of 1988 (Public Law 
100-690), as indicated by--

[[Page 204]]

    (i) Failure to comply with the requirements of the clause at 52.223-
6, Drug-Free Workplace; or
    (ii) Such a number of contractor employees convicted of violations 
of criminal drug statutes occurring in the workplace as to indicate that 
the contractor has failed to make a good faith effort to provide a drug-
free workplace (see 23.504);
    (5) Intentionally affixing a label bearing a ``Made in America'' 
inscription (or any inscription having the same meaning) to a product 
sold in or shipped to the United States or its outlying areas, when the 
product was not made in the United States or its outlying areas (see 
Section 202 of the Defense Production Act (Public Law 102-558));
    (6) Commission of an unfair trade practice as defined in 9.403 (see 
section 201 of the Defense Production Act (Pub. L. 102-558));
    (7) Delinquent Federal taxes in an amount that exceeds $3,000. See 
the criteria at 9.406-2(b)(1)(v) for determination of when taxes are 
delinquent; or
    (8) Knowing failure by a principal, until 3 years after final 
payment on any Government contract awarded to the contractor, to timely 
disclose to the Government, in connection with the award, performance, 
or closeout of the contract or a subcontract thereunder, credible 
evidence of--
    (i) Violation of Federal criminal law involving fraud, conflict of 
interest, bribery, or gratuity violations found in Title 18 of the 
United States Code;
    (ii) Violation of the civil False Claims Act (31 U.S.C. 3729-3733); 
or
    (iii) Significant overpayment(s) on the contract, other than 
overpayments resulting from contract financing payments as defined in 
32.001; or
    (9) Commission of any other offense indicating a lack of business 
integrity or business honesty that seriously and directly affects the 
present responsibility of a Government contractor or subcontractor.
    (b) Indictment for any of the causes in paragraph (a) above 
constitutes adequate evidence for suspension.
    (c) The suspending official may upon adequate evidence also suspend 
a contractor for any other cause of so serious or compelling a nature 
that it affects the present responsibility of a Government contractor or 
subcontractor.

[48 FR 42142, Sept. 19, 1983, as amended at 54 FR 4968, Jan. 31, 1989; 
55 FR 21707, May 25, 1990; 59 FR 11373, Mar. 10, 1994; 61 FR 2633, Jan. 
26, 1996; 61 FR 69291, Dec. 31, 1996; 68 FR 28081, May 22, 2003; 73 FR 
21798, Apr. 22, 2008; 73 FR 67091, Nov. 12, 2008]



Sec. 9.407-3  Procedures.

    (a) Investigation and referral. Agencies shall establish procedures 
for the prompt reporting, investigation, and referral to the suspending 
official of matters appropriate for that official's consideration.
    (b) Decisionmaking process. (1) Agencies shall establish procedures 
governing the suspension decisionmaking process that are as informal as 
is practicable, consistent with principles of fundamental fairness. 
These procedures shall afford the contractor (and any specifically named 
affiliates) an opportunity, following the imposition of suspension, to 
submit, in person, in writing, or through a representative, information 
and argument in opposition to the suspension.
    (2) In actions not based on an indictment, if it is found that the 
contractor's submission in opposition raises a genuine dispute over 
facts material to the suspension and if no determination has been made, 
on the basis of Department of Justice advice, that substantial interests 
of the Government in pending or contemplated legal proceedings based on 
the same facts as the suspension would be prejudiced, agencies shall 
also--
    (i) Afford the contractor an opportunity to appear with counsel, 
submit documentary evidence, present witnesses, and confront any person 
the agency presents; and
    (ii) Make a transcribed record of the proceedings and make it 
available at cost to the contractor upon request, unless the contractor 
and the agency, by mutual agreement, waive the requirement for a 
transcript.
    (c) Notice of suspension. When a contractor and any specifically 
named affiliates are suspended, they shall be immediately advised by 
certified mail, return receipt requested--

[[Page 205]]

    (1) That they have been suspended and that the suspension is based 
on an indictment or other adequate evidence that the contractor has 
committed irregularities (i) of a serious nature in business dealings 
with the Government or (ii) seriously reflecting on the propriety of 
further Government dealings with the contractor--any such irregularities 
shall be described in terms sufficient to place the contractor on notice 
without disclosing the Government's evidence;
    (2) That the suspension is for a temporary period pending the 
completion of an investigation and such legal proceedings as may ensue;
    (3) Of the cause(s) relied upon under 9.407-2 for imposing 
suspension;
    (4) Of the effect of the suspension;
    (5) That, within 30 days after receipt of the notice, the contractor 
may submit, in person, in writing, or through a representative, 
information and argument in opposition to the suspension, including any 
additional specific information that raises a genuine dispute over the 
material facts; and
    (6) That additional proceedings to determine disputed material facts 
will be conducted unless (i) the action is based on an indictment or 
(ii) a determination is made, on the basis of Department of Justice 
advice, that the substantial interests of the Government in pending or 
contemplated legal proceedings based on the same facts as the suspension 
would be prejudiced.
    (d) Suspending official's decision. (1) In actions (i) based on an 
indictment, (ii) in which the contractor's submission does not raise a 
genuine dispute over material facts, or (iii) in which additional 
proceedings to determine disputed material facts have been denied on the 
basis of Department of Justice advice, the suspending official's 
decision shall be based on all the information in the administrative 
record, including any submission made by the contractor.
    (2)(i) In actions in which additional proceedings are necessary as 
to disputed material facts, written findings of fact shall be prepared. 
The suspending official shall base the decision on the facts as found, 
together with any information and argument submitted by the contractor 
and any other information in the administrative record.
    (ii) The suspending official may refer matters involving disputed 
material facts to another official for findings of fact. The suspending 
official may reject any such findings, in whole or in part, only after 
specifically determining them to be arbitrary and capricious or clearly 
erroneous.
    (iii) The suspending official's decision shall be made after the 
conclusion of the proceedings with respect to disputed facts.
    (3) The suspending official may modify or terminate the suspension 
or leave it in force (for example, see 9.406-4(c) for the reasons for 
reducing the period or extent of debarment). However, a decision to 
modify or terminate the suspension shall be without prejudice to the 
subsequent imposition of (i) suspension by any other agency or (ii) 
debarment by any agency.
    (4) Prompt written notice of the suspending official's decision 
shall be sent to the contractor and any affiliates involved, by 
certified mail, return receipt requested.
    (e)(1) If the contractor enters into an administrative agreement 
with the Government in order to resolve a suspension proceeding, the 
suspending official shall access the website (available at 
www.cpars.csd.disa.mil, then select FAPIIS) and enter the requested 
information.
    (2) The suspending official is responsible for the timely 
submission, within 3 working days, and accuracy of the documentation 
regarding the administrative agreement.
    (3) With regard to information that may be covered by a disclosure 
exemption under the Freedom of Information Act, the suspending official 
shall follow the procedures at 9.105-2(b)(2)(iv).

[48 FR 42142, Sept. 19, 1983, as amended at 51 FR 2649, Jan. 17, 1986; 
75 FR 14066, Mar. 23, 2010; 77 FR 201, Jan. 3, 2012]



Sec. 9.407-4  Period of suspension.

    (a) Suspension shall be for a temporary period pending the 
completion of investigation and any ensuing legal proceedings, unless 
sooner terminated by the suspending official or as provided in this 
subsection.

[[Page 206]]

    (b) If legal proceedings are not initiated within 12 months after 
the date of the suspension notice, the suspension shall be terminated 
unless an Assistant Attorney General requests its extension, in which 
case it may be extended for an additional 6 months. In no event may a 
suspension extend beyond 18 months, unless legal proceedings have been 
initiated within that period.
    (c) The suspending official shall notify the Department of Justice 
of the proposed termination of the suspension, at least 30 days before 
the 12-month period expires, to give that Department an opportunity to 
request an extension.

[48 FR 42142, Sept. 19, 1983, as amended at 51 FR 2649, Jan. 17, 1986]



Sec. 9.407-5  Scope of suspension.

    The scope of suspension shall be the same as that for debarment (see 
9.406-5), except that the procedures of 9.407-3 shall be used in 
imposing suspension.



Sec. 9.408  [Reserved]



Sec. 9.409  Contract clause.

    The contracting officer shall insert the clause at 52.209-6, 
Protecting the Government's Interests when Subcontracting with 
Contractors Debarred, Suspended, or Proposed for Debarment, in 
solicitations and contracts where the contract value exceeds $30,000.

[60 FR 34748, July 3, 1995, as amended at 71 FR 57366, Sept. 28, 2006; 
73 FR 21798, Apr. 22, 2008]

     Subpart 9.5_Organizational and Consultant Conflicts of Interest



Sec. 9.500  Scope of subpart.

    This subpart:
    (a) Prescribes responsibilities, general rules, and procedures for 
identifying, evaluating, and resolving organizational conflicts of 
interest;
    (b) Provides examples to assist contracting officers in applying 
these rules and procedures to individual contracting situations; and
    (c) Implements section 8141 of the 1989 Department of Defense 
Appropriation Act, Pub. L. 100-463, 102 Stat. 2270-47 (1988).

[55 FR 42685, Oct. 22, 1990, as amended at 65 FR 36014, June 6, 2000]



Sec. 9.501  Definition.

    Marketing consultant, as used in this subpart, means any independent 
contractor who furnishes advice, information, direction, or assistance 
to an offeror or any other contractor in support of the preparation or 
submission of an offer for a Government contract by that offeror. An 
independent contractor is not a marketing consultant when rendering--
    (1) Services excluded in subpart 37.2;
    (2) Routine engineering and technical services (such as 
installation, operation, or maintenance of systems, equipment, software, 
components, or facilities);
    (3) Routine legal, actuarial, auditing, and accounting services; and
    (4) Training services.

[55 FR 42685, Oct. 22, 1990, as amended at 66 FR 2128, Jan. 10, 2001]



Sec. 9.502  Applicability.

    (a) This subpart applies to contracts with either profit or 
nonprofit organizations, including nonprofit organizations created 
largely or wholly with Government funds.
    (b) The applicability of this subpart is not limited to any 
particular kind of acquisition. However, organizational conflicts of 
interest are more likely to occur in contracts involving--
    (1) Management support services;
    (2) Consultant or other professional services;
    (3) Contractor performance of or assistance in technical 
evaluations; or
    (4) Systems engineering and technical direction work performed by a 
contractor that does not have overall contractual responsibility for 
development or production.
    (c) An oganizational conflict of interest may result when factors 
create an actual or potential conflict of interest on an instant 
contract, or when the nature of the work to be performed on the instant 
contract creates an actual or potential conflict of interest on a future 
acquisition. In the latter case,

[[Page 207]]

some restrictions on future activities of the contractor may be 
required.
    (d) Acquisitions subject to unique agency organizational conflict of 
interest statutes are excluded from the requirements of this subpart.

[48 FR 42142, Sept. 19, 1983, as amended at 55 FR 42686, Oct. 22, 1990; 
56 FR 55377, Oct. 25, 1991]



Sec. 9.503  Waiver.

    The agency head or a designee may waive any general rule or 
procedure of this subpart by determining that its application in a 
particular situation would not be in the Government's interest. Any 
request for waiver must be in writing, shall set forth the extent of the 
conflict, and requires approval by the agency head or a designee. Agency 
heads shall not delegate waiver authority below the level of head of a 
contracting activity.



Sec. 9.504  Contracting officer responsibilities.

    (a) Using the general rules, procedures, and examples in this 
subpart, contracting officers shall analyze planned acquisitions in 
order to--
    (1) Identify and evaluate potential organizational conflicts of 
interest as early in the acquisition process as possible; and
    (2) Avoid, neutralize, or mitigate significant potential conflicts 
before contract award.
    (b) Contracting officers should obtain the advice of counsel and the 
assistance of appropriate technical specialists in evaluating potential 
conflicts and in developing any necessary solicitation provisions and 
contract clauses (see 9.506).
    (c) Before issuing a solicitation for a contract that may involve a 
significant potential conflict, the contracting officer shall recommend 
to the head of the contracting activity a course of action for resolving 
the conflict (see 9.506).
    (d) In fulfilling their responsibilities for identifying and 
resolving potential conflicts, contracting officers should avoid 
creating unnecessary delays, burdensome information requirements, and 
excessive documentation. The contracting officer's judgment need be 
formally documented only when a substantive issue concerning potential 
organizational conflict of interest exists.
    (e) The contracting officer shall award the contract to the apparent 
successful offeror unless a conflict of interest is determined to exist 
that cannot be avoided or mitigated. Before determining to withhold 
award based on conflict of interest considerations, the contracting 
officer shall notify the contractor, provide the reasons therefor, and 
allow the contractor a reasonable opportunity to respond. If the 
contracting officer finds that it is in the best interest of the United 
States to award the contract notwithstanding a conflict of interest, a 
request for waiver shall be submitted in accordance with 9.503. The 
waiver request and decision shall be included in the contract file.

[48 FR 42142, Sept. 19, 1983, as amended at 55 FR 42686, Oct. 22, 1990; 
56 FR 55377, Oct. 25, 1991]



Sec. 9.505  General rules.

    The general rules in 9.505-1 through 9.505-4 prescribe limitations 
on contracting as the means of avoiding, neutralizing, or mitigating 
organizational conflicts of interest that might otherwise exist in the 
stated situations. Some illustrative examples are provided in 9.508. 
Conflicts may arise in situations not expressly covered in this section 
9.505 or in the examples in 9.508. Each individual contracting situation 
should be examined on the basis of its particular facts and the nature 
of the proposed contract. The exercise of common sense, good judgment, 
and sound discretion is required in both the decision on whether a 
significant potential conflict exists and, if it does, the development 
of an appropriate means for resolving it. The two underlying principles 
are--
    (a) Preventing the existence of conflicting roles that might bias a 
contractor's judgment; and
    (b) Preventing unfair competitive advantage. In addition to the 
other situations described in this subpart, an unfair competitive 
advantage exists where a contractor competing for award for any Federal 
contract possesses--

[[Page 208]]

    (1) Proprietary information that was obtained from a Government 
official without proper authorization; or
    (2) Source selection information (as defined in 2.101) that is 
relevant to the contract but is not available to all competitors, and 
such information would assist that contractor in obtaining the contract.

[48 FR 42142, Sept. 19, 1983, as amended at 55 FR 42686, Oct. 22, 1990; 
56 FR 55377, Oct. 25, 1991; 62 FR 232, Jan. 2, 1997; 64 FR 32748, June 
17, 1999; 67 FR 13063, Mar. 20, 2002]



Sec. 9.505-1  Providing systems engineering and technical direction.

    (a) A contractor that provides systems engineering and technical 
direction for a system but does not have overall contractual 
responsibility for its development, its integration, assembly, and 
checkout, or its production shall not (1) be awarded a contract to 
supply the system or any of its major components or (2) be a 
subcontractor or consultant to a supplier of the system or any of its 
major components.
    (b) Systems engineering includes a combination of substantially all 
of the following activities: determining specifications, identifying and 
resolving interface problems, developing test requirements, evaluating 
test data, and supervising design. Technical direction includes a 
combination of substantially all of the following activities: developing 
work statements, determining parameters, directing other contractors' 
operations, and resolving technical controversies. In performing these 
activities, a contractor occupies a highly influential and responsible 
position in determining a system's basic concepts and supervising their 
execution by other contractors. Therefore this contractor should not be 
in a position to make decisions favoring its own products or 
capabilities.



Sec. 9.505-2  Preparing specifications or work statements.

    (a)(1) If a contractor prepares and furnishes complete 
specifications covering nondevelopmental items, to be used in a 
competitive acquisition, that contractor shall not be allowed to furnish 
these items, either as a prime contractor or as a subcontractor, for a 
reasonable period of time including, at least, the duration of the 
initial production contract. This rule shall not apply to--
    (i) Contractors that furnish at Government request specifications or 
data regarding a product they provide, even though the specifications or 
data may have been paid for separately or in the price of the product; 
or
    (ii) Situations in which contractors, acting as industry 
representatives, help Government agencies prepare, refine, or coordinate 
specifications, regardless of source, provided this assistance is 
supervised and controlled by Government representatives.
    (2) If a single contractor drafts complete specifications for 
nondevelopmental equipment, it should be eliminated for a reasonable 
time from competition for production based on the specifications. This 
should be done in order to avoid a situation in which the contractor 
could draft specifications favoring its own products or capabilities. In 
this way the Government can be assured of getting unbiased advice as to 
the content of the specifications and can avoid allegations of 
favoritism in the award of production contracts.
    (3) In development work, it is normal to select firms that have done 
the most advanced work in the field. These firms can be expected to 
design and develop around their own prior knowledge. Development 
contractors can frequently start production earlier and more 
knowledgeably than firms that did not participate in the development, 
and this can affect the time and quality of production, both of which 
are important to the Government. In many instances the Government may 
have financed the development. Thus, while the development contractor 
has a competitive advantage, it is an unavoidable one that is not 
considered unfair; hence no prohibition should be imposed.
    (b)(1) If a contractor prepares, or assists in preparing, a work 
statement to be used in competitively acquiring a system or services--or 
provides material leading directly, predictably, and without delay to 
such a work statement--that contractor may not supply the system, major 
components of the system, or the services unless--
    (i) It is the sole source;

[[Page 209]]

    (ii) It has participated in the development and design work; or
    (iii) More than one contractor has been involved in preparing the 
work statement.
    (2) Agencies should normally prepare their own work statements. When 
contractor assistance is necessary, the contractor might often be in a 
position to favor its own products or capabilities. To overcome the 
possibility of bias, contractors are prohibited from supplying a system 
or services acquired on the basis of work statements growing out of 
their services, unless excepted in subparagraph (1) above.
    (3) For the reasons given in 9.505-2(a)(3), no prohibitions are 
imposed on development and design contractors.



Sec. 9.505-3  Providing evaluation services.

    Contracts for the evaluation of offers for products or services 
shall not be awarded to a contractor that will evaluate its own offers 
for products or services, or those of a competitor, without proper 
safeguards to ensure objectivity to protect the Government's interests.

[62 FR 12694, Mar. 17, 1997]



Sec. 9.505-4  Obtaining access to proprietary information.

    (a) When a contractor requires proprietary information from others 
to perform a Government contract and can use the leverage of the 
contract to obtain it, the contractor may gain an unfair competitive 
advantage unless restrictions are imposed. These restrictions protect 
the information and encourage companies to provide it when necessary for 
contract performance. They are not intended to protect information (1) 
furnished voluntarily without limitations on its use or (2) available to 
the Government or contractor from other sources without restriction.
    (b) A contractor that gains access to proprietary information of 
other companies in performing advisory and assistance services for the 
Government must agree with the other companies to protect their 
information from unauthorized use or disclosure for as long as it 
remains proprietary and refrain from using the information for any 
purpose other than that for which it was furnished. The contracting 
officer shall obtain copies of these agreements and ensure that they are 
properly executed.
    (c) Contractors also obtain proprietary and source selection 
information by acquiring the services of marketing consultants which, if 
used in connection with an acquisition, may give the contractor an 
unfair competitive advantage. Contractors should make inquiries of 
marketing consultants to ensure that the marketing consultant has 
provided no unfair competitive advantage.

[48 FR 42142, Sept. 19, 1983, as amended at 55 FR 42686, Oct. 22, 1990; 
56 FR 55377, Oct. 25, 1991; 62 FR 235, Jan. 2, 1997]



Sec. 9.506  Procedures.

    (a) If information concerning prospective contractors is necessary 
to identify and evaluate potential organizational conflicts of interest 
or to develop recommended actions, contracting officers should first 
seek the information from within the Government or from other readily 
available sources. Government sources include the files and the 
knowledge of personnel within the contracting office, other contracting 
offices, the cognizant contract administration and audit activities and 
offices concerned with contract financing. Non-Government sources 
include publications and commercial services, such as credit rating 
services, trade and financial journals, and business directories and 
registers.
    (b) If the contracting officer decides that a particular acquisition 
involves a significant potential organizational conflict of interest, 
the contracting officer shall, before issuing the solicitation, submit 
for approval to the chief of the contracting office (unless a higher 
level official is designated by the agency)--
    (1) A written analysis, including a recommended course of action for 
avoiding, neutralizing, or mitigating the conflict, based on the general 
rules in 9.505 or on another basis not expressly stated in that section;
    (2) A draft solicitation provision (see 9.507-1); and
    (3) If appropriate, a proposed contract clause (see 9.507-2).
    (c) The approving official shall--

[[Page 210]]

    (1) Review the contracting officer's analysis and recommended course 
of action, including the draft provision and any proposed clause;
    (2) Consider the benefits and detriments to the Government and 
prospective contractors; and
    (3) Approve, modify, or reject the recommendations in writing.
    (d) The contracting officer shall--
    (1) Include the approved provision(s) and any approved clause(s) in 
the solicitation or the contract, or both;
    (2) Consider additional information provided by prospective 
contractors in response to the solicitation or during negotiations; and
    (3) Before awarding the contract, resolve the conflict or the 
potential conflict in a manner consistent with the approval or other 
direction by the head of the contracting activity.
    (e) If, during the effective period of any restriction (see 9.507), 
a contracting office transfers acquisition responsibility for the item 
or system involved, it shall notify the successor contracting office of 
the restriction, and send a copy of the contract under which the 
restriction was imposed.

[55 FR 42686, Oct. 22, 1990, as amended at 62 FR 235, Jan. 2, 1997]



Sec. 9.507  Solicitation provisions and contract clause.



Sec. 9.507-1  Solicitation provisions.

    As indicated in the general rules in 9.505, significant potential 
organizational conflicts of interest are normally resolved by imposing 
some restraint, appropriate to the nature of the conflict, upon the 
contractor's eligibilty for future contracts or subcontracts. Therefore, 
affected solicitations shall contain a provision that--
    (a) Invites offerors' attention to this subpart;
    (b) States the nature of the potential conflict as seen by the 
contracting officer;
    (c) States the nature of the proposed restraint upon future 
contractor activities; and
    (d) Depending on the nature of the acquisition, states whether or 
not the terms of any proposed clause and the application of this subpart 
to the contract are subject to negotiation.

[55 FR 42687, Oct. 22, 1990, as amended at 56 FR 55377, Oct. 25, 1991; 
60 FR 34748, July 3, 1995; 60 FR 49721, Sept. 26, 1995; 62 FR 235, Jan. 
2, 1997]



Sec. 9.507-2  Contract clause.

    (a) If, as a condition of award, the contractor's eligibility for 
future prime contract or subcontract awards will be restricted or the 
contractor must agree to some other restraint, the solicitation shall 
contain a proposed clause that specifies both the nature and duration of 
the proposed restraint. The contracting officer shall include the clause 
in the contract, first negotiating the clause's final terms with the 
successful offeror, if it is appropriate to do so (see 9.508-1(d) of 
this subsection).
    (b) The restraint imposed by a clause shall be limited to a fixed 
term of reasonable duration, sufficient to avoid the circumstance of 
unfair competitive advantage or potential bias. This period varies. It 
might end, for example, when the first production contract using the 
contractor's specifications or work statement is awarded, or it might 
extend through the entire life of a system for which the contractor has 
performed systems engineering and technical direction. In every case, 
the restriction shall specify termination by a specific date or upon the 
occurrence of an identifiable event.

[55 FR 42687, Oct. 22, 1990]



Sec. 9.508  Examples.

    The examples in paragraphs (a) through (i) following illustrate 
situations in which questions concerning organizational conflicts of 
interest may arise. They are not all inclusive, but are intended to help 
the contracting officer apply the general rules in 9.505 to individual 
contract situations.
    (a) Company A agrees to provide systems engineering and technical 
direction for the Navy on the powerplant for a group of submarines 
(i.e., turbines, drive shafts, propellers, etc.). Company A should not 
be allowed to supply any powerplant components. Company A can, however, 
supply components of

[[Page 211]]

the submarine unrelated to the powerplant (e.g., fire control, 
navigation, etc.). In this example, the system is the powerplant, not 
the submarine, and the ban on supplying components is limited to those 
for the system only.
    (b) Company A is the systems engineering and technical direction 
contractor for system X. After some progress, but before completion, the 
system is canceled. Later, system Y is developed to achieve the same 
purposes as system X, but in a fundamentally different fashion. Company 
B is the systems engineering and technical direction contractor for 
system Y. Company A may supply system Y or its components.
    (c) Company A develops new electronic equipment and, as a result of 
this development, prepares specifications. Company A may supply the 
equipment.
    (d) XYZ Tool Company and PQR Machinery Company, representing the 
American Tool Institute, work under Government supervision and control 
to refine specifications or to clarify the requirements of a specific 
acquisition. These companies may supply the item.
    (e) Before an acquisition for information technology is conducted, 
Company A is awarded a contract to prepare data system specifications 
and equipment performance criteria to be used as the basis for the 
equipment competition. Since the specifications are the basis for 
selection of commercial hardware, a potential conflict of interest 
exists. Company A should be excluded from the initial follow-on 
information technology hardware acquisition.
    (f) Company A receives a contract to define the detailed performance 
characteristics an agency will require for purchasing rocket fuels. 
Company A has not developed the particular fuels. When the definition 
contract is awarded, it is clear to both parties that the agency will 
use the performance characteristics arrived at to choose competitively a 
contractor to develop or produce the fuels. Company A may not be awarded 
this follow-on contract.
    (g) Company A receives a contract to prepare a detailed plan for 
scientific and technical training of an agency's personnel. It suggests 
a curriculum that the agency endorses and incorporates in its request 
for proposals to institutions to establish and conduct the training. 
Company A may not be awarded a contract to conduct the training.
    (h) Company A is selected to study the use of lasers in 
communications. The agency intends to ask that firms doing research in 
the field make proprietary information available to Company A. The 
contract must require Company A to (1) enter into agreements with these 
firms to protect any proprietary information they provide and (2) 
refrain from using the information in supplying lasers to the Government 
or for any purpose other than that for which it was intended.
    (i) An agency that regulates an industry wishes to develop a system 
for evaluating and processing license applications. Contractor X helps 
develop the system and process the applications. Contractor X should be 
prohibited from acting as a consultant to any of the applicants during 
its period of performance and for a reasonable period thereafter.

[48 FR 42142, Sept. 19, 1983. Redesignated at 55 FR 42687, Oct. 22, 
1990; 61 FR 41469, Aug. 8, 1996]

                Subpart 9.6_Contractor Team Arrangements



Sec. 9.601  Definition.

    Contractor team arrangement, as used in this subpart, means an 
arrangement in which--
    (1) Two or more companies form a partnership or joint venture to act 
as a potential prime contractor; or
    (2) A potential prime contractor agrees with one or more other 
companies to have them act as its subcontractors under a specified 
Government contract or acquisition program.

[48 FR 42142, Sept. 19, 1983, as amended at 66 FR 2128, Jan. 10, 2001]



Sec. 9.602  General.

    (a) Contractor team arrangements may be desirable from both a 
Government and industry standpoint in order to enable the companies 
involved to (1) complement each other's unique capabilities and (2) 
offer the Government the best combination of performance,

[[Page 212]]

cost, and delivery for the system or product being acquired.
    (b) Contractor team arrangements may be particularly appropriate in 
complex research and development acquisitions, but may be used in other 
appropriate acquisitions, including production.
    (c) The companies involved normally form a contractor team 
arrangement before submitting an offer. However, they may enter into an 
arrangement later in the acquisition process, including after contract 
award.



Sec. 9.603  Policy.

    The Government will recognize the integrity and validity of 
contractor team arrangements; provided, the arrangements are identified 
and company relationships are fully disclosed in an offer or, for 
arrangements entered into after submission of an offer, before the 
arrangement becomes effective. The Government will not normally require 
or encourage the dissolution of contractor team arrangements.



Sec. 9.604  Limitations.

    Nothing in this subpart authorizes contractor team arrangements in 
violation of antitrust statutes or limits the Government's rights to--
    (a) Require consent to subcontracts (see subpart 44.2);
    (b) Determine, on the basis of the stated contractor team 
arrangement, the responsibility of the prime contractor (see subpart 
9.1);
    (c) Provide to the prime contractor data rights owned or controlled 
by the Government;
    (d) Pursue its policies on competitive contracting, subcontracting, 
and component breakout after initial production or at any other time; 
and
    (e) Hold the prime contractor fully responsible for contract 
performance, regardless of any team arrangement between the prime 
contractor and its subcontractors.

 Subpart 9.7_Defense Production Pools and Research and Development Pools



Sec. 9.701  Definition.

    Pool, as used in this subpart, means a group of concerns (see 
19.001) that have--
    (1) Associated together in order to obtain and perform, jointly or 
in conjunction with each other, defense production or research and 
development contracts;
    (2) Entered into an agreement governing their organization, 
relationship, and procedures; and
    (3) Obtained approval of the agreement by either--
    (i) The Small Business Administration (SBA) under section 9 or 11 of 
the Small Business Act (15 U.S.C. 638 or 640) (see 13 CFR part 125); or
    (ii) A designated official under Part V of Executive Order 10480, 
August 14, 1953 (18 FR 4939, August 20, 1953) and section 708 of the 
Defense Production Act of 1950 (50 U.S.C. App. 2158).

[48 FR 42142, Sept. 19, 1983, as amended at 51 FR 2649, Jan. 17, 1986; 
66 FR 2128, Jan. 10, 2001]



Sec. 9.702  Contracting with pools.

    (a) Except as specified in this subpart, a pool shall be treated the 
same as any other prospective or actual contractor.
    (b) The contracting officer shall not award a contract to a pool 
unless the offer leading to the contract is submitted by the pool in its 
own name or by an individual pool member expressly stating that the 
offer is on behalf of the pool.
    (c) Upon receipt of an offer submitted by a group representing that 
it is a pool, the contracting officer shall verify its approved status 
with the SBA District Office Director or other approving agency and 
document the contract file that the verification was made.
    (d) Pools approved by the SBA under the Small Business Act are 
entitled to the preferences and privileges accorded to small business 
concerns. Approval under the Defense Production Act does not confer 
these preferences and privileges.

[[Page 213]]

    (e) Before awarding a contract to an unincorporated pool, the 
contracting officer shall require each pool member participating in the 
contract to furnish a certified copy of a power of attorney identifying 
the agent authorized to sign the offer or contract on that member's 
behalf. The contracting officer shall attach a copy of each power of 
attorney to each signed copy of the contract retained by the Government.

[48 FR 42142, Sept. 19, 1983, as amended at 61 FR 67410, Dec. 20, 1996]



Sec. 9.703  Contracting with individual pool members.

    (a) Pool members may submit individual offers, independent of the 
pool. However, the contracting officer shall not consider an independent 
offer by a pool member if that pool member participates in a competing 
offer submitted by the pool.
    (b) If a pool member submits an individual offer, independent of the 
pool, the contracting officer shall consider the pool agreement, along 
with other factors, in determining whether that pool member is a 
responsible prospective contractor under subpart 9.1.

                         PART 10_MARKET RESEARCH

Sec.

Sec. 10.000 Scope of part.

Sec. 10.001 Policy.

Sec. 10.002 Procedures.

Sec. 10.003 Contract clause.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 
20113.

    Source: 60 FR 48237, Sept. 18, 1995, unless otherwise noted.



Sec. 10.000  Scope of part.

    This part prescribes policies and procedures for conducting market 
research to arrive at the most suitable approach to acquiring, 
distributing, and supporting supplies and services. This part implements 
the requirements of 41 U.S.C. 253a(a)(1), 41 U.S.C. 264b, 10 U.S.C. 
2377, and 6 U.S.C. 796.

[60 FR 48237, Sept. 18, 1995, as amended at 74 FR 52849, Oct. 14, 2009]



Sec. 10.001  Policy.

    (a) Agencies must--
    (1) Ensure that legitimate needs are identified and trade-offs 
evaluated to acquire items that meet those needs;
    (2) Conduct market research appropriate to the circumstances--
    (i) Before developing new requirements documents for an acquisition 
by that agency;
    (ii) Before soliciting offers for acquisitions with an estimated 
value in excess of the simplified acquisition threshold;
    (iii) Before soliciting offers for acquisitions with an estimated 
value less than the simplified acquisition threshold when adequate 
information is not available and the circumstances justify its cost;
    (iv) Before soliciting offers for acquisitions that could lead to a 
bundled contract (15 U.S.C. 644(e)(2)(A));
    (v) Before awarding a task or delivery order under an indefinite-
delivery-indefinite-quantity (ID/IQ) contract (e.g., GWACs, MACs) for a 
noncommercial item in excess of the simplified acquisition threshold (10 
U.S.C. 2377(c)); and
    (vi) On an ongoing basis, take advantage (to the maximum extent 
practicable) of commercially available market research methods in order 
to effectively identify the capabilities of small businesses and new 
entrants into Federal contracting that are available in the marketplace 
for meeting the requirements of the agency in furtherance of--
    (A) A contingency operation or defense against or recovery from 
nuclear, biological, chemical, or radiological attack; and
    (B) Disaster relief to include debris removal, distribution of 
supplies, reconstruction, and other disaster or emergency relief 
activities. (See 26.205).
    (3) Use the results of market research to--
    (i) Determine if sources capable of satisfying the agency's 
requirements exist;
    (ii) Determine if commercial items or, to the extent commercial 
items suitable to meet the agency's needs are not available, 
nondevelopmental items are available that--
    (A) Meet the agency's requirements;

[[Page 214]]

    (B) Could be modified to meet the agency's requirements; or
    (C) Could meet the agency's requirements if those requirements were 
modified to a reasonable extent;
    (iii) Determine the extent to which commercial items or 
nondevelopmental items could be incorporated at the component level;
    (iv) Determine the practices of firms engaged in producing, 
distributing, and supporting commercial items, such as type of contract, 
terms for warranties, buyer financing, maintenance and packaging, and 
marking;
    (v) Ensure maximum practicable use of recovered materials (see 
subpart 23.4) and promote energy conservation and efficiency; and
    (vi) Determine whether bundling is necessary and justified (see 
7.107) (15 U.S.C. 644(e)(2)(A)).
    (vii) Assess the availability of electronic and information 
technology that meets all or part of the applicable accessibility 
standards issued by the Architectural and Transportation Barriers 
Compliance Board at 36 CFR part 1194 (see Subpart 39.2).
    (b) When conducting market research, agencies should not request 
potential sources to submit more than the minimum information necessary.
    (c) If an agency contemplates awarding a bundled contract, the 
agency--
    (1) When performing market research, should consult with the local 
Small Business Administration procurement center representative (PCR). 
If a PCR is not assigned, see 19.402 (a); and
    (2) At least 30 days before release of the solicitation or 30 days 
prior to placing an order without a solicitation--
    (i) Must notify any affected incumbent small business concerns of 
the Government's intention to bundle the requirement; and
    (ii) Should notify any affected incumbent small business concerns of 
how the concerns may contact the appropriate Small Business 
Administration representative.
    (d) See 10.003 for the requirement for a prime contractor to perform 
market research in contracts in excess of $5 million for the procurement 
of items other than commercial items in accordance with section 826 of 
Public Law 110-181.

[60 FR 48237, Sept. 18, 1995, as amended at 64 FR 72443, Dec. 27, 1999; 
65 FR 46054, July 26, 2000; 66 FR 20896, Apr. 25, 2001; 68 FR 4049, Jan. 
27, 2003; 68 FR 60005, Oct. 20, 2003; 69 FR 8313, Feb. 23, 2003; 71 FR 
36925, June 28, 2006; 71 FR 74676, Dec. 12, 2006; 74 FR 52849, Oct. 14, 
2009; 75 FR 34278, June 16, 2010; 76 FR 14565, Mar. 16, 2011]



Sec. 10.002  Procedures.

    (a) Acquisitions begin with a description of the Government's needs 
stated in terms sufficient to allow conduct of market research.
    (b) Market research is then conducted to determine if commercial 
items or nondevelopmental items are available to meet the Government's 
needs or could be modified to meet the Government's needs.
    (1) The extent of market research will vary, depending on such 
factors as urgency, estimated dollar value, complexity, and past 
experience. The contracting officer may use market research conducted 
within 18 months before the award of any task or delivery order if the 
information is still current, accurate, and relevant. Market research 
involves obtaining information specific to the item being acquired and 
should include--
    (i) Whether the Government's needs can be met by--
    (A) Items of a type customarily available in the commercial 
marketplace;
    (B) Items of a type customarily available in the commercial 
marketplace with modifications; or
    (C) Items used exclusively for governmental purposes;
    (ii) Customary practices regarding customizing, modifying or 
tailoring of items to meet customer needs and associated costs;
    (iii) Customary practices, including warranty, buyer financing, 
discounts, contract type considering the nature and risk associated with 
the requirement, etc., under which commercial sales of the products or 
services are made;
    (iv) The requirements of any laws and regulations unique to the item 
being acquired;

[[Page 215]]

    (v) The availability of items that contain recovered materials and 
items that are energy efficient;
    (vi) The distribution and support capabilities of potential 
suppliers, including alternative arrangements and cost estimates; and
    (vii) Size and status of potential sources (see part 19).
    (2) Techniques for conducting market research may include any or all 
of the following:
    (i) Contacting knowledgeable individuals in Government and industry 
regarding market capabilities to meet requirements.
    (ii) Reviewing the results of recent market research undertaken to 
meet similar or identical requirements.
    (iii) Publishing formal requests for information in appropriate 
technical or scientific journals or business publications.
    (iv) Querying the Governmentwide database of contracts and other 
procurement instruments intended for use by multiple agencies available 
at https://www.contractdirectory.gov/contractdirectory/ and other 
Government and commercial databases that provide information relevant to 
agency acquisitions.
    (v) Participating in interactive, on-line communication among 
industry, acquisition personnel, and customers.
    (vi) Obtaining source lists of similar items from other contracting 
activities or agencies, trade associations or other sources.
    (vii) Reviewing catalogs and other generally available product 
literature published by manufacturers, distributors, and dealers or 
available on-line.
    (viii) Conducting interchange meetings or holding presolicitation 
conferences to involve potential offerors early in the acquisition 
process.
    (c) If market research indicates commercial or nondevelopmental 
items might not be available to satisfy agency needs, agencies shall 
reevaluate the need in accordance with 10.001(a)(3)(ii) and determine 
whether the need can be restated to permit commercial or 
nondevelopmental items to satisfy the agency's needs.
    (d)(1) If market research establishes that the Government's need may 
be met by a type of item or service customarily available in the 
commercial marketplace that would meet the definition of a commercial 
item at subpart 2.1, the contracting officer shall solicit and award any 
resultant contract using the policies and procedures in part 12.
    (2) If market research establishes that the Government's need cannot 
be met by a type of item or service customarily available in the 
marketplace, part 12 shall not be used. When publication of the notice 
at 5.201 is required, the contracting officer shall include a notice to 
prospective offerors that the Government does not intend to use part 12 
for the acquisition.
    (e) Agencies should document the results of market research in a 
manner appropriate to the size and complexity of the acquisition.

[60 FR 48237, Sept. 18, 1995, as amended at 68 FR 43863, July 24, 2003; 
68 FR 56679, 56682, Oct. 1, 2003; 71 FR 74676, Dec. 12, 2006; 73 FR 
10962, Feb. 28, 2008; 75 FR 34278, June 16, 2010; 75 FR 77745, Dec. 13, 
2010; 78 FR 13769, Feb. 28, 2013]



Sec. 10.003  Contract clause.

    The contracting officer shall insert the clause at 52.210-1, Market 
Research, in solicitations and contracts over $5 million for the 
procurement of items other than commercial items.

[76 FR 14565, Mar. 16, 2011]

                     PART 11_DESCRIBING AGENCY NEEDS

Sec.

Sec. 11.000 Scope of part.

Sec. 11.001 Definitions.

Sec. 11.002 Policy.

      Subpart 11.1_Selecting and Developing Requirements Documents


Sec. 11.101 Order of precedence for requirements documents.

Sec. 11.102 Standardization program.

Sec. 11.103 Market acceptance.

Sec. 11.104 Use of brand name or equal purchase descriptions.

Sec. 11.105 Items peculiar to one manufacturer.

Sec. 11.106 Purchase descriptions for service contracts.

Sec. 11.107 Solicitation provision.

        Subpart 11.2_Using and Maintaining Requirements Documents


Sec. 11.201 Identification and availability of specifications.

[[Page 216]]


Sec. 11.202 Maintenance of standardization documents.

Sec. 11.203 Customer satisfaction.

Sec. 11.204 Solicitation provisions and contract clauses.

                    Subpart 11.3_Acceptable Material


Sec. 11.301 Definitions.

Sec. 11.302 Policy.

Sec. 11.303 Special requirements for paper.

Sec. 11.304 Contract clause.

             Subpart 11.4_Delivery or Performance Schedules


Sec. 11.401 General.

Sec. 11.402 Factors to consider in establishing schedules.

Sec. 11.403 Supplies or services.

Sec. 11.404 Contract clauses.

                     Subpart 11.5_Liquidated Damages


Sec. 11.500 Scope.

Sec. 11.501 Policy.

Sec. 11.502 Procedures.

Sec. 11.503 Contract clauses.

                 Subpart 11.6_Priorities and Allocations


Sec. 11.600 Scope of subpart.

Sec. 11.601 Definitions.

Sec. 11.602 General.

Sec. 11.603 Procedures.

Sec. 11.604 Solicitation provisions and contract clauses.

                   Subpart 11.7_Variation in Quantity


Sec. 11.701 Supply contracts.

Sec. 11.702 Construction contracts.

Sec. 11.703 Contract clauses.

                          Subpart 11.8_Testing


Sec. 11.801 Preaward in-use evaluation.

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 
2473(c).

    Source: 60 FR 48238, Sept. 18, 1995, unless otherwise noted.



Sec. 11.000  Scope of part.

    This part prescribes policies and procedures for describing agency 
needs.



Sec. 11.001  Definitions.

    As used in this part--
    Reconditioned means restored to the original normal operating 
condition by readjustments and material replacement.
    Remanufactured means factory rebuilt to original specifications.

[62 FR 44810, Aug. 22, 1997, as amended at 63 FR 9051, Feb. 23, 1998; 65 
FR 36017, June 6, 2000]



Sec. 11.002  Policy.

    (a) In fulfilling requirements of 10 U.S.C. 2305(a)(1), 10 U.S.C. 
2377, 41 U.S.C. 253a(a), and 41 U.S.C. 264b, agencies shall--
    (1) Specify needs using market research in a manner designed to--
    (i) Promote full and open competition (see part 6), or maximum 
practicable competition when using simplified acquisition procedures, 
with due regard to the nature of the supplies or services to be 
acquired; and
    (ii) Only include restrictive provisions or conditions to the extent 
necessary to satisfy the needs of the agency or as authorized by law.
    (2) To the maximum extent practicable, ensure that acquisition 
officials--
    (i) State requirements with respect to an acquisition of supplies or 
services in terms of--
    (A) Functions to be performed;
    (B) Performance required; or
    (C) Essential physical characteristics;
    (ii) Define requirements in terms that enable and encourage offerors 
to supply commercial items, or, to the extent that commercial items 
suitable to meet the agency's needs are not available, nondevelopmental 
items, in response to the agency solicitations;
    (iii) Provide offerors of commercial items and nondevelopmental 
items an opportunity to compete in any acquisition to fill such 
requirements;
    (iv) Require prime contractors and subcontractors at all tiers under 
the agency contracts to incorporate commercial items or nondevelopmental 
items as components of items supplied to the agency; and
    (v) Modify requirements in appropriate cases to ensure that the 
requirements can be met by commercial items or, to the extent that 
commercial items suitable to meet the agency's needs are not available, 
nondevelopmental items.
    (b) The Metric Conversion Act of 1975, as amended by the Omnibus 
Trade

[[Page 217]]

and Competitiveness Act of 1988 (15 U.S.C. 205a, et seq.), designates 
the metric system of measurement as the preferred system of weights and 
measures for United States trade and commerce, and it requires that each 
agency use the metric system of measurement in its acquisitions, except 
to the extent that such use is impracticable or is likely to cause 
significant inefficiencies or loss of markets to United States firms. 
Requiring activities are responsible for establishing guidance 
implementing this policy in formulating their requirements for 
acquisitions.
    (c) To the extent practicable and consistent with subpart 9.5, 
potential offerors should be given an opportunity to comment on agency 
requirements or to recommend application and tailoring of requirements 
documents and alternative approaches. Requiring agencies should apply 
specifications, standards, and related documents initially for guidance 
only, making final decisions on the application and tailoring of these 
documents as a product of the design and development process. Requiring 
agencies should not dictate detailed design solutions prematurely (see 
7.101 and 7.105(a)(8)).
    (d)(1) When agencies acquire products and services, various statutes 
and executive orders (identified in part 23) require consideration of 
sustainable acquisition (see subpart 23.1) including--
    (i) Energy-efficient and water-efficient services and products 
(including products containing energy-efficient standby power devices) 
(subpart 23.2);
    (ii) Products and services that utilize renewable energy 
technologies (subpart 23.2);
    (iii) Products containing recovered materials (subpart 23.4);
    (iv) Biobased products (subpart 23.4);
    (v) Environmentally preferable products and services, including 
EPEAT-registered electronic products and non-toxic or low-toxic 
alternatives (subpart 23.7); and
    (vi) Non-ozone depleting substances (subpart 23.8).
    (2) Unless an exception applies and is documented by the requiring 
activity, Executive agencies shall, to the maximum practicable, require 
the use of products and services listed in paragraph (d)(1) of this 
section when--
    (i) Developing, reviewing, or revising Federal and military 
specifications, product descriptions (including commercial item 
descriptions) and standards;
    (ii) Describing Government requirements for products and services; 
and
    (iii) Developing source-selection factors.
    (e) Some or all of the performance levels or performance 
specifications in a solicitation may be identified as targets rather 
than as fixed or minimum requirements.
    (f) In accordance with Section 508 of the Rehabilitation Act of 1973 
(29 U.S.C. 794d), requiring activities must prepare requirements 
documents for electronic and information technology that comply with the 
applicable accessibility standards issued by the Architectural and 
Transportation Barriers Compliance Board at 36 CFR part 1194 (see 
subpart 39.2).
    (g) Unless the agency Chief Information Officer waives the 
requirement, when acquiring information technology using Internet 
Protocol, the requirements documents must include reference to the 
appropriate technical capabilities defined in the USGv6 Profile (NIST 
Special Publication 500-267) and the corresponding declarations of 
conformance defined in the USGv6 Test Program. The applicability of IPv6 
to agency networks, infrastructure, and applications specific to 
individual acquisitions will be in accordance with the agency's 
Enterprise Architecture (see OMB Memorandum M-05-22 dated August 2, 
2005).
    (h) Agencies shall not include in a solicitation a requirement that 
prohibits an offeror from permitting its employees to telecommute unless 
the contracting officer executes a written determination in accordance 
with FAR 7.108(a).

[60 FR 48238, Sept. 18, 1995, as amended at 61 FR 39192, July 26, 1996; 
62 FR 263, Jan. 2, 1997; 62 FR 44810, Aug. 22, 1997; 62 FR 51230, Sept. 
30, 1997; 65 FR 36017, June 6, 2000; 66 FR 20897, Apr. 25, 2001; 66 FR 
65352, Dec. 18, 2001; 68 FR 43858, July 24, 2003; 69 FR 59702, Oct. 5, 
2004; 72 FR 63043, Nov. 7, 2007; 74 FR 65607, Dec. 10, 2009; 76 FR 
31398, May 31, 2011]

[[Page 218]]

      Subpart 11.1_Selecting and Developing Requirements Documents



Sec. 11.101  Order of precedence for requirements documents.

    (a) Agencies may select from existing requirements documents, modify 
or combine existing requirements documents, or create new requirements 
documents to meet agency needs, consistent with the following order of 
precedence:
    (1) Documents mandated for use by law.
    (2) Performance-oriented documents (e.g., a PWS or SOO). (See 
2.101.)
    (3) Detailed design-oriented documents.
    (4) Standards, specifications and related publications issued by the 
Government outside the Defense or Federal series for the non-repetitive 
acquisition of items.
    (b) In accordance with OMB Circular A-119, ``Federal Participation 
in the Development and Use of Voluntary Consensus Standards and in 
Conformity Assessment Activities,'' and Section 12(d) of the National 
Technology Transfer and Advancement Act of 1995, Pub. L. 104-113 (15 
U.S.C. 272 note), agencies must use voluntary consensus standards, when 
they exist, in lieu of Government-unique standards, except where 
inconsistent with law or otherwise impractical. The private sector 
manages and administers voluntary consensus standards. Such standards 
are not mandated by law (e.g., industry standards such as ISO 9000, and 
IEEE 1680).

[60 FR 48238, Sept. 18, 1995, as amended at 62 FR 44810, Aug. 22, 1997; 
64 FR 51834, Sept. 24, 1999; 66 FR 65352, Dec. 18, 2001; 68 FR 43858, 
July 24, 2003; 71 FR 218, Jan. 3, 2006; 72 FR 63043, Nov. 7, 2007; 72 FR 
73216, Dec. 26, 2007]



Sec. 11.102  Standardization program.

    Agencies shall select existing requirements documents or develop new 
requirements documents that meet the needs of the agency in accordance 
with the guidance contained in the Federal Standardization Manual, FSPM-
0001; for DoD components, DoD 4120.24-M, Defense Standardization Program 
Policies and Procedures; and for IT standards and guidance, the Federal 
Information Processing Standards Publications (FIPS PUBS). The Federal 
Standardization Manual may be obtained from the General Services 
Administration (see address in 11.201(d)(1)). DoD 4120.24-M may be 
obtained from DoD (see 11.201(d)(2) or 11.201(d)(3)). FIPS PUBS may be 
obtained from the Government Printing Office (GPO), or the Department of 
Commerce's National Technical Information Service (NTIS) (see address in 
11.201(d)(4)).

[70 FR 57452, Sept. 30, 2005, as amended at 71 FR 228, Jan. 3, 2006]



Sec. 11.103  Market acceptance.

    (a) Section 8002(c) of Pub. L. 103-355 provides that, in accordance 
with agency procedures, the head of an agency may, under appropriate 
circumstances, require offerors to demonstrate that the items offered--
    (1) Have either--
    (i) Achieved commercial market acceptance; or
    (ii) Been satisfactorily supplied to an agency under current or 
recent contracts for the same or similar requirements; and
    (2) Otherwise meet the item description, specifications, or other 
criteria prescribed in the public notice and solicitation.
    (b) Appropriate circumstances may, for example, include situations 
where the agency's minimum need is for an item that has a demonstrated 
reliability, performance or product support record in a specified 
environment. Use of market acceptance is inappropriate when new or 
evolving items may meet the agency's needs.
    (c) In developing criteria for demonstrating that an item has 
achieved commercial market acceptance, the contracting officer shall 
ensure the criteria in the solicitation--
    (1) Reflect the minimum need of the agency and are reasonably 
related to the demonstration of an item's acceptability to meet the 
agency's minimum need;
    (2) Relate to an item's performance and intended use, not an 
offeror's capability;
    (3) Are supported by market research;
    (4) Include consideration of items supplied satisfactorily under 
recent or

[[Page 219]]

current Government contracts, for the same or similar items; and
    (5) Consider the entire relevant commercial market, including small 
business concerns.
    (d) Commercial market acceptance shall not be used as a sole 
criterion to evaluate whether an item meets the Government's 
requirements.
    (e) When commercial market acceptance is used, the contracting 
officer shall document the file to--
    (1) Describe the circumstances justifying the use of commercial 
market acceptance criteria; and
    (2) Support the specific criteria being used.



Sec. 11.104  Use of brand name or equal purchase descriptions.

    (a) While the use of performance specifications is preferred to 
encourage offerors to propose innovative solutions, the use of brand 
name or equal purchase descriptions may be advantageous under certain 
circumstances.
    (b) Brand name or equal purchase descriptions must include, in 
addition to the brand name, a general description of those salient 
physical, functional, or performance characteristics of the brand name 
item that an ``equal'' item must meet to be acceptable for award. Use 
brand name or equal descriptions when the salient characteristics are 
firm requirements.

[64 FR 32742, June 17, 1999]



Sec. 11.105  Items peculiar to one manufacturer.

    Agency requirements shall not be written so as to require a 
particular brand name, product, or a feature of a product, peculiar to 
one manufacturer, thereby precluding consideration of a product 
manufactured by another company, unless--
    (a)(1) The particular brand name, product, or feature is essential 
to the Government's requirements, and market research indicates other 
companies' similar products, or products lacking the particular feature, 
do not meet, or cannot be modified to meet, the agency's minimum needs;
    (2)(i) The authority to contract without providing for full and open 
competition is supported by the required justifications and approvals 
(see 6.302-1); or
    (ii) The basis for not providing for maximum practicable competition 
is documented in the file (see 13.106-1(b)) or justified (see 13.501) 
when the acquisition is awarded using simplified acquisition procedures.
    (3) The documentation or justification is posted for acquisitions 
over $25,000. (See 5.102(a)(6).)
    (b) For multiple award schedule orders, see 8.405-6.
    (c) For orders under indefinite-quantity contracts, see 
16.505(a)(4).

[60 FR 48238, Sept. 18, 1995, as amended at 61 FR 39192, July 26, 1996; 
62 FR 263, Jan. 2, 1997; 62 FR 10710, Mar. 10, 1997. Redesignated and 
amended at 64 FR 32742, June 17, 1999; 71 FR 57360, Sept. 28, 2006; 77 
FR 193, Jan. 3, 2012]



Sec. 11.106  Purchase descriptions for service contracts.

    In drafting purchase descriptions for service contracts, agency 
requiring activities shall ensure that inherently governmental functions 
(see subpart 7.5) are not assigned to a contractor. These purchase 
descriptions shall
    (a) Reserve final determination for Government officials;
    (b) Require proper identification of contractor personnel who attend 
meetings, answer Government telephones, or work in situations where 
their actions could be construed as acts of Government officials unless, 
in the judgment of the agency, no harm can come from failing to identify 
themselves; and
    (c) Require suitable marking of all documents or reports produced by 
contractors.

[61 FR 2629, Jan. 26, 1996. Redesignated at 64 FR 32742, June 17, 1999]



Sec. 11.107  Solicitation provision.

    (a) Insert the provision at 52.211-6, Brand Name or Equal, when 
brand name or equal purchase descriptions are included in a 
solicitation.
    (b) Insert the provision at 52.211-7, Alternatives to Government-
Unique Standards, in solicitations that use Government-unique standards 
when the agency uses the transaction-based reporting method to report 
its use of voluntary consensus standards to the National Institute of 
Standards and

[[Page 220]]

Technology (see OMB Circular A-119, ``Federal Participation in the 
Development and Use of Voluntary Consensus Standards and in Conformity 
Assessment Activities''). Use of the provision is optional for agencies 
that report their use of voluntary consensus standards to the National 
Institute of Standards and Technology using the categorical reporting 
method. Agencies that manage their specifications on a contract-by-
contract basis use the transaction-based method of reporting. Agencies 
that manage their specifications centrally use the categorical method of 
reporting. Agency regulations regarding specification management 
describe which method is used.

[64 FR 51835, Sept. 24, 1999]

        Subpart 11.2_Using and Maintaining Requirements Documents



Sec. 11.201  Identification and availability of specifications.

    (a) Solicitations citing requirements documents listed in the 
General Services Administration (GSA) Index of Federal Specifications, 
Standards and Commercial Item Descriptions, the DoD Acquisition 
Streamlining and Standardization Information System (ASSIST), or other 
agency index shall identify each document's approval date and the dates 
of any applicable amendments and revisions. Do not use general 
identification references, such as ``the issue in effect on the date of 
the solicitation.'' Contracting offices will not normally furnish these 
cited documents with the solicitation, except when--
    (1) The requirements document must be furnished with the 
solicitation to enable prospective contractors to make a competent 
evaluation of the solicitation;
    (2) In the judgment of the contracting officer, it would be 
impracticable for prospective contractors to obtain the documents in 
reasonable time to respond to the solicitation; or
    (3) A prospective contractor requests a copy of a Government 
promulgated requirements document.
    (b) Contracting offices shall clearly identify in the solicitation 
any pertinent documents not listed in the GSA Index of Federal 
Specifications, Standards and Commercial Item Descriptions or ASSIST. 
Such documents shall be furnished with the solicitation or specific 
instructions shall be furnished for obtaining or examining such 
documents.
    (c) When documents refer to other documents, such references shall
    (1) Be restricted to documents, or appropriate portions of 
documents, that apply in the acquisition;
    (2) Cite the extent of their applicability;
    (3) Not conflict with other documents and provisions of the 
solicitation; and
    (4) Identify all applicable first tier references.
    (d)(1) The GSA Index of Federal Specifications, Standards and 
Commercial Item Descriptions, FPMR Part 101-29, may be purchased from 
the--General Services Administration, Federal Supply Service, 
Specifications Section, Suite 8100, 470 East L'Enfant Plaza, SW, 
Washington, DC 20407, Telephone (202) 619-8925.
    (2) Most unclassified Defense specifications and standards may be 
downloaded from the following ASSIST websites:
    (i) ASSIST (http://assist.daps.dla.mil).
    (ii) Quick Search (http://assist.daps.dla.mil/quicksearch).
    (iii) ASSISTdocs.com (http://assistdocs.com).
    (3) Documents not available from ASSIST may be ordered from the 
Department of Defense Single Stock Point (DoDSSP) by--
    (i) Using the ASSIST Shopping Wizard (http://assist.daps.dla.mil/
wizard);
    (ii) Phoning the DoDSSP Customer Service Desk, (215) 697-2179, Mon-
Fri, 0730 to 1600 EST; or
    (iii) Ordering from DoDSSP, Building 4, Section D, 700 Robbins 
Avenue, Philadelphia, PA 19111-5094, Telephone (215) 697-2667/2179, 
Facsimile (215) 697-1462.
    (4) The FIPS PUBS may be obtained from http://www.itl.nist.gov/
fipspubs/, or purchased from the Superintendent of Documents, U.S. 
Government Printing Office, Washington, DC 20402, Telephone (202) 512-
1800, Facsimile (202) 512-2250; or National Technical Information 
Service (NTIS), 5285 Port Royal Road, Springfield, VA 22161, Telephone

[[Page 221]]

(703) 605-6000, Facsimile (703) 605-6900, Email: [email protected].
    (e) Agencies may purchase some nongovernment standards, including 
voluntary consensus standards, from the National Technical Information 
Service's Fedworld Information Network. Agencies may also obtain 
nongovernment standards from the standards developing organization 
responsible for the preparation, publication, or maintenance of the 
standard, or from an authorized document reseller. The National 
Institute of Standards and Technology can assist agencies in identifying 
sources for, and content of, nongovernment standards. DoD activities may 
obtain from the DoDSSP those nongovernment standards, including 
voluntary consensus standards, adopted for use by defense activities.

[60 FR 48238, Sept. 18, 1995, as amended at 62 FR 40236, July 25, 1997; 
63 FR 34063, June 22, 1998; 64 FR 51835, Sept. 24, 1999; 64 FR 72446, 
Dec. 27, 1999; 69 FR 76358, Dec. 20, 2004; 70 FR 57452, Sept. 30, 2005; 
71 FR 228, Jan. 3, 2006]



Sec. 11.202  Maintenance of standardization documents.

    (a) Recommendations for changes to standardization documents listed 
in the GSA Index of Federal Specifications, Standards and Commercial 
Item Descriptions should be submitted to the General Services 
Administration, Federal Supply Service, Office of Acquisition, 
Washington, DC 20406. Agencies shall submit recommendations for changes 
to standardization documents listed in the DoDISS to the cognizant 
preparing activity.
    (b) When an agency cites an existing standardization document but 
modifies it to meet its needs, the agency shall follow the guidance in 
Federal Standardization Manual and, for Defense components, DoD 4120.24-
M, Defense Standardization Program Policies and Procedures.

[60 FR 48238, Sept. 18, 1995, as amended at 69 FR 34244, June 18, 2004]



Sec. 11.203  Customer satisfaction.

    Acquisition organizations shall communicate with customers to 
determine how well the requirements document reflects the customer's 
needs and to obtain suggestions for corrective actions. Whenever 
practicable, the agency may provide affected industry an opportunity to 
comment on the requirements documents.



Sec. 11.204  Solicitation provisions and contract clauses.

    (a) The contracting officer shall insert the provision at 52.211-1, 
Availability of Specifications Listed in the GSA Index of Federal 
Specifications, Standards and Commercial Item Descriptions, FPMR Part 
101-29, in solicitations that cite specifications listed in the Index 
that are not furnished with the solicitation.
    (b) The contracting officer shall insert the provision at 52.211-2, 
Availability of Specifications, Standards, and Data Item Descriptions 
Listed in the Acquisition Streamlining and Standardization Information 
System (ASSIST), in solicitations that cite specifications listed in the 
ASSIST that are not furnished with the solicitation.
    (c) The contracting officer shall insert a provision substantially 
the same as the provision at 52.211-3, Availability of Specifications 
Not Listed in the GSA Index of Federal Specifications, Standards and 
Commercial Item Descriptions, in solicitations that cite specifications 
that are not listed in the Index and are not furnished with the 
solicitation, but may be obtained from a designated source.
    (d) The contracting officer shall insert a provision substantially 
the same as the provision at 52.211-4, Availability for Examination of 
Specifications Not Listed in the GSA Index of Federal Specifications, 
Standards and Commercial Item Descriptions, in solicitations that cite 
specifications that are not listed in the Index and are available for 
examination at a specified location.

[60 FR 48238, Sept. 18, 1995, as amended at 63 FR 34063, June 22, 1998; 
71 FR 228, Jan. 3, 2006]

                    Subpart 11.3_Acceptable Material

    Source: 65 FR 36018, June 6, 2000, unless otherwise noted.



Sec. 11.301  Definitions.

    As used in this subpart--

[[Page 222]]

    Postconsumer 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. Postconsumer material is a 
part of the broader category of ``recovered material.'' For paper and 
paper products, postconsumer material means ``postconsumer fiber'' 
defined by the U.S. Environmental Protection Agency (EPA) as--
    (1) Paper, paperboard, and fibrous materials from retail stores, 
office buildings, homes, and so forth, after they have passed through 
their end-usage as a consumer item, including: used corrugated boxes; 
old newspapers; old magazines; mixed waste paper; tabulating cards; and 
used cordage; or
    (2) All paper, paperboard, and fibrous materials that enter and are 
collected from municipal solid waste; but not
    (3) Fiber derived from printers' over-runs, converters' scrap, and 
over-issue publications.
    Recovered material for paper and paper products, is defined by EPA 
in its Comprehensive Procurement Guideline as ``recovered fiber'' and 
means the following materials:
    (1) Postconsumer fiber.
    (2) Manufacturing wastes such as--
    (i) Dry paper and paperboard waste generated after completion of the 
papermaking process (that is, those manufacturing operations up to and 
including the cutting and trimming of the paper machine reel into 
smaller rolls or rough sheets) including: envelope cuttings, bindery 
trimmings, and other paper and paperboard waste resulting from printing, 
cutting, forming, and other converting operations; bag, box, and carton 
manufacturing wastes; and butt rolls, mill wrappers, and rejected unused 
stock; and
    (ii) Repulped finished paper and paperboard from obsolete 
inventories of paper and paperboard manufacturers, merchants, 
wholesalers, dealers, printers, converters, or others.



Sec. 11.302  Policy.

    (a) Agencies must not require virgin material or supplies composed 
of or manufactured using virgin material unless compelled by law or 
regulation or unless virgin material is vital for safety or meeting 
performance requirements of the contract.
    (b)(1) When acquiring other than commercial items, agencies must 
require offerors to identify used, reconditioned, or remanufactured 
supplies; or unused former Government surplus property proposed for use 
under the contract. These supplies or property may not be used in 
contract performance unless authorized by the contracting officer.
    (2) When acquiring commercial items, the contracting officer must 
consider the customary practices in the industry for the item being 
acquired. The contracting officer may require offerors to provide 
information on used, reconditioned, or remanufactured supplies, or 
unused former Government surplus property proposed for use under the 
contract. The request for the information must be included in the 
solicitation, and to the maximum extent practicable must be limited to 
information or standards consistent with normal commercial practices.
    (c)(1) When the contracting officer needs additional information to 
determine whether supplies meet minimum recovered material or biobased 
standards stated in the solicitation, the contracting officer may 
require offerors to submit additional information on the recycled or 
biobased content or related standards. The request for the information 
must be included in the solicitation. When acquiring commercial items, 
limit the information to the maximum extent practicable to that 
available under normal commercial practices.
    (2) For biobased products, agencies may not require, as a condition 
of purchase of such products, the vendor or manufacturer to provide more 
data than would typically be provided by other business entities 
offering products for sale to the agency, other than data confirming the 
biobased content of a product (see 7 CFR 3201.8).

[65 FR 36018, June 6, 2000, as amended at 72 FR 63043, Nov. 7, 2007; 77 
FR 23367, Apr. 18, 2012]



Sec. 11.303  Special requirements for paper.

    (a) The following applies when agencies acquire paper in the United 
States (as defined in 23.001):

[[Page 223]]

    (1) Section 2(d)(ii) of Executive Order 13423, Strengthening Federal 
Environmental, Energy, and Transportation Management, establishes a 30 
percent postconsumer fiber content standards for agency paper use. 
Section 2(d)(ii) requires that an agency's paper products must meet or 
exceed the minimum content standard.
    (2) Section 2(e)(iv) of Executive Order 13514 requires acquisition 
of uncoated printing and writing paper containing at least 30 percent 
postconsumer fiber.
    (b) Exceptions. If paper under paragraphs (a)(1) or (a)(2) of this 
section containing at least 30 percent postconsumer fiber is not 
reasonably available, does not meet reasonable performance requirements, 
or is only available at an unreasonable price, then the agency must 
purchase--
    (1) Printing and writing paper containing no less than 20 percent 
postconsumer fiber; or
    (2) Paper, other than printing and writing paper, with the maximum 
practicable percentage of postconsumer fiber that is reasonably 
available at a reasonable price and that meets reasonable performance 
requirements.

[76 FR 31398, May 31, 2011]



Sec. 11.304  Contract clause.

    Insert the clause at 52.211-5, Material Requirements, in 
solicitations and contracts for supplies that are not commercial items.

             Subpart 11.4_Delivery or Performance Schedules

    Source: 48 FR 42159, Sept. 19, 1983, unless otherwise noted. 
Redesignated at 60 FR 48241, Sept. 18, 1995.



Sec. 11.401  General.

    (a) The time of delivery or performance is an essential contract 
element and shall be clearly stated in solicitations. Contracting 
officers shall ensure that delivery or performance schedules are 
realistic and meet the requirements of the acquisition. Schedules that 
are unnecessarily short or difficult to attain--
    (1) Tend to restrict competition,
    (2) Are inconsistent with small business policies, and
    (3) May result in higher contract prices.
    (b) Solicitations shall, except when clearly unnecessary, inform 
bidders or offerors of the basis on which their bids or proposals will 
be evaluated with respect to time of delivery or performance.
    (c) If timely delivery or performance is unusually important to the 
Government, liquidated damages clauses may be used (see subpart 11.5).

[48 FR 42159, Sept. 19, 1983. Redesignated and amended at 60 FR 48241, 
Sept. 18, 1995]



Sec. 11.402  Factors to consider in establishing schedules.

    (a) Supplies or services. When establishing a contract delivery or 
performance schedule, consideration shall be given to applicable factors 
such as the--
    (1) Urgency of need;
    (2) Industry practices;
    (3) Market conditions;
    (4) Transportation time;
    (5) Production time;
    (6) Capabilities of small business concerns;
    (7) Administrative time for obtaining and evaluating offers and for 
awarding contracts;
    (8) Time for contractors to comply with any conditions precedent to 
contract performance; and
    (9) Time for the Government to perform its obligations under the 
contract; e.g., furnishing Government property.
    (b) Construction. When scheduling the time for completion of a 
construction contract, the contracting officer shall consider applicable 
factors such as the--
    (1) Nature and complexity of the project;
    (2) Construction seasons involved;
    (3) Required completion date;
    (4) Availability of materials and equipment;
    (5) Capacity of the contractor to perform; and
    (6) Use of multiple completion dates. (In any given contract, 
separate completion dates may be established for separable items of 
work. When multiple completion dates are used, requests for extension of 
time must be evaluated with respect to each item,

[[Page 224]]

and the affected completion dates modified when appropriate.)

[48 FR 42159, Sept. 19, 1983. Redesignated and amended at 60 FR 48241, 
Sept. 18, 1995]



Sec. 11.403  Supplies or services.

    (a) The contracting officer may express contract delivery or 
performance schedules in terms of--
    (1) Specific calendar dates;
    (2) Specific periods from the date of the contract; i.e., from the 
date of award or acceptance by the Government, or from the date shown as 
the effective date of the contract;
    (3) Specific periods from the date of receipt by the contractor of 
the notice of award or acceptance by the Government (including notice by 
receipt of contract document executed by the Government); or
    (4) Specific time for delivery after receipt by the contractor of 
each individual order issued under the contract, as in indefinite 
delivery type contracts and GSA schedules.
    (b) The time specified for contract performance should not be 
curtailed to the prejudice of the contractor because of delay by the 
Government in giving notice of award.
    (c) If the delivery schedule is based on the date of the contract, 
the contracting officer shall mail or otherwise furnish to the 
contractor the contract, notice of award, acceptance of proposal, or 
other contract document not later than the date of the contract.
    (d) If the delivery schedule is based on the date the contractor 
receives the notice of award, or if the delivery schedule is expressed 
in terms of specific calendar dates on the assumption that the notice of 
award will be received by a specified date, the contracting officer 
shall send the contract, notice of award, acceptance of proposal, or 
other contract document by certified mail, return receipt requested, or 
by any other method that will provide evidence of the date of receipt.
    (e) In invitations for bids, if the delivery schedule is based on 
the date of the contract, and a bid offers delivery based on the date 
the contractor receives the contract or notice of award, the contracting 
officer shall evaluate the bid by adding 5 calendar days (as 
representing the normal time for arrival through ordinary mail). If the 
contract or notice of award will be transmitted electronically, (1) the 
solicitation shall so state; and (2) the contracting officer shall 
evaluate delivery schedule based on the date of contract receipt or 
notice of award, by adding one working day. (The term ``working day'' 
excludes weekends and U.S. Federal holidays.) If the offered delivery 
date computed with mailing or transmittal time is later than the 
delivery date required by the invitation for bids, the bid shall be 
considered nonresponsive and rejected. If award is made, the delivery 
date will be the number of days offered in the bid after the contractor 
actually receives the notice of award.



Sec. 11.404  Contract clauses.

    (a) Supplies or services. (1) The contracting officer may use a time 
of delivery clause to set forth a required delivery schedule and to 
allow an offeror to propose an alternative delivery schedule. The 
clauses and their alternates may be used in solicitations and contracts 
for other than construction and architect-engineering substantially as 
shown, or they may be changed or new clauses written.
    (2) The contracting officer may insert in solicitations and 
contracts other than those for construction and architect-engineering, a 
clause substantially the same as the clause at 52.211-8, Time of 
Delivery, if the Government requires delivery by a particular time and 
the delivery schedule is to be based on the date of the contract. If the 
delivery schedule is expressed in terms of specific calendar dates or 
specific periods and is based on an assumed date of award, the 
contracting officer may use the clause with its Alternate I. If the 
delivery schedule is expressed in terms of specific calendar dates or 
specific periods and is based on an assumed date the contractor will 
receive notice of award, the contracting officer may use the clause with 
its Alternate II. If the delivery schedule is to be based on the actual 
date the contractor receives a written notice of award, the contracting 
officer may use the clause with its Alternate III.

[[Page 225]]

    (3) The contracting officer may insert in solicitations and 
contracts other than those for construction and architect-engineering, a 
clause substantially the same as the clause at 52.211-9, Desired and 
Required Time of Delivery, if the Government desires delivery by a 
certain time but requires delivery by a specified later time, and the 
delivery schedule is to be based on the date of the contract. If the 
delivery schedule is expressed in terms of specific calendar dates or 
specific periods and is based on an assumed date of award, the 
contracting officer may use the clause with its Alternate I. If the 
delivery schedule is expressed in terms of specific calendar dates or 
specific periods and is based on an assumed date the contractor will 
receive notice of award, the contracting officer may use the clause with 
its Alternate II. If the delivery schedule is to be based on the actual 
date the contractor receives a written notice of award, the contracting 
officer may use the clause with its Alternate III.
    (b) Construction. The contracting officer shall insert the clause at 
52.211-10, Commencement, Prosecution, and Completion of Work, in 
solicitations and contracts when a fixed-price construction contract is 
contemplated. The clause may be changed to accommodate the issuance of 
orders under indefinite-delivery contracts. If the completion date is 
expressed as a specific calendar date, computed on the basis of the 
contractor receiving the notice to proceed by a certain day, the 
contracting officer may use the clause with its Alternate I.

[48 FR 42159, Sept. 19, 1983, as amended at 56 FR 41732, Aug. 22, 1991. 
Redesignated and amended at 60 FR 48241, Sept. 18, 1995]

                     Subpart 11.5_Liquidated Damages

    Source: 65 FR 46064, July 26, 2000, unless otherwise noted.



Sec. 11.500  Scope.

    This subpart prescribes policies and procedures for using liquidated 
damages clauses in solicitations and contracts for supplies, services, 
research and development, and construction. This subpart does not apply 
to liquidated damages for subcontracting plans (see 19.705-7) or 
liquidated damages related to the Contract Work Hours and Safety 
Standards Act (see subpart 22.3).



Sec. 11.501  Policy.

    (a) The contracting officer must consider the potential impact on 
pricing, competition, and contract administration before using a 
liquidated damages clause. Use liquidated damages clauses only when--
    (1) The time of delivery or timely performance is so important that 
the Government may reasonably expect to suffer damage if the delivery or 
performance is delinquent; and
    (2) The extent or amount of such damage would be difficult or 
impossible to estimate accurately or prove.
    (b) Liquidated damages are not punitive and are not negative 
performance incentives (see 16.402-2). Liquidated damages are used to 
compensate the Government for probable damages. Therefore, the 
liquidated damages rate must be a reasonable forecast of just 
compensation for the harm that is caused by late delivery or untimely 
performance of the particular contract. Use a maximum amount or a 
maximum period for assessing liquidated damages if these limits reflect 
the maximum probable damage to the Government. Also, the contracting 
officer may use more than one liquidated damages rate when the 
contracting officer expects the probable damage to the Government to 
change over the contract period of performance.
    (c) The contracting officer must take all reasonable steps to 
mitigate liquidated damages. If the contract contains a liquidated 
damages clause and the contracting officer is considering terminating 
the contract for default, the contracting officer should seek 
expeditiously to obtain performance by the contractor or terminate the 
contract and repurchase (see subpart 49.4). Prompt contracting officer 
action will prevent excessive loss to defaulting contractors and protect 
the interests of the Government.
    (d) The head of the agency may reduce or waive the amount of 
liquidated damages assessed under a contract, if

[[Page 226]]

the Commissioner, Financial Management Service, or designee approves 
(see Treasury Order 145-10).



Sec. 11.502  Procedures.

    (a) Include the applicable liquidated damages clause and liquidated 
damages rates in solicitations when the contract will contain liquidated 
damages provisions.
    (b) Construction contracts with liquidated damages provisions must 
describe the rate(s) of liquidated damages assessed per day of delay. 
The rate(s) should include the estimated daily cost of Government 
inspection and superintendence. The rate(s) should also include an 
amount for other expected expenses associated with delayed completion 
such as--
    (1) Renting substitute property; or
    (2) Paying additional allowance for living quarters.



Sec. 11.503  Contract clauses.

    (a) Use the clause at 52.211-11, Liquidated Damages--Supplies, 
Services, or Research and Development, in fixed-price solicitations and 
contracts for supplies, services, or research and development when the 
contracting officer determines that liquidated damages are appropriate 
(see 11.501(a)).
    (b) Use the clause at 52.211-12, Liquidated Damages--Construction, 
in solicitations and contracts for construction, other than cost-plus-
fixed-fee, when the contracting officer determines that liquidated 
damages are appropriate (see 11.501(a)). If the contract specifies more 
than one completion date for separate parts or stages of the work, 
revise paragraph (a) of the clause to state the amount of liquidated 
damages for delay of each separate part or stage of the work.
    (c) Use the clause at 52.211-13, Time Extensions, in solicitations 
and contracts for construction that use the clause at 52.211-12, 
Liquidated Damages--Construction, when that clause has been revised as 
provided in paragraph (b) of this section.

                 Subpart 11.6_Priorities and Allocations

    Source: 51 FR 19714, May 30, 1986, unless otherwise noted. 
Redesignated at 60 FR 48241, Sept. 18, 1995.



Sec. 11.600  Scope of subpart.

    This subpart implements the Defense Priorities and Allocations 
System (DPAS), a Department of Commerce regulation in support of 
approved national defense, emergency preparedness, and energy programs 
(see 15 CFR part 700).

[73 FR 21784, Apr. 22, 2008]



Sec. 11.601  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 Secretary of Homeland Security, 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.
    Delegate Agency means a Government agency authorized by delegation 
from the Department of Commerce to place priority ratings on contracts 
or orders needed to support approved programs.
    National defense means programs for military and energy production 
or construction, military assistance to any foreign nation, stockpiling, 
space, and any directly related activity. Such term includes emergency 
preparedness activities conducted pursuant to title VI of The Robert T. 
Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195 et 
seq.) and critical infrastructure protection and restoration. (50 U.S.C. 
App.Sec. 2152).
    Rated order means a prime contract, a subcontract, or a purchase 
order in support of an approved program issued in accordance with the 
provisions of the DPAS regulation (15 CFR part 700).

[73 FR 21784, Apr. 22, 2008]



Sec. 11.602  General.

    (a) Under Title I of the Defense Production Act of 1950 (50 U.S.C. 
App. 2061, et seq.), the President is authorized to

[[Page 227]]

require preferential acceptance and performance of contracts and orders 
supporting certain approved national defense and energy programs and to 
allocate materials, services, and facilities in such a manner as to 
promote these approved programs.
    (b) The President delegated the priorities and allocations 
authorities of the Defense Production Act in Executive Order 12919. As 
part of that delegation, the President designated the Secretary of 
Commerce to administer the DPAS. For more information, check the DPAS 
website at: www.bis.doc.gov/dpas.

[73 FR 21784, Apr. 22, 2008]



Sec. 11.603  Procedures.

    (a) There are two levels of priority for rated orders established by 
the DPAS, identified by the rating symbols ``DO'' and ``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 and unrated orders (see 15 CFR 
700.11). The DPAS regulation contains provisions concerning the elements 
of a rated order (see 15 CFR 700.12); acceptance and rejection of rated 
orders (see 15 CFR 700.13); preferential scheduling (see 15 CFR 700.14); 
extension of priority ratings (flowdown) (see 15 CFR 700.15); changes or 
cancellations of priority ratings and rated orders (see 15 CFR 700.16); 
use of rated orders (see 15 CFR 700.17); and limitations on placing 
rated orders (see 15 CFR 700.18).
    (b) The Delegate Agencies have been given authority by the 
Department of Commerce to place rated orders in support of approved 
programs (see Schedule I of the DPAS). Other U.S. Government agencies, 
Canada, and foreign nations may apply for priority rating authority.
    (c) Rated orders shall be placed in accordance with the provisions 
of the DPAS.
    (d) Agency heads shall ensure compliance with the DPAS by 
contracting activities within their agencies.
    (e) Agency heads shall provide contracting activities with specific 
guidance on the issuance of rated orders in support of approved agency 
programs, including the general limitations and jurisdictional 
limitations on placing rated orders (see 15 CFR 700.18 and Executive 
Order 12919).
    (f) Contracting officers shall follow agency procedural instructions 
concerning the use of rated orders in support of approved agency 
programs.
    (g) Contracting officers, contractors, or subcontractors at any 
tier, that experience difficulty placing rated orders, obtaining timely 
delivery under rated orders, locating a contractor or supplier to fill a 
rated order, ensuring that rated orders receive preferential treatment 
by contractors or suppliers, or require rating authority for items not 
automatically ratable under the DPAS, should promptly seek special 
priorities assistance in accordance with agency procedures (see 15 CFR 
700.50--700.55 and 700.80).
    (h) The Department of Commerce may take specific official actions 
(Ratings Authorizations, Directives, Letters of Understanding, 
Administrative Subpoenas, Demands for Information, and Inspection 
Authorizations) to implement or enforce the provisions of the DPAS (see 
15 CFR 700.60-700.71).
    (i) Contracting officers shall report promptly any violations of the 
DPAS in accordance with agency procedures to the Office of Strategic 
Industries and Economic Security, U.S. Department of Commerce, Room 
3876, Washington, DC 20230, Ref: DPAS; telephone: (202) 482-3634 or fax: 
(202) 482-5650.

[73 FR 21784, Apr. 22, 2008]



Sec. 11.604  Solicitation provisions and contract clauses.

    (a) Contracting officers shall insert the provision at 52.211-14, 
Notice of Priority Rating for National Defense, Emergency Preparedness, 
and Energy Program Use, in solicitations when the contract to be awarded 
will be a rated order.
    (b) Contracting officers shall insert the clause at 52.211-15, 
Defense Priority and Allocation Requirements, in contracts that are 
rated orders.

[51 FR 19714, May 30, 1986. Redesignated and amended at 60 FR 48241, 
Sept. 18, 1995; 73 FR 21785, Apr. 22, 2008]

[[Page 228]]

                   Subpart 11.7_Variation in Quantity

    Source: 48 FR 42159, Sept. 19, 1983, unless otherwise noted. 
Redesignated at 60 FR 48241, Sept. 18, 1995.



Sec. 11.701  Supply contracts.

    (a) A fixed-price supply contract may authorize Government 
acceptance of a variation in the quantity of items called for if the 
variation is caused by conditions of loading, shipping, or packing, or 
by allowances in manufacturing processes. Any permissible variation 
shall be stated as a percentage and it may be an increase, a decrease, 
or a combination of both; however, contracts for subsistence items may 
use other applicable terms of variation in quantity.
    (b) There should be no standard or usual variation percentage. The 
overrun or underrun permitted in each contract should be based upon the 
normal commercial practices of a particular industry for a particular 
item, and the permitted percentage should be no larger than is necessary 
to afford a contractor reasonable protection. The permissible variation 
shall not exceed plus or minus 10 percent unless a different limitation 
is established in agency regulations. Consideration shall be given to 
the quantity to which the percentage variation applies. For example, 
when delivery will be made to multiple destinations and it is desired 
that the quantity variation apply to the item quantity for each 
destination, this requirement must be stated in the contract.
    (c) Contractors are responsible for delivery of the specified 
quantity of items in a fixed-price contract, within allowable 
variations, if any. If a contractor delivers a quantity of items in 
excess of the contract requirements plus any allowable variation in 
quantity, particularly small dollar value overshipments, it results in 
unnecessary administrative costs to the Government in determining 
disposition of the excess quantity. Accordingly, the contract may 
include the clause at 52.211-17, Delivery of Excess Quantities, to 
provide that--
    (1) Excess quantities of items totaling up to $250 in value may be 
retained without compensating the contractor; and
    (2) Excess quantities of items totaling over $250 in value may, at 
the Government's option, be either returned at the contractor's expense 
or retained and paid for at the contract unit price.

[48 FR 42159, Sept. 19, 1983, as amended at 54 FR 34753, Aug. 21, 1989; 
62 FR 40236, July 25, 1997]



Sec. 11.702  Construction contracts.

    Construction contracts may authorize a variation in estimated 
quantities of unit-priced items. When the variation between the 
estimated quantity and the actual quantity of a unit-priced item is more 
than plus or minus 15 percent, an equitable adjustment in the contract 
price shall be made upon the demand of either the Government or the 
contractor. The contractor may request an extension of time if the 
quantity variation is such as to cause an increase in the time necessary 
for completion. The contracting officer must receive the request in 
writing within 10 days from the beginning of the period of delay. 
However, the contracting officer may extend this time limit before the 
date of final settlement of the contract. The contracting officer shall 
ascertain the facts and make any adjustment for extending the completion 
date that the findings justify.



Sec. 11.703  Contract clauses.

    (a) The contracting officer shall insert the clause at 52.211-16, 
Variation in Quantity, in solicitations and contracts, if authorizing a 
variation in quantity in fixed-price contracts for supplies or for 
services that involve the furnishing of supplies.
    (b) The contracting officer may insert the clause at 52.211-17, 
Delivery of Excess Quantities, in solicitations and contracts, when a 
fixed-price supply contract is contemplated.
    (c) The contracting officer shall insert the clause at 52.211-18, 
Variation in Estimated Quantity, in solicitations and contracts when a 
fixed-price construction contract is contemplated

[[Page 229]]

that authorizes a variation in the estimated quantity of unit-priced 
items.

[48 FR 42159, Sept. 19, 1983, as amended at 54 FR 34753, Aug. 21, 1989. 
Redesignated and amended at 60 FR 48241, Sept. 18, 1995; 64 FR 10538, 
Mar. 4, 1999]

                          Subpart 11.8_Testing

    Source: 62 FR 51230, Sept. 30, 1997, unless otherwise noted.



Sec. 11.801  Preaward in-use evaluation.

    Supplies may be evaluated under comparable in-use conditions without 
a further test plan, provided offerors are so advised in the 
solicitation. The results of such tests or demonstrations may be used to 
rate the proposal, to determine technical acceptability, or otherwise to 
evaluate the proposal (see 15.305).

                 PART 12_ACQUISITION OF COMMERCIAL ITEMS

Sec.

Sec. 12.000 Scope of part.

Sec. 12.001 Definition.

          Subpart 12.1_Acquisition of Commercial Items_General


Sec. 12.101 Policy.

Sec. 12.102 Applicability.

Sec. 12.103 Commercially available off-the-shelf (COTS) items.

  Subpart 12.2_Special Requirements for the Acquisition of Commercial 
                                  Items


Sec. 12.201 General.

Sec. 12.202 Market research and description of agency need.

Sec. 12.203 Procedures for solicitation, evaluation, and award.

Sec. 12.204 Solicitation/contract form.

Sec. 12.205 Offers.

Sec. 12.206 Use of past performance.

Sec. 12.207 Contract type.

Sec. 12.208 Contract quality assurance.

Sec. 12.209 Determination of price reasonableness.

Sec. 12.210 Contract financing.

Sec. 12.211 Technical data.

Sec. 12.212 Computer software.

Sec. 12.213 Other commercial practices.

Sec. 12.214 Cost Accounting Standards.

Sec. 12.215 Notification of overpayment.

Sec. 12.216 Unenforceability of unauthorized obligations.

   Subpart 12.3_Solicitation Provisions and Contract Clauses for the 
                     Acquisition of Commercial Items


Sec. 12.300 Scope of subpart.

Sec. 12.301 Solicitation provisions and contract clauses for the 
          acquisition of commercial items.

Sec. 12.302 Tailoring of provisions and clauses for the acquisition of 
          commercial items.

Sec. 12.303 Contract format.

  Subpart 12.4_Unique Requirements Regarding Terms and Conditions for 
                            Commercial Items


Sec. 12.401 General.

Sec. 12.402 Acceptance.

Sec. 12.403 Termination.

Sec. 12.404 Warranties.

    Subpart 12.5_Applicability of Certain Laws to the Acquisition of 
     Commercial Items and Commercially Available Off-The-Shelf Items


Sec. 12.500 Scope of subpart.

Sec. 12.501 Applicability.

Sec. 12.502 Procedures.

Sec. 12.503 Applicability of certain laws to Executive agency contracts 
          for the acquisition of commercial items.

Sec. 12.504 Applicability of certain laws to subcontracts for the 
          acquisition of commercial items.

Sec. 12.505 Applicability of certain laws to contracts for the 
          acquisition of COTS items.

Subpart 12.6_Streamlined Procedures for Evaluation and Solicitation for 
                            Commercial Items


Sec. 12.601 General.

Sec. 12.602 Streamlined evaluation of offers.

Sec. 12.603 Streamlined solicitation for commercial items.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 
20113.

    Source: 60 FR 48241, Sept. 18, 1995, unless otherwise noted.



Sec. 12.000  Scope of part.

    This part prescribes policies and procedures unique to the 
acquisition of commercial items. It implements the Federal Government's 
preference for the acquisition of commercial items contained in Title 
VIII of the Federal Acquisition Streamlining Act of 1994

[[Page 230]]

(Public Law 103-355) by establishing acquisition policies more closely 
resembling those of the commercial marketplace and encouraging the 
acquisition of commercial items and components.



Sec. 12.001  Definition.

    Subcontract, as used in this part, includes, but is not limited to, 
a transfer of commercial items between divisions, subsidiaries, or 
affiliates of a contractor or subcontractor.

          Subpart 12.1_Acquisition of Commercial Items_General



Sec. 12.101  Policy.

    Agencies shall--
    (a) Conduct market research to determine whether commercial items or 
nondevelopmental items are available that could meet the agency's 
requirements;
    (b) Acquire commercial items or nondevelopmental items when they are 
available to meet the needs of the agency; and
    (c) Require prime contractors and subcontractors at all tiers to 
incorporate, to the maximum extent practicable, commercial items or 
nondevelopmental items as components of items supplied to the agency.



Sec. 12.102  Applicability.

    (a) This part shall be used for the acquisition of supplies or 
services that meet the definition of commercial items at section 2.101.
    (b) Contracting officers shall use the policies in this part in 
conjunction with the policies and procedures for solicitation, 
evaluation and award prescribed in part 13, Simplified Acquisition 
Procedures; part 14, Sealed Bidding; or part 15, Contracting by 
Negotiation, as appropriate for the particular acquisition.
    (c) Contracts for the acquisition of commercial items are subject to 
the policies in other parts of the FAR. When a policy in another part of 
the FAR is inconsistent with a policy in this part, this part 12 shall 
take precedence for the acquisition of commercial items.
    (d) The definition of commercial item in section 2.101 uses the 
phrase ``purposes other than governmental purposes.'' These purposes are 
those that are not unique to a government.
    (e) This part shall not apply to the acquisition of commercial 
items--
    (1) At or below the micro-purchase threshold;
    (2) Using the Standard Form 44 (see 13.306);
    (3) Using the imprest fund (see 13.305);
    (4) Using the Governmentwide commercial purchase card as a method of 
purchase rather than only as a method of payment; or
    (5) Directly from another Federal agency.
    (f)(1) Contracting officers may treat any acquisition of supplies or 
services that, as determined by the head of the agency, are to be used 
to facilitate defense against or recovery from nuclear, biological, 
chemical, or radiological attack, as an acquisition of commercial items.
    (2) A contract in an amount greater than $17.5 million that is 
awarded on a sole source basis for an item or service treated as a 
commercial item under paragraph (f)(1) of this section but does not meet 
the definition of a commercial item as defined at FAR 2.101 shall not be 
exempt from--
    (i) Cost accounting standards (see Subpart 30.2); or
    (ii) Certified cost or pricing data requirements (see 15.403).
    (g)(1) In accordance with section 1431 of the National Defense 
Authorization Act for Fiscal Year 2004 (Pub. L. 108-136) (41 U.S.C. 
437), the contracting officer also may use part 12 for any acquisition 
for services that does not meet the definition of commercial item in FAR 
2.101, if the contract or task order--
    (i) Is entered into on or before November 24, 2013;
    (ii) Has a value of $29.5 million or less;
    (iii) Meets the definition of performance-based acquisition at FAR 
2.101;
    (iv) Uses a quality assurance surveillance plan;
    (v) Includes performance incentives where appropriate;
    (vi) Specifies a firm-fixed price for specific tasks to be performed 
or outcomes to be achieved; and

[[Page 231]]

    (vii) Is awarded to an entity that provides similar services to the 
general public under terms and conditions similar to those in the 
contract or task order.
    (2) In exercising the authority specified in paragraph (g)(1) of 
this section, the contracting officer may tailor paragraph (a) of the 
clause at FAR 52.212-4 as may be necessary to ensure the contract's 
remedies adequately protect the Government's interests.

[60 FR 48241, Sept. 18, 1995]

    Editorial Note: For Federal Register citations affectingSec. 
12.102, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.fdsys.gov.



Sec. 12.103  Commercially available off-the-shelf (COTS) items.

    COTS items are defined in 2.101. Unless indicated otherwise, all of 
the policies that apply to commercial items also apply to COTS. Section 
12.505 lists the laws that are not applicable to COTS (in addition to 
12.503 and 12.504); the components test of the Buy American Act, and the 
two recovered materials certifications in Subpart 23.4, do not apply to 
COTS.

[74 2721, Jan. 15, 2009]

  Subpart 12.2_Special Requirements for the Acquisition of Commercial 
                                  Items



Sec. 12.201  General.

    Public Law 103-355 establishes special requirements for the 
acquisition of commercial items intended to more closely resemble those 
customarily used in the commercial marketplace. This subpart identifies 
those special requirements as well as other considerations necessary for 
proper planning, solicitation, evaluation and award of contracts for 
commercial items.



Sec. 12.202  Market research and description of agency need.

    (a) Market research (see 10.001) is an essential element of building 
an effective strategy for the acquisition of commercial items and 
establishes the foundation for the agency description of need (see part 
11), the solicitation, and resulting contract.
    (b) The description of agency need must contain sufficient detail 
for potential offerors of commercial items to know which commercial 
products or services may be suitable. Generally, for acquisitions in 
excess of the simplified acquisition threshold, an agency's statement of 
need for a commercial item will describe the type of product or service 
to be acquired and explain how the agency intends to use the product or 
service in terms of function to be performed, performance requirement or 
essential physical characteristics. Describing the agency's needs in 
these terms allows offerors to propose methods that will best meet the 
needs of the Government.
    (c) Follow the procedures in subpart 11.2 regarding the 
identification and availability of specifications, standards and 
commercial item descriptions.
    (d) Requirements documents for electronic and information technology 
must comply with the applicable accessibility standards issued by the 
Architectural and Transportation Barriers Compliance Board at 36 CFR 
part 1194 (see subpart 39.2).
    (e) When acquiring information technology using Internet Protocol, 
agencies must include the appropriate Internet Protocol compliance 
requirements in accordance with 11.002(g).

[60 FR 48241, Sept. 18, 1995, as amended at 62 FR 264, Jan. 2, 1997; 66 
FR 20897, Apr. 25, 2001; 74 FR 65607, Dec. 10, 2009]



Sec. 12.203  Procedures for solicitation, evaluation, and award.

    Contracting officers shall use the policies unique to the 
acquisition of commercial items prescribed in this part in conjunction 
with the policies and procedures for solicitation, evaluation and award 
prescribed in part 13, Simplified Acquisition Procedures; part 14, 
Sealed Bidding; or part 15, Contracting by Negotiation, as appropriate 
for the particular acquisition. The contracting officer may use the 
streamlined procedure for soliciting offers for commercial items 
prescribed in 12.603. For acquisitions of commercial items exceeding the 
simplified acquisition threshold but not exceeding $6.5 million ($12 
million for acquisitions as described in 13.500(e)), including options, 
contracting activities shall employ the

[[Page 232]]

simplified procedures authorized by Subpart 13.5 to the maximum extent 
practicable.

[60 FR 48241, Sept. 18, 1995, as amended at 62 FR 264, Jan. 2, 1997; 62 
FR 64917, Dec. 9, 1997; 69 FR 8313, Feb. 23, 2004; 69 FR 76351, Dec. 20, 
2004; 71 FR 57366, Sept. 28, 2006; 75 FR 53132, Aug. 30, 2010]



Sec. 12.204  Solicitation/contract form.

    (a) The contracting officer shall use the Standard Form 1449, 
Solicitation/Contract/Order for Commercial Items, if (1) the acquisition 
is expected to exceed the simplified acquisition threshold; (2) a paper 
solicitation or contract is being issued; and (3) procedures at 12.603 
are not being used. Use of the SF 1449 is nonmandatory but encouraged 
for commercial acquisitions not exceeding the simplified acquisition 
threshold.
    (b) Consistent with the requirements at 5.203 (a) and (h), the 
contracting officer may allow fewer than 15 days before issuance of the 
solicitation.

[62 FR 264, Jan. 2, 1997]



Sec. 12.205  Offers.

    (a) Where technical information is necessary for evaluation of 
offers, agencies should, as part of market research, review existing 
product literature generally available in the industry to determine its 
adequacy for purposes of evaluation. If adequate, contracting officers 
shall request existing product literature from offerors of commercial 
items in lieu of unique technical proposals.
    (b) Contracting officers should allow offerors to propose more than 
one product that will meet a Government need in response to 
solicitations for commercial items. The contracting officer shall 
evaluate each product as a separate offer.
    (c) Consistent with the requirements at 5.203(b), the contracting 
officer may allow fewer than 30 days response time for receipt of offers 
for commercial items, unless the acquisition is covered by the World 
Trade Organization Government Procurement Agreement or a Free Trade 
Agreement (see 5.203(h)).

[60 FR 48241, Sept. 18, 1995, as amended at 62 FR 264, Jan. 2, 1997; 64 
FR 72418, Dec. 27, 1999; 69 FR 1053, Jan. 7, 2004; 69 FR 77872, Dec. 28, 
2004]



Sec. 12.206  Use of past performance.

    Past performance should be an important element of every evaluation 
and contract award for commercial items. Contracting officers should 
consider past performance data from a wide variety of sources both 
inside and outside the Federal Government in accordance with the 
policies and procedures contained in subpart 9.1, section 13.106, or 
subpart 15.3, as applicable.

[60 FR 48241, Sept. 18, 1995, as amended at 61 FR 39192, July 26, 1996; 
62 FR 51270, Sept. 30, 1997; 62 FR 64917, Dec. 9, 1997]



Sec. 12.207  Contract type.

    (a) Except as provided in paragraph (b) of this section, agencies 
shall use firm-fixed-price contracts or fixed-price contracts with 
economic price adjustment for the acquisition of commercial items.
    (b)(1) A time-and-materials contract or labor-hour contract (see 
Subpart 16.6) may be used for the acquisition of commercial services 
when--
    (i) The service is acquired under a contract awarded using--
    (A) Competitive procedures (e.g., the procedures in 6.102, the set-
aside procedures in Subpart 19.5, or competition conducted in accordance 
with Part 13);
    (B) The procedures for other than full and open competition in 6.3 
provided the agency receives offers that satisfy the Government's 
expressed requirement from two or more responsible offerors; or
    (C) The fair opportunity procedures in 16.505 (including 
discretionary small business set-asides under 16.505(b)(2)(i)(F)), if 
placing an order under a multiple-award delivery-order contract; and
    (ii) The contracting officer--
    (A) Executes a determination and findings (D&F) for the contract, in 
accordance with paragraph (b)(2) of this section (but see paragraph (c) 
of this section for indefinite-delivery contracts), that no other 
contract type authorized by this subpart is suitable;

[[Page 233]]

    (B) Includes a ceiling price in the contract or order that the 
contractor exceeds at its own risk; and
    (C) Prior to increasing the ceiling price of a time-and-materials or 
labor-hour contract or order, shall--
    (1) Conduct an analysis of pricing and other relevant factors to 
determine if the action is in the best interest of the Government;
    (2) Document the decision in the contract or order file; and
    (3) When making a change that modifies the general scope of--
    (i) A contract, follow the procedures at 6.303;
    (ii) An order issued under the Federal Supply Schedules, follow the 
procedures at 8.405-6; or
    (iii) An order issued under multiple award task and delivery order 
contracts, follow the procedures at 16.505(b)(2).
    (2) Each D&F required by paragraph (b)(1)(ii)(A) of this section 
shall contain sufficient facts and rationale to justify that no other 
contract type authorized by this subpart is suitable. At a minimum, the 
D&F shall--
    (i) Include a description of the market research conducted (see 
10.002(e));
    (ii) Establish that it is not possible at the time of placing the 
contract or order to accurately estimate the extent or duration of the 
work or to anticipate costs with any reasonable degree of confidence;
    (iii) Establish that the requirement has been structured to maximize 
the use of firm-fixed-price or fixed-price with economic price 
adjustment contracts (e.g., by limiting the value or length of the time-
and-material/labor-hour contract or order; establishing fixed prices for 
portions of the requirement) on future acquisitions for the same or 
similar requirements; and
    (iv) Describe actions planned to maximize the use of firm-fixed-
price or fixed-price with economic price adjustment contracts on future 
acquisitions for the same requirements.
    (3) See 16.601(d)(1) for additional approval required for contracts 
expected to extend beyond three years.
    (4) See 8.404(h) for the requirement for determination and findings 
when using Federal Supply Schedules.
    (c)(1) Indefinite-delivery contracts (see Subpart 16.5) may be used 
when--
    (i) The prices are established based on a firm-fixed-price or fixed-
price with economic price adjustment; or
    (ii) Rates are established for commercial services acquired on a 
time-and-materials or labor-hour basis.
    (2) When an indefinite-delivery contract is awarded with services 
priced on a time-and-materials or labor-hour basis, contracting officers 
shall, to the maximum extent practicable, also structure the contract to 
allow issuance of orders on a firm-fixed-price or fixed-price with 
economic price adjustment basis. For such contracts, the contracting 
officer shall execute the D&F required by paragraph (b)(2) of this 
section, for each order placed on a time-and-materials or labor-hour 
basis. Placement of orders shall be in accordance with Subpart 8.4 or 
16.5, as applicable.
    (3) If an indefinite-delivery contract only allows for the issuance 
of orders on a time-and-materials or labor-hour basis, the D&F required 
by paragraph (b)(2) of this section shall be executed to support the 
basic contract and shall also explain why providing for an alternative 
firm-fixed-price or fixed-price with economic price adjustment pricing 
structure is not practicable. The D&F for this contract shall be 
approved one level above the contracting officer. Placement of orders 
shall be in accordance with Subpart 16.5.
    (d) The contract types authorized by this subpart may be used in 
conjunction with an award fee and performance or delivery incentives 
when the award fee or incentive is based solely on factors other than 
cost (see 16.202-1 and 16.203-1).
    (e) Use of any contract type other than those authorized by this 
subpart to acquire commercial items is prohibited.

[71 FR 74676, Dec. 12, 2006, as amended at 72 FR 6882, Feb. 13, 2007; 76 
FR 68034, Nov. 2, 2011; 77 FR 197, Jan. 3, 2012; 78 FR 13767, Feb. 28, 
2013]



Sec. 12.208  Contract quality assurance.

    Contracts for commercial items shall rely on contractors' existing 
quality assurance systems as a substitute for

[[Page 234]]

Government inspection and testing before tender for acceptance unless 
customary market practices for the commercial item being acquired 
include in-process inspection. Any in-process inspection by the 
Government shall be conducted in a manner consistent with commercial 
practice.



Sec. 12.209  Determination of price reasonableness.

    While the contracting officer must establish price reasonableness in 
accordance with 13.106-3, 14.408-2, or subpart 15.4, as applicable, the 
contracting officer should be aware of customary commercial terms and 
conditions when pricing commercial items. Commercial item prices are 
affected by factors that include, but are not limited to, speed of 
delivery, length and extent of warranty, limitations of seller's 
liability, quantities ordered, length of the performance period, and 
specific performance requirements. The contracting officer must ensure 
that contract terms, conditions, and prices are commensurate with the 
Government's need.

[66 FR 53484, Oct. 22, 2001]



Sec. 12.210  Contract financing.

    Customary market practice for some commercial items may include 
buyer contract financing. The contracting officer may offer Government 
financing in accordance with the policies and procedures in part 32.



Sec. 12.211  Technical data.

    Except as provided by agency-specific statutes, the Government shall 
acquire only the technical data and the rights in that data customarily 
provided to the public with a commercial item or process. The 
contracting officer shall presume that data delivered under a contract 
for commercial items was developed exclusively at private expense. When 
a contract for commercial items requires the delivery of technical data, 
the contracting officer shall include appropriate provisions and clauses 
delineating the rights in the technical data in addenda to the 
solicitation and contract (see part 27 or agency FAR supplements).



Sec. 12.212  Computer software.

    (a) Commercial computer software or commercial computer software 
documentation shall be acquired under licenses customarily provided to 
the public to the extent such licenses are consistent with Federal law 
and otherwise satisfy the Government's needs. Generally, offerors and 
contractors shall not be required to--
    (1) Furnish technical information related to commercial computer 
software or commercial computer software documentation that is not 
customarily provided to the public; or
    (2) Relinquish to, or otherwise provide, the Government rights to 
use, modify, reproduce, release, perform, display, or disclose 
commercial computer software or commercial computer software 
documentation except as mutually agreed to by the parties.
    (b) With regard to commercial computer software and commercial 
computer software documentation, the Government shall have only those 
rights specified in the license contained in any addendum to the 
contract. For additional guidance regarding the use and negotiation of 
license agreements for commercial computer software, see 27.405-3.

[60 FR 48241, Sept. 18, 1995, as amended at 72 FR 63049, Nov. 7, 2007]



Sec. 12.213  Other commercial practices.

    It is a common practice in the commercial marketplace for both the 
buyer and seller to propose terms and conditions written from their 
particular perspectives. The terms and conditions prescribed in this 
part seek to balance the interests of both the buyer and seller. These 
terms and conditions are generally appropriate for use in a wide range 
of acquisitions. However, market research may indicate other commercial 
practices that are appropriate for the acquisition of the particular 
item. These practices should be considered for incorporation into the 
solicitation and contract if the contracting officer determines them 
appropriate in concluding a business arrangement satisfactory to both 
parties and not otherwise precluded by law or Executive order.

[62 FR 264, Jan. 2, 1997]

[[Page 235]]



Sec. 12.214  Cost Accounting Standards.

    Cost Accounting Standards (CAS) do not apply to contracts and 
subcontracts for the acquisition of commercial items when these 
contracts and subcontracts are firm-fixed-price or fixed-price with 
economic price adjustment (provided that the price adjustment is not 
based on actual costs incurred). See 48 CFR 30.201-1 for CAS 
applicability to fixed-price with economic price adjustment contracts 
and subcontracts for commercial items when the price adjustment is based 
on actual costs incurred. When CAS applies, the contracting officer 
shall insert the appropriate provisions and clauses as prescribed in 48 
CFR 30.201.

[63 FR 9054, Feb. 23, 1998]



Sec. 12.215  Notification of overpayment.

    If the contractor notifies the contracting officer of a duplicate 
payment or that the Government has otherwise overpaid, the contracting 
officer shall follow the procedures at 32.604.

[73 FR 54001, Sept. 17, 2008]



Sec. 12.216  Unenforceability of unauthorized obligations.

    Many supplies or services are acquired subject to supplier license 
agreements. These are particularly common in information technology 
acquisitions, but they may apply to any supply or service. For example, 
computer software and services delivered through the internet (web 
services) are often subject to license agreements, referred to as End 
User License Agreements (EULA), Terms of Service (TOS), or other similar 
legal instruments or agreements. Many of these agreements contain 
indemnification clauses that are inconsistent with Federal law and 
unenforceable, but which could create a violation of the Anti-Deficiency 
Act (31 U.S.C. 1341) if agreed to by the Government. Paragraph (u) of 
the clause at 52.212-4 prevents any such violations.

[78 FR 37688, June 21 ,2013]

   Subpart 12.3_Solicitation Provisions and Contract Clauses for the 
                     Acquisition of Commercial Items



Sec. 12.300  Scope of subpart.

    This subpart establishes provisions and clauses to be used when 
acquiring commercial items.



Sec. 12.301  Solicitation provisions and contract clauses for the 
          acquisition of commercial items.

    (a) In accordance with Section 8002 of Public Law 103-355 (41 U.S.C 
264, note), contracts for the acquisition of commercial items shall, to 
the maximum extent practicable, include only those clauses--
    (1) Required to implement provisions of law or executive orders 
applicable to the acquisition of commercial items; or
    (2) Determined to be consistent with customary commercial practice.
    (b) Insert the following provisions in solicitations for the 
acquisition of commercial items, and clauses in solicitations and 
contracts for the acquisition of commercial items:
    (1) The provision at 52.212-1, Instructions to Offerors--Commercial 
Items. This provision provides a single, streamlined set of instructions 
to be used when soliciting offers for commercial items and is 
incorporated in the solicitation by reference (see Block 27a, SF 1449). 
The contracting officer may tailor these instructions or provide 
additional instructions tailored to the specific acquisition in 
accordance with 12.302.
    (2) The provision at 52.212-3, Offeror Representations and 
Certifications--Commercial Items. This provision provides a single, 
consolidated list of representations and certifications for the 
acquisition of commercial items and is attached to the solicitation for 
offerors to complete. This provision may not be tailored except in 
accordance with Subpart 1.4. Use the provision with its Alternate I in 
solicitations issued by DoD, NASA, or the Coast Guard. Use the provision 
with its Alternate II in solicitations for acquisitions for which small 
disadvantaged business procurement mechanisms are authorized on a 
regional basis.

[[Page 236]]

    (3) The clause at 52.212-4, Contract Terms and Conditions--
Commercial Items. This clause includes terms and conditions which are, 
to the maximum extent practicable, consistent with customary commercial 
practices and is incorporated in the solicitation and contract by 
reference (see Block 27, SF 1449). Use this clause with its Alternate I 
when a time-and-materials or labor-hour contract will be awarded. The 
contracting officer may tailor this clause in accordance with 12.302.
    (4) The clause at 52.212-5, Contract Terms and Conditions Required 
to Implement Statutes or Executive Orders--Commercial Items. This clause 
incorporates by reference only those clauses required to implement 
provisions of law or Executive orders applicable to the acquisition of 
commercial items. The contracting officer shall attach this clause to 
the solicitation and contract and, using the appropriate clause 
prescriptions, indicate which, if any, of the additional clauses cited 
in 52.212-5(b) or (c) are applicable to the specific acquisition. Some 
of the clauses require fill-in; the fill-in language should be inserted 
as directed by 52.104(d). When cost information is obtained pursuant to 
Part 15 to establish the reasonableness of prices for commercial items, 
the contracting officer shall insert the clauses prescribed for this 
purpose in an addendum to the solicitation and contract. This clause may 
not be tailored.
    (i) Use the clause with its Alternate I when the head of the agency 
has waived the examination of records by the Comptroller General in 
accordance with 25.1001.
    (ii)(A) If the acquisition will use funds appropriated or otherwise 
made available by the American Recovery and Reinvestment Act of 2009 
(Pub. L. 111-5), the contracting officer shall use the clause with its 
Alternate II.
    (B)(1) In the case of a bilateral contract modification that will 
use funds appropriated or otherwise made available by the American 
Recovery and Reinvestment Act of 2009, the contracting officer shall 
specify applicability of Alternate II to that modification.
    (2) In the case of a task- or delivery-order contract in which not 
all orders will use funds appropriated or otherwise made available by 
the American Recovery and Reinvestment Act of 2009, the contracting 
officer shall specify the task or delivery orders to which Alternate II 
applies.
    (C) The contracting officer may not use Alternate I when Alternate 
II applies.
    (c) When the use of evaluation factors is appropriate, the 
contracting officer may--
    (1) Insert the provision at 52.212-2, Evaluation--Commercial Items, 
in solicitations for commercial items (see 12.602); or
    (2) Include a similar provision containing all evaluation factors 
required by section 13.106, subpart 14.2 or subpart 15.3, as an addendum 
(see 12.302(d)).
    (d) Other required provisions and clauses. (1) Notwithstanding 
prescriptions contained elsewhere in the FAR, when acquiring commercial 
items, contracting officers shall be required to use only those 
provisions and clauses prescribed in this part. The provisions and 
clauses prescribed in this part shall be revised, as necessary, to 
reflect the applicability of statutes and executive orders to the 
acquisition of commercial items.
    (2) Insert the clause at 52.225-19, Contractor Personnel in a 
Designated Operational Area or Supporting a Diplomatic or Consular 
Mission outside the United States, as prescribed in 25.301-4.
    (3) Insert the provision at 52.209-7, Information Regarding 
Responsibility Matters, as prescribed in 9.104-7(b).
    (e) Discretionary use of FAR provisions and clauses. The contracting 
officer may include in solicitations and contracts by addendum other FAR 
provisions and clauses when their use is consistent with the limitations 
contained in 12.302. For example:
    (1) The contracting officer may include appropriate clauses when an 
indefinite-delivery type of contract will be used. The clauses 
prescribed at 16.506 may be used for this purpose.
    (2) The contracting officer may include appropriate provisions and 
clauses when the use of options is in the Government's interest. The 
provisions and clauses prescribed in 17.208 may be used for this 
purpose. If the

[[Page 237]]

provision at 52.212-2 is used, paragraph (b) provides for the evaluation 
of options.
    (3) The contracting officer may use the provisions and clauses 
contained in Part 23 regarding the use of products containing recovered 
materials and biobased products when appropriate for the item being 
acquired.
    (4) When setting aside under the Stafford Act (Subpart 26.2), 
include the provision at 52.226-3, Disaster or Emergency Area 
Representation, in the solicitation. The representation in this 
provision is not in the System for Award Management database.
    (f) Agencies may supplement the provisions and clauses prescribed in 
this part (to require use of additional provisions and clauses) only as 
necessary to reflect agency unique statutes applicable to the 
acquisition of commercial items or as may be approved by the agency 
senior procurement executive, or the individual responsible for 
representing the agency on the FAR Council, without power of delegation.

[60 FR 48241, Sept. 18, 1995]

    Editorial Note: For Federal Register citations affecting section 
12.301, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.fdsys.gov.



Sec. 12.302  Tailoring of provisions and clauses for the acquisition of 
          commercial items.

    (a) General. The provisions and clauses established in this subpart 
are intended to address, to the maximum extent practicable, commercial 
market practices for a wide range of potential Government acquisitions 
of commercial items. However, because of the broad range of commercial 
items acquired by the Government, variations in commercial practices, 
and the relative volume of the Government's acquisitions in the specific 
market, contracting officers may, within the limitations of this 
subpart, and after conducting appropriate market research, tailor the 
provision at 52.212-1, Instructions to Offerors-Commercial Items, and 
the clause at 52.212-4, Contract Terms and Conditions-Commercial Items, 
to adapt to the market conditions for each acquisition.
    (b) Tailoring 52.212-4, Contract Terms and Conditions--Commercial 
Items. The following paragraphs of the clause at 52.212-4, Contract 
Terms and Conditions--Commercial Items, implement statutory requirements 
and shall not be tailored--
    (1) Assignments;
    (2) Disputes;
    (3) Payment (except as provided in subpart 32.11);
    (4) Invoice;
    (5) Other compliances;
    (6) Compliance with laws unique to Government contracts; and
    (7) Unauthorized obligations.
    (c) Tailoring inconsistent with customary commercial practice. The 
contracting officer shall not tailor any clause or otherwise include any 
additional terms or conditions in a solicitation or contract for 
commercial items in a manner that is inconsistent with customary 
commercial practice for the item being acquired unless a waiver is 
approved in accordance with agency procedures. The request for waiver 
must describe the customary commercial practice found in the 
marketplace, support the need to include a term or condition that is 
inconsistent with that practice and include a determination that use of 
the customary commercial practice is inconsistent with the needs of the 
Government. A waiver may be requested for an individual or class of 
contracts for that specific item.
    (d) Tailoring shall be by addenda to the solicitation and contract. 
The contracting officer shall indicate in Block 27a of the SF 1449 if 
addenda are attached. These addenda may include, for example, a 
continuation of the schedule of supplies/services to be acquired from 
blocks 18 through 21 of the SF 1449; a continuation of the description 
of the supplies/services being acquired; further elaboration of any 
other item(s) on the SF 1449; any other terms or conditions necessary 
for the performance of the proposed contract (such as options, ordering 
procedures for indefinite-delivery type contracts,

[[Page 238]]

warranties, contract financing arrangements, etc.).

[60 FR 48241, Sept. 18, 1995, as amended at 61 FR 45772, Aug. 29, 1996; 
61 FR 67430, Dec. 20, 1996; 62 FR 264, Jan. 2, 1997; 78 FR 37688, June 
21, 2013]



Sec. 12.303  Contract format.

    Solicitations and contracts for the acquisition of commercial items 
prepared using this part 12 shall be assembled, to the maximum extent 
practicable, using the following format:
    (a) Standard Form (SF) 1449;
    (b) Continuation of any block from SF 1449, such as--
    (1) Block 10 if a price evaluation adjustment for small 
disadvantaged business concerns is applicable (the contracting officer 
shall indicate the percentage(s) and applicable line item(s)), if an 
incentive subcontracting clause is used (the contracting officer shall 
indicate the applicable percentage);
    (2) Block 18B for remittance address;
    (3) Block 19 for contract line item numbers;
    (4) Block 20 for schedule of supplies/services; or
    (5) Block 25 for accounting data;
    (c) Contract clauses--
    (1) 52.212-4, Contract Terms and Conditions--Commercial Items, by 
reference (see SF 1449, Block 27a);
    (2) Any addendum to 52.212-4; and
    (3) 52.212-5, Contract Terms and Conditions Required to Implement 
Statutes and Executive Orders;
    (d) Any contract documents, exhibits or attachments; and
    (e) Solicitation provisions--
    (1) 52.212-1, Instructions to Offerors--Commercial Items, by 
reference (see SF 1449, Block 27a);
    (2) Any addendum to 52.212-1;
    (3) 52.212-2, Evaluation--Commercial Items, or other description of 
evaluation factors for award, if used; and
    (4) 52.212-3, Offeror Representations and Certifications--Commercial 
Items.

[60 FR 48241, Sept. 18, 1995; 60 FR 54817, Oct. 26, 1995; 61 FR 67430, 
Dec. 20, 1996; 63 FR 35720, June 30, 1997; 63 FR 36121, July 1, 1998; 64 
FR 10536, Mar. 4, 1999; 71 FR 220, Jan. 3, 2006; 75 FR 82567, Dec. 30, 
2010]

  Subpart 12.4_Unique Requirements Regarding Terms and Conditions for 
                            Commercial Items



Sec. 12.401  General.

    This subpart provides--
    (a) Guidance regarding tailoring of the paragraphs in the clause at 
52.212-4, Contract Terms and Conditions--Commercial Items, when the 
paragraphs do not reflect the customary practice for a particular 
market; and
    (b) Guidance on the administration of contracts for commercial items 
in those areas where the terms and conditions in 52.212-4 differ 
substantially from those contained elsewhere in the FAR.



Sec. 12.402  Acceptance.

    (a) The acceptance paragraph in 52.212-4 is based upon the 
assumption that the Government will rely on the contractor's assurances 
that the commercial item tendered for acceptance conforms to the 
contract requirements. The Government inspection of commercial items 
will not prejudice its other rights under the acceptance paragraph. 
Additionally, although the paragraph does not address the issue of 
rejection, the Government always has the right to refuse acceptance of 
nonconforming items. This paragraph is generally appropriate when the 
Government is acquiring noncomplex commercial items.
    (b) Other acceptance procedures may be more appropriate for the 
acquisition of complex commercial items or commercial items used in 
critical applications. In such cases, the contracting officer shall 
include alternative inspection procedure(s) in an addendum and ensure 
these procedures and the postaward remedies adequately protect the 
interests of the Government. The contracting officer must carefully 
examine the terms and conditions of any express warranty with regard to 
the effect it may have on the Government's available postaward remedies 
(see 12.404).
    (c) The acquisition of commercial items under other circumstances 
such as on an ``as is'' basis may also require acceptance procedures 
different from

[[Page 239]]

those contained in 52.212-4. The contracting officer should consider the 
effect the specific circumstances will have on the acceptance paragraph 
as well as other paragraphs of the clause.



Sec. 12.403  Termination.

    (a) General. The clause at 52.212-4 permits the Government to 
terminate a contract for commercial items either for the convenience of 
the Government or for cause. However, the paragraphs in 52.212-4 
entitled ``Termination for the Government's Convenience'' and 
``Termination for Cause'' contain concepts which differ from those 
contained in the termination clauses prescribed in part 49. 
Consequently, the requirements of part 49 do not apply when terminating 
contracts for commercial items and contracting officers shall follow the 
procedures in this section. Contracting officers may continue to use 
part 49 as guidance to the extent that part 49 does not conflict with 
this section and the language of the termination paragraphs in 52.212-4.
    (b) Policy. The contracting officer should exercise the Government's 
right to terminate a contract for commercial items either for 
convenience or for cause only when such a termination would be in the 
best interests of the Government. The contracting officer should consult 
with counsel prior to terminating for cause.
    (c) Termination for cause. (1) The paragraph in 52.2124 entitled 
``Excusable Delay'' requires contractors notify the contracting officer 
as soon as possible after commencement of any excusable delay. In most 
situations, this requirement should eliminate the need for a show cause 
notice prior to terminating a contract. The contracting officer shall 
send a cure notice prior to terminating a contract for a reason other 
than late delivery.
    (2) The Government's rights after a termination for cause shall 
include all the remedies available to any buyer in the marketplace. The 
Government's preferred remedy will be to acquire similar items from 
another contractor and to charge the defaulted contractor with any 
excess reprocurement costs together with any incidental or consequential 
damages incurred because of the termination.
    (3) When a termination for cause is appropriate, the contracting 
officer shall send the contractor a written notification regarding the 
termination. At a minimum, this notification shall--
    (i) Indicate the contract is terminated for cause;
    (ii) Specify the reasons for the termination;
    (iii) Indicate which remedies the Government intends to seek or 
provide a date by which the Government will inform the contractor of the 
remedy; and
    (iv) State that the notice constitutes a final decision of the 
contracting officer and that the contractor has the right to appeal 
under the Disputes clause (see 33.211).
    (4) The contracting officer, in accordance with agency procedures, 
shall ensure that information related to termination for cause notices 
and any amendments are reported. In the event the termination for cause 
is subsequently converted to a termination for convenience, or is 
otherwise withdrawn, the contracting officer shall ensure that a notice 
of the conversion or withdrawal is reported. All reporting shall be in 
accordance with 42.1503(h).
    (d) Termination for the Government's convenience. (1) When the 
contracting officer terminates a contract for commercial items for the 
Government's convenience, the contractor shall be paid--
    (i)(A) The percentage of the contract price reflecting the 
percentage of the work performed prior to the notice of the termination 
for fixed-price or fixed-price with economic price adjustment contracts; 
or
    (B) An amount for direct labor hours (as defined in the Schedule of 
the contract) determined by multiplying the number of direct labor hours 
expended before the effective date of termination by the hourly rate(s) 
in the Schedule; and
    (ii) Any charges the contractor can demonstrate directly resulted 
from the termination. The contractor may demonstrate such charges using 
its standard record keeping system and is not required to comply with 
the cost accounting standards or the contract

[[Page 240]]

cost principles in part 31. The Government does not have any right to 
audit the contractor's records solely because of the termination for 
convenience.
    (2) Generally, the parties should mutually agree upon the 
requirements of the termination proposal. The parties must balance the 
Government's need to obtain sufficient documentation to support payment 
to the contractor against the goal of having a simple and expeditious 
settlement.

[60 FR 48241, Sept. 18, 1995, as amended at 71 FR 74677, Dec. 12, 2006; 
75 FR 60260, Sept. 29, 2010; 78 FR 46787, Aug. 1, 2013; 78 FR 46787, 
Aug. 1, 2013]



Sec. 12.404  Warranties.

    (a) Implied warranties. The Government's post award rights contained 
in 52.212-4 are the implied warranty of merchantability, the implied 
warranty of fitness for particular purpose and the remedies contained in 
the acceptance paragraph.
    (1) The implied warranty of merchantability provides that an item is 
reasonably fit for the ordinary purposes for which such items are used. 
The items must be of at least average, fair or medium-grade quality and 
must be comparable in quality to those that will pass without objection 
in the trade or market for items of the same description.
    (2) The implied warranty of fitness for a particular purpose 
provides that an item is fit for use for the particular purpose for 
which the Government will use the items. The Government can rely upon an 
implied warranty of fitness for particular purpose when--
    (i) The seller knows the particular purpose for which the Government 
intends to use the item; and
    (ii) The Government relied upon the contractor's skill and judgment 
that the item would be appropriate for that particular purpose.
    (3) Contracting officers should consult with legal counsel prior to 
asserting any claim for a breach of an implied warranty.
    (b) Express warranties. The Federal Acquisition Streamlining Act of 
1994 (41 U.S.C. 264 note) requires contracting officers to take 
advantage of commercial warranties. To the maximum extent practicable, 
solicitations for commercial items shall require offerors to offer the 
Government at least the same warranty terms, including offers of 
extended warranties, offered to the general public in customary 
commercial practice. Solicitations may specify minimum warranty terms, 
such as minimum duration, appropriate for the Government's intended use 
of the item.
    (1) Any express warranty the Government intends to rely upon must 
meet the needs of the Government. The contracting officer should analyze 
any commercial warranty to determine if--
    (i) The warranty is adequate to protect the needs of the Government, 
e.g., items covered by the warranty and length of warranty;
    (ii) The terms allow the Government effective postaward 
administration of the warranty to include the identification of 
warranted items, procedures for the return of warranted items to the 
contractor for repair or replacement, and collection of product 
performance information; and
    (iii) The warranty is cost-effective.
    (2) In some markets, it may be customary commercial practice for 
contractors to exclude or limit the implied warranties contained in 
52.212-4 in the provisions of an express warranty. In such cases, the 
contracting officer shall ensure that the express warranty provides for 
the repair or replacement of defective items discovered within a 
reasonable period of time after acceptance.
    (3) Express warranties shall be included in the contract by addendum 
(see 12.302).

    Subpart 12.5_Applicability of Certain Laws to the Acquisition of 
     Commercial Items and Commercially Available Off-The-Shelf Items



Sec. 12.500  Scope of subpart.

    (a) As required by sections 34 and 35 of the Office of Federal 
Procurement Policy Act (41 U.S.C. 430 and 431), this subpart lists 
provisions of law that are not applicable to--
    (1) Contracts for the acquisition of commercial items;

[[Page 241]]

    (2) Subcontracts, at any tier, for the acquisition of commercial 
items; and
    (3) Contracts and subcontracts, at any tier, for the acquisition of 
COTS items.
    (b) This subpart also lists provisions of law that have been amended 
to eliminate or modify their applicability to either contracts or 
subcontracts for the acquisition of commercial items.

[74 FR 2721, Jan. 15, 2009]



Sec. 12.501  Applicability.

    (a) This subpart applies to any contract or subcontract at any tier 
for the acquisition of commercial items.
    (b) Nothing in this subpart shall be construed to authorize the 
waiver of any provision of law with respect to any subcontract if the 
prime contractor is reselling or distributing commercial items of 
another contractor without adding value. This limitation is intended to 
preclude establishment of unusual contractual arrangements solely for 
the purpose of Government sales.
    (c) For purposes of this subpart, contractors awarded subcontracts 
under subpart 19.8, Contracting with the Small Business Administration 
(the 8(a) Program), shall be considered prime contractors.



Sec. 12.502  Procedures.

    (a) The FAR prescription for the provision or clause for each of the 
laws listed in 12.503 has been revised in the appropriate part to 
reflect its proper application to prime contracts for the acquisition of 
commercial items.
    (b) For subcontracts for the acquisition of commercial items or 
commercial components, the clauses at 52.212-5, Contract Terms and 
Conditions Required to Implement Statutes or Executive Orders--
Commercial Items, and 52.244-6, Subcontracts for Commercial Items and 
Commercial Components, reflect the applicability of the laws listed in 
12.504 by identifying the only provisions and clauses that are required 
to be included in a subcontract at any tier for the acquisition of 
commercial items or commercial components.
    (c) The FAR prescription for the provision or clause for each of the 
laws listed in 12.505 has been revised in the appropriate part to 
reflect its proper application to contracts and subcontracts for the 
acquisition of COTS items.

[60 FR 48241, Sept. 18, 1995, as amended at 74 FR 2721, Jan. 15, 2009]



Sec. 12.503  Applicability of certain laws to Executive agency contracts 
          for the acquisition of commercial items.

    (a) The following laws are not applicable to Executive agency 
contracts for the acquisition of commercial items:
    (1) 41 U.S.C. 43, Walsh-Healey Act (see subpart 22.6).
    (2) 41 U.S.C. 254(a) and 10 U.S.C. 2306(b), Contingent Fees (see 
3.404).
    (3) 41 U.S.C. 416(a)(6), Minimum Response Time for Offers under 
Office of Federal Procurement Policy Act (see 5.203).
    (4) 41 U.S.C. 701, et seq., Drug-Free Workplace Act of 1988 (see 
23.501).
    (5) 31 U.S.C. 1354(a), Limitation on use of appropriated funds for 
contracts with entities not meeting veterans employment reporting 
requirements (see 22.1302).
    (6) [Reserved]
    (7) Section 806(a)(3) of Pub. L. 102-190, as amended by Sections 
2091 and 8105 of Pub. L. 103-355, Payment Protections for Subcontractors 
and Suppliers (see 28.106-6).
    (8) 41 U.S.C. 254d(c)(1) and 10 U.S.C. 2313(c)(1), GAO Access to 
Contractor Employees, Section 871 of Pub. L. 110-417 (see 52.214-26 and 
52.215-2).
    (9) Public Law 110-417, section 841(a), Policy on Personal Conflicts 
of Interest by Employees of Federal Government Contractors 41 U.S.C. 
2303 (see subpart 3.11).
    (b) Certain requirements of the following laws are not applicable to 
executive agency contracts for the acquisition of commercial items:
    (1) 40 U.S.C. 3701 et seq., Requirement for a certificate and clause 
under the Contract Work Hours and Safety Standards Act (see 22.305).
    (2) 41 U.S.C. 57(a) and (b), and 58, Requirement for a clause and 
certain other requirements related to the Anti-Kickback Act of 1986 (see 
3.502).
    (3) 49 U.S.C. 40118, Requirement for a clause under the Fly American 
provisions (see 47.405).
    (c) The applicability of the following laws have been modified in 
regards to

[[Page 242]]

Executive agency contracts for the acquisition of commercial items:
    (1) 41 U.S.C. 253g and 10 U.S.C. 2402, Prohibition on Limiting 
Subcontractor Direct Sales to the United States (see 3.503).
    (2) 41 U.S.C. 254(d) and 10 U.S.C. 2306a, Truth in Negotiations Act 
(see 15.403).
    (3) 41 U.S.C. 422, Cost Accounting Standards (see 48 CFR chapter 99) 
(see 12.214).

[60 FR 48241, Sept. 18, 1995]

    Editorial Note: For Federal Register citations affecting 12.503, see 
the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and at www.fdsys.gov.



Sec. 12.504  Applicability of certain laws to subcontracts for the 
          acquisition of commercial items.

    (a) The following laws are not applicable to subcontracts at any 
tier for the acquisition of commercial items or commercial components at 
any tier:
    (1) 10 U.S.C. 2631, Transportation of Supplies by Sea (except for 
the types of subcontracts listed at 47.504(d)).
    (2) 15 U.S.C. 644(d), Requirements relative to labor surplus areas 
under the Small Business Act (see subpart 19.2).
    (3) [Reserved]
    (4) 41 U.S.C. 43, Walsh-Healey Act (see subpart 22.6).
    (5) 41 U.S.C. 253d, Validation of Proprietary Data Restrictions (see 
subpart 27.4).
    (6) 41 U.S.C. 254(a) and 10 U.S.C. 2306(b), Contingent Fees (see 
subpart 3.4).
    (7) 41 U.S.C. 254d(c) and 10 U.S.C. 2313(c), Examination of Records 
of Contractor, when a subcontractor is not required to provide certified 
cost or pricing data (see 15.209(b)), unless using funds appropriated or 
otherwise made available by the American Recovery and Reinvestment Act 
of 2009 (Pub. L. 111-5).
    (8) 41 U.S.C. 416(a)(6), Minimum Response Time for Offers under 
Office of Federal Procurement Policy Act (see subpart 5.2).
    (9) 41 U.S.C. 418a, Rights in Technical Data (see subpart 27.4).
    (10) 41 U.S.C. 701, et seq., Drug-Free Workplace Act of 1988 (see 
subpart 23.5).
    (11) 46 U.S.C. Appx 1241(b), Transportation in American Vessels of 
Government Personnel and Certain Cargo (see Subpart 47.5) (except for 
the types of subcontracts listed at 47.504(d)).
    (12) 49 U.S.C. 40118, Fly American provisions (see subpart 47.4).
    (13) Section 806(a)(3) of Pub. L. 102-190, as amended by Sections 
2091 and 8105 of Pub. L. 103-355, Payment Protections for Subcontractors 
and Suppliers (see 28.106-6).
    (b) The requirements for a certificate and clause under the Contract 
Work Hours and Safety Standards Act, 40 U.S.C. 3701, et seq., (see 
Subpart 22.3) are not applicable to subcontracts at any tier for the 
acquisition of commercial items or commercial components.
    (c) The applicability of the following laws have been modified in 
regards to subcontracts at any tier for the acquisition of commercial 
items or commercial components:
    (1) 41 U.S.C. 253g and 10 U.S.C. 2402, Prohibition on Limiting 
Subcontractor Direct Sales to the United States (see subpart 3.5).
    (2) 41 U.S.C. 254(d) and 10 U.S.C. 2306a, Truth in Negotiations Act 
(see subpart 15.4).
    (3) 41 U.S.C. 422, Cost Accounting Standards (48 CFR chapter 99) 
(see 12.214).

[60 FR 48241, Sept. 18, 1996 as amended at 61 FR 67418, Dec. 20, 1996; 
62 FR 232, 236, Jan. 2, 1997; 62 FR 51270, Sept. 30, 1997; 64 FR 72416, 
72418, Dec. 27, 1999; 65 FR 46069, July 26, 2000; 68 FR 13203, Mar. 18, 
2003; 70 FR 57454, Sept. 30, 2005; 72 FR 46330, Aug. 17, 2007; 73 FR 
54008, Sept. 17, 2008; 74 FR 14648, Mar. 31, 2009; 75 FR 53142, Aug. 30, 
2010]



Sec. 12.505  Applicability of certain laws to contracts for the 
          acquisition of COTS items.

    COTS items are a subset of commercial items. Therefore, any laws 
listed in sections 12.503 and 12.504 are also inapplicable or modified 
in their applicability to contracts or subcontracts for the acquisition 
of COTS items. In addition, the following laws are not applicable to 
contracts for the acquisition of COTS items:
    (a)(1) 41 U.S.C. 10a, portion of first sentence that reads 
``substantially all from articles, materials, or supplies mined, 
produced, or manufactured, as the case may be, in the United States,''

[[Page 243]]

Buy American Act--Supplies, component test (see 52.225-1 and 52.225-3).
    (2) 41 U.S.C. 10b, portion of first sentence that reads 
``substantially all from articles, materials, or supplies mined, 
produced, or manufactured, as the case may be, in the United States,'' 
Buy American Act--Construction Materials, component test (see 52.225-9 
and 52.225-11).
    (b) 42 U.S.C. 6962(c)(3)(A), Certification and Estimate of 
Percentage of Recovered Material.

[74 2721, Jan. 15, 2009]

Subpart 12.6_Streamlined Procedures for Evaluation and Solicitation for 
                            Commercial Items



Sec. 12.601  General.

    This subpart provides optional procedures for--
    (a) Streamlined evaluation of offers for commercial items; and
    (b) Streamlined solicitation of offers for commercial items for use 
where appropriate.
    These procedures are intended to simplify the process of preparing 
and issuing solicitations, and evaluating offers for commercial items 
consistent with customary commercial practices.



Sec. 12.602  Streamlined evaluation of offers.

    (a) When evaluation factors are used, the contracting officer may 
insert a provision substantially the same as the provision at 52.212-2, 
Evaluation--Commercial Items, in solicitations for commercial items or 
comply with the procedures in 13.106 if the acquisition is being made 
using simplified acquisition procedures. When the provision at 52.212-2 
is used, paragraph (a) of the provision shall be tailored to the 
specific acquisition to describe the evaluation factors and relative 
importance of those factors. However, when using the simplified 
acquisition procedures in part 13, contracting officers are not required 
to describe the relative importance of evaluation factors.
    (b) Offers shall be evaluated in accordance with the criteria 
contained in the solicitation. For many commercial items, the criteria 
need not be more detailed than technical (capability of the item offered 
to meet the agency need), price and past performance. Technical 
capability may be evaluated by how well the proposed products meet the 
Government requirement instead of predetermined subfactors. 
Solicitations for commercial items do not have to contain subfactors for 
technical capability when the solicitation adequately describes the 
item's intended use. A technical evaluation would normally include 
examination of such things as product literature, product samples (if 
requested), technical features and warranty provisions. Past performance 
shall be evaluated in accordance with the procedures in section 13.106 
or subpart 15.3, as applicable. The contracting officer shall ensure the 
instructions provided in the provision at 52.212-1, Instructions to 
Offerors--Commercial Items, and the evaluation criteria provided in the 
provision at 52.212-2, Evaluation--Commercial Items, are in agreement.
    (c) Select the offer that is most advantageous to the Government 
based on the factors contained in the solicitation. Fully document the 
rationale for selection of the successful offeror including discussion 
of any tradeoffs considered.

[60 FR 48241, Sept. 18, 1995, as amended at 61 FR 39192, July 26, 1996; 
62 FR 264, Jan. 2, 1997; 62 FR 51270, Sept. 30, 1997; 62 FR 64917, Dec. 
9, 1997]



Sec. 12.603  Streamlined solicitation for commercial items.

    (a) When a written solicitation will be issued, the contracting 
officer may use the following procedure to reduce the time required to 
solicit and award contracts for the acquisition of commercial items. 
This procedure combines the synopsis required by 5.203 and the issuance 
of the solicitation into a single document.
    (b) When using the combined synopsis/solicitation procedure, the SF 
1449 is not used for issuing the solicitation.
    (c) To use these procedures, the contracting officer shall--
    (1) Prepare the synopsis as described at 5.207.
    (2) In the Description, include the following additional 
information:

[[Page 244]]

    (i) The following statement:

    This is a combined synopsis/solicitation for commercial items 
prepared in accordance with the format in FAR Subpart 12.6, as 
supplemented with additional information included in this notice. This 
announcement constitutes the only solicitation; proposals are being 
requested and a written solicitation will not be issued.

    (ii) The solicitation number and a statement that the solicitation 
is issued as an invitation to bid (IFB), request for quotation (RFQ) or 
request for proposal (RFP).
    (iii) A statement that the solicitation document and incorporated 
provisions and clauses are those in effect through Federal Acquisition 
Circular ------.
    (iv) A notice regarding any set-aside and the associated NAICS code 
and small business size standard.
    (v) A list of contract line item number(s) and items, quantities and 
units of measure, (including option(s), if applicable).
    (vi) Description of requirements for the items to be acquired.
    (vii) Date(s) and place(s) of delivery and acceptance and FOB point.
    (viii) A statement that the provision at 52.212-1, Instructions to 
Offerors--Commercial, applies to this acquisition and a statement 
regarding any addenda to the provision.
    (ix) A statement regarding the applicability of the provision at 
52.212-2, Evaluation--Commercial Items, if used, and the specific 
evaluation criteria to be included in paragraph (a) of that provision. 
If this provision is not used, describe the evaluation procedures to be 
used.
    (x) A statement advising offerors to include a completed copy of the 
provision at 52.212-3, Offeror Representations and Certifications--
Commercial Items, with its offer.
    (xi) A statement that the clause at 52.212-4, Contract Terms and 
Conditions--Commercial Items, applies to this acquisition and a 
statement regarding any addenda to the clause.
    (xii) A statement that the clause at 52.212-5, Contract Terms and 
Conditions Required To Implement Statutes Or Executive Orders--
Commercial Items, applies to this acquisition and a statement regarding 
which, if any, of the additional FAR clauses cited in the clause are 
applicable to the acquisition.
    (xiii) A statement regarding any additional contract requirement(s) 
or terms and conditions (such as contract financing arrangements or 
warranty requirements) determined by the contracting officer to be 
necessary for this acquisition and consistent with customary commercial 
practices.
    (xiv) A statement regarding the Defense Priorities and Allocations 
System (DPAS) and assigned rating, if applicable.
    (xv) The date, time and place offers are due.
    (xvi) The name and telephone number of the individual to contact for 
information regarding the solicitation.
    (3) Allow response time for receipt of offers as follows:
    (i) Because the synopsis and solicitation are contained in a single 
document, it is not necessary to publicize a separate synopsis 15 days 
before the issuance of the solicitation.
    (ii) When using the combined synopsis and solicitation, contracting 
officers must establish a response time in accordance with 5.203(b) (but 
see 5.203(h)).
    (4) Publicize amendments to solicitations in the same manner as the 
initial synopsis and solicitation.

[60 FR 48241, Sept. 18, 1995, as amended at 61 FR 41469, Aug. 8, 1996; 
62 FR 264, Jan. 2, 1997; 65 FR 46056, July 26, 2000; 66 FR 27413, May 
16, 2001; 68 FR 56679, Oct. 1, 2003; 73 FR 10962, Feb. 28, 2008; 75 FR 
82567, Dec. 30, 2010]

[[Page 245]]

           SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES

                PART 13_SIMPLIFIED ACQUISITION PROCEDURES

Sec.

Sec. 13.000 Scope of part.

Sec. 13.001 Definitions.

Sec. 13.002 Purpose.

Sec. 13.003 Policy.

Sec. 13.004 Legal effect of quotations.

Sec. 13.005 Federal Acquisition Streamlining Act of 1994 list of 
          inapplicable laws.

Sec. 13.006 Inapplicable provisions and clauses.

                         Subpart 13.1_Procedures


Sec. 13.101 General.

Sec. 13.102 Source list.

Sec. 13.103 Use of standing price quotations.

Sec. 13.104 Promoting competition.

Sec. 13.105 Synopsis and posting requirements.

Sec. 13.106 Soliciting competition, evaluation of quotations or offers, 
          award and documentation.

Sec. 13.106-1 Soliciting competition.

Sec. 13.106-2 Evaluation of quotations or offers.

Sec. 13.106-3 Award and documentation.

      Subpart 13.2_Actions at or Below the Micro-Purchase Threshold


Sec. 13.201 General.

Sec. 13.202 Unenforceability of unauthorized obligations in micro-
          purchases.

Sec. 13.203 Purchase guidelines.

               Subpart 13.3_Simplified Acquisition Methods


Sec. 13.301 Governmentwide commercial purchase card.

Sec. 13.302 Purchase orders.

Sec. 13.302-1 General.

Sec. 13.302-2 Unpriced purchase orders.

Sec. 13.302-3 Obtaining contractor acceptance and modifying purchase 
          orders.

Sec. 13.302-4 Termination or cancellation of purchase orders.

Sec. 13.302-5 Clauses.

Sec. 13.303 Blanket purchase agreements (BPAs).

Sec. 13.303-1 General.

Sec. 13.303-2 Establishment of BPAs.

Sec. 13.303-3 Preparation of BPAs.

Sec. 13.303-4 Clauses.

Sec. 13.303-5 Purchases under BPAs.

Sec. 13.303-6 Review procedures.

Sec. 13.303-7 Completion of BPAs.

Sec. 13.303-8 Optional clause.

Sec. 13.304 [Reserved]

Sec. 13.305 Imprest funds and third party drafts.

Sec. 13.305-1 General.

Sec. 13.305-2 Agency responsibilities.

Sec. 13.305-3 Conditions for use.

Sec. 13.305-4 Procedures.

Sec. 13.306 SF 44, Purchase Order--Invoice--Voucher.

Sec. 13.307 Forms.

                   Subpart 13.4_Fast Payment Procedure


Sec. 13.401 General.

Sec. 13.402 Conditions for use.

Sec. 13.403 Preparation and execution of orders.

Sec. 13.404 Contract clause.

         Subpart 13.5_Test Program for Certain Commercial Items


Sec. 13.500 General.

Sec. 13.501 Special documentation requirements.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 
20113.

    Source: 62 FR 64917, Dec. 9, 1997, unless otherwise noted.



Sec. 13.000  Scope of part.

    This part prescribes policies and procedures for the acquisition of 
supplies and services, including construction, research and development, 
and commercial items, the aggregate amount of which does not exceed the 
simplified acquisition threshold (see 2.101). Subpart 13.5 provides 
special authority for acquisitions of commercial items exceeding the 
simplified acquisition threshold but not exceeding $6.5 million ($12 
million for acquisitions as described in 13.500(e)), including options. 
See part 12 for policies applicable to the acquisition of commercial 
items exceeding the micro-purchase threshold. See 36.602-5 for 
simplified procedures to be used when acquiring architect-engineer 
services.

[62 FR 64917, Dec. 9, 1997, as amended at 69 FR 8313, Feb. 23, 2004; 69 
FR 76351, Dec. 20, 2004; 71 FR 57366, Sept. 28, 2006; 75 FR 53132, Aug. 
30, 2010]



Sec. 13.001  Definitions.

    As used in this part--
    Authorized individual means a person who has been granted authority, 
in accordance with agency procedures, to acquire supplies and services 
in accordance with this part.

[[Page 246]]

    Governmentwide commercial purchase card means a purchase card, 
similar in nature to a commercial credit card, issued to authorized 
agency personnel to use to acquire and to pay for supplies and services.
    Imprest fund means a cash fund of a fixed amount established by an 
advance of funds, without charge to an appropriation, from an agency 
finance or disbursing officer to a duly appointed cashier, for 
disbursement as needed from time to time in making payment in cash for 
relatively small amounts.
    Third party draft means an agency bank draft, similar to a check, 
that is used to acquire and to pay for supplies and services. (See 
Treasury Financial Management Manual, Section 3040.70.)

[62 FR 64917, Dec. 9, 1997 as amended at 66 FR 2128, Jan. 10, 2001]



Sec. 13.002  Purpose.

    The purpose of this part is to prescribe simplified acquisition 
procedures in order to--
    (a) Reduce administrative costs;
    (b) Improve opportunities for small, small disadvantaged, women-
owned, veteran-owned, HUBZone, and service-disabled veteran-owned small 
business concerns to obtain a fair proportion of Government contracts;
    (c) Promote efficiency and economy in contracting; and
    (d) Avoid unnecessary burdens for agencies and contractors.

[62 FR 64917, Dec. 9, 1997, as amended at 70 FR 14954, Mar. 23, 2005]



Sec. 13.003  Policy.

    (a) Agencies shall use simplified acquisition procedures to the 
maximum extent practicable for all purchases of supplies or services not 
exceeding the simplified acquisition threshold (including purchases at 
or below the micro-purchase threshold). This policy does not apply if an 
agency can meet its requirement using--
    (1) Required sources of supply under part 8 (e.g., Federal Prison 
Industries, Committee for Purchase from People Who are Blind or Severely 
Disabled, and Federal Supply Schedule contracts);
    (2) Existing indefinite delivery/indefinite quantity contracts; or
    (3) Other established contracts.
    (b)(1) Acquisitions of supplies or services that have an anticipated 
dollar value exceeding $3,000 ($15,000 for acquisitions as described in 
13.201(g)(1)) but not exceeding $150,000 ($300,000 for acquisitions 
described in paragraph (1) of the simplified acquisition threshold 
definition at 2.101) are reserved exclusively for small business 
concerns and shall be set aside (see 19.000, 19.203, and subpart 19.5).
    (2) The contracting officer may make an award to a small business 
concern under the--
    (i) 8(a) Program (see subpart 19.8);
    (ii) Historically Underutilized Business Zone (HUBZone) Program (but 
see 19.1305 and 19.1306(a)(4));
    (iii) Service-Disabled Veteran-Owned Small Business (SDVOSB) Program 
(see subpart 19.14); or
    (iv) Women-Owned Small Business (WOSB) Program (see subpart 19.15).
    (3) The following contracting officer's decisions for acquisitions 
at or below the simplified acquisition threshold are not subject to 
review under subpart 19.4:
    (i) A decision not to make an award under the 8(a) Program.
    (ii) A decision not to set aside an acquisition for HUBZone small 
business concerns, service-disabled veteran-owned small business 
concerns, or EDWOSB concerns and WOSB concerns eligible under the WOSB 
Program.
    (4) Each written solicitation under a set-aside shall contain the 
appropriate provisions prescribed by part 19. If the solicitation is 
oral, however, information substantially identical to that in the 
provision shall be given to potential quoters.
    (c)(1) The contracting officer shall not use simplified acquisition 
procedures to acquire supplies and services if the anticipated award 
will exceed--
    (i) The simplified acquisition threshold; or
    (ii) $6.5 million ($12 million for acquisitions as described in 
13.500(e)), including options, for acquisitions of commercial items 
using Subpart 13.5.
    (2) Do not break down requirements aggregating more than the 
simplified

[[Page 247]]

acquisition threshold (or for commercial items, the threshold in Subpart 
13.5) or the micro-purchase threshold into several purchases that are 
less than the applicable threshold merely to--
    (i) Permit use of simplified acquisition procedures; or
    (ii) Avoid any requirement that applies to purchases exceeding the 
micro-purchase threshold.
    (d) An agency that has specific statutory authority to acquire 
personal services (see 37.104) may use simplified acquisition procedures 
to acquire those services.
    (e) Agencies shall use the Governmentwide commercial purchase card 
and electronic purchasing techniques to the maximum extent practicable 
in conducting simplified acquisitions (but see 32.1108(b)(2)).
    (f) Agencies shall maximize the use of electronic commerce when 
practicable and cost-effective (see Subpart 4.5). Drawings and lengthy 
specifications can be provided off-line in hard copy or through other 
appropriate means.
    (g) Authorized individuals shall make purchases in the simplified 
manner that is most suitable, efficient, and economical based on the 
circumstances of each acquisition. For acquisitions not expected to 
exceed--
    (1) The simplified acquisition threshold for other than commercial 
items, use any appropriate combination of the procedures in parts 13, 
14, 15, 35, or 36, including the use of Standard Form 1442, 
Solicitation, Offer, and Award (Construction, Alteration, or Repair), 
for construction contracts (see 36.701(a)); or
    (2) $6.5 million ($12 million for acquisitions as described in 
13.500(e)), for commercial items, use any appropriate combination of the 
procedures in Parts 12, 13, 14, and 15 (see paragraph (d) of this 
section).
    (h) In addition to other considerations, contracting officers 
shall--
    (1) Promote competition to the maximum extent practicable (see 
13.104);
    (2) Establish deadlines for the submission of responses to 
solicitations that afford suppliers a reasonable opportunity to respond 
(see 5.203);
    (3) Consider all quotations or offers that are timely received. For 
evaluation of quotations or offers received electronically, see 13.106-
2(b)(3); and
    (4) Use innovative approaches, to the maximum extent practicable, in 
awarding contracts using simplified acquisition procedures.

[62 FR 64917, Dec. 9, 1997, as amended at 63 FR 58593, Oct. 30, 1998; 63 
FR 70267, Dec. 18, 1998; 67 FR 56121, Aug. 30, 2002; 68 FR 4050, Jan. 
27, 2003; 69 FR 8314, Feb. 23, 2004; 69 FR 25276, May 5, 2004; 69 FR 
59699, Oct. 5, 2004; 69 FR 76351, Dec. 20, 2004; 71 FR 57366, Sept. 28, 
2006; 74 FR 65604, Dec. 10, 2009; 75 FR 53132, Aug. 30, 2010; 76 FR 
14567, Mar. 16, 2011; 76 FR 18308, Apr. 1, 2011; 77 FR 12932, Mar. 2, 
2012]



Sec. 13.004  Legal effect of quotations.

    (a) A quotation is not an offer and, consequently, cannot be 
accepted by the Government to form a binding contract. Therefore, 
issuance by the Government of an order in response to a supplier's 
quotation does not establish a contract. The order is an offer by the 
Government to the supplier to buy certain supplies or services upon 
specified terms and conditions. A contract is established when the 
supplier accepts the offer.
    (b) When appropriate, the contracting officer may ask the supplier 
to indicate acceptance of an order by notification to the Government, 
preferably in writing, as defined at 2.101. In other circumstances, the 
supplier may indicate acceptance by furnishing the supplies or services 
ordered or by proceeding with the work to the point where substantial 
performance has occurred.
    (c) If the Government issues an order resulting from a quotation, 
the Government may (by written notice to the supplier, at any time 
before acceptance occurs) withdraw, amend, or cancel its offer. (See 
13.302-4 for procedures on termination or cancellation of purchase 
orders.)



Sec. 13.005  Federal Acquisition Streamlining Act of 1994 list of 
          inapplicable laws.

    (a) The following laws are inapplicable to all contracts and 
subcontracts (if otherwise applicable to subcontracts) at or below the 
simplified acquisition threshold:

[[Page 248]]

    (1) 41 U.S.C. 57 (a) and (b) (Anti-Kickback Act of 1986). (Only the 
requirement for the incorporation of the contractor procedures for the 
prevention and detection of violations, and the contractual requirement 
for contractor cooperation in investigations are inapplicable.).
    (2) 40 U.S.C. 3131 (Miller Act). (Although the Miller Act does not 
apply to contracts at or below the simplified acquisition threshold, 
alternative forms of payment protection for suppliers of labor and 
material (see 28.102) are still required if the contract exceeds $30,000 
(40 U.S.C 3132).).
    (3) 40 U.S.C. 3701 et seq. (Contract Work Hours and Safety Standards 
Act--Overtime Compensation).
    (4) 41 U.S.C. 701(a)(1) (Section 5152 of the Drug-Free Workplace Act 
of 1988), except for individuals.
    (5) 42 U.S.C. 6962 (Solid Waste Disposal Act). (The requirement to 
provide an estimate of recovered material utilized in contract 
performance does not apply unless the contract value exceeds $150,000.)
    (6) 10 U.S.C. 2306(b) and 41 U.S.C. 254(a) (Contract Clause 
Regarding Contingent Fees).
    (7) 10 U.S.C. 2313 and 41 U.S.C. 254(c) (Authority to Examine Books 
and Records of Contractors).
    (8) 10 U.S.C. 2402 and 41 U.S.C. 253g (Prohibition on Limiting 
Subcontractor Direct Sales to the United States).
    (9) 15 U.S.C. 631 note (HUBZone Act of 1997), except for 15 U.S.C. 
657a(b)(2)(B), which is optional for the agencies subject to the 
requirements of the Act.
    (10) 31 U.S.C. 1354(a) (Limitation on use of appropriated funds for 
contracts with entities not meeting veterans employment reporting 
requirements).
    (b) When acquiring commercial items or supplies or services procured 
in accordance with 12.102(f)(1) and (f)(2), the contracting officer may 
use a combined synopsis and solicitation. The FAR Council may make 
exceptions when it determines in writing that it is in the best interest 
of the Government that the enactment should apply to contracts or 
subcontracts not greater than the simplified acquisition threshold.
    (c) The provisions of paragraph (b) of this section do not apply to 
laws that--
    (1) Provide for criminal or civil penalties; or
    (2) Specifically state that notwithstanding the language of Section 
4101, Public Law 103-355, the enactment will be applicable to contracts 
or subcontracts in amounts not greater than the simplified acquisition 
threshold.
    (d) Any individual may petition the Administrator, Office of Federal 
Procurement Policy (OFPP), to include any applicable provision of law 
not included on the list set forth in paragraph (a) of this section 
unless the FAR Council has already determined in writing that the law is 
applicable. The Administrator, OFPP, will include the law on the list in 
paragraph (a) of this section unless the FAR Council makes a 
determination that it is applicable within 60 days of receiving the 
petition.

[62 FR 64917, Dec. 9, 1997, as amended at 63 FR 58593, Oct. 30, 1998; 63 
FR 70267, Dec. 18, 1998; 65 FR 36018, June 6, 2000; 66 FR 53488, Oct. 
22, 2001; 68 FR 4050, Jan. 27, 2003; 70 FR 57454, Sept. 30, 2005; 71 FR 
57366, Sept. 28, 2006; 75 FR 53132, Aug. 30, 2010]



Sec. 13.006  Inapplicable provisions and clauses.

    While certain statutes still apply, pursuant to Public Law 103-355, 
the following provisions and clauses are inapplicable to contracts and 
subcontracts at or below the simplified acquisition threshold:
    (a) 52.203-5, Covenant Against Contingent Fees.
    (b) 52.203-6, Restrictions on Subcontractor Sales to the
    Government.
    (c) 52.203-7, Anti-Kickback Procedures.
    (d) 52.215-2, Audits and Records--Negotiation, except as used with 
its Alternate I, when using funds appropriated or otherwise made 
available by the American Recovery and Reinvestment Act of 2009 (Pub. L. 
111-5).
    (e) 52.222-4, Contract Work Hours and Safety Standards Act--Overtime 
Compensation.
    (f) 52.223-6, Drug-Free Workplace, except for individuals.

[[Page 249]]

    (g) 52.223-9, Estimate of Percentage of Recovered Material Content 
for EPA-Designated Items.

[62 FR 64917, Dec. 9, 1997, as amended at 65 FR 36018, June 6, 2000; 73 
FR 21790, Apr. 22, 2008; 74 FR 14648, Mar. 31, 2009]

                         Subpart 13.1_Procedures



Sec. 13.101  General.

    (a) In making purchases, contracting officers shall--
    (1) Comply with the policy in 7.202 relating to economic purchase 
quantities, when practicable;
    (2) Satisfy the procedures described in subpart 19.6 with respect to 
Certificates of Competency before rejecting a quotation, oral or 
written, from a small business concern determined to be nonresponsible 
(see subpart 9.1); and
    (3) Provide for the inspection of supplies or services as prescribed 
in 46.404.
    (b) In making purchases, contracting officers should--
    (1) Include related items (such as small hardware items or spare 
parts for vehicles) in one solicitation and make award on an ``all-or-
none'' or ``multiple award'' basis provided suppliers are so advised 
when quotations or offers are requested;
    (2) Incorporate provisions and clauses by reference in solicitations 
and in awards under requests for quotations, provided the requirements 
in 52.102 are satisfied;
    (3) Make maximum effort to obtain trade and prompt payment discounts 
(see 14.408-3). Prompt payment discounts shall not be considered in the 
evaluation of quotations; and
    (4) Use bulk funding to the maximum extent practicable. Bulk funding 
is a system whereby the contracting officer receives authorization from 
a fiscal and accounting officer to obligate funds on purchase documents 
against a specified lump sum of funds reserved for the purpose for a 
specified period of time rather than obtaining individual obligational 
authority on each purchase document. Bulk funding is particularly 
appropriate if numerous purchases using the same type of funds are to be 
made during a given period.

[62 FR 64917, Dec. 9, 1997, as amended at 64 FR 72418, Dec. 27, 1999]



Sec. 13.102  Source list.

    (a) Contracting officers should use the System for Award Management 
database (see subpart 4.11) via https://www.acquisition.gov as their 
primary sources of vendor information. Offices maintaining additional 
vendor source files or listings should identify the status of each 
source (when the status is made known to the contracting office) in the 
following categories:
    (1) Small business.
    (2) Small disadvantaged business.
    (3) Women-owned small business concern, including economically 
disadvantaged women-owned small business concerns and women-owned small 
business concerns eligible under the Woman-owned Small Business (WOSB) 
Program.
    (4) HUBZone small business.
    (5) Service-disabled veteran-owned small business.
    (6) Veteran-owned small business.
    (b) The status information may be used as the basis to ensure that 
small business concerns are provided the maximum practicable 
opportunities to respond to solicitations issued using simplified 
acquisition procedures.

[62 FR 64917, Dec. 9, 1997, as amended at 63 FR 58593, Oct. 30, 1998; 68 
FR 56673, Oct. 1, 2003; 76 FR 18308, Apr. 1, 2011; 77 FR 188, Jan. 3, 
2012; 78 FR 37678, June 21, 2013]



Sec. 13.103  Use of standing price quotations.

    Authorized individuals do not have to obtain individual quotations 
for each purchase. Standing price quotations may be used if--
    (a) The pricing information is current; and
    (b) The Government obtains the benefit of maximum discounts before 
award.



Sec. 13.104  Promoting competition.

    The contracting officer must promote competition to the maximum 
extent practicable to obtain supplies and services from the source whose 
offer is the most advantageous to the Government, considering the 
administrative cost of the purchase.
    (a) The contracting officer must not--
    (1) Solicit quotations based on personal preference; or

[[Page 250]]

    (2) Restrict solicitation to suppliers of well-known and widely 
distributed makes or brands.
    (b) If using simplified acquisition procedures and not providing 
access to the notice of proposed contract action and solicitation 
information through the Governmentwide point of entry (GPE), maximum 
practicable competition ordinarily can be obtained by soliciting 
quotations or offers from sources within the local trade area. Unless 
the contract action requires synopsis pursuant to 5.101 and an exception 
under 5.202 is not applicable, consider solicitation of at least three 
sources to promote competition to the maximum extent practicable. 
Whenever practicable, request quotations or offers from two sources not 
included in the previous solicitation.

[62 FR 64917, Dec. 9, 1997, as amended at 63 FR 58593, Oct. 30, 1998; 66 
FR 27413, May 16, 2001; 68 FR 56679, Oct. 1, 2003; 72 FR 63076, Nov. 7, 
2007]



Sec. 13.105  Synopsis and posting requirements.

    (a) The contracting officer must comply with the public display and 
synopsis requirements of 5.101 and 5.203 unless an exception in 5.202 
applies.
    (b) When acquiring commercial items or supplies or services produced 
in accordance with 12.102(f)(1), the contracting officer may use a 
combined synopsis and solicitation. In these cases, a separate 
solicitation is not required. The contracting officer must include 
enough information to permit suppliers to develop quotations or offers.
    (c) See 5.102(a)(6) for the requirement to post a brand name 
justification or documentation required by 13.106-1(b) or 13.501.
    (d) When publicizing contract actions funded in whole or in part by 
the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5):
    (1) Notices of proposed contract actions shall follow the procedures 
in 5.704 for posting orders.
    (2) Award notices shall follow the procedures in 5.705.

[62 FR 64917, Dec. 9, 1997, as amended at 63 FR 58593, Oct. 30, 1998; 66 
FR 27413, May 16, 2001; 68 FR 4050, Jan. 27, 2003; 69 FR 8314, Feb. 23, 
2004; 71 FR 57360, Sept. 28, 2006; 72 FR 63076, Nov. 7, 2007; 74 FR 
14639, Mar. 31, 2009]



Sec. 13.106  Soliciting competition, evaluation of quotations or offers, 
          award and documentation.



Sec. 13.106-1  Soliciting competition.

    (a) Considerations. In soliciting competition, the contracting 
officer shall consider the guidance in 13.104 and the following before 
requesting quotations or offers:
    (1)(i) The nature of the article or service to be purchased and 
whether it is highly competitive and readily available in several makes 
or brands, or is relatively noncompetitive.
    (ii) Information obtained in making recent purchases of the same or 
similar item.
    (iii) The urgency of the proposed purchase.
    (iv) The dollar value of the proposed purchase.
    (v) Past experience concerning specific dealers' prices.
    (2) When soliciting quotations or offers, the contracting officer 
shall notify potential quoters or offerors of the basis on which award 
will be made (price alone or price and other factors, e.g., past 
performance and quality). Contracting officers are encouraged to use 
best value. Solicitations are not required to state the relative 
importance assigned to each evaluation factor and subfactor, nor are 
they required to include subfactors.
    (b) Soliciting from a single source-- (1) For purchases not 
exceeding the simplified acquisition threshold. (i) Contracting officers 
may solicit from one source if the contracting officer determines that 
the circumstances of the contract action deem only one source reasonably 
available (e.g., urgency, exclusive licensing agreements, brand-name or 
industrial mobilization).
    (ii) Where a single source is identified to provide a portion of a 
purchase because that portion of the purchase specifies a particular 
brand-name item, the documentation in paragraph (b)(1)(i) of this 
section only applies to

[[Page 251]]

the portion of the purchase requiring the brand-name item. The 
documentation should state it is covering only the portion of the 
acquisition which is brand-name.
    (2) For purchases exceeding the simplified acquisition threshold. 
The requirements at 13.501(a) apply to sole-source (including brand-
name) acquisitions of commercial items conducted pursuant to subpart 
13.5.
    (3) See 5.102(a)(6) for the requirement to post the brand-name 
justification or documentation.
    (c) Soliciting orally. (1) The contracting officer shall solicit 
quotations orally to the maximum extent practicable, if--
    (i) The acquisition does not exceed the simplified acquisition 
threshold;
    (ii) Oral solicitation is more efficient than soliciting through 
available electronic commerce alternatives; and
    (iii) Notice is not required under 5.101.
    (2) However, an oral solicitation may not be practicable for 
contract actions exceeding $30,000 unless covered by an exception in 
5.202.
    (d) Written solicitations. If obtaining electronic or oral 
quotations is uneconomical or impracticable, the contracting officer 
should issue paper solicitations for contract actions likely to exceed 
$30,000. The contracting officer shall issue a written solicitation for 
construction requirements exceeding $2,000.
    (e) Use of options. Options may be included in solicitations, 
provided the requirements of subpart 17.2 are met and the aggregate 
value of the acquisition and all options does not exceed the dollar 
threshold for use of simplified acquisition procedures.
    (f) Inquiries. An agency should respond to inquiries received 
through any medium (including electronic commerce) if doing so would not 
interfere with the efficient conduct of the acquisition.

[62 FR 64917, Dec. 9, 1997, as amended at 63 FR 58593, Oct. 30, 1998; 71 
FR 57360, 57366, Sept. 28, 2006; 72 FR 63076, Nov. 7, 2007; 77 FR 193, 
Jan. 3, 2012]



Sec. 13.106-2  Evaluation of quotations or offers.

    (a) General. (1) The contracting officer shall evaluate quotations 
or offers--
    (i) In an impartial manner; and
    (ii) Inclusive of transportation charges from the shipping point of 
the supplier to the delivery destination.
    (2) Quotations or offers shall be evaluated on the basis established 
in the solicitation.
    (3) All quotations or offers shall be considered (see paragraph (b) 
of this subsection).
    (b) Evaluation procedures. (1) The contracting officer has broad 
discretion in fashioning suitable evaluation procedures. The procedures 
prescribed in parts 14 and 15 are not mandatory. At the contracting 
officer's discretion, one or more, but not necessarily all, of the 
evaluation procedures in part 14 or 15 may be used.
    (2) If telecommuting is not prohibited, agencies shall not 
unfavorably evaluate an offer because it includes telecommuting unless 
the contracting officer executes a written determination in accordance 
with FAR 7.108(b).
    (3) If using price and other factors, ensure that quotations or 
offers can be evaluated in an efficient and minimally burdensome 
fashion. Formal evaluation plans and establishing a competitive range, 
conducting discussions, and scoring quotations or offers are not 
required. Contracting offices may conduct comparative evaluations of 
offers. Evaluation of other factors, such as past performance--
    (i) Does not require the creation or existence of a formal data 
base; and
    (ii) May be based on one or more of the following:
    (A) The contracting officer's knowledge of and previous experience 
with the supply or service being acquired;
    (B) Customer surveys, and past performance questionnaire replies;
    (C) The Governmentwide Past Performance Information Retrieval System 
(PPIRS) at www.ppirs.gov; or
    (D) Any other reasonable basis.
    (4) For acquisitions conducted using a method that permits 
electronic response to the solicitation, the contracting officer may--

[[Page 252]]

    (i) After preliminary consideration of all quotations or offers, 
identify from all quotations or offers received one that is suitable to 
the user, such as the lowest priced brand name product, and quickly 
screen all lower priced quotations or offers based on readily 
discernible value indicators, such as past performance, warranty 
conditions, and maintenance availability; or
    (ii) Where an evaluation is based only on price and past 
performance, make an award based on whether the lowest priced of the 
quotations or offers having the highest past performance rating possible 
represents the best value when compared to any lower priced quotation or 
offer.

[62 FR 64917, Dec. 9, 1997, as amended at 63 FR 58593, Oct. 30, 1998; 69 
FR 59702, Oct. 5, 2004; 72 FR 63076, Nov. 7, 2007; 74 FR 31560, July 1, 
2009]



Sec. 13.106-3  Award and documentation.

    (a) Basis for award. Before making award, the contracting officer 
must determine that the proposed price is fair and reasonable.
    (1) Whenever possible, base price reasonableness on competitive 
quotations or offers.
    (2) If only one response is received, include a statement of price 
reasonableness in the contract file. The contracting officer may base 
the statement on--
    (i) Market research;
    (ii) Comparison of the proposed price with prices found reasonable 
on previous purchases;
    (iii) Current price lists, catalogs, or advertisements. However, 
inclusion of a price in a price list, catalog, or advertisement does 
not, in and of itself, establish fairness and reasonableness of the 
price;
    (iv) A comparison with similar items in a related industry;
    (v) The contracting officer's personal knowledge of the item being 
purchased;
    (vi) Comparison to an independent Government estimate; or
    (vii) Any other reasonable basis.
    (3) Occasionally an item can be obtained only from a supplier that 
quotes a minimum order price or quantity that either unreasonably 
exceeds stated quantity requirements or results in an unreasonable price 
for the quantity required. In these instances, the contracting officer 
should inform the requiring activity of all facts regarding the 
quotation or offer and ask it to confirm or alter its requirement. The 
file shall be documented to support the final action taken.
    (b) File documentation and retention. Keep documentation to a 
minimum. Purchasing offices shall retain data supporting purchases 
(paper or electronic) to the minimum extent and duration necessary for 
management review purposes (see subpart 4.8). The following illustrate 
the extent to which quotation or offer information should be recorded:
    (1) Oral solicitations. The contracting office should establish and 
maintain records of oral price quotations in order to reflect clearly 
the propriety of placing the order at the price paid with the supplier 
concerned. In most cases, this will consist merely of showing the names 
of the suppliers contacted and the prices and other terms and conditions 
quoted by each.
    (2) Written solicitations (see 2.101). For acquisitions not 
exceeding the simplified acquisition threshold, limit written records of 
solicitations or offers to notes or abstracts to show prices, delivery, 
references to printed price lists used, the supplier or suppliers 
contacted, and other pertinent data.
    (3) Special situations. Include additional statements--
    (i) Explaining the absence of competition (see 13.106-1 for brand 
name purchases) if only one source is solicited and the acquisition does 
not exceed the simplified acquisition threshold (does not apply to an 
acquisition of utility services available from only one source); or
    (ii) Supporting the award decision if other than price-related 
factors were considered in selecting the supplier.
    (c) Notification. For acquisitions that do not exceed the simplified 
acquisition threshold and for which automatic notification is not 
provided through an electronic commerce method that employs widespread 
electronic public notice, notification to unsuccessful suppliers shall 
be given only if requested or required by 5.301.

[[Page 253]]

    (d) Request for information. If a supplier requests information on 
an award that was based on factors other than price alone, a brief 
explanation of the basis for the contract award decision shall be 
provided (see 15.503(b)(2)).
    (e) Taxpayer Identification Number. If an oral solicitation is used, 
the contracting officer shall ensure that the copy of the award document 
sent to the payment office is annotated with the contractor's Taxpayer 
Identification Number (TIN) and type of organization (see 4.203), unless 
this information will be obtained from some other source (e.g., 
centralized database). The contracting officer shall disclose to the 
contractor that the TIN may be used by the Government to collect and 
report on any delinquent amounts arising out of the contractor's 
relationship with the Government (31 U.S.C. 7701(c)(3)).

[62 FR 64917, Dec. 9, 1997, as amended at 63 FR 58589, 58593, Oct. 30, 
1998; 64 FR 51836, Sept. 24, 1999; 71 FR 57360, Sept. 28, 2006; 72 FR 
63076, Nov. 7, 2007]

      Subpart 13.2_Actions at or Below the Micro-Purchase Threshold



Sec. 13.201  General.

    (a) Agency heads are encouraged to delegate micro-purchase authority 
(see 1.603-3).
    (b) The Governmentwide commercial purchase card shall be the 
preferred method to purchase and to pay for micro-purchases (see 2.101).
    (c) Purchases at or below the micro-purchase threshold may be 
conducted using any of the methods described in subpart 13.3, provided 
the purchaser is authorized and trained, pursuant to agency procedures, 
to use those methods.
    (d) Micro-purchases do not require provisions or clauses, except as 
provided at 13.202 and 32.1110. This paragraph takes precedence over any 
other FAR requirement to the contrary, but does not prohibit the use of 
any clause.
    (e) The requirements in part 8 apply to purchases at or below the 
micro-purchase threshold.
    (f) The procurement requirements in subparts 23.1, 23.2, 23.4, and 
23.7 apply to purchases at or below the micro-purchase threshold.
    (g)(1) For acquisitions of supplies or services that, as determined 
by the head of the agency, are to be used to support a contingency 
operation or to facilitate defense against or recovery from nuclear, 
biological, chemical, or radiological attack, the micro-purchase 
threshold is ----------.
    (i) $15,000 in the case of any contract to be awarded and performed, 
or purchase to be made, inside the United States; and
    (ii) $30,000 in the case of any contract to be awarded and 
performed, or purchase to be made, outside the United States.
    (2) Purchases using this authority must have a clear and direct 
relationship to the support of a contingency operation or the defense 
against or recovery from nuclear, biological, chemical, or radiological 
attack.
    (h) When using the Governmentwide commercial purchase card as a 
method of payment, purchases at or below the micro-purchase threshold 
are exempt from verification in the System for Award Management database 
as to whether the contractor has a delinquent debt subject to collection 
under the Treasury Offset Program (TOP).

[62 FR 64917, Dec. 9, 1997, as amended at 64 FR 10539, Mar. 4, 1999; 65 
FR 36018, June 6, 2000; 67 FR 56121, Aug. 30, 2002; 68 FR 4050, Jan. 27, 
2003; 68 FR 56672, Oct. 1, 2003; 69 FR 8314, Feb. 23, 2004; 69 FR 76352, 
Dec. 20, 2004; 72 FR 63043, Nov. 7, 2007; 74 FR 52849, Oct. 14, 2009; 74 
FR 65604, Dec. 10, 2009; 75 FR 53132, Aug. 30, 2010; 76 FR 31398, May 
31, 2011; 77 FR 69718, Nov. 20, 2012; 78 FR 37688, June 21, 2013]



Sec. 13.202  Unenforceability of unauthorized obligations in micro-
          purchases.

    Many supplies or services are acquired subject to supplier license 
agreements. These are particularly common in information technology 
acquisitions, but they may apply to any supply or service. For example, 
computer software and services delivered through the internet (web 
services) are often subject to license agreements, referred to as End 
User License Agreements (EULA), Terms of Service (TOS), or other similar 
legal instruments or agreements. Many of these agreements contain 
indemnification clauses that are inconsistent with Federal law and 
unenforceable, but which could create a violation of the Anti-Deficiency 
Act

[[Page 254]]

(31 U.S.C. 1341) if agreed to by the Government. The clause at 52.232-
39, Unenforceability of Unauthorized Obligations, automatically applies 
to any micro-purchase, including those made with the Governmentwide 
purchase card. This clause prevents such violations of the Anti-
Deficiency Act.

[78 FR 37688, June 21, 2013]



Sec. 13.203  Purchase guidelines.

    (a) Solicitation, evaluation of quotations, and award. (1) To the 
extent practicable, micro-purchases shall be distributed equitably among 
qualified suppliers.
    (2) Micro-purchases may be awarded without soliciting competitive 
quotations if the contracting officer or individual appointed in 
accordance with 1.603-3(b) considers the price to be reasonable.
    (3) The administrative cost of verifying the reasonableness of the 
price for purchases may more than offset potential savings from 
detecting instances of overpricing. Therefore, action to verify price 
reasonableness need only be taken if--
    (i) The contracting officer or individual appointed in accordance 
with 1.603-3(b) suspects or has information to indicate that the price 
may not be reasonable (e.g., comparison to the previous price paid or 
personal knowledge of the supply or service); or
    (ii) Purchasing a supply or service for which no comparable pricing 
information is readily available (e.g., a supply or service that is not 
the same as, or is not similar to, other supplies or services that have 
recently been purchased on a competitive basis).
    (b) Documentation. If competitive quotations were solicited and 
award was made to other than the low quoter, documentation to support 
the purchase may be limited to identification of the solicited concerns 
and an explanation for the award decision.

[62 FR 64917, Dec. 9, 1997. Redesignated at 78 FR 37688, June 21, 2013]

               Subpart 13.3_Simplified Acquisition Methods



Sec. 13.301  Governmentwide commercial purchase card.

    (a) Except as provided in 32.1108(b)(2), the Governmentwide 
commercial purchase card is authorized for use in making and/or paying 
for purchases of supplies, services, or construction. The Governmentwide 
commercial purchase card may be used by contracting officers and other 
individuals designated in accordance with 1.603-3. The card may be used 
only for purchases that are otherwise authorized by law or regulation.
    (b) Agencies using the Governmentwide commercial purchase card shall 
establish procedures for use and control of the card that comply with 
the Treasury Financial Manual for Guidance of Departments and Agencies 
(TFM 4-4500) and that are consistent with the terms and conditions of 
the current GSA credit card contract. Agency procedures should not limit 
the use of the Governmentwide commercial purchase card to micro-
purchases. Agency procedures should encourage use of the card in greater 
dollar amounts by contracting officers to place orders and to pay for 
purchases against contracts established under part 8 procedures, when 
authorized; and to place orders and/or make payment under other 
contractual instruments, when agreed to by the contractor. See 
32.1110(d) for instructions for use of the appropriate clause when 
payment under a written contract will be made through use of the card.
    (c) The Governmentwide commercial purchase card may be used to--
    (1) Make micro-purchases;
    (2) Place a task or delivery order (if authorized in the basic 
contract, basic ordering agreement, or blanket purchase agreement); or
    (3) Make payments, when the contractor agrees to accept payment by 
the card (but see 32.1108(b)(2)).

[62 FR 64917, Dec. 9, 1997, as amended at 64 FR 10539, Mar. 4, 1999; 67 
FR 6120, Feb. 8, 2002; 74 FR 65604, Dec. 10, 2009]

[[Page 255]]



Sec. 13.302  Purchase orders.



Sec. 13.302-1  General.

    (a) Except as provided under the unpriced purchase order method (see 
13.302-2), purchase orders generally are issued on a fixed-price basis. 
See 12.207 for acquisition of commercial items.
    (b) Purchase orders shall--
    (1) Specify the quantity of supplies or scope of services ordered;
    (2) Contain a determinable date by which delivery of the supplies or 
performance of the services is required;
    (3) Provide for inspection as prescribed in part 46. Generally, 
inspection and acceptance should be at destination. Source inspection 
should be specified only if required by part 46. When inspection and 
acceptance will be performed at destination, advance copies of the 
purchase order or equivalent notice shall be furnished to the 
consignee(s) for material receipt purposes. Receiving reports shall be 
accomplished immediately upon receipt and acceptance of supplies;
    (4) Specify f.o.b. destination for supplies to be delivered within 
the United States, except Alaska or Hawaii, unless there are valid 
reasons to the contrary; and
    (5) Include any trade and prompt payment discounts that are offered, 
consistent with the applicable principles at 14.408-3.
    (c) The contracting officer's signature on purchase orders shall be 
in accordance with 4.101 and the definitions at 2.101. Facsimile and 
electronic signature may be used in the production of purchase orders by 
automated methods.
    (d) Limit the distribution of copies of purchase orders and related 
forms to the minimum deemed essential for administration and 
transmission of contractual information.
    (e) In accordance with 31 U.S.C. 3332, electronic funds transfer 
(EFT) is required for payments except as provided in 32.1110. See 
Subpart 32.11 for instructions for use of the appropriate clause in 
purchase orders. When obtaining oral quotes, the contracting officer 
shall inform the quoter of the EFT clause that will be in any resulting 
purchase order.

[62 FR 64917, Dec. 9, 1997, as amended at 64 FR 10540, Mar. 4, 1999]



Sec. 13.302-2  Unpriced purchase orders.

    (a) An unpriced purchase order is an order for supplies or services, 
the price of which is not established at the time of issuance of the 
order.
    (b) An unpriced purchase order may be used only when--
    (1) It is impractical to obtain pricing in advance of issuance of 
the purchase order; and
    (2) The purchase is for--
    (i) Repairs to equipment requiring disassembly to determine the 
nature and extent of repairs;
    (ii) Material available from only one source and for which cost 
cannot readily be established; or
    (iii) Supplies or services for which prices are known to be 
competitive, but exact prices are not known (e.g., miscellaneous repair 
parts, maintenance agreements).
    (c) Unpriced purchase orders may be issued on paper or 
electronically. A realistic monetary limitation, either for each line 
item or for the total order, shall be placed on each unpriced purchase 
order. The monetary limitation shall be an obligation subject to 
adjustment when the firm price is established. The contracting office 
shall follow up on each order to ensure timely pricing. The contracting 
officer or the contracting officer's designated representative shall 
review the invoice price and, if reasonable (see 13.106-3(a)), process 
the invoice for payment.



Sec. 13.302-3  Obtaining contractor acceptance and modifying purchase 
          orders.

    (a) When it is desired to consummate a binding contract between the 
parties before the contractor undertakes performance, the contracting 
officer shall require written (see 2.101) acceptance of the purchase 
order by the contractor.
    (b) Each purchase order modification shall identify the order it 
modifies and shall contain an appropriate modification number.
    (c) A contractor's written acceptance of a purchase order 
modification may be required only if--

[[Page 256]]

    (1) Determined by the contracting officer to be necessary to ensure 
the contractor's compliance with the purchase order as revised; or
    (2) Required by agency regulations.



Sec. 13.302-4  Termination or cancellation of purchase orders.

    (a) If a purchase order that has been accepted in writing by the 
contractor is to be terminated, the contracting officer shall process 
the termination in accordance with--
    (1) 12.403 and 52.212-4(l) or (m) for commercial items; or
    (2) Part 49 or 52.213-4 for other than commercial items.
    (b) If a purchase order that has not been accepted in writing by the 
contractor is to be canceled, the contracting officer shall notify the 
contractor in writing that the purchase order has been canceled, request 
the contractor's written acceptance of the cancellation, and proceed as 
follows:
    (1) If the contractor accepts the cancellation and does not claim 
that costs were incurred as a result of beginning performance under the 
purchase order, no further action is required (i.e., the purchase order 
shall be considered canceled).
    (2) If the contractor does not accept the cancellation or claims 
that costs were incurred as a result of beginning performance under the 
purchase order, the contracting officer shall process the action as a 
termination prescribed in paragraph (a) of this subsection.

[62 FR 64917, Dec. 9, 1997, as amended at 72 FR 13586, Mar. 22, 2007]



Sec. 13.302-5  Clauses.

    (a) Each purchase order (and each purchase order modification (see 
13.302-3)) shall incorporate all clauses prescribed for the particular 
acquisition.
    (b) The contracting officer shall insert the clause at 52.213-2, 
Invoices, in purchase orders that authorize advance payments (see 31 
U.S.C. 3324(d)(2)) for subscriptions or other charges for newspapers, 
magazines, periodicals, or other publications (i.e., any publication 
printed, microfilmed, photocopied, or magnetically or otherwise recorded 
for auditory or visual usage).
    (c) The contracting officer shall insert the clause at 52.213-3, 
Notice to Supplier, in unpriced purchase orders.
    (d)(1) The contracting officer may use the clause at 52.213-4, Terms 
and Conditions--Simplified Acquisitions (Other Than Commercial Items), 
in simplified acquisitions exceeding the micro-purchase threshold that 
are for other than commercial items (see 12.301).
    (2) The clause--
    (i) Is a compilation of the most commonly used clauses that apply to 
simplified acquisitions; and
    (ii) May be modified to fit the individual acquisition to add other 
needed clauses, or those clauses may be added separately. Modifications 
(i.e., additions, deletions, or substitutions) must not create a void or 
internal contradiction in the clause. For example, do not add an 
inspection and acceptance or termination for convenience requirement 
unless the existing requirement is deleted. Also, do not delete a 
paragraph without providing for an appropriate substitute.
    (3)(i) When an acquisition for supplies for use within the United 
States cannot be set aside for small business concerns and trade 
agreements apply (see Subpart 25.4), substitute the clause at FAR 
52.225-3, Buy American Act--Free Trade Agreements--Israeli Trade Act, 
used with Alternate I or Alternate II, if appropriate, instead of the 
clause at FAR 52.225-1, Buy American Act--Supplies.
    (ii) When acquiring supplies for use outside the United States, 
delete clause 52.225-1 from the clause list at 52.213-4(b).

[62 FR 64917, Dec. 9, 1997, as amended at 64 FR 72418, Dec. 27, 1999; 67 
FR 21534, Apr. 30, 2002; 69 FR 1053, Jan. 7, 2004]



Sec. 13.303  Blanket purchase agreements (BPAs).



Sec. 13.303-1  General.

    (a) A blanket purchase agreement (BPA) is a simplified method of 
filling anticipated repetitive needs for supplies or services by 
establishing ``charge accounts'' with qualified sources of supply (see 
subpart 16.7 for additional coverage of agreements).

[[Page 257]]

    (b) BPAs should be established for use by an organization 
responsible for providing supplies for its own operations or for other 
offices, installations, projects, or functions. Such organizations, for 
example, may be organized supply points, separate independent or 
detached field parties, or one-person posts or activities.
    (c) The use of BPAs does not exempt an agency from the 
responsibility for keeping obligations and expenditures within available 
funds.



Sec. 13.303-2  Establishment of BPAs.

    (a) The following are circumstances under which contracting officers 
may establish BPAs:
    (1) There is a wide variety of items in a broad class of supplies or 
services that are generally purchased, but the exact items, quantities, 
and delivery requirements are not known in advance and may vary 
considerably.
    (2) There is a need to provide commercial sources of supply for one 
or more offices or projects in a given area that do not have or need 
authority to purchase otherwise.
    (3) The use of this procedure would avoid the writing of numerous 
purchase orders.
    (4) There is no existing requirements contract for the same supply 
or service that the contracting activity is required to use.
    (b) After determining a BPA would be advantageous, contracting 
officers shall--
    (1) Establish the parameters to limit purchases to individual items 
or commodity groups or classes, or permit the supplier to furnish 
unlimited supplies or services; and
    (2) Consider suppliers whose past performance has shown them to be 
dependable, who offer quality supplies or services at consistently lower 
prices, and who have provided numerous purchases at or below the 
simplified acquisition threshold.
    (c) BPAs may be established with--
    (1) More than one supplier for supplies or services of the same type 
to provide maximum practicable competition;
    (2) A single firm from which numerous individual purchases at or 
below the simplified acquisition threshold will likely be made in a 
given period; or
    (3) Federal Supply Schedule contractors, if not inconsistent with 
the terms of the applicable schedule contract.
    (d) BPAs should be prepared without a purchase requisition and only 
after contacting suppliers to make the necessary arrangements for--
    (1) Securing maximum discounts;
    (2) Documenting individual purchase transactions;
    (3) Periodic billings; and
    (4) Incorporating other necessary details.



Sec. 13.303-3  Preparation of BPAs.

    Prepare BPAs on the forms specified in 13.307. Do not cite 
accounting and appropriation data (see 13.303-5(e)(4)).
    (a) The following terms and conditions are mandatory:
    (1) Description of agreement. A statement that the supplier shall 
furnish supplies or services, described in general terms, if and when 
requested by the contracting officer (or the authorized representative 
of the contracting officer) during a specified period and within a 
stipulated aggregate amount, if any.
    (2) Extent of obligation. A statement that the Government is 
obligated only to the extent of authorized purchases actually made under 
the BPA.
    (3) Purchase limitation. A statement that specifies the dollar 
limitation for each individual purchase under the BPA (see 13.303-5(b)).
    (4) Individuals authorized to purchase under the BPA. A statement 
that a list of individuals authorized to purchase under the BPA, 
identified either by title of position or by name of individual, 
organizational component, and the dollar limitation per purchase for 
each position title or individual shall be furnished to the supplier by 
the contracting officer.
    (5) Delivery tickets. A requirement that all shipments under the 
agreement, except those for newspapers, magazines, or other periodicals, 
shall be accompanied by delivery tickets or sales slips that shall 
contain the following minimum information:
    (i) Name of supplier.
    (ii) BPA number.
    (iii) Date of purchase.

[[Page 258]]

    (iv) Purchase number.
    (v) Itemized list of supplies or services furnished.
    (vi) Quantity, unit price, and extension of each item, less 
applicable discounts (unit prices and extensions need not be shown when 
incompatible with the use of automated systems, provided that the 
invoice is itemized to show this information).
    (vii) Date of delivery or shipment.
    (6) Invoices. One of the following statements shall be included 
(except that the statement in paragraph (a)(6)(iii) of this subsection 
should not be used if the accumulation of the individual invoices by the 
Government materially increases the administrative costs of this 
purchase method):
    (i) A summary invoice shall be submitted at least monthly or upon 
expiration of this BPA, whichever occurs first, for all deliveries made 
during a billing period, identifying the delivery tickets covered 
therein, stating their total dollar value, and supported by receipt 
copies of the delivery tickets.
    (ii) An itemized invoice shall be submitted at least monthly or upon 
expiration of this BPA, whichever occurs first, for all deliveries made 
during a billing period and for which payment has not been received. 
These invoices need not be supported by copies of delivery tickets.
    (iii) When billing procedures provide for an individual invoice for 
each delivery, these invoices shall be accumulated, provided that--
    (A) A consolidated payment will be made for each specified period; 
and
    (B) The period of any discounts will commence on the final date of 
the billing period or on the date of receipt of invoices for all 
deliveries accepted during the billing period, whichever is later.
    (iv) An invoice for subscriptions or other charges for newspapers, 
magazines, or other periodicals shall show the starting and ending dates 
and shall state either that ordered subscriptions have been placed in 
effect or will be placed in effect upon receipt of payment.
    (b) If the fast payment procedure is used, include the requirements 
stated in 13.403.



Sec. 13.303-4  Clauses.

    (a) The contracting officer shall insert in each BPA the clauses 
prescribed elsewhere in this part that are required for or applicable to 
the particular BPA.
    (b) Unless a clause prescription specifies otherwise (e.g., see 
22.305(a), 22.605(a)(5), or 22.1006), if the prescription includes a 
dollar threshold, the amount to be compared to that threshold is that of 
any particular order under the BPA.



Sec. 13.303-5  Purchases under BPAs.

    (a) Use a BPA only for purchases that are otherwise authorized by 
law or regulation.
    (b) Individual purchases shall not exceed the simplified acquisition 
threshold. However, agency regulations may establish a higher threshold 
consistent with the following:
    (1) The simplified acquisition threshold and the $6.5 million 
limitation for individual purchases ($12 million for purchases entered 
into under the authority of 12.102(f)(1)) do not apply to BPAs 
established in accordance with 13.303-2(c)(3).
    (2) The limitation for individual purchases for commercial item 
acquisitions conducted under Subpart 13.5 is $6.5 million ($12 million 
for acquisitions as described in 13.500(e)).
    (c) The existence of a BPA does not justify purchasing from only one 
source or avoiding small business set-asides. The requirements of 
13.003(b) and subpart 19.5 also apply to each order.
    (d) If, for a particular purchase greater than the micro-purchase 
threshold, there is an insufficient number of BPAs to ensure maximum 
practicable competition, the contracting officer shall--
    (1) Solicit quotations from other sources (see 13.105) and make the 
purchase as appropriate; and
    (2) Establish additional BPAs to facilitate future purchases if--
    (i) Recurring requirements for the same or similar supplies or 
services seem likely;
    (ii) Qualified sources are willing to accept BPAs; and
    (iii) It is otherwise practical to do so.
    (e) Limit documentation of purchases to essential information and 
forms as follows:

[[Page 259]]

    (1) Purchases generally should be made electronically, or orally 
when it is not considered economical or practical to use electronic 
methods.
    (2) A paper purchase document may be issued if necessary to ensure 
that the supplier and the purchaser agree concerning the transaction.
    (3) Unless a paper document is issued, record essential elements 
(e.g., date, supplier, supplies or services, price, delivery date) on 
the purchase requisition, in an informal memorandum, or on a form 
developed locally for the purpose.
    (4) Cite the pertinent purchase requisitions and the accounting and 
appropriation data.
    (5) When delivery is made or the services are performed, the 
supplier's sales document, delivery document, or invoice may (if it 
reflects the essential elements) be used for the purpose of recording 
receipt and acceptance of the supplies or services. However, if the 
purchase is assigned to another activity for administration, the 
authorized Government representative shall document receipt and 
acceptance of supplies or services by signing and dating the agency 
specified form after verification and after notation of any exceptions.

[62 FR 64917, Dec. 9, 1997, as amended at 69 FR 8314, Feb. 23, 2004; 69 
FR 76352, Dec. 20, 2004; 71 FR 57366, Sept. 28, 2006; 75 FR 53132, Aug. 
30, 2010]



Sec. 13.303-6  Review procedures.

    (a) The contracting officer placing orders under a BPA, or the 
designated representative of the contracting officer, shall review a 
sufficient random sample of the BPA files at least annually to ensure 
that authorized procedures are being followed.
    (b) The contracting officer that entered into the BPA shall--
    (1) Ensure that each BPA is reviewed at least annually and, if 
necessary, updated at that time; and
    (2) Maintain awareness of changes in market conditions, sources of 
supply, and other pertinent factors that may warrant making new 
arrangements with different suppliers or modifying existing 
arrangements.
    (c) If an office other than the purchasing office that established a 
BPA is authorized to make purchases under that BPA, the agency that has 
jurisdiction over the office authorized to make the purchases shall 
ensure that the procedures in paragraph (a) of this subsection are being 
followed.



Sec. 13.303-7  Completion of BPAs.

    An individual BPA is considered complete when the purchases under it 
equal its total dollar limitation, if any, or when its stated time 
period expires.



Sec. 13.303-8  Optional clause.

    The clause at 52.213-4, Terms and Conditions--Simplified 
Acquisitions (Other Than Commercial Items), may be used in BPAs 
established under this section.



Sec. 13.304  [Reserved]



Sec. 13.305  Imprest funds and third party drafts.



Sec. 13.305-1  General.

    Imprest funds and third party drafts may be used to acquire and to 
pay for supplies or services. Policies and regulations concerning the 
establishment of and accounting for imprest funds and third party 
drafts, including the responsibilities of designated cashiers and 
alternates, are contained in Part IV of the Treasury Financial Manual 
for Guidance of Departments and Agencies, Title 7 of the GAO Policy and 
Procedures Manual for Guidance of Federal Agencies, and the agency 
implementing regulations. Agencies also shall be guided by the Manual of 
Procedures and Instructions for Cashiers, issued by the Financial 
Management Service, Department of the Treasury.

[62 FR 64917, Dec. 9, 1997, as amended at 71 FR 57380, Sept. 28, 2006]



Sec. 13.305-2  Agency responsibilities.

    Each agency using imprest funds and third party drafts shall--
    (a) Periodically review and determine whether there is a continuing 
need for each fund or third party draft account established, and that 
amounts of those funds or accounts are not in excess of actual needs;

[[Page 260]]

    (b) Take prompt action to have imprest funds or third party draft 
accounts adjusted to a level commensurate with demonstrated needs 
whenever circumstances warrant such action; and
    (c) Develop and issue appropriate implementing regulations. These 
regulations shall include (but are not limited to) procedures covering--
    (1) Designation of personnel authorized to make purchases using 
imprest funds or third party drafts; and
    (2) Documentation of purchases using imprest funds or third party 
drafts, including documentation of--
    (i) Receipt and acceptance of supplies and services by the 
Government;
    (ii) Receipt of cash or third party draft payments by the suppliers; 
and
    (iii) Cash advances and reimbursements.



Sec. 13.305-3  Conditions for use.

    Imprest funds or third party drafts may be used for purchases when--
    (a) The imprest fund transaction does not exceed $500 or such other 
limits as have been approved by the agency head;
    (b) The third party draft transaction does not exceed $2,500, unless 
authorized at a higher level in accordance with Treasury restrictions;
    (c) The use of imprest funds or third party drafts is considered to 
be advantageous to the Government; and
    (d) The use of imprest funds or third party drafts for the 
transaction otherwise complies with any additional conditions 
established by agencies and with the policies and regulations referenced 
in 13.305-1.



Sec. 13.305-4  Procedures.

    (a) Each purchase using imprest funds or third party drafts shall be 
based upon an authorized purchase requisition, contracting officer 
verification statement, or other agency approved method of ensuring that 
adequate funds are available for the purchase.
    (b) Normally, purchases should be placed orally and without 
soliciting competition if prices are considered reasonable.
    (c) Since there is, for all practical purposes, simultaneous 
placement of the order and delivery of the items, clauses are not 
required for purchases using imprest funds or third party drafts.
    (d) Forms prescribed at 13.307(e) may be used if a written order is 
considered necessary (e.g., if required by the supplier for discount, 
tax exemption, or other reasons). If a purchase order is used, endorse 
it ``Payment to be made from Imprest Fund'' (or ``Payment to be made 
from Third Party Draft,'' as appropriate).
    (e) The individual authorized to make purchases using imprest funds 
or third party drafts shall--
    (1) Furnish to the imprest fund or third party draft cashier a copy 
of the document required under paragraph (a) of this subsection 
annotated to reflect--
    (i) That an imprest fund or third party draft purchase has been 
made;
    (ii) The unit prices and extensions; and
    (iii) The supplier's name and address; and
    (2) Require the supplier to include with delivery of the supplies an 
invoice, packing slip, or other sales instrument giving--
    (i) The supplier's name and address;
    (ii) List and quantity of items supplied;
    (iii) Unit prices and extensions; and
    (iv) Cash discount, if any.



Sec. 13.306  SF 44, Purchase Order--Invoice--Voucher.

    The SF 44, Purchase Order--Invoice--Voucher, is a multipurpose 
pocket-size purchase order form designed primarily for on-the-spot, 
over-the-counter purchases of supplies and nonpersonal services while 
away from the purchasing office or at isolated activities. It also can 
be used as a receiving report, invoice, and public voucher.
    (a) This form may be used if all of the following conditions are 
satisfied:
    (1) The amount of the purchase is at or below the micro-purchase 
threshold, except for purchases made under unusual and compelling 
urgency or in support of contingency operations. Agencies may establish 
higher dollar limitations for specific activities or items;

[[Page 261]]

    (2) The supplies or services are immediately available;
    (3) One delivery and one payment will be made; and
    (4) Its use is determined to be more economical and efficient than 
use of other simplified acquisition procedures.
    (b) General procedural instructions governing the form's use are 
printed on the form and on the inside front cover of each book of forms.
    (c) Since there is, for all practical purposes, simultaneous 
placement of the order and delivery of the items, clauses are not 
required for purchases using this form.
    (d) Agencies shall provide adequate safeguards regarding the control 
of forms and accounting for purchases.



Sec. 13.307  Forms.

    (a) Commercial items. For use of the SF 1449, Solicitation/Contract/
Order for Commercial Items, see 12.204.
    (b) Other than commercial items. (1) Except when quotations are 
solicited electronically or orally, the SF 1449; SF 18, Request for 
Quotations; or an agency form/automated format may be used. Each agency 
request for quotations form/automated format should conform with the SF 
18 or SF 1449 to the maximum extent practicable.
    (2) Both SF 1449 and OF 347, Order for Supplies or Services, are 
multipurpose forms used for negotiated purchases of supplies or 
services, delivery or task orders, inspection and receiving reports, and 
invoices. An agency form/automated format also may be used.
    (c) Forms used for both commercial and other than commercial items. 
(1) OF 336, Continuation Sheet, or an agency form/automated format may 
be used when additional space is needed.
    (2) OF 348, Order for Supplies or Services Schedule--Continuation, 
or an agency form/automated format may be used for negotiated purchases 
when additional space is needed. Agencies may print on these forms the 
clauses considered to be generally suitable for purchases.
    (3) SF 30, Amendment of Solicitation/Modification of Contract, or a 
purchase order form may be used to modify a purchase order, unless an 
agency form/automated format is prescribed in agency regulations.
    (d) SF 44, Purchase Order--Invoice--Voucher, is a multipurpose 
pocket-size purchase order form that may be used as outlined in 13.306.
    (e) SF 1165, Receipt for Cash--Subvoucher, or an agency purchase 
order form may be used for purchases using imprest funds or third party 
drafts.

[62 FR 64917, Dec. 9, 1997, as amended at 63 FR 58593, Oct. 30, 1998; 72 
FR 63076, Nov. 7, 2007]

                   Subpart 13.4_Fast Payment Procedure



Sec. 13.401  General.

    (a) The fast payment procedure allows payment under limited 
conditions to a contractor prior to the Government's verification that 
supplies have been received and accepted. The procedure provides for 
payment for supplies based on the contractor's submission of an invoice 
that constitutes a certification that the contractor--
    (1) Has delivered the supplies to a post office, common carrier, or 
point of first receipt by the Government; and
    (2) Shall replace, repair, or correct supplies not received at 
destination, damaged in transit, or not conforming to purchase 
agreements.
    (b) The contracting officer shall be primarily responsible for 
determining the amount of debts resulting from failure of contractors to 
properly replace, repair, or correct supplies lost, damaged, or not 
conforming to purchase requirements (see 32.602 and 32.603).

[62 FR 64917, Dec. 9, 1997, as amended at 73 FR 54001, Sept. 17, 2008]



Sec. 13.402  Conditions for use.

    If the conditions in paragraphs (a) through (f) of this section are 
present, the fast payment procedure may be used, provided that use of 
the procedure is consistent with the other conditions of the purchase. 
The conditions for use of the fast payment procedure are as follows:
    (a) Individual purchasing instruments do not exceed $30,000, except 
that executive agencies may permit higher dollar limitations for 
specified

[[Page 262]]

activities or items on a case-by-case basis.
    (b) Deliveries of supplies are to occur at locations where there is 
both a geographical separation and a lack of adequate communications 
facilities between Government receiving and disbursing activities that 
will make it impractical to make timely payment based on evidence of 
Government acceptance.
    (c) Title to the supplies passes to the Government--
    (1) Upon delivery to a post office or common carrier for mailing or 
shipment to destination; or
    (2) Upon receipt by the Government if the shipment is by means other 
than Postal Service or common carrier.
    (d) The supplier agrees to replace, repair, or correct supplies not 
received at destination, damaged in transit, or not conforming to 
purchase requirements.
    (e) The purchasing instrument is a firm-fixed-price contract, a 
purchase order, or a delivery order for supplies.
    (f) A system is in place to ensure--
    (1) Documentation of evidence of contractor performance under fast 
payment purchases;
    (2) Timely feedback to the contracting officer in case of contractor 
deficiencies; and
    (3) Identification of suppliers that have a current history of 
abusing the fast payment procedure (also see subpart 9.1).

[62 FR 64917, Dec. 9, 1997, as amended at 71 FR 57366, Sept. 28, 2006]



Sec. 13.403  Preparation and execution of orders.

    Priced or unpriced contracts, purchase orders, or BPAs using the 
fast payment procedure shall include the following:
    (a) A requirement that the supplies be shipped transportation or 
postage prepaid.
    (b) A requirement that invoices be submitted directly to the finance 
or other office designated in the order, or in the case of unpriced 
purchase orders, to the contracting officer (see 13.302-2(c)).
    (c) The following statement on the consignee's copy:

 Consignee's Notification to Purchasing Activity of Nonreceipt, Damage, 
                            or Nonconformance

The consignee shall notify the purchasing office promptly after the 
specified date of delivery of supplies not received, damaged in transit, 
or not conforming to specifications of the purchase order. Unless 
extenuating circumstances exist, the notification should be made not 
later than 60 days after the specified date of delivery.



Sec. 13.404  Contract clause.

    The contracting officer shall insert the clause at 52.213-1, Fast 
Payment Procedure, in solicitations and contracts when the conditions in 
13.402 are applicable and it is intended that the fast payment procedure 
be used in the contract (in the case of BPAs, the contracting officer 
may elect to insert the clause either in the BPA or in orders under the 
BPA).

         Subpart 13.5_Test Program for Certain Commercial Items



Sec. 13.500  General.

    (a) This subpart authorizes, as a test program, use of simplified 
procedures for the acquisition of supplies and services in amounts 
greater than the simplified acquisition threshold but not exceeding $6.5 
million ($12 million for acquisitions as described in 13.500(e)), 
including options, if the contracting officer reasonably expects, based 
on the nature of the supplies or services sought, and on market 
research, that offers will include only commercial items. Under this 
test program, contracting officers may use any simplified acquisition 
procedure in this part, subject to any specific dollar limitation 
applicable to the particular procedure. The purpose of this test program 
is to vest contracting officers with additional procedural discretion 
and flexibility, so that commercial item acquisitions in this dollar 
range may be solicited, offered, evaluated, and awarded in a simplified 
manner that maximizes efficiency and economy and minimizes burden and 
administrative costs for both the Government and industry (10 U.S.C. 
2304(g) and 2305 and 41 U.S.C. 253(g) and 253a and 253b).

[[Page 263]]

    (b) For the period of this test, contracting activities must employ 
the simplified procedures authorized by the test to the maximum extent 
practicable.
    (c) When acquiring commercial items using the procedures in this 
part, the requirements of part 12 apply subject to the order of 
precedence provided at 12.102(c). This includes use of the provisions 
and clauses in subpart 12.3.
    (d) The authority to issue solicitations under this subpart expires 
on January 1, 2015. Contracting officers may award contracts after the 
expiration of this authority for solicitations issued before the 
expiration of the authority.
    (e) Under 41 U.S.C. 428a, the simplified acquisition procedures 
authorized by this test program may be used for acquisitions that do not 
exceed $12 million when--
    (1) The acquisition is for commercial items that, as determined by 
the head of the agency, are to be used in support of a contingency 
operation or to facilitate the defense against or recovery from nuclear, 
biological, chemical, or radiological attack; or
    (2) The acquisition will be treated as an acquisition of commercial 
items in accordance with 12.102(f)(1).

[62 FR 64917, Dec. 9, 1997, as amended at 64 FR 72448, Dec. 27, 1999; 67 
FR 6115, Feb. 8, 2002; 67 FR 80321, Dec. 31, 2002; 68 FR 4050, Jan. 27, 
2003; 68 FR 69259, Dec. 11, 2003; 69 FR 8314, Feb. 23, 2004; 69 FR 
76352, Dec. 20, 2004; 70 FR 11740, Mar. 9, 2005; 71 FR 57366, Sept. 28, 
2006; 73 FR 54008, Sept. 17, 2008; 75 FR 13414, Mar. 19, 2010; 75 FR 
53132, Aug. 30, 2010; 78 FR 13768, Feb. 28, 2013]



Sec. 13.501  Special documentation requirements.

    (a) Sole source (including brand name) acquisitions. (1) 
Acquisitions conducted under simplified acquisition procedures are 
exempt from the requirements in part 6. However, contracting officers 
must--
    (i) Conduct sole source acquisitions, as defined in 2.101, 
(including brand name) under this subpart only if the need to do so is 
justified in writing and approved at the levels specified in paragraph 
(a)(2) of this section;
    (ii) Prepare sole source (including brand name) justifications using 
the format at 6.303-2, modified to reflect an acquisition under the 
authority of the test program for commercial items (section 4202 of the 
Clinger-Cohen Act of 1996) or the authority of the Services Acquisition 
Reform Act of 2003 (41 U.S.C. 428a);
    (iii) Make publicly available the justifications (excluding brand 
name) required by 6.305(a) within 14 days after contract award or in the 
case of unusual and compelling urgency within 30 days after contract 
award, in accordance with 6.305 procedures at paragraphs (b), (d), (e), 
and (f); and
    (iv) Make publicly available brand name justifications with the 
solicitation, in accordance with 5.102(a)(6).
    (2) Justifications and approvals are required under this subpart for 
sole-source (including brand-name) acquisitions or portions of an 
acquisition requiring a brand-name. If the justification is to cover 
only the portion of the acquisition which is brand-name, then it should 
so state; the approval level requirements will then only apply to that 
portion.
    (i) For a proposed contract exceeding $150,000, but not exceeding 
$650,000, the contracting officer's certification that the justification 
is accurate and complete to the best of the contracting officer's 
knowledge and belief will serve as approval, unless a higher approval 
level is established in accordance with agency procedures.
    (ii) For a proposed contract exceeding $650,000 but not exceeding 
$12.5 million, the competition advocate for the procuring activity, 
designated pursuant to 6.501, or an official described in 6.304(a)(3) or 
(a)(4) must approve the justification and approval. This authority is 
not delegable.
    (iii) For a proposed contract exceeding $12.5 million but not 
exceeding $62.5 million or, for DoD, NASA, and the Coast Guard, not 
exceeding $85.5 million, the head of the procuring activity or the 
official described in 6.304(a)(3) or (a)(4) must approve the 
justification and approval. This authority is not delegable.
    (iv) For a proposed contract exceeding $62.5 million or, for DoD, 
NASA, and the Coast Guard, $85.5 million, the official described in 
6.304(a)(4) must approve the justification and approval.

[[Page 264]]

This authority is not delegable except as provided in 6.304(a)(4).
    (b) Contract file documentation. The contract file must include--
    (1) A brief written description of the procedures used in awarding 
the contract, including the fact that the test procedures in FAR subpart 
13.5 were used;
    (2) The number of offers received;
    (3) An explanation, tailored to the size and complexity of the 
acquisition, of the basis for the contract award decision; and
    (4) Any justification approved under paragraph (a) of this section.

[62 FR 64917, Dec. 9, 1997, as amended at 64 FR 72448, Dec. 27, 1999; 66 
FR 2128, Jan. 10, 2001; 68 FR 4050, Jan. 27, 2003; 69 FR 8314, Feb. 23, 
2004; 69 FR 76352, Dec. 20, 2004; 70 FR 57457, Sept. 30, 2005; 71 FR 
57360, 57366, Sept. 28, 2006; 75 FR 34276, June 16, 2010; 75 FR 53132, 
Aug. 30, 2010; 77 FR 193, Jan. 3, 2012]

                         PART 14_SEALED BIDDING

Sec.

Sec. 14.000 Scope of part.

                   Subpart 14.1_Use of Sealed Bidding


Sec. 14.101 Elements of sealed bidding.

Sec. 14.102 [Reserved]

Sec. 14.103 Policy.

Sec. 14.103-1 General.

Sec. 14.103-2 Limitations.

Sec. 14.104 Types of contracts.

Sec. 14.105 Solicitations for informational or planning purposes.

                    Subpart 14.2_Solicitation of Bids


Sec. 14.201 Preparation of invitations for bids.

Sec. 14.201-1 Uniform contract format.

Sec. 14.201-2 Part I--The Schedule.

Sec. 14.201-3 Part II--Contract clauses.

Sec. 14.201-4 Part III--Documents, exhibits, and other attachments.

Sec. 14.201-5 Part IV--Representations and instructions.

Sec. 14.201-6 Solicitation provisions.

Sec. 14.201-7 Contract clauses.

Sec. 14.201-8 Price-related factors.

Sec. 14.201-9 Simplified contract format.

Sec. 14.202 General rules for solicitation of bids.

Sec. 14.202-1 Bidding time.

Sec. 14.202-2 Telegraphic bids.

Sec. 14.202-3 Bid envelopes.

Sec. 14.202-4 Bid samples.

Sec. 14.202-5 Descriptive literature.

Sec. 14.202-6 Final review of invitations for bids.

Sec. 14.202-7 Facsimile bids.

Sec. 14.202-8 Electronic bids.

Sec. 14.203 Methods of soliciting bids.

Sec. 14.203-1 Transmittal to prospective bidders.

Sec. 14.203-2 Dissemination of information concerning invitations for 
          bids.

Sec. 14.203-3 Master solicitation.

Sec. 14.204 Records of invitations for bids and records of bids.

Sec. 14.205 Presolicitation notices.

Sec. 14.206 [Reserved]

Sec. 14.207 Pre-bid conference.

Sec. 14.208 Amendment of invitation for bids.

Sec. 14.209 Cancellation of invitations before opening.

Sec. 14.210 Qualified products.

Sec. 14.211 Release of acquisition information.

Sec. 14.212 Economic purchase quantities (supplies).

Sec. 14.213 Annual submission of representations and certifications.

Sec. 14.214 [Reserved]

                     Subpart 14.3_Submission of Bids


Sec. 14.301 Responsiveness of bids.

Sec. 14.302 Bid submission.

Sec. 14.303 Modification or withdrawal of bids.

Sec. 14.304 Submission, modification, and withdrawal of bids.

           Subpart 14.4_Opening of Bids and Award of Contract


Sec. 14.400 Scope of subpart.

Sec. 14.401 Receipt and safeguarding of bids.

Sec. 14.402 Opening of bids.

Sec. 14.402-1 Unclassified bids.

Sec. 14.402-2 Classified bids.

Sec. 14.402-3 Postponement of openings.

Sec. 14.403 Recording of bids.

Sec. 14.404 Rejection of bids.

Sec. 14.404-1 Cancellation of invitations after opening.

Sec. 14.404-2 Rejection of individual bids.

Sec. 14.404-3 Notice to bidders of rejection of all bids.

Sec. 14.404-4 Restrictions on disclosure of descriptive literature.

Sec. 14.404-5 All or none qualifications.

Sec. 14.405 Minor informalities or irregularities in bids.

Sec. 14.406 Receipt of an unreadable electronic bid.

Sec. 14.407 Mistakes in bids.

Sec. 14.407-1 General.

Sec. 14.407-2 Apparent clerical mistakes.

Sec. 14.407-3 Other mistakes disclosed before award.

Sec. 14.407-4 Mistakes after awards.

Sec. 14.408 Award.

Sec. 14.408-1 General.

Sec. 14.408-2 Responsible bidder--reasonableness of price.

Sec. 14.408-3 Prompt payment discounts.

Sec. 14.408-4 Economic price adjustment.

Sec. 14.408-5 [Reserved]

Sec. 14.408-6 Equal low bids.

Sec. 14.408-7 Documentation of award.

Sec. 14.408-8 Protests against award.

[[Page 265]]


Sec. 14.409 Information to bidders.

Sec. 14.409-1 Award of unclassified contracts.

Sec. 14.409-2 Award of classified contracts.

                  Subpart 14.5_Two-Step Sealed Bidding


Sec. 14.501 General.

Sec. 14.502 Conditions for use.

Sec. 14.503 Procedures.

Sec. 14.503-1 Step one.

Sec. 14.503-2 Step two.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 
2473(c).

    Source: 48 FR 42171, Sept. 19, 1983, unless otherwise noted.



Sec. 14.000  Scope of part.

    This part prescribes (a) the basic requirements of contracting for 
supplies and services (including construction) by sealed bidding, (b) 
the information to be included in the solicitation (invitation for 
bids), (c) procedures concerning the submission of bids, (d) 
requirements for opening and evaluating bids and awarding contracts, and 
(e) procedures for two-step sealed bidding.

[48 FR 42171, Sept. 19, 1983, as amended at 50 FR 1737, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985]

                   Subpart 14.1_Use of Sealed Bidding



Sec. 14.101  Elements of sealed bidding.

    Sealed bidding is a method of contracting that employs competitive 
bids, public opening of bids, and awards. The following steps are 
involved:
    (a) Preparation of invitations for bids. Invitations must describe 
the requirements of the Government clearly, accurately, and completely. 
Unnecessarily restrictive specifications or requirements that might 
unduly limit the number of bidders are prohibited. The invitation 
includes all documents (whether attached or incorporated by reference) 
furnished prospective bidders for the purpose of bidding.
    (b) Publicizing the invitation for bids. Invitations must be 
publicized through distribution to prospective bidders, posting in 
public places, and such other means as may be appropriate. Publicizing 
must occur a sufficient time before public opening of bids to enable 
prospective bidders to prepare and submit bids.
    (c) Submission of bids. Bidders must submit sealed bids to be opened 
at the time and place stated in the solicitation for the public opening 
of bids.
    (d) Evaluation of bids. Bids shall be evaluated without discussions.
    (e) Contract award. After bids are publicly opened, an award will be 
made with reasonable promptness to that responsible bidder whose bid, 
conforming to the invitation for bids, will be most advantageous to the 
Government, considering only price and the price-related factors 
included in the invitation.

[48 FR 42171, Sept. 19, 1983, as amended at 50 FR 1737, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985]



Sec. 14.102  [Reserved]



Sec. 14.103  Policy.



Sec. 14.103-1  General.

    (a) Sealed bidding shall be used whenever the conditions in 6.401(a) 
are met. This requirement applies to any proposed contract action under 
part 6.
    (b) Sealed bidding may be used for classified acquisitions if its 
use does not violate agency security requirements.
    (c) The policy for pricing modifications of sealed bid contracts 
appears in 15.403-4(a)(1)(iii).

[48 FR 42171, Sept. 19, 1983, as amended at 50 FR 1737, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 62 FR 51270, Sept. 30, 1997; 67 FR 6114, 
Feb. 8, 2002; 68 FR 43856, July 24, 2003]



Sec. 14.103-2  Limitations.

    No awards shall be made as a result of sealed bidding unless--
    (a) Bids have been solicited as required by subpart 14.2;
    (b) Bids have been submitted as required by subpart 14.3;
    (c) The requirements of 1.602-1(b) and part 6 have been met; and
    (d) An award is made to the responsible bidder (see 9.1) whose bid 
is responsive to the terms of the invitation for bids and is most 
advantageous to the Government, considering only price and the price-
related factors included in the invitation, as provided in subpart 14.4.

[48 FR 42171, Sept. 19, 1983, as amended at 50 FR 1737, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985]

[[Page 266]]



Sec. 14.104  Types of contracts.

    Firm-fixed-price contracts shall be used when the method of 
contracting is sealed bidding, except that fixed-price contracts with 
economic price adjustment clauses may be used if authorized in 
accordance with 16.203 when some flexibility is necessary and feasible. 
Such clauses must afford all bidders an equal opportunity to bid.

[48 FR 42171, Sept. 19, 1983, as amended at 50 FR 1737, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985]



Sec. 14.105  Solicitations for informational or planning purposes.

    See 15.201(e).

[48 FR 42171, Sept. 19, 1983, as amended at 62 FR 51270, Sept. 30, 1997]

                    Subpart 14.2_Solicitation of Bids



Sec. 14.201  Preparation of invitations for bids.



Sec. 14.201-1  Uniform contract format.

    (a) Contracting officers shall prepare invitations for bids and 
contracts using the uniform contract format outlined in Table 14-1 to 
the maximum practicable extent. The use of the format facilitates 
preparation of the solicitation and contract as well as reference to, 
and use of, those documents by bidders and contractors. It need not be 
used for acquisition of the following:
    (1) Construction (see part 36).
    (2) Shipbuilding (including design, construction, and conversion), 
ship overhaul, and ship repair.
    (3) Subsistence items.
    (4) Supplies or services requiring special contract forms prescribed 
elsewhere in this regulation that are inconsistent with the uniform 
contract format.
    (5) Firm-fixed-price or fixed-price with economic price adjustment 
acquisitions that use the simplified contract format (see 14.201-9).
    (b) Information suitable for inclusion in invitations for bids under 
the uniform contract format shall also be included in invitations for 
bids not subject to that format if applicable.
    (c) Solicitations to which the uniform contract format applies shall 
include Parts I, II, III, and IV. If any section of the uniform contract 
format does not apply, the contracting officer should so mark that 
section in the solicitation. Upon award, the contracting officer shall 
not physically include Part IV in the resulting contract, but shall 
retain it in the contract file. (See 4.1201(c).) Award by acceptance of 
a bid on the award portion of Standard Form 33, Solicitation Offer and 
Award (SF 33), Standard Form 26, Award/Contract (SF 26), or Standard 
Form 1447, Solicitation/Contract (SF 1447), incorporates Section K, 
Representations, certifications, and other statements of bidders, in the 
resultant contract even though not physically attached.

                               Table 14-1
                         Uniform Contract Format
------------------------------------------------------------------------
           Section                               Title
------------------------------------------------------------------------
                          Part I--The Schedule
 
A                              Solicitation/contract form
B                              Supplies or services and prices
C                              Description/specifications
D                              Packaging and marking
E                              Inspection and acceptance
F                              Deliveries or performance
G                              Contract administration data
H                              Special contract requirements
 
                        Part II--Contract Clauses
 
I                              Contract clauses
 
      Part III--List of Documents, Exhibits, and Other Attachments
 
J                              List of documents, exhibits, and other
                                attachments
 
                Part IV--Representations and Instructions
 
K                              Representations, certifications, and
                                other statements of bidders
L                              Instructions, conditions, and notices to
                                bidders
M                              Evaluation factors for award
------------------------------------------------------------------------


[48 FR 42171, Sept. 19, 1983, as amended at 54 FR 48982, Nov. 28, 1989; 
71 FR 57363, Sept. 28, 2006]



Sec. 14.201-2  Part I--The Schedule.

    The contracting officer shall prepare the Schedule as follows:
    (a) Section A, Solicitation/contract form. (1) Prepare the 
invitation for bids on SF 33, or the SF 1447, unless otherwise permitted 
by this regulation. The SF 33 is the first page of the solicitation and 
includes Section A of the uniform contract format. When the SF 1447 is 
used as the solicitation document, the information in subdivisions 
(a)(2)(i) and (a)(2)(iv) of this subsection shall be inserted in block 9 
of the SF 1447.

[[Page 267]]

    (2) When the SF 33 or SF 1447 is not used, include the following on 
the first page of the invitation for bids:
    (i) Name, address, and location of issuing activity, including room 
and building where bids must be submitted.
    (ii) Invitation for bids number.
    (iii) Date of issuance.
    (iv) Time specified for receipt of bids.
    (v) Number of pages.
    (vi) Requisition or other purchase authority.
    (vii) Requirement for bidder to provide its name and complete 
address, including street, city, county, State, and ZIP code.
    (viii) A statement that bidders should include in the bid the 
address to which payment should be mailed, if that address is different 
from that of the bidder.
    (b) Section B, Supplies or services and prices. Include a brief 
description of the supplies or services; e.g., item number, national 
stock number/part number if applicable, title or name identifying the 
supplies or services, and quantities (see part 11). The SF 33 and SF 
1447 may be supplemented as necessary by the Optional Form 336 (OF 336), 
Continuation Sheet (53.302-336).
    (c) Section C, Description/specifications. Include any description 
or specifications needed in addition to Section B to permit full and 
open competition (see part 11).
    (d) Section D, Packaging and marking. Provide packaging, packing, 
preservation, and marking requirements, if any.
    (e) Section E, Inspection and acceptance. Include inspection, 
acceptance, quality assurance, and reliability requirements (see part 
46, Quality Assurance).
    (f) Section F, Deliveries or performance. Specify the requirements 
for time, place, and method of delivery or performance (see subpart 
11.4, Delivery or Performance Schedules).
    (g) Section G, Contract administration data. Include any required 
accounting and appropriation data and any required contract 
administration information or instructions other than those on the 
solicitation form.
    (h) Section H, Special contract requirements. Include a clear 
statement of any special contract requirements that are not included in 
Section I, Contract clauses, or in other sections of the uniform 
contract format.

[48 FR 42171, Sept. 19, 1983, as amended at 50 FR 1737, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 51 FR 27119, July 29, 1986; 54 FR 48982, 
Nov. 28, 1989; 55 FR 38516, Sept. 18, 1990; 60 FR 48248, Sept. 18, 1995]



Sec. 14.201-3  Part II--Contract clauses.

    Section I, Contract clauses. The contracting officer shall include 
in this section the clauses required by law or by this regulation and 
any additional clauses expected to apply to any resulting contract, if 
these clauses are not required to be included in any other section of 
the uniform contract format.

[48 FR 42171, Sept. 19, 1983, as amended at 53 FR 17857, May 18, 1988]



Sec. 14.201-4  Part III--Documents, exhibits, and other attachments.

    Section J, List of documents, exhibits, and other attachments. The 
contracting officer shall list the title, date, and number of pages for 
each attached document.



Sec. 14.201-5  Part IV--Representations and instructions.

    The contracting officer shall prepare the representations and 
instructions as follows:
    (a) Section K, Representations, certifications, and other statements 
of bidders. Include in this section those solicitation provisions that 
require representations, certifications, or the submission of other 
information by bidders.
    (b) Section L, Instructions, conditions, and notices to bidders. 
Insert in this section solicitation provisions and other information and 
instructions not required elsewhere to guide bidders. Invitations shall 
include the time and place for bid openings, and shall advise bidders 
that bids will be evaluated without discussions (see 52.214-10 and, for 
construction contracts, 52.214-19).
    (c) Section M, Evaluation factors for award. Identify the price-
related factors other than the bid price that will be considered in 
evaluating bids and awarding the contract. (See 14.201-8.)

[48 FR 42171, Sept. 19, 1983, as amended at 50 FR 1737, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 53 FR 17857, May 18, 1988]

[[Page 268]]



Sec. 14.201-6  Solicitation provisions.

    (a) The provisions prescribed in this subsection apply to 
preparation and submission of bids in general. See other FAR parts for 
provisions and clauses related to specific acquisition requirements.
    (b) Insert in all invitations for bids the provisions at--
    (1) 52.214-3, Amendments to Invitations for Bids; and
    (2) 52.214-4, False Statements in Bids.
    (c) Insert the following provisions in invitations for bids:
    (1) 52.214-5, Submission of Bids.
    (2) 52.214-6, Explanation to Prospective Bidders.
    (3) 52.214-7, Late Submissions, Modifications, and Withdrawals of 
Bids.
    (d) [Reserved]
    (e) Insert in all invitations for bids, except those for 
construction, the provision at 52.214-10, Contract Award-Sealed Bidding.
    (f) Insert in invitations for bids to which the uniform contract 
format applies, the provision at 52.214-12, Preparation of Bids.
    (g)(1) Insert the provision at 52.214-13, Telegraphic Bids, in 
invitations for bids if the contracting officer decides to authorize 
telegraphic bids.
    (2) Use the provision with its Alternate I in invitations for bids 
that are for perishable subsistence, and when the contracting officer 
considers that offerors will be unwilling to provide acceptance periods 
long enough to allow written confirmation.
    (h) Insert the provision at 52.214-14, Place of Performance--Sealed 
Bidding, in invitations for bids except those in which the place of 
performance is specified by the Government.
    (i) Insert the provision at 52.214-15, Period for Acceptance of 
Bids, in invitations for bids (IFB's) that are not issued on SF 33 or SF 
1447 except IFB's (1) for construction work or (2) in which the 
Government specifies a minimum acceptance period.
    (j) Insert the provision at 52.214-16, Minimum Bid Acceptance 
Period, in invitations for bids, except for construction, if the 
contracting officer determines that a minimum acceptance period must be 
specified.
    (k) [Reserved]
    (l) Insert the provision at 52.214-18, Preparation of Bids--
Construction, in invitations for bids for construction work.
    (m) Insert the provision at 52.214-19, Contract Award--Sealed 
Bidding--Construction, in all invitations for bids for construction 
work.
    (n) [Reserved]
    (o)(1) Insert the provision at 52.214-20, Bid Samples, in 
invitations for bids if bid samples are required.
    (2) If it appears that the conditions in 14.202-4(e)(1) will apply 
and the contracting officer anticipates granting waivers and--
    (i) If the nature of the required product does not necessitate 
limiting the grant of a waiver to a product produced at the same plant 
in which the product previously acquired or tested was produced, use the 
provision with its Alternate I; or
    (ii) If the nature of the required product necessitates limiting the 
grant of a waiver to a product produced at the same plant in which the 
product previously acquired or tested was produced, use the provision 
with its Alternate II.
    (3) See 14.202-4(e)(2) regarding waiving the requirement for all 
bidders.
    (p)(1) Insert the provision at 52.214-21, Descriptive Literature, in 
invitations for bids if (i) descriptive literature is required to 
evaluate the technical acceptability of an offered product and (ii) the 
required information will not be readily available unless it is 
submitted by bidders.
    (2) Use the basic clause with its Alternate I if the possibility 
exists that the contracting officer may waive the requirement for 
furnishing descriptive literature for a bidder offering a previously 
supplied product that meets specification requirements of the current 
solicitation.
    (3) See 14.202-5(d)(2) regarding waiving the requirement for all 
bidders.
    (q) Insert the provision at 52.214-22, Evaluation of Bids for 
Multiple Awards, in invitations for bids if the contracting officer 
determines that multiple awards might be made if doing so is 
economically advantageous to the Government.

[[Page 269]]

    (r) Insert the provision at 52.214-23, Late Submissions, 
Modifications, Revisions, and Withdrawals of Technical Proposals under 
Two-Step Sealed Bidding, in solicitations for technical proposals in 
step one of two-step sealed bidding.
    (s) Insert the provision at 52.214-24, Multiple Technical Proposals, 
in solicitations for technical proposals in step one of two-step sealed 
bidding if the contracting officer permits the submission of multiple 
technical proposals.
    (t) Insert the provision at 52.214-25, Step Two of Two-Step Sealed 
Bidding, in invitations for bids issued under step two of two-step 
sealed bidding.
    (u) [Reserved]
    (v) Insert the provision at 52.214-31, Facsimile Bids, in 
solicitations if facsimile bids are authorized (see 14.202-7).
    (w) Insert the provision at 52.214-34, Submission of Offers in the 
English Language, in solicitations that include any of the clauses 
prescribed in 25.1101 or 25.1102. It may be included in other 
solicitations when the contracting officer decides that it is necessary.
    (x) Insert the provision at 52.214-35, Submission of Offers in U.S. 
Currency, in solicitations that include any of the clauses prescribed in 
25.1101 or 25.1102, unless the contracting officer includes the clause 
at 52.225-17, Evaluation of Foreign Currency Offers, as prescribed in 
25.1103(d). It may be included in other solicitations when the 
contracting officer decides that it is necessary.

[48 FR 42171, Sept. 19, 1983]

    Editorial Note: For Federal Register citations affecting 14.201-6, 
see the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and at www.fdsys.gov.



Sec. 14.201-7  Contract clauses.

    (a) When contracting by sealed bidding, the contracting officer 
shall insert the clause at 52.214-26, Audit and Records-Sealed Bidding, 
in solicitations and contracts as follows:
    (1) Use the basic clause if--
    (i) The acquisition will not use funds appropriated or otherwise 
made available by the American Recovery and Reinvestment Act of 2009 
(Pub. L. 111-5); and
    (ii) The contract amount is expected to exceed the threshold at 
15.403-4(a)(1) for submission of certified cost or pricing data.
    (2)(i) If the acquisition will use funds appropriated or otherwise 
made available by the American Recovery and Reinvestment Act of 2009, 
use the clause with its Alternate I in all solicitations and contracts.
    (ii)(A) In the case of a bilateral contract modification that will 
use funds appropriated or otherwise made available by the American 
Recovery and Reinvestment Act of 2009, the contracting officer shall 
specify applicability of Alternate I to that modification.
    (B) In the case of a task- or delivery-order contract in which not 
all orders will use funds appropriated or otherwise made available by 
the American Recovery and Reinvestment Act of 2009, the contracting 
officer shall specify the task or delivery orders to which Alternate I 
applies.
    (b)(1) When contracting by sealed bidding, the contracting officer 
shall insert the clause at 52.214-27, Price Reduction for Defective 
Certified Cost or Pricing Data--Modifications--Sealed Bidding, in 
solicitations and contracts if the contract amount is expected to exceed 
the threshold for submission of certified cost or pricing data at 
15.403-4(a)(1).
    (2) In exceptional cases, the head of the contracting activity may 
waive the requirement for inclusion of the clause in a contract with a 
foreign government or agency of that government. The authorizations for 
the waiver and the reasons for granting it shall be in writing.
    (c)(1) When contracting by sealed bidding, the contracting officer 
shall insert the clause at 52.214-28, Subcontractor Certified Cost or 
Pricing Data--Modifications--Sealed Bidding, in solicitations and 
contracts if the contract amount is expected to exceed the threshold for 
submission of certified cost or pricing data at 15.403-4(a)(1).
    (2) In exceptional cases, the head of the contracting activity may 
waive the requirement for inclusion of the clause in a contract with a 
foreign government or agency of that government. The authorizations for 
the waiver and

[[Page 270]]

the reasons for granting it shall be in writing.
    (d) When contracting by sealed bidding, the contracting officer 
shall insert the clause at 52.214-29, Order of Precedence--Sealed 
Bidding, in solicitations and contracts to which the uniform contract 
format applies.

[48 FR 42171, Sept. 19, 1983, as amended at 50 FR 1738, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 51 FR 2649, Jan. 17, 1986; 56 FR 67413, Dec. 
30, 1991; 59 FR 62499, Dec. 5, 1994; 60 FR 42650, Aug. 16, 1995; 60 FR 
48211, Sept. 18, 1995; 62 FR 51270, Sept. 30, 1997; 74 FR 14648, Mar. 
31, 2009; 75 FR 34281, June 16, 2010; 75 FR 53142, Aug. 30, 2010]



Sec. 14.201-8  Price-related factors.

    The factors set forth in paragraphs (a) through (e) below may be 
applicable in evaluation of bids for award and shall be included in the 
solicitation when applicable. (See 14.201-5(c).)
    (a) Foreseeable costs or delays to the Government resulting from 
such factors as differences in inspection, locations of supplies, and 
transportation. If bids are on an f.o.b. origin basis (see 47.303 and 
47.305), transportation costs to the designated points shall be 
considered in determining the lowest cost to the Government.
    (b) Changes made, or requested by the bidder, in any of the 
provisions of the invitation for bids, if the change does not constitute 
a ground for rejection under 14.404.
    (c) Advantages or disadvantages to the Government that might result 
from making more than one award (see 14.201-6(q)). The contracting 
officer shall assume, for the purpose of making multiple awards, that 
$500 would be the administrative cost to the Government for issuing and 
administering each contract awarded under a solicitation. Individual 
awards shall be for the items or combinations of items that result in 
the lowest aggregate cost to the Government, including the assumed 
administrative costs.
    (d) Federal, State, and local taxes (see part 29).
    (e) Origin of supplies, and, if foreign, the application of the Buy 
American Act or any other prohibition on foreign purchases (see part 
25).

[50 FR 1738, Jan. 11, 1985, and 50 FR 52429, Dec. 23, 1985; 55 FR 25527, 
June 21, 1990]



Sec. 14.201-9  Simplified contract format.

    Policy. For firm-fixed-price or fixed-price with economic price 
adjustment acquisitions of supplies and services, the contracting 
officer may use the simplified contract format in lieu of the uniform 
contract format (see 14.201-1). The contracting officer has flexibility 
in preparation and organization of the simplified contract format. 
However, the following format should be used to the maximum practical 
extent:
    (a) Solicitation/contract form. Standard Form (SF) 1447, 
Solicitation/Contract, shall be used as the first page of the 
solicitation.
    (b) Contract schedule. Include the following for each contract line 
item:
    (1) Contract line item number.
    (2) Description of supplies or services, or data sufficient to 
identify the requirement.
    (3) Quantity and unit of issue.
    (4) Unit price and amount.
    (5) Packaging and marking requirements.
    (6) Inspection and acceptance, quality assurance, and reliability 
requirements.
    (7) Place of delivery, performance and delivery dates, period of 
performance, and f.o.b. point.
    (8) Other item-peculiar information as necessary (e.g., individual 
fund citations).
    (c) Clauses. Include the clauses required by this regulation. 
Additional clauses shall be incorporated only when considered absolutely 
necessary to the particular acquisition.
    (d) List of documents and attachments. Include if necessary.
    (e) Representations and instructions--(1) Representations and 
certifications. Insert those solicitation provisions that require 
representations, certifications, or the submission of other information 
by offerors.
    (2) Instructions, conditions, and notices. Include the solicitation 
provisions required by 14.201-6. Include any other information/
instructions necessary to guide offerors.
    (3) Evaluation factors for award. Insert all evaluation factors and 
any significant subfactors for award.

[[Page 271]]

    (4) Upon award, the contracting officer need not physically include 
the provisions in subparagraphs (e)(1), (2), and (3) of this subsection 
in the resulting contract, but shall retain them in the contract file. 
Award by acceptance of a bid on the award portion of SF 1447 
incorporates the representations, certifications, and other statements 
of bidders in the resultant contract even though not physically 
attached.

[54 FR 48983, Nov. 28, 1989, as amended at 56 FR 41733, Aug. 22, 1991]



Sec. 14.202  General rules for solicitation of bids.



Sec. 14.202-1  Bidding time.

    (a) Policy. A reasonable time for prospective bidders to prepare and 
submit bids shall be allowed in all invitations, consistent with the 
needs of the Government. (For construction contracts, see 36.213-3(a).) 
A bidding time (i.e., the time between issuance of the solicitation and 
opening of bids) of at least 30 calendar days shall be provided when 
synopsis is required by subpart 5.2.
    (b) Factors to be considered. Because of unduly limited bidding 
time, some potential sources may be precluded from bidding and others 
may be forced to include amounts for contingencies that, with additional 
time, could be eliminated. To avoid unduly restricting competition or 
paying higher-than-necessary prices, consideration shall be given to 
such factors as the following in establishing a reasonable bidding time: 
(1) degree of urgency; (2) complexity of requirement; (3) anticipated 
extent of subcontracting; (4) whether use was made of presolicitation 
notices; (5) geographic distribution of bidders; and (6) normal 
transmittal time for both invitations and bids.

[48 FR 42171, Sept. 19, 1983, as amended at 50 FR 1738, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 60 FR 34737, July 3, 1995; 62 FR 272, Jan. 
2, 1997]



Sec. 14.202-2  Telegraphic bids.

    (a) Telegraphic bids and mailgrams shall be authorized only when--
    (1) The date for the opening of bids will not allow bidders 
sufficient time to submit bids in the prescribed format; or
    (2) Prices are subject to frequent changes.
    (b) If telegraphic bids are to be authorized, see 14.201-6(g). 
Unauthorized telegraphic bids shall not be considered (see 14.301(b)).

[48 FR 42171, Sept. 19, 1983, as amended at 60 FR 34737, July 3, 1995]



Sec. 14.202-3  Bid envelopes.

    (a) Postage or envelopes bearing Postage and Fees Paid indicia shall 
not be distributed with the invitation for bids or otherwise supplied to 
prospective bidders.
    (b) To provide for ready identification and proper handling of bids, 
Optional Form 17, Offer Label, may be furnished with each bid set. The 
form may be obtained from the General Services Administration (see 
53.107).

[48 FR 42171, Sept. 19, 1983, as amended at 59 FR 67033, Dec. 28, 1994]



Sec. 14.202-4  Bid samples.

    (a) Policy. (1) Bidders shall not be required to furnish bid samples 
unless there are characteristics of the product that cannot be described 
adequately in the specification or purchase description.
    (2) Bid samples will be used only to determine the responsiveness of 
the bid and will not be used to determine a bidder's ability to produce 
the required items.
    (3) Bid samples may be examined for any required characteristic, 
whether or not such characteristic is adequately described in the 
specification, if listed in accordance with paragraph (d)(1)(ii) of this 
section.
    (4) Bids will be rejected as nonresponsive if the sample fails to 
conform to each of the characteristics listed in the invitation.
    (b) When to use. The use of bid samples would be appropriate for 
products that must be suitable from the standpoint of balance, facility 
of use, general ``feel,'' color, pattern, or other characteristics that 
cannot be described adequately in the specification. However, when more 
than a minor portion of the characteristics of the product cannot be 
adequately described in the specification, products should be

[[Page 272]]

acquired by two-step sealed bidding or negotiation, as appropriate.
    (c) Justification. The reasons why acceptable products cannot be 
acquired without the submission of bid samples shall be set forth in the 
contract file, except where the submission is required by the formal 
specifications (Federal, Military, or other) applicable to the 
acquisition.
    (d) Requirements for samples in invitations for bids. (1) 
Invitations for bids shall--
    (i) State the number and, if appropriate, the size of the samples to 
be submitted and otherwise fully describe the samples required; and
    (ii) List all the characteristics for which the samples will be 
examined.
    (2) If bid samples are required, see 14.201-6(o).
    (e) Waiver of requirement for bid samples. (1) The requirement for 
furnishing bid samples may be waived when a bidder offers a product 
previously or currently being contracted for or tested by the Government 
and found to comply with specification requirements conforming in every 
material respect with those in the current invitation for bids. When the 
requirement may be waived, see 14.201-6(o)(2).
    (2) Where samples required by a Federal, Military, or other formal 
specification are not considered necessary and a waiver of the sample 
requirements of the specification has been authorized, a statement shall 
be included in the invitation that notwithstanding the requirements of 
the specification, samples will not be required.
    (f) Unsolicited samples. Bid samples furnished with a bid that are 
not required by the invitation generally will not be considered as 
qualifying the bid and will be disregarded. However, the bid sample will 
not be disregarded if it is clear from the bid or accompanying papers 
that the bidder's intention was to qualify the bid. (See 14.404-2(d) if 
the qualification does not conform to the solicitation.)
    (g) Handling bid samples. (1) Samples that are not destroyed in 
testing shall be returned to bidders at their request and expense, 
unless otherwise specified in the invitation.
    (2) Disposition instructions shall be requested from bidders and 
samples disposed of accordingly.
    (3) Samples ordinarily will be returned collect to the address from 
which received if disposition instructions are not received within 30 
days. Small items may be returned by mail, postage prepaid.
    (4) Samples that are to be retained for inspection purposes in 
connection with deliveries shall be transmitted to the inspecting 
activity concerned, with instructions to retain the sample until 
completion of the contract or until disposition instructions are 
furnished.
    (5) Where samples are consumed or their usefulness is impaired by 
tests, they will be disposed of as scrap unless the bidder requests 
their return.

[48 FR 42171, Sept. 19, 1983, as amended at 50 FR 1738, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 67 FR 13055, Mar. 20, 2002; 75 FR 13425, 
Mar. 19, 2010]



Sec. 14.202-5  Descriptive literature.

    (a) Policy. Contracting officers must not require bidders to furnish 
descriptive literature unless it is needed before award to determine 
whether the products offered meet the specification and to establish 
exactly what the bidder proposes to furnish.
    (b) Justification. The contracting officer must document in the 
contract file the reasons why product acceptability cannot be determined 
without the submission of descriptive literature, except when the 
contract specifications require submission.
    (c) Requirements of invitation for bids. (1) The invitation must 
clearly state--
    (i) What descriptive literature the bidders must furnish;
    (ii) The purpose for requiring the literature;
    (iii) The extent of its consideration in the evaluation of bids; and
    (iv) The rules that will apply if a bidder fails to furnish the 
literature before bid opening or if the literature provided does not 
comply with the requirements of the invitation.
    (2) If bidders must furnish descriptive literature, see 14.201-6(p).
    (d) Waiver of requirement for descriptive literature. (1) The 
contracting officer may waive the requirement for descriptive literature 
if--

[[Page 273]]

    (i) The bidder states in the bid that the product being offered is 
the same as a product previously or currently being furnished to the 
contracting activity; and
    (ii) The contracting officer determines that the product offered by 
the bidder complies with the specification requirements of the current 
invitation for bids. When the contracting officer waives the 
requirement, see 14.201-6(p)(2).
    (2) When descriptive literature is not necessary and a waiver of 
literature requirements of a specification has been authorized, the 
contracting officer must include a statement in the invitation that, 
despite the requirements of the specifications, descriptive literature 
will not be required.
    (3) If the solicitation provides for a waiver, a bidder may submit a 
bid on the basis of either the descriptive literature furnished with the 
bid or a previously furnished product. If the bid is submitted on one 
basis, the bidder may not have it considered on the other basis after 
bids are opened.
    (e) Unsolicited descriptive literature. If descriptive literature is 
furnished when it is not required by the invitation for bids, the 
procedures set forth in 14.202-4(f) must be followed.

[67 FR 13055, Mar. 20, 2002]



Sec. 14.202-6  Final review of invitations for bids.

    Each invitation for bids shall be thoroughly reviewed before 
issuance to detect and correct discrepancies or ambiguities that could 
limit competition or result in the receipt of nonresponsive bids. 
Contracting officers are responsible for the reviews.



Sec. 14.202-7  Facsimile bids.

    (a) Unless prohibited or otherwise restricted by agency procedures, 
contracting officers may authorize facsimile bids (see 14.201-6(v)). In 
determining whether or not to authorize facsimile bids, the contracting 
officer shall consider factors such as--
    (1) Anticipated bid size and volume;
    (2) Urgency of the requirement;
    (3) Frequency of price changes;
    (4) Availability, reliability, speed, and capacity of the receiving 
facsimile equipment; and
    (5) Adequacy of administrative procedures and controls for 
receiving, identifying, recording, and safeguarding facsimile bids, and 
ensuring their timely delivery to the bids opening location.
    (b) If facsimile bids are authorized, contracting officers may, 
after the date set for bid opening, request the apparently successful 
offeror to provide the complete original signed bid.

[54 FR 48983, Nov. 28, 1989, as amended at 64 FR 51838, Sept. 24, 1999]



Sec. 14.202-8  Electronic bids.

    In accordance with subpart 4.5, contracting officers may authorize 
use of electronic commerce for submission of bids. If electronic bids 
are authorized, the solicitation shall specify the electronic commerce 
method(s) that bidders may use.

[60 FR 34737, July 3, 1995]



Sec. 14.203  Methods of soliciting bids.



Sec. 14.203-1  Transmittal to prospective bidders.

    Invitations for bids or presolicitation notices must be provided in 
accordance with 5.102. When a contracting office is located in the 
United States, any solicitation sent to a prospective bidder located 
outside the United States shall be sent by electronic data interchange 
or air mail if security classification permits.

[68 FR 28081, May 22, 2003, as amended at 68 FR 43856, July 24, 2003]



Sec. 14.203-2  Dissemination of information concerning invitations for 
          bids.

    Procedures concerning display of invitations for bids in a public 
place, information releases to newspapers and trade journals, paid 
advertisements, and synopsizing through the Governmentwide point of 
entry (GPE) are set forth in 5.101 and Subpart 5.2.

[66 FR 27413, May 16, 2001, as amended at 71 FR 20300, Apr. 19, 2006]



Sec. 14.203-3  Master solicitation.

    The master solicitation is provided to potential sources who are 
requested to retain it for continued and repetitive use. Individual 
solicitations must reference the date of the current master solicitation 
and identify any

[[Page 274]]

changes. The contracting officer must--
    (a) Make available copies of the master solicitation on request; and
    (b) Provide the cognizant contract administration activity a current 
copy of the master solicitation.

[66 FR 2128, Jan. 10, 2001]



Sec. 14.204  Records of invitations for bids and records of bids.

    (a) Each contracting office shall retain a record of each invitation 
that it issues and each abstract or record of bids. Contracting officers 
shall review and utilize the information available in connection with 
subsequent acquisitions of the same or similar items.
    (b) The file for each invitation shall show the distribution that 
was made and the date the invitation was issued. The names and addresses 
of prospective bidders who requested the invitation and were not 
included on the original solicitation list shall be added to the list 
and made a part of the record.



Sec. 14.205  Presolicitation notices.

    In lieu of initially forwarding complete bid sets, the contracting 
officer may send presolicitation notices to concerns. The notice shall--
    (a) Specify the final date for receipt of requests for a complete 
bid set;
    (b) Briefly describe the requirement and furnish other essential 
information to enable concerns to determine whether they have an 
interest in the invitation; and
    (c) Normally not include drawings, plans, and specifications. The 
return date of the notice must be sufficiently in advance of the mailing 
date of the invitation for bids to permit an accurate estimate of the 
number of bid sets required. Bid sets shall be sent to concerns that 
request them in response to the notice.

[68 FR 43856, July 24, 2003]



Sec. 14.206  [Reserved]



Sec. 14.207  Pre-bid conference.

    A pre-bid conference may be used, generally in a complex 
acquisition, as a means of briefing prospective bidders and explaining 
complicated specifications and requirements to them as early as possible 
after the invitation has been issued and before the bids are opened. It 
shall never be used as a substitute for amending a defective or 
ambiguous invitation. The conference shall be conducted in accordance 
with the procedure prescribed in 15.201.

[48 FR 42171, Sept. 19, 1983, as amended at 62 FR 51270, Sept. 30, 1997]



Sec. 14.208  Amendment of invitation for bids.

    (a) If it becomes necessary to make changes in quantity, 
specifications, delivery schedules, opening dates, etc., or to correct a 
defective or ambiguous invitation, such changes shall be accomplished by 
amendment of the invitation for bids using Standard Form 30, Amendment 
of Solicitation/Modification of Contract. The fact that a change was 
mentioned at a pre-bid conference does not relieve the necessity for 
issuing an amendment. Amendments shall be sent, before the time for bid 
opening, to everyone to whom invitations have been furnished and shall 
be displayed in the bid room.
    (b) Before amending an invitation for bids, the period of time 
remaining until bid opening and the need to extend this period shall be 
considered. When only a short time remains before the time set for bid 
opening, consideration should be given to notifying bidders of an 
extension of time by telegrams or telephone. Such extension must be 
confirmed in the amendment.
    (c) Any information given to a prospective bidder concerning an 
invitation for bids shall be furnished promptly to all other prospective 
bidders as an amendment to the invitation (1) if such information is 
necessary for bidders to submit bids or (2) if the lack of such 
information would be prejudicial to uninformed bidders. The information 
shall be furnished even though a pre-bid conference is held. No award 
shall be made on the invitation unless such amendment has been issued in 
sufficient time to permit all prospective bidders to consider such 
information in submitting or modifying their bids.



Sec. 14.209  Cancellation of invitations before opening.

    (a) The cancellation of an invitation for bids usually involves a 
loss of time,

[[Page 275]]

effort, and money spent by the Government and bidders. Invitations 
should not be cancelled unless cancellation is clearly in the public 
interest; e.g., (1) where there is no longer a requirement for the 
supplies or services or (2) where amendments to the invitation would be 
of such magnitude that a new invitation is desirable.
    (b) When an invitation issued other than electronically is 
cancelled, bids that have been received shall be returned unopened to 
the bidders and notice of cancellation shall be sent to all prospective 
bidders to whom invitations were issued. When an invitation issued 
electronically is cancelled, a general notice of cancellation shall be 
posted electronically, the bids received shall not be viewed, and the 
bids shall be purged from primary and backup data storage systems.
    (c) The notice of cancellation shall (1) identify the invitation for 
bids by number and short title or subject matter, (2) briefly explain 
the reason the invitation is being cancelled, and (3) where appropriate, 
assure prospective bidders that they will be given an opportunity to bid 
on any resolicitation of bids or any future requirements for the type of 
supplies or services involved. Cancellations shall be recorded in 
accordance with 14.403(d).

[48 FR 42171, Sept. 19, 1983, as amended at 60 FR 34737, July 3, 1995; 
62 FR 12692, Mar. 17, 1997]



Sec. 14.210  Qualified products.

    See subpart 9.2.



Sec. 14.211  Release of acquisition information.

    (a) Before solicitation. Information concerning proposed 
acquisitions shall not be released outside the Government before 
solicitation except for presolicitation notices in accordance with 
14.205 or 36.213-2, or long-range acquisition estimates in accordance 
with 5.404, or synopses in accordance with 5.201. Within the Government, 
such information shall be restricted to those having a legitimate 
interest. Releases of information shall be made (1) to all prospective 
bidders, and (2) as nearly as possible at the same time, so that one 
prospective bidder shall not be given unfair advantage over another. See 
3.104 regarding requirements for proprietary and source selection 
information including access to and disclosure thereof.
    (b) After solicitation. Discussions with prospective bidders 
regarding a solicitation shall be conducted and technical or other 
information shall be transmitted only by the contracting officer or 
superiors having contractual authority or by others specifically 
authorized. Such personnel shall not furnish any information to a 
prospective bidder that alone or together with other information may 
afford an advantage over others. However, general information that would 
not be prejudicial to other prospective bidders may be furnished upon 
request; e.g., explanation of a particular contract clause or a 
particular condition of the schedule in the invitation for bids, and 
more specific information or clarifications may be furnished by amending 
the solicitation (see 14.208).

[48 FR 42171, Sept. 19, 1983, as amended at 50 FR 1738, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 55 FR 36795, Sept. 6, 1990; 62 FR 272, Jan. 
2, 1997; 68 FR 43856, July 24, 2003]



Sec. 14.212  Economic purchase quantities (supplies).

    Contracting officers shall comply with the economic purchase 
quantity planning requirements for supplies in subpart 7.2. See 7.203 
for instructions regarding use of the provision at 52.207-4, Economic 
Purchase Quantity--Supplies, and 7.204 for guidance on handling 
responses to that provision.

[50 FR 35479, Aug. 30, 1985]



Sec. 14.213-14.214  [Reserved]

                     Subpart 14.3_Submission of Bids



Sec. 14.301  Responsiveness of bids.

    (a) To be considered for award, a bid must comply in all material 
respects with the invitation for bids. Such compliance enables bidders 
to stand on an equal footing and maintain the integrity of the sealed 
bidding system.
    (b) Telegraphic bids shall not be considered unless permitted by the 
invitation. The term telegraphic bids means bids submitted by telegram 
or by mailgram.

[[Page 276]]

    (c) Facsimile bids shall not be considered unless permitted by the 
solicitation (see 14.202-7).
    (d) Bids should be filled out, executed, and submitted in accordance 
with the instructions in the invitation. If a bidder uses its own bid 
form or a letter to submit a bid, the bid may be considered only if (1) 
the bidder accepts all the terms and conditions of the invitation and 
(2) award on the bid would result in a binding contract with terms and 
conditions that do not vary from the terms and conditions of the 
invitation.
    (e) Bids submitted by electronic commerce shall be considered only 
if the electronic commerce method was specifically stipulated or 
permitted by the solicitation.

[48 FR 42171, Sept. 19, 1983, as amended at 50 FR 1738, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 54 FR 48983, Nov. 28, 1989; 60 FR 34738, 
July 3, 1995]



Sec. 14.302  Bid submission.

    (a) Bids shall be submitted so that they will be received in the 
office designated in the invitation for bids (referred to in paragraphs 
(b) and (c) below as the designated office) not later than the exact 
time set for opening of bids.
    (b) Except as specified in paragraph (c) below, if telegraphic bids 
are authorized, a telegraphic bid that is communicated by means of a 
telephone call to the designated office shall be considered if--
    (1) Agency regulations authorize such consideration;
    (2) The telephone call is made by the telegraph office that received 
the telegraphic bid;
    (3) The telephone call is received by the designated office not 
later than the time set for the bid opening;
    (4) The telegraph office that received the telegraphic bid sends the 
designated office the telegram that formed the basis for the telephone 
call;
    (5) The telegram indicates on its face that it was received in the 
telegraph office before the telephone call was received by the 
designated office; and
    (6) The bid in the telegram is identical in all essential respects 
to the bid received in the telephone call from the telegraph office.
    (c) If the conditions in paragraph (b) above apply and the bid 
received by telephone is the apparent low bid, award may not be made 
until the telegram is received by the designated office; however, if the 
telegram is not received by the designated office within 5 days after 
the bid opening date, the bid shall be rejected.



Sec. 14.303  Modification or withdrawal of bids.

    (a) Bids may be modified or withdrawn by any method authorized by 
the solicitation, if notice is received in the office designated in the 
solicitation not later than the exact time set for opening of bids. 
Unless proscribed by agency regulations, a telegraphic modification or 
withdrawal of a bid received in such office by telephone from the 
receiving telegraph office shall be considered. However, the message 
shall be confirmed by the telegraph company by sending a copy of the 
written telegram that formed the basis for the telephone call. If the 
solicitation authorizes facsimile bids, bids may be modified or 
withdrawn via facsimile received at any time before the exact time set 
for receipt of bids, subject to the conditions specified in the 
provision prescribed in 14.201-6(v). Modifications received by telephone 
(including a record of those telephoned by the telegraph company) or 
facsimile shall be sealed in an envelope by a proper official. The 
official shall write on the envelope (1) the date and time of receipt 
and by whom, and (2) the number of the invitation for bids, and shall 
sign the envelope. No information contained in the envelope shall be 
disclosed before the time set for bid opening.
    (b) A bid may be withdrawn in person by a bidder or its authorized 
representative if, before the exact time set for opening of bids, the 
identity of the persons requesting withdrawal is established and that 
person signs a receipt for the bid.
    (c) Upon withdrawal of an electronically transmitted bid, the data 
received shall not be viewed and shall be

[[Page 277]]

purged from primary and backup data storage systems.

[48 FR 42171, Sept. 19, 1983, as amended at 54 FR 48983, Nov. 28, 1989; 
60 FR 34738, July 3, 1995; 64 FR 51838, Sept. 24, 1999]



Sec. 14.304  Submission, modification, and withdrawal of bids.

    (a) Bidders are responsible for submitting bids, and any 
modifications or withdrawals, so as to reach the Government office 
designated in the invitation for bid (IFB) by the time specified in the 
IFB. They may use any transmission method authorized by the IFB (i.e., 
regular mail, electronic commerce, or facsimile). If no time is 
specified in the IFB, the time for receipt is 4:30 p.m., local time, for 
the designated Government office on the date that bids are due.
    (b)(1) Any bid, modification, or withdrawal of a bid received at the 
Government office designated in the IFB after the exact time specified 
for receipt of bids is ``late'' and will not be considered unless it is 
received before award is made, the contracting officer determines that 
accepting the late bid would not unduly delay the acquisition; and--
    (i) If it was transmitted through an electronic commerce method 
authorized by the IFB, it was received at the initial point of entry to 
the Government infrastructure not later than 5:00 p.m. one working day 
prior to the date specified for receipt of bids; or
    (ii) There is acceptable evidence to establish that it was received 
at the Government installation designated for receipt of bids and was 
under the Government's control prior to the time set for receipt of 
bids.
    (2) However, a late modification of an otherwise successful bid, 
that makes its terms more favorable to the Government, will be 
considered at any time it is received and may be accepted.
    (c) Acceptable evidence to establish the time of receipt at the 
Government installation includes the time/date stamp of that 
installation on the bid wrapper, other documentary evidence of receipt 
maintained by the installation, or oral testimony or statements of 
Government personnel.
    (d) If an emergency or unanticipated event interrupts normal 
Government processes so that bids cannot be received at the Government 
office designated for receipt of bids by the exact time specified in the 
IFB, and urgent Government requirements preclude amendment of the bid 
opening date, the time specified for receipt of bids will be deemed to 
be extended to the same time of day specified in the IFB on the first 
work day on which normal Government processes resume.
    (e) Bids may be withdrawn by written notice received at any time 
before the exact time set for receipt of bids. If the IFB authorizes 
facsimile bids, bids may be withdrawn via facsimile received at any time 
before the exact time set for receipt of bids, subject to the conditions 
specified in the provision at 52.214-31, Facsimile Bids. A bid may be 
withdrawn in person by a bidder or its authorized representative if, 
before the exact time set for receipt of bids, the identity of the 
person requesting withdrawal is established and the person signs a 
receipt for the bid. Upon withdrawal of an electronically transmitted 
bid, the data received must not be viewed and, where practicable, must 
be purged from primary and backup data storage systems.
    (f) The contracting officer must promptly notify any bidder if its 
bid, modification, or withdrawal was received late, and must inform the 
bidder whether its bid will be considered, unless contract award is 
imminent and the notices prescribed in 14.409 would suffice.
    (g) Late bids and modifications that are not considered must be held 
unopened, unless opened for identification, until after award and then 
retained with other unsuccessful bids. However, any bid bond or 
guarantee must be returned.
    (h) If available, the following must be included in the contract 
files for each late bid, modification, or withdrawal:
    (1) The date and hour of receipt.
    (2) A statement, with supporting rationale, regarding whether the 
bid was considered for award.
    (3) The envelope, wrapper, or other evidence of the date of receipt.

[64 FR 51838, Sept. 24, 1999]

[[Page 278]]

           Subpart 14.4_Opening of Bids and Award of Contract



Sec. 14.400  Scope of subpart.

    This subpart contains procedures for the receipt, handling, opening, 
and disposition of bids including mistakes in bids, and subsequent award 
of contracts.

[48 FR 42171, Sept. 19, 1983, as amended at 63 FR 58594, Oct. 30, 1998].



Sec. 14.401  Receipt and safeguarding of bids.

    (a) All bids (including modifications) received before the time set 
for the opening of bids shall be kept secure. Except as provided in 
paragraph (b) of this section, the bids shall not be opened or viewed, 
and shall remain in a locked bid box, a safe, or in a secured, 
restricted-access electronic bid box. If an invitation for bids is 
cancelled, bids shall be returned to the bidders. Necessary precautions 
shall be taken to ensure the security of the bid box or safe. Before bid 
opening, information concerning the identity and number of bids received 
shall be made available only to Government employees. Such disclosure 
shall be only on a need to know basis. When bid samples are submitted, 
they shall be handled with sufficient care to prevent disclosure of 
characteristics before bid opening.
    (b) Envelopes marked as bids but not identifying the bidder or the 
solicitation may be opened solely for the purpose of identification, and 
then only by an official designated for this purpose. If a sealed bid is 
opened by mistake (e.g., because it is not marked as being a bid), the 
envelope shall be signed by the opener, whose position shall also be 
written thereon, and delivered to the designated official. This official 
shall immediately write on the envelope (1) an explanation of the 
opening, (2) the date and time opened, and (3) the invitation for bids 
number, and shall sign the envelope. The official shall then immediately 
reseal the envelope.

[48 FR 42171, Sept. 19, 1983, as amended at 60 FR 34738, July 3, 1995]



Sec. 14.402  Opening of bids.



Sec. 14.402-1  Unclassified bids.

    (a) The bid opening officer shall decide when the time set for 
opening bids has arrived and shall inform those present of that 
decision. The officer shall then (1) personally and publicly open all 
bids received before that time, (2) if practical, read the bids aloud to 
the persons present, and (3) have the bids recorded. The original of 
each bid shall be carefully safeguarded, particularly until the abstract 
of bids required by 14.403 has been made and its accuracy verified.
    (b) Performance of the procedure in paragraph (a) above may be 
delegated to an assistant, but the bid opening officer remains fully 
responsible for the actions of the assistant.
    (c) Examination of bids by interested persons shall be permitted if 
it does not interfere unduly with the conduct of Government business. 
Original bids shall not be allowed to pass out of the hands of a 
Government official unless a duplicate bid is not available for public 
inspection. The original bid may be examined by the public only under 
the immediate supervision of a Government official and under conditions 
that preclude possibility of a substitution, addition, deletion, or 
alteration in the bid.



Sec. 14.402-2  Classified bids.

    The general public may not attend bid openings for classified 
acquisitions. A bidder or its representative may attend and record the 
results if the individual has the appropriate security clearance. The 
contracting officer also may make the bids available at a later time to 
properly cleared individuals who represent bidders. No public record 
shall be made of bids or bid prices received in response to classified 
invitations for bids.

[67 FR 6114, Feb. 8, 2002]



Sec. 14.402-3  Postponement of openings.

    (a) A bid opening may be postponed even after the time scheduled for 
bid opening (but otherwise in accordance with 14.208) and--
    (1) The contracting officer has reason to believe that the bids of 
an important

[[Page 279]]

segment of bidders have been delayed in the mails, or in the 
communications system specified for transmission of bids, for causes 
beyond their control and without their fault or negligence (e.g., flood, 
fire, accident, weather conditions, strikes, or Government equipment 
blackout or malfunction when bids are due); or
    (2) Emergency or unanticipated events interrupt normal governmental 
processes so that the conduct of bid openings as scheduled is 
impractical.
    (b) At the time of a determination to postpone a bid opening under 
subparagraph (a)(1) above, an announcement of the determination shall be 
publicly posted. If practical before issuance of a formal amendment of 
the invitation, the determination shall be otherwise communicated to 
prospective bidders who are likely to attend the scheduled bid opening.
    (c) In the case of paragraph (a)(2) of this section, and when urgent 
Government requirements preclude amendment of the solicitation as 
prescribed in 14.208, the time specified for opening of bids will be 
deemed to be extended to the same time of day specified in the 
solicitation on the first work day on which normal Government processes 
resume. In such cases, the time of actual bid opening shall be deemed to 
be the time set for bid opening for the purpose of determining ``late 
bids'' under 14.304. A note should be made on the abstract of bids or 
otherwise added to the file explaining the circumstances of the 
postponement.

[48 FR 42171, Sept. 19, 1983, as amended at 60 FR 34738, July 3, 1995; 
61 FR 31619, June 20, 1996]



Sec. 14.403  Recording of bids.

    (a) Standard Form 1409, Abstract of Offers, or Optional Form 1419, 
Abstract of Offers--Construction (or automated equivalent), shall be 
completed and certified as to its accuracy by the bid opening officer as 
soon after bid opening as practicable. Where bid items are too numerous 
to warrant complete recording of all bids, abstract entries for 
individual bids may be limited to item numbers and bid prices. In 
preparing these forms, the extra columns and SF 1410, Abstract of 
Offers--Continuation, and OF 1419A, Abstract of Offers--Construction, 
Continuation Sheet, may be used to label and record such information as 
the contracting activity deems necessary.
    (b) Abstracts of offers for unclassified acquisitions shall be 
available for public inspection. Such abstracts shall not contain 
information regarding failure to meet minimum standards of 
responsibility, apparent collusion of bidders, or other notations 
properly exempt from disclosure to the public in accordance with agency 
regulations implementing subpart 24.2.
    (c) The forms identified in paragraph (a) of this section need not 
be used by the Defense Energy Support Center for acquisitions of coal or 
petroleum products or by the Defense Supply Center Philadelphia for 
perishable subsistence items.
    (d) If an invitation for bids is cancelled before the time set for 
bid opening, this fact shall be recorded together with a statement of 
the number of bids invited and the number of bids received.

[48 FR 42171, Sept. 19, 1983, as amended at 54 FR 29280, July 11, 1989; 
69 FR 59704, Oct. 5, 2004]



Sec. 14.404  Rejection of bids.



Sec. 14.404-1  Cancellation of invitations after opening.

    (a)(1) Preservation of the integrity of the competitive bid system 
dictates that, after bids have been opened, award must be made to that 
responsible bidder who submitted the lowest responsive bid, unless there 
is a compelling reason to reject all bids and cancel the invitation.
    (2) Every effort shall be made to anticipate changes in a 
requirement before the date of opening and to notify all prospective 
bidders of any resulting modification or cancellation. This will permit 
bidders to change their bids and prevent unnecessary exposure of bid 
prices.
    (3) As a general rule, after the opening of bids, an invitation 
should not be cancelled and resolicited due solely to increased 
requirements for the items being acquired. Award should be made on the 
initial invitation for bids and the additional quantity should be 
treated as a new acquisition.

[[Page 280]]

    (b) When it is determined before award but after opening that the 
requirements of 11.201 (relating to the availability and identification 
of specifications) have not been met, the invitation shall be cancelled.
    (c) Invitations may be cancelled and all bids rejected before award 
but after opening when, consistent with paragraph (a)(1) above, the 
agency head determines in writing that--
    (1) Inadequate or ambiguous specifications were cited in the 
invitation;
    (2) Specifications have been revised;
    (3) The supplies or services being contracted for are no longer 
required;
    (4) The invitation did not provide for consideration of all factors 
of cost to the Government, such as cost of transporting Government-
furnished property to bidders' plants;
    (5) Bids received indicate that the needs of the Government can be 
satisfied by a less expensive article differing from that for which the 
bids were invited;
    (6) All otherwise acceptable bids received are at unreasonable 
prices, or only one bid is received and the contracting officer cannot 
determine the reasonableness of the bid price;
    (7) The bids were not independently arrived at in open competition, 
were collusive, or were submitted in bad faith (see subpart 3.3 for 
reports to be made to the Department of Justice);
    (8) No responsive bid has been received from a responsible bidder.
    (9) A cost comparison as prescribed in OMB Circular A-76 and subpart 
7.3 shows that performance by the Government is more economical; or
    (10) For other reasons, cancellation is clearly in the public's 
interest.
    (d) Should administrative difficulties be encountered after bid 
opening that may delay award beyond bidders' acceptance periods, the 
several lowest bidders whose bids have not expired (irrespective of the 
acceptance period specified in the bid) should be requested, before 
expiration of their bids, to extend in writing the bid acceptance period 
(with consent of sureties, if any) in order to avoid the need for 
resoliciting.
    (e) Under some circumstances, completion of the acquisition after 
cancellation of the invitation for bids may be appropriate.
    (1) If the invitation for bids has been cancelled for the reasons 
specified in subparagraphs (c) (6), (7), or (8) of this subsection, and 
the agency head has authorized, in the determination in paragraph (c) of 
this subsection, the completion of the acquisition through negotiation, 
the contracting officer shall proceed in accordance with paragraph (f) 
of this subsection.
    (2) If the invitation for bids has been cancelled for the reasons 
specified in subparagraphs (c) (1), (2), (4), (5), or (10) of this 
subsection, or for the reasons in subparagraphs (c) (6), (7), or (8) of 
this subsection and completion through negotiation is not authorized 
under subparagraph (e)(1) of this subsection, the contracting officer 
shall proceed with a new acquisition.
    (f) When the agency head has determined, in accordance with 
paragraph (e)(1) of this subsection, that an invitation for bids should 
be canceled and that use of negotiation is in the Government's interest, 
the contracting officer may negotiate (in accordance with part 15, as 
appropriate) and make award without issuing a new solicitation 
provided--
    (1) Each responsible bidder in the sealed bid acquisition has been 
given notice that negotiations will be conducted and has been given an 
opportunity to participate in negotiations; and
    (2) The award is made to the responsible bidder offering the lowest 
negotiated price.

[48 FR 42171, Sept. 19, 1983, as amended at 50 FR 1738, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 55 FR 52790, Dec. 21, 1990; 60 FR 48248, 
Sept. 18, 1995; 62 FR 51230, Sept. 30, 1997]



Sec. 14.404-2  Rejection of individual bids.

    (a) Any bid that fails to conform to the essential requirements of 
the invitation for bids shall be rejected.
    (b) Any bid that does not conform to the applicable specifications 
shall be rejected unless the invitation authorized the submission of 
alternate bids and the supplies offered as alternates meet the 
requirements specified in the invitation.

[[Page 281]]

    (c) Any bid that fails to conform to the delivery schedule or 
permissible alternates stated in the invitation shall be rejected.
    (d) A bid shall be rejected when the bidder imposes conditions that 
would modify requirements of the invitation or limit the bidder's 
liability to the Government, since to allow the bidder to impose such 
conditions would be prejudicial to other bidders. For example, bids 
shall be rejected in which the bidder--
    (1) Protects against future changes in conditions, such as increased 
costs, if total possible costs to the Government cannot be determined;
    (2) Fails to state a price and indicates that price shall be price 
in effect at time of delivery;
    (3) States a price but qualifies it as being subject to price in 
effect at time of delivery;
    (4) When not authorized by the invitation, conditions or qualifies a 
bid by stipulating that it is to be considered only if, before date of 
award, the bidder receives (or does not receive) award under a separate 
solicitation;
    (5) Requires that the Government is to determine that the bidder's 
product meets applicable Government specifications; or
    (6) Limits rights of the Government under any contract clause.
    (e) A low bidder may be requested to delete objectionable conditions 
from a bid provided the conditions do not go to the substance, as 
distinguished from the form, of the bid, or work an injustice on other 
bidders. A condition goes to the substance of a bid where it affects 
price, quantity, quality, or delivery of the items offered.
    (f) Any bid may be rejected if the contracting officer determines in 
writing that it is unreasonable as to price. Unreasonableness of price 
includes not only the total price of the bid, but the prices for 
individual line items as well.
    (g) Any bid may be rejected if the prices for any line items or 
subline items are materially unbalanced (see 15.404-1(g)).
    (h) Bids received from any person or concern that is suspended, 
debarred, proposed for debarment, or declared ineligible as of the bid 
opening date shall be rejected unless a compelling reason determination 
is made (see subpart 9.4).
    (i) Low bids received from concerns determined to be not responsible 
pursuant to subpart 9.1 shall be rejected (but if a bidder is a small 
business concern, see 19.6 with respect to certificates of competency).
    (j) When a bid guarantee is required and a bidder fails to furnish 
the guarantee in accordance with the requirements of the invitation for 
bids, the bid shall be rejected, except as otherwise provided in 28.101-
4.
    (k) The originals of all rejected bids, and any written findings 
with respect to such rejections, shall be preserved with the papers 
relating to the acquisition.
    (l) After submitting a bid, if all of a bidder's assets or that part 
related to the bid are transferred during the period between the bid 
opening and the award, the transferee may not be able to take over the 
bid. Accordingly, the contracting officer shall reject the bid unless 
the transfer is effected by merger, operation of law, or other means not 
barred by 41 U.S.C. 15 or 31 U.S.C. 3727.

[48 FR 42171, Sept. 19, 1983, as amended at 51 FR 2649, Jan. 17, 1986; 
55 FR 25527, June 21, 1990; 55 FR 36795, Sept. 6, 1990; 56 FR 29127, 
June 25, 1991; 62 FR 232, Jan. 2, 1997; 62 FR 51270, Sept. 30, 1997; 65 
FR 80265, Dec. 20, 2000; 66 FR 17756, Apr. 3, 2001; 66 FR 66986, 66989, 
Dec. 27, 2001]



Sec. 14.404-3  Notice to bidders of rejection of all bids.

    When it is determined necessary to reject all bids, the contracting 
officer shall notify each bidder that all bids have been rejected and 
shall state the reason for such action.



Sec. 14.404-4  Restrictions on disclosure of descriptive literature.

    When a bid is accompanied by descriptive literature (as defined in 
2.101), and the bidder imposes a restriction that prevents the public 
disclosure of such literature, the restriction may render the bid 
nonresponsive. The restriction renders the bid nonresponsive if it 
prohibits the disclosure of sufficient information to permit competing 
bidders to know the essential nature and type of the products offered or

[[Page 282]]

those elements of the bid that relate to quantity, price, and delivery 
terms. The provisions of this paragraph do not apply to unsolicited 
descriptive literature submitted by a bidder if such literature does not 
qualify the bid (see 14.202-5(e)).

[48 FR 42171, Sept. 19, 1983, as amended at 67 FR 13056, Mar. 20, 2002]



Sec. 14.404-5  All or none qualifications.

    Unless the solicitation provides otherwise, a bid may be responsive 
notwithstanding that the bidder specifies that award will be accepted 
only on all, or a specified group, of the items. Bidders shall not be 
permitted to withdraw or modify all or none qualifications after bid 
opening since such qualifications are substantive and affect the rights 
of other bidders.



Sec. 14.405  Minor informalities or irregularities in bids.

    A minor informality or irregularity is one that is merely a matter 
of form and not of substance. It also pertains to some immaterial defect 
in a bid or variation of a bid from the exact requirements of the 
invitation that can be corrected or waived without being prejudicial to 
other bidders. The defect or variation is immaterial when the effect on 
price, quantity, quality, or delivery is negligible when contrasted with 
the total cost or scope of the supplies or services being acquired. The 
contracting officer either shall give the bidder an opportunity to cure 
any deficiency resulting from a minor informality or irregularity in a 
bid or waive the deficiency, whichever is to the advantage of the 
Government. Examples of minor informalities or irregularities include 
failure of a bidder to--
    (a) Return the number of copies of signed bids required by the 
invitation;
    (b) Furnish required information concerning the number of its 
employees;
    (c) Sign its bid, but only if--
    (1) The unsigned bid is accompanied by other material indicating the 
bidder's intention to be bound by the unsigned bid (such as the 
submission of a bid guarantee or a letter signed by the bidder, with the 
bid, referring to and clearly identifying the bid itself); or
    (2) The firm submitting a bid has formally adopted or authorized, 
before the date set for opening of bids, the execution of documents by 
typewritten, printed, or stamped signature and submits evidence of such 
authorization and the bid carries such a signature;
    (d) Acknowledge receipt of an amendment to an invitation for bids, 
but only if--
    (1) The bid received clearly indicates that the bidder received the 
amendment, such as where the amendment added another item to the 
invitation and the bidder submitted a bid on the item; or
    (2) The amendment involves only a matter of form or has either no 
effect or merely a negligible effect on price, quantity, quality, or 
delivery of the item bid upon; and
    (e) Execute the representations with respect to Equal Opportunity 
and Affirmative Action Programs, as set forth in the clauses at 52.222-
22, Previous Contracts and Compliance Reports, and 52.222-25, 
Affirmative Action Compliance.

[48 FR 42171, Sept. 19, 1983, as amended at 55 FR 25527, June 21, 1990; 
62 FR 236, Jan. 2, 1997; 64 FR 10532, Mar. 4, 1999]



Sec. 14.406  Receipt of an unreadable electronic bid.

    If a bid received at the Government facility by electronic data 
interchange is unreadable to the degree that conformance to the 
essential requirements of the invitation for bids cannot be ascertained, 
the contracting officer immediately shall notify the bidder that the bid 
will be rejected unless the bidder provides clear and convincing 
evidence--
    (a) Of the content of the bid as originally submitted; and
    (b) That the unreadable condition of the bid was caused by 
Government software or hardware error, malfunction, or other Government 
mishandling.

[60 FR 34738, July 3, 1995]



Sec. 14.407  Mistakes in bids.



Sec. 14.407-1  General.

    After the opening of bids, contracting officers shall examine all 
bids for mistakes. In cases of apparent mistakes

[[Page 283]]

and in cases where the contracting officer has reason to believe that a 
mistake may have been made, the contracting officer shall request from 
the bidder a verification of the bid, calling attention to the suspected 
mistake. If the bidder alleges a mistake, the matter shall be processed 
in accordance with this section 14.407. Such actions shall be taken 
before award.

[48 FR 42171, Sept. 19, 1983. Redesignated and amended at 60 FR 34738, 
July 3, 1995]



Sec. 14.407-2  Apparent clerical mistakes.

    (a) Any clerical mistake, apparent on its face in the bid, may be 
corrected by the contracting officer before award. The contracting 
officer first shall obtain from the bidder a verification of the bid 
intended. Examples of apparent mistakes are--
    (1) Obvious misplacement of a decimal point;
    (2) Obviously incorrect discounts (for example, 1 percent 10 days, 2 
percent 20 days, 5 percent 30 days);
    (3) Obvious reversal of the price f.o.b. destination and price 
f.o.b. origin; and
    (4) Obvious mistake in designation of unit.
    (b) Correction of the bid shall be effected by attaching the 
verification to the original bid and a copy of the verification to the 
duplicate bid. Correction shall not be made on the face of the bid; 
however, it shall be reflected in the award document.
    (c) Correction of bids submitted by electronic data interchange 
shall be effected by including in the electronic solicitation file the 
original bid, the verification request, and the bid verification.

[48 FR 42171, Sept. 19, 1983. Redesignated and amended at 60 FR 34738, 
July 3, 1995]



Sec. 14.407-3  Other mistakes disclosed before award.

    In order to minimize delays in contract awards, administrative 
determinations may be made as described in this 14.407-3 in connection 
with mistakes in bids alleged after opening of bids and before award. 
The authority to permit correction of bids is limited to bids that, as 
submitted, are responsive to the invitation and may not be used to 
permit correction of bids to make them responsive. This authority is in 
addition to that in 14.407-2 or that may be otherwise available.
    (a) If a bidder requests permission to correct a mistake and clear 
and convincing evidence establishes both the existence of the mistake 
and the bid actually intended, the agency head may make a determination 
permitting the bidder to correct the mistake; provided, that if this 
correction would result in displacing one or more lower bids, such a 
determination shall not be made unless the existence of the mistake and 
the bid actually intended are ascertainable substantially from the 
invitation and the bid itself.
    (b) If (1) a bidder requests permission to withdraw a bid rather 
than correct it, (2) the evidence is clear and convincing both as to the 
existence of a mistake and as to the bid actually intended, and (3) the 
bid, both as uncorrected and as corrected, is the lowest received, the 
agency head may make a determination to correct the bid and not permit 
its withdrawal.
    (c) If, under paragraph (a) or (b) of this subsection,
    (1) The evidence of a mistake is clear and convincing only as to the 
mistake but not as to the intended bid, or
    (2) The evidence reasonably supports the existence of a mistake but 
is not clear and convincing, an official above the contracting officer, 
unless otherwise provided by agency procedures, may make a determination 
permitting the bidder to withdraw the bid.
    (d) If the evidence does not warrant a determination under paragraph 
(a), (b), or (c) above, the agency head may make a determination that 
the bid be neither withdrawn nor corrected.
    (e) Heads of agencies may delegate their authority to make the 
determinations under paragraphs (a), (b), (c), and (d) of this 14.407-3 
to a central authority, or a limited number of authorities as necessary, 
in their agencies, without power of redelegation.
    (f) Each proposed determination shall have the concurrence of legal 
counsel within the agency concerned before issuance.
    (g) Suspected or alleged mistakes in bids shall be processed as 
follows. A mere statement by the administrative

[[Page 284]]

officials that they are satisfied that an error was made is 
insufficient.
    (1) The contracting officer shall immediately request the bidder to 
verify the bid. Action taken to verify bids must be sufficient to 
reasonably assure the contracting officer that the bid as confirmed is 
without error, or to elicit the allegation of a mistake by the bidder. 
To assure that the bidder will be put on notice of a mistake suspected 
by the contracting officer, the bidder should be advised as 
appropriate--
    (i) That its bid is so much lower than the other bids or the 
Government's estimate as to indicate a possibility of error;
    (ii) Of important or unusual characteristics of the specifications;
    (iii) Of changes in requirements from previous purchases of a 
similar item; or
    (iv) Of any other information, proper for disclosure, that leads the 
contracting officer to believe that there is a mistake in bid.
    (2) If the bid is verified, the contracting officer shall consider 
the bid as originally submitted. If the time for acceptance of bids is 
likely to expire before a decision can be made, the contracting officer 
shall request all bidders whose bids may become eligible for award to 
extend the time for acceptance of their bids in accordance with 14.404-
1(d). If the bidder whose bid is believed erroneous does not (or cannot) 
grant an extension of time, the bid shall be considered as originally 
submitted (but see subparagraph (5) below). If the bidder alleges a 
mistake, the contracting officer shall advise the bidder to make a 
written request to withdraw or modify the bid. The request must be 
supported by statements (sworn statements, if possible) and shall 
include all pertinent evidence such as the bidder's file copy of the 
bid, the original worksheets and other data used in preparing the bid, 
subcontractors' quotations, if any, published price lists, and any other 
evidence that establishes the existence of the error, the manner in 
which it occurred, and the bid actually intended.
    (3) When the bidder furnishes evidence supporting an alleged 
mistake, the contracting officer shall refer the case to the appropriate 
authority (see paragraph (e) above) together with the following data:
    (i) A signed copy of the bid involved.
    (ii) A copy of the invitation for bids and any specifications or 
drawings relevant to the alleged mistake.
    (iii) An abstract or record of the bids received.
    (iv) The written request by the bidder to withdraw or modify the 
bid, together with the bidder's written statement and supporting 
evidence.
    (v) A written statement by the contracting officer setting forth--
    (A) A description of the supplies or services involved;
    (B) The expiration date of the bid in question and of the other bids 
submitted;
    (C) Specific information as to how and when the mistake was alleged;
    (D) A summary of the evidence submitted by the bidder;
    (E) In the event only one bid was received, a quotation of the most 
recent contract price for the supplies or services involved or, in the 
absence of a recent comparable contract, the contracting officer's 
estimate of a fair price for the supplies or services;
    (F) Any additional pertinent evidence; and
    (G) A recommendation that either the bid be considered for award in 
the form submitted, or the bidder be authorized to withdraw or modify 
the bid.
    (4) When time is of the essence because of the expiration of bids or 
otherwise, the contracting officer may refer the case by telegraph or 
telephone to the appropriate authority. Ordinarily, the contracting 
officer will not refer mistake in bid cases by telegraph or telephone to 
the appropriate authority when the determination set forth in paragraphs 
(a) or (b) above is applicable, since actual examination is generally 
necessary to determine whether the evidence presented is clear and 
convincing.
    (5) Where the bidder fails or refuses to furnish evidence in support 
of a suspected or alleged mistake, the contracting officer shall 
consider the bid as submitted unless (i) the amount of the bid is so far 
out of line with the amounts of other bids received, or with the amount 
estimated by the agency or determined by the contracting officer

[[Page 285]]

to be reasonable, or (ii) there are other indications of error so clear, 
as to reasonably justify the conclusion that acceptance of the bid would 
be unfair to the bidder or to other bona fide bidders. Attempts made to 
obtain the information required and the action taken with respect to the 
bid shall be fully documented.
    (h) Each agency shall maintain records of all determinations made in 
accordance with this subsection 14.407-3, the facts involved, and the 
action taken in each case. Copies of all such determinations shall be 
included in the file.
    (i) Nothing contained in this subsection 14.407-3 prevents an agency 
from submitting doubtful cases to the Comptroller General for advance 
decision.

[48 FR 42171, Sept. 19, 1983, as amended at 53 FR 17857, May 18, 1988; 
54 FR 13023, Mar. 29, 1989. Redesignated and amended at 60 FR 34738, 
July 3, 1995]



Sec. 14.407-4  Mistakes after award.

    If a contractor's discovery and request for correction of a mistake 
in bid is not made until after the award, it shall be processed under 
the procedures of subpart 33.2 and the following:
    (a) When a mistake in a contractor's bid is not discovered until 
after award, the mistake may be corrected by contract modification if 
correcting the mistake would be favorable to the Government without 
changing the essential requirements of the specifications.
    (b) In addition to the cases contemplated in paragraph (a) above or 
as otherwise authorized by law, agencies are authorized to make a 
determination--
    (1) To rescind a contract;
    (2) To reform a contract (i) to delete the items involved in the 
mistake or (ii) to increase the price if the contract price, as 
corrected, does not exceed that of the next lowest acceptable bid under 
the original invitation for bids; or
    (3) That no change shall be made in the contract as awarded, if the 
evidence does not warrant a determination under subparagraphs (1) or (2) 
above.
    (c) Determinations under subparagraphs (b)(1) and (2) above may be 
made only on the basis of clear and convincing evidence that a mistake 
in bid was made. In addition, it must be clear that the mistake was (1) 
mutual, or (2) if unilaterally made by the contractor, so apparent as to 
have charged the contracting officer with notice of the probability of 
the mistake.
    (d) Each proposed determination shall be coordinated with legal 
counsel in accordance with agency procedures.
    (e) Mistakes alleged or disclosed after award shall be processed as 
follows:
    (1) The contracting officer shall request the contractor to support 
the alleged mistake by submission f written statements and pertinent 
evidence, such as (i) the contractor's file copy of the bid, (ii) the 
contractor's original worksheets and other data used in preparing the 
bid, (iii) subcontractors' and suppliers' quotations, if any, (iv) 
published price lists, and (v) any other evidence that will serve to 
establish the mistake, the manner in which the mistake occurred, and the 
bid actually intended.
    (2) The case file concerning an alleged mistake shall contain the 
following:
    (i) All evidence furnished by the contractor in support of the 
alleged mistake.
    (ii) A signed statement by the contracting officer--
    (A) Describing the supplies or services involved;
    (B) Specifying how and when the mistake was alleged or disclosed;
    (C) Summarizing the evidence submitted by the contractor and any 
additional evidence considered pertinent;
    (D) Quoting, in cases where only one bid was received, the most 
recent contract price for the supplies or services involved, or in the 
absence of a recent comparable contract, the contracting officer's 
estimate of a fair price for the supplies or services and the basis for 
the estimate;
    (E) Setting forth the contracting officer's opinion whether a bona 
fide mistake was made and whether the contracting officer was, or should 
have been, on constructive notice of the mistake before the award, 
together with the reasons for, or data in support of, such opinion;

[[Page 286]]

    (F) Setting forth the course of action with respect to the alleged 
mistake that the contracting officer considers proper on the basis of 
the evidence, and if other than a change in contract price is 
recommended, the manner by which the supplies or services will otherwise 
be acquired; and
    (G) Disclosing the status of performance and payments under the 
contract, including contemplated performance and payments.
    (iii) A signed copy of the bid involved.
    (iv) A copy of the invitation for bids and any specifications or 
drawings relevant to the alleged mistake.
    (v) An abstract of written record of the bids received.
    (vi) A written request by the contractor to reform or rescind the 
contract, and copies of all other relevant correspondence between the 
contracting officer and the contractor concerning the alleged mistake.
    (vii) A copy of the contract and any related change orders or 
supplemental agreements.
    (f) Each agency shall include in the contract file a record of (1) 
all determinations made in accordance with this 14.407-4, (2) the facts 
involved, and (3) the action taken in each case.

[48 FR 42171, Sept. 19, 1983, as amended at 50 FR 1738, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985. Redesignated and amended at 60 FR 34738, 
July 3, 1995; 63 FR 58602, Oct. 30, 1998]



Sec. 14.408  Award.



Sec. 14.408-1  General.

    (a) The contracting officer shall make a contract award (1) by 
written or electronic notice, (2) within the time for acceptance 
specified in the bid or an extension (see 14.404-1(d)), and (3) to that 
responsible bidder whose bid, conforming to the invitation, will be most 
advantageous to the Government, considering only price and the price-
related factors (see 14.201-8) included in the invitation. Award shall 
not be made until all required approvals have been obtained and the 
award otherwise conforms with 14.103-2.
    (b) If less than three bids have been received, the contracting 
officer shall examine the situation to ascertain the reasons for the 
small number of responses. Award shall be made notwithstanding the 
limited number of bids. However, the contracting officer shall initiate, 
if appropriate, corrective action to increase competition in future 
solicitations for the same or similar items, and include a notation of 
such action in the records of the invitation for bids (see 14.204).
    (c)(1) Award shall be made by mailing or otherwise furnishing a 
properly executed award document to the successful bidder.
    (2) When a notice of award is issued, it shall be followed as soon 
as possible by the formal award.
    (3) When more than one award results from any single invitation for 
bids, separate award documents shall be suitably numbered and executed.
    (4) When an award is made to a bidder for less than all of the items 
that may be awarded to that bidder and additional items are being 
withheld for subsequent award, the award shall state that the Government 
may make subsequent awards on those additional items within the bid 
acceptance period.
    (5) All provisions of the invitation for bids, including any 
acceptable additions or changes made by a bidder in the bid, shall be 
clearly and accurately set forth (either expressly or by reference) in 
the award document. The award is an acceptance of the bid, and the bid 
and the award constitute the contract.
    (d)(1) Award is generally made by using the Award portion of 
Standard Form (SF) 33, Solicitation, Offer, and Award, or SF 1447, 
Solicitation/Contract (see 53.214). If an offer on an SF 33 leads to 
further changes, the resulting contract shall be prepared as a bilateral 
document on SF 26, Award/Contract.
    (2) Use of the Award portion of SF 33, SF 26, or SF 1447, does not 
preclude the additional use of informal documents, including telegrams 
or electronic transmissions, as notices of awards.

[48 FR 42171, Sept. 19, 1983, as amended at 50 FR 1739, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 54 FR 48984, Nov. 28, 1989; 55 FR 3881, Feb. 
5, 1990. Redesignated at 60 FR 34738, July 3, 1995; 60 FR 42654, Aug. 
16, 1995]

[[Page 287]]



Sec. 14.408-2  Responsible bidder--reasonableness of price.

    (a) The contracting officer shall determine that a prospective 
contractor is responsible (see subpart 9.1) and that the prices offered 
are reasonable before awarding the contract. The price analysis 
techniques in 15.404-1(b) may be used as guidelines. In each case the 
determination shall be made in the light of all prevailing 
circumstances. Particular care must be taken in cases where only a 
single bid is received.
    (b) The price analysis shall consider whether bids are materially 
unbalanced (see 15.404-1(g)).

[48 FR 42171, Sept. 19, 1983, as amended at 55 FR 25527, June 21, 1990. 
Redesignated at 60 FR 34738, July 3, 1995, as amended at 62 FR 51270, 
Sept. 30, 1997]



Sec. 14.408-3  Prompt payment discounts.

    (a) Prompt payment discounts shall not be considered in the 
evaluation of bids. However, any discount offered will form a part of 
the award, and will be taken by the payment center if payment is made 
within the discount period specified by the bidder. As an alternative to 
indicating a discount in conjunction with the offer, bidders may prefer 
to offer discounts on individual invoices.
    (b) See 32.111(b)(1), which prescribes the contract clause at 
52.232-8, Discounts for Prompt Payment.

[48 FR 42171, Sept. 19, 1983, as amended at 50 FR 26903, June 28, 1985. 
Redesignated at 60 FR 34738, July 3, 1995; 70 FR 43581, July 27, 2005]



Sec. 14.408-4  Economic price adjustment.

    (a) Bidder proposes economic price adjustment. (1) When a 
solicitation does not contain an economic price adjustment clause but a 
bidder proposes one with a ceiling that the price will not exceed, the 
bid shall be evaluated on the basis of the maximum possible economic 
price adjustment of the quoted base price.
    (2) If the bid is eligible for award, the contracting officer shall 
request the bidder to agree to the inclusion in the award of an approved 
economic price adjustment clause (see 16.203) that is subject to the 
same ceiling. If the bidder will not agree to an approved clause, the 
award may be made on the basis of the bid as originally submitted.
    (3) Bids that contain economic price adjustments with no ceiling 
shall be rejected unless a clear basis for evaluation exists.
    (b) Government proposes economic price adjustment. (1) When an 
invitation contains an economic price adjustment clause and no bidder 
takes exception to the provisions, bids shall be evaluated on the basis 
of the quoted prices without the allowable economic price adjustment 
being added.
    (2) When a bidder increases the maximum percentage of economic price 
adjustment stipulated in the invitation or limits the downward economic 
price adjustment provisions of the invitation, the bid shall be rejected 
as nonresponsive.
    (3) When a bid indicates deletion of the economic price adjustment 
clause, the bid shall be rejected as nonresponsive since the downward 
economic price adjustment provisions are thereby limited.
    (4) When a bidder decreases the maximum percentage of economic price 
adjustment stipulated in the invitation, the bid shall be evaluated at 
the base price on an equal basis with bids that do not reduce the 
stipulated ceiling. However, after evaluation, if the bidder offering 
the lower ceiling is in a position to receive the award, the award shall 
reflect the lower ceiling.

[48 FR 42171, Sept. 19, 1983. Redesignated at 60 FR 34738, July 3, 1995]



Sec. 14.408-5  [Reserved]



Sec. 14.408-6  Equal low bids.

    (a) Contracts shall be awarded in the following order of priority 
when two or more low bids are equal in all respects:
    (1) Small business concerns that are also labor surplus area 
concerns.
    (2) Other small business concerns.
    (3) Other business concerns.
    (b) If two or more bidders still remain equally eligible after 
application of paragraph (a) above, award shall be made by a drawing by 
lot limited to those bidders. If time permits, the bidders involved 
shall be given an opportunity to attend the drawing. The drawing shall 
be witnessed by at least

[[Page 288]]

three persons, and the contract file shall contain the names and 
addresses of the witnesses and the person supervising the drawing.
    (c) When an award is to be made by using the priorities under this 
14.408-6, the contracting officer shall include a written agreement in 
the contract that the contractor will perform, or cause to be performed, 
the contract in accordance with the circumstances justifying the 
priority used to break the tie or select bids for a drawing by lot.

[48 FR 42171, Sept. 19, 1983. Redesignated and amended at 60 FR 34738, 
July 3, 1995; 60 FR 48260, Sept. 18, 1995]



Sec. 14.408-7  Documentation of award.

    (a) The contracting officer shall document compliance with 14.103-2 
in the contract file.
    (b) The documentation shall either state that the accepted bid was 
the lowest bid received, or list all lower bids with reasons for their 
rejection in sufficient detail to justify the award.
    (c) When an award is made after receipt of equal low bids, the 
documentation shall describe how the tie was broken.

[48 FR 42171, Sept. 19, 1983. Redesignated at 60 FR 34738, July 3, 1995]



Sec. 14.408-8  Protests against award.

    See subpart 33.1, Protests.

[50 FR 23606, June 4, 1985. Redesignated at 60 FR 34738, July 3, 1995]



Sec. 14.409  Information to bidders.



Sec. 14.409-1  Award of unclassified contracts.

    (a)(1) The contracting officer shall as a minimum (subject to any 
restrictions in Subpart 9.4)--
    (i) Notify each unsuccessful bidder in writing or electronically 
within three days after contract award, that its bid was not accepted. 
``Day,'' for purposes of the notification process, means calendar day, 
except that the period will run until a day which is not a Saturday, 
Sunday, or legal holiday;
    (ii) Extend appreciation for the interest the unsuccessful bidder 
has shown in submitting a bid; and
    (iii) When award is made to other than a low bidder, state the 
reason for rejection in the notice to each of the unsuccessful low 
bidders.
    (2) For acquisitions covered by the World Trade Organization 
Government Procurement Agreement or a Free Trade Agreement (see 
25.408(a)(5)), agencies must include in notices given unsuccessful 
bidders from World Trade Organization Government Procurement Agreement 
or Free Trade Agreement countries--
    (i) The dollar amount of the successful bid; and
    (ii) The name and address of the successful bidder.
    (b) Information included in paragraph (a)(2) of this subsection 
shall be provided to any unsuccessful bidder upon request except when 
multiple awards have been made and furnishing information on the 
successful bids would require so much work as to interfere with normal 
operations of the contracting office. In such circumstances, only 
information concerning location of the abstract of offers need be given.
    (c) When a request is received concerning an unclassified invitation 
from an inquirer who is neither a bidder nor a representative of a 
bidder, the contracting officer should make every effort to furnish the 
names of successful bidders and, if requested, the prices at which 
awards were made. However, when such requests require so much work as to 
interfere with the normal operations of the contracting office, the 
inquirer will be advised where a copy of the abstract of offers may be 
seen.
    (d) Requests for records shall be governed by agency regulations 
implementing Subpart 24.2.

[60 FR 42654, Aug. 16, 1995, as amended at 64 FR 72418, Dec. 27, 1999; 
67 FR 6120, Feb. 8, 2002; 69 FR 1053, Jan. 7, 2004; 69 FR 77872, Dec. 
28, 2004]



Sec. 14.409-2  Award of classified contracts.

    In addition to 14.409-1, if classified information was furnished or 
created in connection with the solicitation, the contracting officer 
shall advise the unsuccessful bidders, including any who did not bid, to 
take disposition action in accordance with agency procedures. The name 
of the successful bidder and the contract price will be furnished to

[[Page 289]]

unsuccessful bidders only upon request. Information regarding a 
classified award shall not be furnished by telephone.

[48 FR 42171, Sept. 19, 1983. Redesignated and amended at 60 FR 34738, 
July 3, 1995]

                  Subpart 14.5_Two-Step Sealed Bidding



Sec. 14.501  General.

    Two-step sealed bidding is a combination of competitive procedures 
designed to obtain the benefits of sealed bidding when adequate 
specifications are not available. An objective is to permit the 
development of a sufficiently descriptive and not unduly restrictive 
statement of the Government's requirements, including an adequate 
technical data package, so that subsequent acquisitions may be made by 
conventional sealed bidding. This method is especially useful in 
acquisitions requiring technical proposals, particularly those for 
complex items. It is conducted in two steps:
    (a) Step one consists of the request for, submission, evaluation, 
and (if necessary) discussion of a technical proposal. No pricing is 
involved. The objective is to determine the acceptability of the 
supplies or services offered. As used in this context, the word 
technical has a broad connotation and includes, among other things, the 
engineering approach, special manufacturing processes, and special 
testing techniques. It is the proper step for clarification of questions 
relating to technical requirements. Conformity to the technical 
requirements is resolved in this step, but not responsibility as defined 
in 9.1.
    (b) Step two involves the submission of sealed priced bids by those 
who submitted acceptable technical proposals in step one. Bids submitted 
in step two are evaluated and the awards made in accordance with 
subparts 14.3 and 14.4.

[48 FR 42171, Sept. 19, 1983, as amended at 50 FR 1739, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985]



Sec. 14.502  Conditions for use.

    (a) Unless other factors require the use of sealed bidding, two-step 
sealed bidding may be used in preference to negotiation when all of the 
following conditions are present:
    (1) Available specifications or purchase descriptions are not 
definite or complete or may be too restrictive without technical 
evaluation, and any necessary discussion, of the technical aspects of 
the requirement to ensure mutual understanding between each source and 
the Government.
    (2) Definite criteria exist for evaluating technical proposals.
    (3) More than one technically qualified source is expected to be 
available.
    (4) Sufficient time will be available for use of the two-step 
method.
    (5) A firm-fixed-price contract or a fixed-price contract with 
economic price adjustment will be used.
    (b) None of the following precludes the use of two-step sealed 
bidding:
    (1) Multi-year contracting.
    (2) Government property to be made available to the successful 
bidder.
    (3) A total small business set-aside (see 19.502-2).
    (4) The use of the price evaluation adjustment for small 
disadvantaged business concerns (see Subpart 19.11).
    (5) The use of a set-aside or price evaluation preference for 
HUBZone small business concerns (see subpart 19.13).
    (6) The use of a set-aside for service-disabled veteran-owned small 
business concerns (see Subpart 19.14).
    (7) The use of a set-aside for economically disadvantaged woman-
owned small business concerns and women-owned small business concerns 
eligible under the Woman-Owned Small Business Program (see subpart 
19.15).
    (8) A first or subsequent production quantity is being acquired 
under a performance specification.

[48 FR 42171, Sept. 19, 1983, as amended at 50 FR 1739, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 60 FR 48260, Sept. 18, 1995; 63 FR 35721, 
June 30, 1998; 63 FR 70267, Dec. 18, 1998; 69 FR 25276, May 5, 2004; 72 
FR 27384, May 15, 2007; 76 FR 18308, Apr. 1, 2011]



Sec. 14.503  Procedures.



Sec. 14.503-1  Step one.

    (a) Requests for technical proposals shall be synopsized in 
accordance with Part 5. The request must include, as a minimum, the 
following:

[[Page 290]]

    (1) A description of the supplies or services required.
    (2) A statement of intent to use the two step method.
    (3) The requirements of the technical proposal.
    (4) The evaluation criteria, to include all factors and any 
significant subfactors.
    (5) A statement that the technical proposals shall not include 
prices or pricing information.
    (6) The date, or date and hour, by which the proposal must be 
received (see 14.201-6(r)).
    (7) A statement that (i) in the second step, only bids based upon 
technical proposals determined to be acceptable, either initially or as 
a result of discussions, will be considered for awards and (ii) each bid 
in the second step must be based on the bidder's own technical 
proposals.
    (8) A statement that (i) offerors should submit proposals that are 
acceptable without additional explanation or information, (ii) the 
Government may make a final determination regarding a proposal's 
acceptability solely on the basis of the proposal as submitted, and 
(iii) the Government may proceed with the second step without requesting 
further information from any offeror; however, the Government may 
request additional information from offerors of proposals that it 
considers reasonably susceptible of being made acceptable, and may 
discuss proposals with their offerors.
    (9) A statement that a notice of unacceptability will be forwarded 
to the offeror upon completion of the proposal evaluation and final 
determination of unacceptability.
    (10) A statement either that only one technical proposal may be 
submitted by each offeror or that multiple technical proposals may be 
submitted. When specifications permit different technical approaches, it 
is generally in the Government's interest to authorize multiple 
proposals. If multiple proposals are authorized, see 14.201-6(s).
    (b) Information on delivery or performance requirements may be of 
assistance to bidders in determining whether or not to submit a proposal 
and may be included in the request. The request shall also indicate that 
the information is not binding on the Government and that the actual 
delivery or performance requirements will be contained in the invitation 
issued under step two.
    (c) Upon receipt, the contracting officer shall--
    (1) Safeguard proposals against disclosure to unauthorized persons;
    (2) Accept and handle data marked in accordance with 15.609 as 
provided in that section; and
    (3) Remove any reference to price or cost.
    (d) The contracting officer shall establish a time period for 
evaluating technical proposals. The period may vary with the complexity 
and number of proposals involved. However, the evaluation should be 
completed quickly.
    (e)(1) Evaluations shall be based on the criteria in the request for 
proposals but not consideration of responsibility as defined in 9.1. 
Proposals shall be categorized as--
    (i) Acceptable;
    (ii) Reasonably susceptible of being made acceptable; or
    (iii) Unacceptable.
    (2) Any proposal which modifies, or fails to conform to the 
essential requirements or specifications of, the request for technical 
proposals shall be considered nonresponsive and categorized as 
unacceptable.
    (f)(1) The contracting officer may proceed directly with step two if 
there are sufficient acceptable proposals to ensure adequate price 
competition under step two, and if further time, effort and delay to 
make additional proposals acceptable and thereby increase competition 
would not be in Government's interest. If this is not the case, the 
contracting officer shall request bidders whose proposals may be made 
acceptable to submit additional clarifying or supplementing information. 
The contracting officer shall identify the nature of the deficiencies in 
the proposal or the nature of the additional information required. The 
contracting officer may also arrange discussions for this purpose. No 
proposal shall be discussed with any offeror other than the submitter.

[[Page 291]]

    (2) In initiating requests for additional information, the 
contracting officer shall fix an appropriate time for bidders to 
conclude discussions, if any, submit all additional information, and 
incorporate such additional information as part of their proposals 
submitted. Such time may be extended in the discretion of the 
contracting officer. If the additional information incorporated as part 
of a proposal within the final time fixed by the contracting officer 
establishes that the proposal is acceptable, it shall be so categorized. 
Otherwise, it shall be categorized as unacceptable.
    (g) When a technical proposal is found unacceptable (either 
initially or after clarification), the contracting officer shall 
promptly notify the offeror of the basis of the determination and that a 
revision of the proposal will not be considered. Upon written request, 
the contracting officer shall debrief unsuccessful offerors (see 15.505 
and 15.506).
    (h) Late technical proposals are governed by 15.208 (b), (c), and 
(f).
    (i) If it is necessary to discontinue two-step sealed bidding, the 
contracting officer shall include a statement of the facts and 
circumstances in the contract file. Each offeror shall be notified in 
writing. When step one results in no acceptable technical proposal or 
only one acceptable technical proposal, the acquisition may be continued 
by negotiation.

[48 FR 42171, Sept. 19, 1983, as amended at 50 FR 1739, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 51 FR 2649, Jan. 17, 1986; 56 FR 41733, Aug. 
22, 1991; 60 FR 42654, Aug. 16, 1995; 61 FR 69289, Dec. 31, 1996; 62 FR 
51270, Sept. 30, 1997; 64 FR 51839, Sept. 24, 1999; 68 FR 43856, July 
24, 2003]



Sec. 14.503-2  Step two.

    (a) Sealed bidding procedures shall be followed except that 
invitations for bids shall--
    (1) Be issued only to those offerors submitting acceptable technical 
proposals in step one;
    (2) Include the provision prescribed in 14.201-6(t);
    (3) Prominently state that the bidder shall comply with the 
specifications and the bidder's technical proposal; and
    (4) Not be synopsized through the Governmentwide point of entry 
(GPE) as an acquisition opportunity nor publicly posted (see 5.101(a)).
    (b) The names of firms that submitted acceptable proposals in step 
one will be listed through the GPE for the benefit of prospective 
subcontractors (see 5.207).

[48 FR 42171, Sept. 19, 1983, as amended at 50 FR 1739, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 56 FR 15149, Apr. 15, 1991; 66 FR 27413, May 
16, 2001; 68 FR 56679, Oct. 1, 2003]

                   PART 15_CONTRACTING BY NEGOTIATION

Sec.

Sec. 15.000 Scope of part.

Sec. 15.001 Definitions.

Sec. 15.002 Types of negotiated acquisition.

         Subpart 15.1_Source Selection Processes and Techniques


Sec. 15.100 Scope of subpart.

Sec. 15.101 Best value continuum.

Sec. 15.101-1 Tradeoff process.

Sec. 15.101-2 Lowest price technically acceptable source selection 
          process.

Sec. 15.102 Oral presentations.

   Subpart 15.2_Solicitation and Receipt of Proposals and Information


Sec. 15.200 Scope of subpart.

Sec. 15.201 Exchanges with industry before receipt of proposals.

Sec. 15.202 Advisory multi-step process.

Sec. 15.203 Requests for proposals.

Sec. 15.204 Contract format.

Sec. 15.204-1 Uniform contract format.

                   Table 15-1--Uniform Contract Format


Sec. 15.204-2 Part I--The Schedule.

Sec. 15.204-3 Part II--Contract Clauses.

Sec. 15.204-4 Part III--List of Documents, Exhibits, and Other 
          Attachments.

Sec. 15.204-5 Part IV--Representations and Instructions.

Sec. 15.205 Issuing solicitations.

Sec. 15.206 Amending the solicitation.

Sec. 15.207 Handling proposals and information.

Sec. 15.208 Submission, modification, revision, and withdrawal of 
          proposals.

Sec. 15.209 Solicitation provisions and contract clauses.

Sec. 15.210 Forms.

                      Subpart 15.3_Source Selection


Sec. 15.300 Scope of subpart.

Sec. 15.301 [Reserved]

Sec. 15.302 Source selection objective.

[[Page 292]]


Sec. 15.303 Responsibilities.

Sec. 15.304 Evaluation factors and significant subfactors.

Sec. 15.305 Proposal evaluation.

Sec. 15.306 Exchanges with offerors after receipt of proposals.

Sec. 15.307 Proposal revisions.

Sec. 15.308 Source selection decision.

                      Subpart 15.4_Contract Pricing


Sec. 15.400 Scope of subpart.

Sec. 15.401 Definitions.

Sec. 15.402 Pricing policy.

Sec. 15.403 Obtaining certified cost or pricing data.

Sec. 15.403-1 Prohibition on obtaining certified cost or pricing data 
          (10 U.S.C. 2306a and 41 U.S.C. 254b).

Sec. 15.403-2 Other circumstances where certified cost or pricing data 
          are not required.

Sec. 15.403-3 Requiring data other than certified cost or pricing data.

Sec. 15.403-4 Requiring certified cost or pricing data (10 U.S.C. 2306a 
          and 41 U.S.C. 254b).

Sec. 15.403-5 Instructions for submission of certified cost or pricing 
          data and data other than certified cost or pricing data.

Sec. 15.404 Proposal analysis.

Sec. 15.404-1 Proposal analysis techniques.

Sec. 15.404-2 Data to support proposal analysis.

Sec. 15.404-3 Subcontract pricing considerations.

Sec. 15.404-4 Profit.

Sec. 15.405 Price negotiation.

Sec. 15.406 Documentation.

Sec. 15.406-1 Prenegotiation objectives.

Sec. 15.406-2 Certificate of current cost or pricing data.

Sec. 15.406-3 Documenting the negotiation.

Sec. 15.407 Special cost or pricing areas.

Sec. 15.407-1 Defective certified cost or pricing data.

Sec. 15.407-2 Make-or-buy programs.

Sec. 15.407-3 Forward pricing rate agreements.

Sec. 15.407-4 Should-cost review.

Sec. 15.407-5 Estimating systems.

Sec. 15.408 Solicitation provisions and contract clauses.

Subpart 15.5_Preaward, Award, and Postaward Notifications, Protests, and 
                                Mistakes


Sec. 15.501 Definition.

Sec. 15.502 Applicability.

Sec. 15.503 Notifications to unsuccessful offerors.

Sec. 15.504 Award to successful offeror.

Sec. 15.505 Preaward debriefing of offerors.

Sec. 15.506 Postaward debriefing of offerors.

Sec. 15.507 Protests against award.

Sec. 15.508 Discovery of mistakes.

Sec. 15.509 Forms.

                   Subpart 15.6_Unsolicited Proposals


Sec. 15.600 Scope of subpart.

Sec. 15.601 Definitions.

Sec. 15.602 Policy.

Sec. 15.603 General.

Sec. 15.604 Agency points of contact.

Sec. 15.605 Content of unsolicited proposals.

Sec. 15.606 Agency procedures.

Sec. 15.606-1 Receipt and initial review.

Sec. 15.606-2 Evaluation.

Sec. 15.607 Criteria for acceptance and negotiation of an unsolicited 
          proposal.

Sec. 15.608 Prohibitions.

Sec. 15.609 Limited use of data.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 
20113.

    Source: 62 FR 51230, Sept. 30, 1997, unless otherwise noted.



Sec. 15.000  Scope of part.

    This part prescribes policies and procedures governing competitive 
and noncompetitive negotiated acquisitions. A contract awarded using 
other than sealed bidding procedures is a negotiated contract (see 
14.101).



Sec. 15.001  Definitions.

    As used in this part--
    Deficiency is a material failure of a proposal to meet a Government 
requirement or a combination of significant weaknesses in a proposal 
that increases the risk of unsuccessful contract performance to an 
unacceptable level.
    Proposal modification is a change made to a proposal before the 
solicitation 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 or as allowed by a 
contracting officer, as the result of negotiations.
    Weakness means a flaw in the proposal that increases the risk of 
unsuccessful contract performance. A ``significant weakness'' in the 
proposal is a flaw that appreciably increases the risk of unsuccessful 
contract performance.

[62 FR 51230, Sept. 30, 1997, as amended at 66 FR 2129, Jan. 10, 2001]



Sec. 15.002  Types of negotiated acquisition.

    (a) Sole source acquisitions. When contracting in a sole source 
environment, the request for proposals (RFP) should

[[Page 293]]

be tailored to remove unnecessary information and requirements; e.g., 
evaluation criteria and voluminous proposal preparation instructions.
    (b) Competitive acquisitions. When contracting in a competitive 
environment, the procedures of this part are intended to minimize the 
complexity of the solicitation, the evaluation, and the source selection 
decision, while maintaining a process designed to foster an impartial 
and comprehensive evaluation of offerors' proposals, leading to 
selection of the proposal representing the best value to the Government 
(see 2.101).

         Subpart 15.1_Source Selection Processes and Techniques



Sec. 15.100  Scope of subpart.

    This subpart describes some of the acquisition processes and 
techniques that may be used to design competitive acquisition strategies 
suitable for the specific circumstances of the acquisition.



Sec. 15.101  Best value continuum.

    An agency can obtain best value in negotiated acquisitions by using 
any one or a combination of source selection approaches. In different 
types of acquisitions, the relative importance of cost or price may 
vary. For example, in acquisitions where the requirement is clearly 
definable and the risk of unsuccessful contract performance is minimal, 
cost or price may play a dominant role in source selection. The less 
definitive the requirement, the more development work required, or the 
greater the performance risk, the more technical or past performance 
considerations may play a dominant role in source selection.



Sec. 15.101-1  Tradeoff process.

    (a) A tradeoff process is appropriate when it may be in the best 
interest of the Government to consider award to other than the lowest 
priced offeror or other than the highest technically rated offeror.
    (b) When using a tradeoff process, the following apply:
    (1) All evaluation factors and significant subfactors that will 
affect contract award and their relative importance shall be clearly 
stated in the solicitation; and
    (2) The solicitation shall state whether all evaluation factors 
other than cost or price, when combined, are significantly more 
important than, approximately equal to, or significantly less important 
than cost or price.
    (c) This process permits tradeoffs among cost or price and non-cost 
factors and allows the Government to accept other than the lowest priced 
proposal. The perceived benefits of the higher priced proposal shall 
merit the additional cost, and the rationale for tradeoffs must be 
documented in the file in accordance with 15.406.



Sec. 15.101-2  Lowest price technically acceptable source selection 
          process.

    (a) The lowest price technically acceptable source selection process 
is appropriate when best value is expected to result from selection of 
the technically acceptable proposal with the lowest evaluated price.
    (b) When using the lowest price technically acceptable process, the 
following apply:
    (1) The evaluation factors and significant subfactors that establish 
the requirements of acceptability shall be set forth in the 
solicitation. Solicitations shall specify that award will be made on the 
basis of the lowest evaluated price of proposals meeting or exceeding 
the acceptability standards for non-cost factors. If the contracting 
officer documents the file pursuant to 15.304(c)(3)(iii), past 
performance need not be an evaluation factor in lowest price technically 
acceptable source selections. If the contracting officer elects to 
consider past performance as an evaluation factor, it shall be evaluated 
in accordance with 15.305. However, the comparative assessment in 
15.305(a)(2)(i) does not apply. If the contracting officer determines 
that a small business' past performance is not acceptable, the matter 
shall be referred to the Small Business Administration for a Certificate 
of Competency determination, in accordance with the procedures contained 
in subpart 19.6 and 15 U.S.C. 637(b)(7)).
    (2) Tradeoffs are not permitted.

[[Page 294]]

    (3) Proposals are evaluated for acceptability but not ranked using 
the non-cost/price factors.
    (4) Exchanges may occur (see 15.306).

[62 FR 51230, Sept. 30, 1997, as amended at 64 FR 72443, Dec. 27, 1999; 
74 FR 2746, Jan. 15, 2009]



Sec. 15.102  Oral presentations.

    (a) Oral presentations by offerors as requested by the Government 
may substitute for, or augment, written information. Use of oral 
presentations as a substitute for portions of a proposal can be 
effective in streamlining the source selection process. Oral 
presentations may occur at any time in the acquisition process, and are 
subject to the same restrictions as written information, regarding 
timing (see 15.208) and content (see 15.306). Oral presentations provide 
an opportunity for dialogue among the parties. Pre-recorded videotaped 
presentations that lack real-time interactive dialogue are not 
considered oral presentations for the purposes of this section, although 
they may be included in offeror submissions, when appropriate.
    (b) The solicitation may require each offeror to submit part of its 
proposal through oral presentations. However, representations and 
certifications shall be submitted as required in the FAR provisions at 
52.204-8(d) or 52.212-3(b), and a signed offer sheet (including any 
exceptions to the Government's terms and conditions) shall be submitted 
in writing.
    (c) Information pertaining to areas such as an offeror's capability, 
past performance, work plans or approaches, staffing resources, 
transition plans, or sample tasks (or other types of tests) may be 
suitable for oral presentations. In deciding what information to obtain 
through an oral presentation, consider the following:
    (1) The Government's ability to adequately evaluate the information;
    (2) The need to incorporate any information into the resultant 
contract;
    (3) The impact on the efficiency of the acquisition; and
    (4) The impact (including cost) on small businesses. In considering 
the costs of oral presentations, contracting officers should also 
consider alternatives to on-site oral presentations (e.g., 
teleconferencing, video teleconferencing).
    (d) When oral presentations are required, the solicitation shall 
provide offerors with sufficient information to prepare them. 
Accordingly, the solicitation may describe--
    (1) The types of information to be presented orally and the 
associated evaluation factors that will be used;
    (2) The qualifications for personnel that will be required to 
provide the oral presentation(s);
    (3) The requirements for, and any limitations and/or prohibitions 
on, the use of written material or other media to supplement the oral 
presentations;
    (4) The location, date, and time for the oral presentations;
    (5) The restrictions governing the time permitted for each oral 
presentation; and
    (6) The scope and content of exchanges that may occur between the 
Government's participants and the offeror's representatives as part of 
the oral presentations, including whether or not discussions (see 
15.306(d)) will be permitted during oral presentations.
    (e) The contracting officer shall maintain a record of oral 
presentations to document what the Government relied upon in making the 
source selection decision. The method and level of detail of the record 
(e.g., videotaping, audio tape recording, written record, Government 
notes, copies of offeror briefing slides or presentation notes) shall be 
at the discretion of the source selection authority. A copy of the 
record placed in the file may be provided to the offeror.
    (f) When an oral presentation includes information that the parties 
intend to include in the contract as material terms or conditions, the 
information shall be put in writing. Incorporation by reference of oral 
statements is not permitted.
    (g) If, during an oral presentation, the Government conducts 
discussions (see 15.306(d)), the Government must comply with 15.306 and 
15.307.

[62 FR 51230, Sept. 30, 1997, as amended at 71 FR 57363, Sept. 28, 2006; 
72 FR 63078, Nov. 7, 2007; 73 FR 33638, June 12, 2008; 74 FR 2729, Jan. 
15, 2009]

[[Page 295]]

   Subpart 15.2_Solicitation and Receipt of Proposals and Information



Sec. 15.200  Scope of subpart.

    This subpart prescribes policies and procedures for--
    (a) Exchanging information with industry prior to receipt of 
proposals;
    (b) Preparing and issuing requests for proposals (RFPs) and requests 
for information (RFIs); and
    (c) Receiving proposals and information.



Sec. 15.201  Exchanges with industry before receipt of proposals.

    (a) Exchanges of information among all interested parties, from the 
earliest identification of a requirement through receipt of proposals, 
are encouraged. Any exchange of information must be consistent with 
procurement integrity requirements (see 3.104). Interested parties 
include potential offerors, end users, Government acquisition and 
supporting personnel, and others involved in the conduct or outcome of 
the acquisition.
    (b) The purpose of exchanging information is to improve the 
understanding of Government requirements and industry capabilities, 
thereby allowing potential offerors to judge whether or how they can 
satisfy the Government's requirements, and enhancing the Government's 
ability to obtain quality supplies and services, including construction, 
at reasonable prices, and increase efficiency in proposal preparation, 
proposal evaluation, negotiation, and contract award.
    (c) Agencies are encouraged to promote early exchanges of 
information about future acquisitions. An early exchange of information 
among industry and the program manager, contracting officer, and other 
participants in the acquisition process can identify and resolve 
concerns regarding the acquisition strategy, including proposed contract 
type, terms and conditions, and acquisition planning schedules; the 
feasibility of the requirement, including performance requirements, 
statements of work, and data requirements; the suitability of the 
proposal instructions and evaluation criteria, including the approach 
for assessing past performance information; the availability of 
reference documents; and any other industry concerns or questions. Some 
techniques to promote early exchanges of information are--
    (1) Industry or small business conferences;
    (2) Public hearings;
    (3) Market research, as described in part 10;
    (4) One-on-one meetings with potential offerors (any that are 
substantially involved with potential contract terms and conditions 
should include the contracting officer; also see paragraph (f) of this 
section regarding restrictions on disclosure of information);
    (5) Presolicitation notices;
    (6) Draft RFPs;
    (7) RFIs;
    (8) Presolicitation or preproposal conferences; and
    (9) Site visits.
    (d) The special notices of procurement matters at 5.205(c), or 
electronic notices, may be used to publicize the Government's 
requirement or solicit information from industry.
    (e) RFIs may be used when the Government does not presently intend 
to award a contract, but wants to obtain price, delivery, other market 
information, or capabilities for planning purposes. Responses to these 
notices are not offers and cannot be accepted by the Government to form 
a binding contract. There is no required format for RFIs.
    (f) General information about agency mission needs and future 
requirements may be disclosed at any time. After release of the 
solicitation, the contracting officer must be the focal point of any 
exchange with potential offerors. When specific information about a 
proposed acquisition that would be necessary for the preparation of 
proposals is disclosed to one or more potential offerors, that 
information must be made available to the public as soon as practicable, 
but no later than the next general release of information, in order to 
avoid creating an unfair competitive advantage. Information provided to 
a potential offeror in response to its request must not be disclosed if 
doing so would reveal the potential offeror's confidential business 
strategy, and is protected under 3.104

[[Page 296]]

or subpart 24.2. When conducting a presolicitation or preproposal 
conference, materials distributed at the conference should be made 
available to all potential offerors, upon request.

[62 FR 51230, Sept. 30, 1997, as amended at 67 FR 13056, Mar. 20, 2002]



Sec. 15.202  Advisory multi-step process.

    (a) The agency may publish a presolicitation notice (see 5.204) that 
provides a general description of the scope or purpose of the 
acquisition and invites potential offerors to submit information that 
allows the Government to advise the offerors about their potential to be 
viable competitors. The presolicitation notice should identify the 
information that must be submitted and the criteria that will be used in 
making the initial evaluation. Information sought may be limited to a 
statement of qualifications and other appropriate information (e.g., 
proposed technical concept, past performance, and limited pricing 
information). At a minimum, the notice shall contain sufficient 
information to permit a potential offeror to make an informed decision 
about whether to participate in the acquisition. This process should not 
be used for multi-step acquisitions where it would result in offerors 
being required to submit identical information in response to the notice 
and in response to the initial step of the acquisition.
    (b) The agency shall evaluate all responses in accordance with the 
criteria stated in the notice, and shall advise each respondent in 
writing either that it will be invited to participate in the resultant 
acquisition or, based on the information submitted, that it is unlikely 
to be a viable competitor. The agency shall advise respondents 
considered not to be viable competitors of the general basis for that 
opinion. The agency shall inform all respondents that, notwithstanding 
the advice provided by the Government in response to their submissions, 
they may participate in the resultant acquisition.



Sec. 15.203  Requests for proposals.

    (a) Requests for proposals (RFPs) are used in negotiated 
acquisitions to communicate Government requirements to prospective 
contractors and to solicit proposals. RFPs for competitive acquisitions 
shall, at a minimum, describe the--
    (1) Government's requirement;
    (2) Anticipated terms and conditions that will apply to the 
contract:
    (i) The solicitation may authorize offerors to propose alternative 
terms and conditions, including the contract line item number (CLIN) 
structure; and
    (ii) When alternative CLIN structures are permitted, the evaluation 
approach should consider the potential impact on other terms and 
conditions or the requirement (e.g., place of performance or payment and 
funding requirements) (see 15.206);
    (3) Information required to be in the offeror's proposal; and
    (4) Factors and significant subfactors that will be used to evaluate 
the proposal and their relative importance.
    (b) An RFP may be issued for OMB Circular A-76 studies. See subpart 
7.3 for additional information regarding cost comparisons between 
Government and contractor performance.
    (c) Electronic commerce may be used to issue RFPs and to receive 
proposals, modifications, and revisions. In this case, the RFP shall 
specify the electronic commerce method(s) that offerors may use (see 
subpart 4.5).
    (d) Contracting officers may issue RFPs and/or authorize receipt of 
proposals, modifications, or revisions by facsimile.
    (1) In deciding whether or not to use facsimiles, the contracting 
officer should consider factors such as--
    (i) Anticipated proposal size and volume;
    (ii) Urgency of the requirement;
    (iii) Availability and suitability of electronic commerce methods; 
and
    (iv) Adequacy of administrative procedures and controls for 
receiving, identifying, recording, and safeguarding facsimile proposals, 
and ensuring their timely delivery to the designated proposal delivery 
location.
    (2) If facsimile proposals are authorized, contracting officers may 
request offeror(s) to provide the complete, original signed proposal at 
a later date.
    (e) Letter RFPs may be used in sole source acquisitions and other 
appropriate circumstances. Use of a letter RFP does not relieve the 
contracting

[[Page 297]]

officer from complying with other FAR requirements. Letter RFPs should 
be as complete as possible and, at a minimum, should contain the 
following:
    (1) RFP number and date;
    (2) Name, address (including electronic address and facsimile 
address, if appropriate), and telephone number of the contracting 
officer;
    (3) Type of contract contemplated;
    (4) Quantity, description, and required delivery dates for the item;
    (5) Applicable certifications and representations;
    (6) Anticipated contract terms and conditions;
    (7) Instructions to offerors and evaluation criteria for other than 
sole source actions;
    (8) Proposal due date and time; and
    (9) Other relevant information; e.g., incentives, variations in 
delivery schedule, cost proposal support, and data requirements.
    (f) Oral RFPs are authorized when processing a written solicitation 
would delay the acquisition of supplies or services to the detriment of 
the Government and a notice is not required under 5.202 (e.g., 
perishable items and support of contingency operations or other 
emergency situations). Use of an oral RFP does not relieve the 
contracting officer from complying with other FAR requirements.
    (1) The contract files supporting oral solicitations should 
include--
    (i) A description of the requirement;
    (ii) Rationale for use of an oral solicitation;
    (iii) Sources solicited, including the date, time, name of 
individuals contacted, and prices offered; and
    (iv) The solicitation number provided to the prospective offerors.
    (2) The information furnished to potential offerors under oral 
solicitations should include appropriate items from paragraph (e) of 
this section.



Sec. 15.204  Contract format.

    The use of a uniform contract format facilitates preparation of the 
solicitation and contract as well as reference to, and use of, those 
documents by offerors, contractors, and contract administrators. The 
uniform contract format need not be used for the following:
    (a) Construction and architect-engineer contracts (see part 36).
    (b) Subsistence contracts.
    (c) Supplies or services contracts requiring special contract 
formats prescribed elsewhere in this part that are inconsistent with the 
uniform format.
    (d) Letter requests for proposals (see 15.203(e)).
    (e) Contracts exempted by the agency head or designee.



Sec. 15.204-1  Uniform contract format.

    (a) Contracting officers shall prepare solicitations and resulting 
contracts using the uniform contract format outlined in Table 15-1 of 
this subsection.
    (b) Solicitations using the uniform contract format shall include 
Parts I, II, III, and IV (see 15.204-2 through 15.204-5). Upon award, 
contracting officers shall not physically include Part IV in the 
resulting contract, but shall retain it in the contract file. (See 
4.1201(c).) Section K shall be incorporated by reference in the 
contract.

                   Table 15-1--Uniform Contract Format
------------------------------------------------------------------------
            Section                               Title
------------------------------------------------------------------------
                          Part I--The Schedule
------------------------------------------------------------------------
A..............................  Solicitation/contract form.
B..............................  Supplies or services and prices/costs.
C..............................  Description/specifications/statement of
                                  work.
D..............................  Packaging and marking.
E..............................  Inspection and acceptance.
F..............................  Deliveries or performance.
G..............................  Contract administration data.
H..............................  Special contract requirements.
------------------------------------------------------------------------
                        Part II--Contract Clauses
------------------------------------------------------------------------
I..............................  Contract clauses.
------------------------------------------------------------------------
      Part III--List of Documents, Exhibits, and Other Attachments
------------------------------------------------------------------------
J..............................  List of attachments.
------------------------------------------------------------------------
                Part IV--Representations and Instructions
------------------------------------------------------------------------
K..............................  Representations, certifications, and
                                  other statements of offerors or
                                  respondents.
L..............................  Instructions, conditions, and notices
                                  to offerors or respondents.
M..............................  Evaluation factors for award.
------------------------------------------------------------------------


[62 FR 51230, Sept. 30, 1997, as amended at 71 FR 57363, Sept. 28, 2006]



Sec. 15.204-2  Part I--The Schedule.

    The contracting officer shall prepare the contract Schedule as 
follows:

[[Page 298]]

    (a) Section A, Solicitation/contract form. (1) Optional Form (OF) 
308, Solicitation and Offer-Negotiated Acquisition, or Standard Form 
(SF) 33, Solicitation, Offer and Award, may be used to prepare RFPs.
    (2) When other than OF 308 or SF 33 is used, include the following 
information on the first page of the solicitation:
    (i) Name, address, and location of issuing activity, including room 
and building where proposals or information must be submitted.
    (ii) Solicitation number.
    (iii) Date of issuance.
    (iv) Closing date and time.
    (v) Number of pages.
    (vi) Requisition or other purchase authority.
    (vii) Brief description of item or service.
    (viii) Requirement for the offeror to provide its name and complete 
address, including street, city, county, state, and zip code, and 
electronic address (including facsimile address), if appropriate.
    (ix) Offer expiration date.
    (b) Section B, Supplies or services and prices/costs. Include a 
brief description of the supplies or services; e.g., item number, 
national stock number/part number if applicable, nouns, nomenclature, 
and quantities. (This includes incidental deliverables such as manuals 
and reports.)
    (c) Section C, Description/specifications/statement of work. Include 
any description or specifications needed in addition to Section B (see 
part 11, Describing Agency Needs).
    (d) Section D, Packaging and marking. Provide packaging, packing, 
preservation, and marking requirements, if any.
    (e) Section E, Inspection and acceptance. Include inspection, 
acceptance, quality assurance, and reliability requirements (see part 
46, Quality Assurance).
    (f) Section F, Deliveries or performance. Specify the requirements 
for time, place, and method of delivery or performance (see subpart 
11.4, Delivery or Performance Schedules, and 47.301-1).
    (g) Section G, Contract administration data. Include any required 
accounting and appropriation data and any required contract 
administration information or instructions other than those on the 
solicitation form. Include a statement that the offeror should include 
the payment address in the proposal, if it is different from that shown 
for the offeror.
    (h) Section H, Special contract requirements. Include a clear 
statement of any special contract requirements that are not included in 
Section I, Contract clauses, or in other sections of the uniform 
contract format.



Sec. 15.204-3  Part II--Contract Clauses.

    Section I, Contract clauses. The contracting officer shall include 
in this section the clauses required by law or by this part and any 
additional clauses expected to be included in any resulting contract, if 
these clauses are not required in any other section of the uniform 
contract format. An index may be inserted if this section's format is 
particularly complex.



Sec. 15.204-4  Part III--List of Documents, Exhibits, and Other 
          Attachments.

    Section J, List of attachments. The contracting officer shall list 
the title, date, and number of pages for each attached document, 
exhibit, and other attachment. Cross-references to material in other 
sections may be inserted, as appropriate.



Sec. 15.204-5  Part IV--Representations and Instructions.

    The contracting officer shall prepare the representations and 
instructions as follows:
    (a) Section K, Representations, certifications, and other statements 
of offerors. Include in this section those solicitation provisions that 
require representations, certifications, or the submission of other 
information by offerors.
    (b) Section L, Instructions, conditions, and notices to offerors or 
respondents. Insert in this section solicitation provisions and other 
information and instructions not required elsewhere to guide offerors or 
respondents in preparing proposals or responses to requests for 
information. Prospective offerors or respondents may be instructed to 
submit proposals or information in a specific format or severable parts 
to facilitate evaluation. The

[[Page 299]]

instructions may specify further organization of proposal or response 
parts, such as--
    (1) Administrative;
    (2) Management;
    (3) Technical;
    (4) Past performance; and
    (5) Certified cost or pricing data (see Table 15-2 of 15.408) or 
data other than certified cost or pricing data.
    (c) Section M, Evaluation factors for award. Identify all 
significant factors and any significant subfactors that will be 
considered in awarding the contract and their relative importance (see 
15.304(d)). The contracting officer shall insert one of the phrases in 
15.304(e).

[62 FR 51230, Sept. 30, 1997, as amended at 75 FR 53142, Aug. 30, 2010]



Sec. 15.205  Issuing solicitations.

    (a) The contracting officer shall issue solicitations to potential 
sources in accordance with the policies and procedures in 5.102, 19.202-
4, and part 6.
    (b) A master solicitation, as described in 14.203-3, may also be 
used for negotiated acquisitions.



Sec. 15.206  Amending the solicitation.

    (a) When, either before or after receipt of proposals, the 
Government changes its requirements or terms and conditions, the 
contracting officer shall amend the solicitation.
    (b) Amendments issued before the established time and date for 
receipt of proposals shall be issued to all parties receiving the 
solicitation.
    (c) Amendments issued after the established time and date for 
receipt of proposals shall be issued to all offerors that have not been 
eliminated from the competition.
    (d) If a proposal of interest to the Government involves a departure 
from the stated requirements, the contracting officer shall amend the 
solicitation, provided this can be done without revealing to the other 
offerors the alternate solution proposed or any other information that 
is entitled to protection (see 15.207(b) and 15.306(e)).
    (e) If, in the judgment of the contracting officer, based on market 
research or otherwise, an amendment proposed for issuance after offers 
have been received is so substantial as to exceed what prospective 
offerors reasonably could have anticipated, so that additional sources 
likely would have submitted offers had the substance of the amendment 
been known to them, the contracting officer shall cancel the original 
solicitation and issue a new one, regardless of the stage of the 
acquisition.
    (f) Oral notices may be used when time is of the essence. The 
contracting officer shall document the contract file and formalize the 
notice with an amendment (see subpart 4.5, Electronic Commerce in 
Contracting).
    (g) At a minimum, the following information should be included in 
each amendment:
    (1) Name and address of issuing activity.
    (2) Solicitation number and date.
    (3) Amendment number and date.
    (4) Number of pages.
    (5) Description of the change being made.
    (6) Government point of contact and phone number (and electronic or 
facsimile address, if appropriate).
    (7) Revision to solicitation closing date, if applicable.



Sec. 15.207  Handling proposals and information.

    (a) Upon receipt at the location specified in the solicitation, 
proposals and information received in response to a request for 
information (RFI) shall be marked with the date and time of receipt and 
shall be transmitted to the designated officials.
    (b) Proposals shall be safeguarded from unauthorized disclosure 
throughout the source selection process. (See 3.104 regarding the 
disclosure of source selection information (41 U.S.C. 423)). Information 
received in response to an RFI shall be safeguarded adequately from 
unauthorized disclosure.
    (c) If any portion of a proposal received by the contracting officer 
electronically or by facsimile is unreadable, the contracting officer 
immediately shall notify the offeror and permit the offeror to resubmit 
the unreadable portion of the proposal. The method and time for 
resubmission shall be prescribed by the contracting officer after 
consultation with the offeror, and

[[Page 300]]

documented in the file. The resubmission shall be considered as if it 
were received at the date and time of the original unreadable submission 
for the purpose of determining timeliness under 15.208(a), provided the 
offeror complies with the time and format requirements for resubmission 
prescribed by the contracting officer.



Sec. 15.208  Submission, modification, revision, and withdrawal of 
          proposals.

    (a) Offerors are responsible for submitting proposals, and any 
revisions, and modifications, so as to reach the Government office 
designated in the solicitation by the time specified in the 
solicitation. Offerors may use any transmission method authorized by the 
solicitation (i.e., regular mail, electronic commerce, or facsimile). If 
no time is specified in the solicitation, the time for receipt is 4:30 
p.m., local time, for the designated Government office on the date that 
proposals are due.
    (b)(1) Any proposal, modification, or revision, that is received at 
the designated Government office after the exact time specified for 
receipt of proposals is ``late'' and will not be considered unless it is 
received before award is made, the contracting officer determines that 
accepting the late proposal would not unduly delay the acquisition; 
and--
    (i) If it was transmitted through an electronic commerce method 
authorized by the solicitation, it was received at the initial point of 
entry to the Government infrastructure not later than 5:00 p.m. one 
working day prior to the date specified for receipt of proposals; or
    (ii) There is acceptable evidence to establish that it was received 
at the Government installation designated for receipt of proposals and 
was under the Government's control prior to the time set for receipt of 
proposals; or
    (iii) It was the only proposal received.
    (2) However, a late modification 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.
    (c) 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.
    (d) If an emergency or unanticipated event interrupts normal 
Government processes so that proposals cannot be received at the 
Government office designated for receipt of proposals by the exact time 
specified in the solicitation, and urgent Government requirements 
preclude amendment of the solicitation 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 on the first work day on which 
normal Government processes resume.
    (e) Proposals may be withdrawn by written notice at any time before 
award. Oral proposals in response to oral solicitations may be withdrawn 
orally. The contracting officer must document the contract file when 
oral withdrawals are made. One copy of withdrawn proposals should be 
retained in the contract file (see 4.803(a)(10)). Extra copies of the 
withdrawn proposals may be destroyed or returned to the offeror at the 
offerors request. Where practicable, electronically transmitted 
proposals that are withdrawn must be purged from primary and backup data 
storage systems after a copy is made for the file. Extremely bulky 
proposals must only be returned at the offeror's request and expense.
    (f) The contracting officer must promptly notify any offeror if its 
proposal, modification, or revision was received late, and must inform 
the offeror whether its proposal will be considered, unless contract 
award is imminent and the notice prescribed in 15.503(b) would suffice.
    (g) Late proposals and modifications that are not considered must be 
held unopened, unless opened for identification, until after award and 
then retained with other unsuccessful proposals.
    (h) If available, the following must be included in the contracting 
office files for each late proposal, modification, revision, or 
withdrawal:
    (1) The date and hour of receipt.

[[Page 301]]

    (2) A statement regarding whether the proposal was considered for 
award, with supporting rationale.
    (3) The envelope, wrapper, or other evidence of date of receipt.

[64 FR 51839, Sept. 24, 1999, as amended at 64 FR 72451, Dec. 27, 1999]



Sec. 15.209  Solicitation provisions and contract clauses.

    When contracting by negotiation--
    (a) The contracting officer shall insert the provision at 52.215-1, 
Instructions to Offerors--Competitive Acquisition, in all competitive 
solicitations where the Government intends to award a contract without 
discussions.
    (1) If the Government intends to make award after discussions with 
offerors within the competitive range, the contracting officer shall use 
the basic provision with its Alternate I.
    (2) If the Government would be willing to accept alternate 
proposals, the contracting officer shall alter the basic clause to add a 
paragraph (c)(9) substantially the same as Alternate II.
    (b)(1) Except as provided in paragraph (b)(2) of this section, the 
contracting officer shall insert the clause at 52.215-2, Audit and 
Records-Negotiation (10 U.S.C. 2313, 41 U.S.C. 254d, and OMB Circular 
No. A-133), in solicitations and contracts except those for--
    (i) Acquisitions not exceeding the simplified acquisition threshold;
    (ii) The acquisition of utility services at rates not exceeding 
those established to apply uniformly to the general public, plus any 
applicable reasonable connection charge; or
    (iii) The acquisition of commercial items exempted under 15.403-1.
    (2)(i) When using funds appropriated or otherwise made available by 
the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5)--
    (A) The exceptions in paragraphs (b)(1)(i) through (b)(1)(iii) are 
not applicable; and
    (B) Use the clause with its Alternate I.
    (ii)(A) In the case of a bilateral contract modification that will 
use funds appropriated or otherwise made available by the American 
Recovery and Reinvestment Act of 2009, the contracting officer shall 
specify applicability of Alternate I to that modification.
    (B) In the case of a task- or delivery-order contract in which not 
all orders will use funds appropriated or otherwise made available by 
the American Recovery and Reinvestment Act of 2009, the contracting 
officer shall specify the task or delivery orders to which Alternate I 
applies.
    (3) For cost-reimbursement contracts with State and local 
Governments, educational institutions, and other nonprofit 
organizations, the contracting officer shall use the clause with its 
Alternate II.
    (4) When the head of the agency has waived the examination of 
records by the Comptroller General in accordance with 25.1001, use the 
clause with its Alternate III.
    (c) When issuing a solicitation for information or planning 
purposes, the contracting officer shall insert the provision at 52.215-
3, Request for Information or Solicitation for Planning Purposes, and 
clearly mark on the face of the solicitation that it is for information 
or planning purposes.
    (d) [Reserved]
    (f) The contracting officer shall insert the provision at 52.215-6, 
Place of Performance, in solicitations unless the place of performance 
is specified by the Government.
    (g) [Reserved]
    (h) The contracting officer shall insert the clause at 52.215-8, 
Order of Precedence--Uniform Contract Format, in solicitations and 
contracts using the format at 15.204.

[62 FR 51230, Sept. 30, 1997, as amended at 63 FR 9055, Feb. 23, 1998; 
63 FR 58589, Oct. 30, 1998; 64 FR 72418, Dec. 27, 1999; 69 FR 76346, 
Dec. 20, 2004; 72 FR 27384, May 15, 2007; 74 FR 14648, Mar. 31, 2009; 75 
FR 34281, June 16, 2010]



Sec. 15.210  Forms.

    Prescribed forms are not required to prepare solicitations described 
in this part. The following forms may be used at the discretion of the 
contracting officer:
    (a) Standard Form 33, Solicitation, Offer, and Award, and Optional 
Form 308, Solicitation and Offer--Negotiated Acquisition, may be used to 
issue RFPs and RFIs.
    (b) Standard Form 30, Amendment of Solicitation/Modification of 
Contract, and Optional Form 309, Amendment of

[[Page 302]]

Solicitation, may be used to amend solicitations of negotiated 
contracts.
    (c) Optional Form 17, Offer Label, may be furnished with each 
request for proposal.

                      Subpart 15.3_Source Selection



Sec. 15.300  Scope of subpart.

    This subpart prescribes policies and procedures for selection of a 
source or sources in competitive negotiated acquisitions.



Sec. 15.301  [Reserved]



Sec. 15.302  Source selection objective.

    The objective of source selection is to select the proposal that 
represents the best value.



Sec. 15.303  Responsibilities.

    (a) Agency heads are responsible for source selection. The 
contracting officer is designated as the source selection authority, 
unless the agency head appoints another individual for a particular 
acquisition or group of acquisitions.
    (b) The source selection authority shall--
    (1) Establish an evaluation team, tailored for the particular 
acquisition, that includes appropriate contracting, legal, logistics, 
technical, and other expertise to ensure a comprehensive evaluation of 
offers;
    (2) Approve the source selection strategy or acquisition plan, if 
applicable, before solicitation release;
    (3) Ensure consistency among the solicitation requirements, notices 
to offerors, proposal preparation instructions, evaluation factors and 
subfactors, solicitation provisions or contract clauses, and data 
requirements;
    (4) Ensure that proposals are evaluated based solely on the factors 
and subfactors contained in the solicitation (10 U.S.C. 2305(b)(1) and 
41 U.S.C. 253b(d)(3));
    (5) Consider the recommendations of advisory boards or panels (if 
any); and
    (6) Select the source or sources whose proposal is the best value to 
the Government (10 U.S.C. 2305(b)(4)(B) and 41 U.S.C. 253b(d)(3)).
    (c) The contracting officer shall--
    (1) After release of a solicitation, serve as the focal point for 
inquiries from actual or prospective offerors;
    (2) After receipt of proposals, control exchanges with offerors in 
accordance with 15.306; and
    (3) Award the contract(s).



Sec. 15.304  Evaluation factors and significant subfactors.

    (a) The award decision is based on evaluation factors and 
significant subfactors that are tailored to the acquisition.
    (b) Evaluation factors and significant subfactors must--
    (1) Represent the key areas of importance and emphasis to be 
considered in the source selection decision; and
    (2) Support meaningful comparison and discrimination between and 
among competing proposals.
    (c) The evaluation factors and significant subfactors that apply to 
an acquisition and their relative importance are within the broad 
discretion of agency acquisition officials, subject to the following 
requirements:
    (1) Price or cost to the Government shall be evaluated in every 
source selection (10 U.S.C. 2305(a)(3)(A) (ii) and 41 U.S.C. 
253a(c)(1)(B)) (also see part 36 for architect-engineer contracts);
    (2) The quality of the product or service shall be addressed in 
every source selection through consideration of one or more non-cost 
evaluation factors such as past performance, compliance with 
solicitation requirements, technical excellence, management capability, 
personnel qualifications, and prior experience (10 U.S.C. 2305(a)(3) 
(A)(i) and 41 U.S.C. 253a(c)(1)(A)); and
    (3)(i) Except as set forth in paragraph (c)(3)(iii) of this section, 
past performance shall be evaluated in all source selections for 
negotiated competitive acquisitions expected to exceed the simplified 
acquisition threshold.
    (ii) For solicitations involving bundling that offer a significant 
opportunity for subcontracting, the contracting officer must include a 
factor to evaluate past performance indicating the extent to which the 
offeror attained applicable goals for small business participation under 
contracts that required subcontracting plans (15 U.S.C. 
637(d)(4)(G)(ii)).

[[Page 303]]

    (iii) Past performance need not be evaluated if the contracting 
officer documents the reason past performance is not an appropriate 
evaluation factor for the acquisition.
    (4) The extent of participation of small disadvantaged business 
concerns in performance of the contract shall be evaluated in 
unrestricted acquisitions expected to exceed $650,000 ($1.5 million for 
construction) subject to certain limitations (see 19.201 and 19.1202).
    (5) For solicitations involving bundling that offer a significant 
opportunity for subcontracting, the contracting officer must include 
proposed small business subcontracting participation in the 
subcontracting plan as an evaluation factor (15 U.S.C. 637(d)(4)(G)(i)).
    (6) If telecommuting is not prohibited, agencies shall not 
unfavorably evaluate an offer that includes telecommuting unless the 
contracting officer executes a written determination in accordance with 
FAR 7.108(b).
    (d) All factors and significant subfactors that will affect contract 
award and their relative importance shall be stated clearly in the 
solicitation (10 U.S.C. 2305(a)(2)(A)(i) and 41 U.S.C. 253a(b)(1)(A)) 
(see 15.204-5(c)). The rating method need not be disclosed in the 
solicitation. The general approach for evaluating past performance 
information shall be described.
    (e) The solicitation shall also state, at a minimum, whether all 
evaluation factors other than cost or price, when combined, are--
    (1) Significantly more important than cost or price;
    (2) Approximately equal to cost or price; or
    (3) Significantly less important than cost or price (10 U.S.C. 
2305(a)(3)(A)(iii) and 41 U.S.C. 253a(c)(1)(C)).

[62 FR 51230, Sept. 30, 1997, as amended at 63 FR 36121, July 1, 1998; 
64 FR 72443, Dec. 27, 1999; 65 FR 36014, June 6, 2000; 69 FR 59702, Oct. 
5, 2004; 71 FR 57366, Sept. 28, 2006; 75 FR 53133, Aug. 30, 2010]



Sec. 15.305  Proposal evaluation.

    (a) Proposal evaluation is an assessment of the proposal and the 
offeror's ability to perform the prospective contract successfully. An 
agency shall evaluate competitive proposals and then assess their 
relative qualities solely on the factors and subfactors specified in the 
solicitation. Evaluations may be conducted using any rating method or 
combination of methods, including color or adjectival ratings, numerical 
weights, and ordinal rankings. The relative strengths, deficiencies, 
significant weaknesses, and risks supporting proposal evaluation shall 
be documented in the contract file.
    (1) Cost or price evaluation. Normally, competition establishes 
price reasonableness. Therefore, when contracting on a firm-fixed-price 
or fixed-price with economic price adjustment basis, comparison of the 
proposed prices will usually satisfy the requirement to perform a price 
analysis, and a cost analysis need not be performed. In limited 
situations, a cost analysis (see 15.403-1(c)(1)(i)(B)) may be 
appropriate to establish reasonableness of the otherwise successful 
offeror's price. When contracting on a cost-reimbursement basis, 
evaluations shall include a cost realism analysis to determine what the 
Government should realistically expect to pay for the proposed effort, 
the offeror's understanding of the work, and the offeror's ability to 
perform the contract. Cost realism analyses may also be used on fixed-
price incentive contracts or, in exceptional cases, on other competitive 
fixed-price-type contracts (see 15.404-1(d)(3)). (See 37.115 for 
uncompensated overtime evaluation.) The contracting officer shall 
document the cost or price evaluation.
    (2) Past performance evaluation. (i) Past performance information is 
one indicator of an offeror's ability to perform the contract 
successfully. The currency and relevance of the information, source of 
the information, context of the data, and general trends in contractor's 
performance shall be considered. This comparative assessment of past 
performance information is separate from the responsibility 
determination required under subpart 9.1.
    (ii) The solicitation shall describe the approach for evaluating 
past performance, including evaluating offerors with no relevant 
performance history, and shall provide offerors an opportunity to 
identify past or current contracts (including Federal, State, and

[[Page 304]]

local government and private) for efforts similar to the Government 
requirement. The solicitation shall also authorize offerors to provide 
information on problems encountered on the identified contracts and the 
offeror corrective actions. The Government shall consider this 
information, as well as information obtained from any other sources, 
when evaluating the offeror past performance. The source selection 
authority shall determine the relevance of similar past performance 
information.
    (iii) The evaluation should take into account past performance 
information regarding predecessor companies, key personnel who have 
relevant experience, or subcontractors that will perform major or 
critical aspects of the requirement when such information is relevant to 
the instant acquisition.
    (iv) In the case of an offeror without a record of relevant past 
performance or for whom information on past performance is not 
available, the offeror may not be evaluated favorably or unfavorably on 
past performance.
    (v) The evaluation should include the past performance of offerors 
in complying with subcontracting plan goals for small disadvantaged 
business (SDB) concerns (see Subpart 19.7), monetary targets for SDB 
participation (see 19.1202), and notifications submitted under 19.1202-
4(b).
    (3) Technical evaluation. When tradeoffs are performed (see 15.101-
1), the source selection records shall include--
    (i) An assessment of each offeror's ability to accomplish the 
technical requirements; and
    (ii) A summary, matrix, or quantitative ranking, along with 
appropriate supporting narrative, of each technical proposal using the 
evaluation factors.
    (4) Cost information. Cost information may be provided to members of 
the technical evaluation team in accordance with agency procedures.
    (5) Small business subcontracting evaluation. Solicitations must be 
structured to give offers from small business concerns the highest 
rating for the evaluation factors in 15.304(c)(3)(ii) and (c)(5).
    (b) The source selection authority may reject all proposals received 
in response to a solicitation, if doing so is in the best interest of 
the Government.
    (c) For restrictions on the use of support contractor personnel in 
proposal evaluation, see 37.203(d).

[62 FR 51230, Sept. 30, 1997, as amended at 63 FR 36121, July 1, 1998; 
64 FR 51842, 51850, Sept. 24, 1999; 65 FR 46054, July 26, 2000; 74 FR 
65615, Dec. 10, 2009]



Sec. 15.306  Exchanges with offerors after receipt of proposals.

    (a) Clarifications and award without discussions. (1) Clarifications 
are limited exchanges, between the Government and offerors, that may 
occur when award without discussions is contemplated.
    (2) If award will be made without conducting discussions, offerors 
may be given the opportunity to clarify certain aspects of proposals 
(e.g., the relevance of an offeror's past performance information and 
adverse past performance information to which the offeror has not 
previously had an opportunity to respond) or to resolve minor or 
clerical errors.
    (3) Award may be made without discussions if the solicitation states 
that the Government intends to evaluate proposals and make award without 
discussions. If the solicitation contains such a notice and the 
Government determines it is necessary to conduct discussions, the 
rationale for doing so shall be documented in the contract file (see the 
provision at 52.215-1) (10 U.S.C. 2305(b)(4)(A)(ii) and 41 U.S.C. 
253b(d)(1)(B)).
    (b) Communications with offerors before establishment of the 
competitive range. Communications are exchanges, between the Government 
and offerors, after receipt of proposals, leading to establishment of 
the competitive range. If a competitive range is to be established, 
these communications--
    (1) Shall be limited to the offerors described in paragraphs 
(b)(1)(i) and (b)(1)(ii) of this section and--
    (i) Shall be held with offerors whose past performance information 
is the determining factor preventing them from being placed within the 
competitive range. Such communications shall address adverse past 
performance information to which an offeror has not had a prior 
opportunity to respond; and

[[Page 305]]

    (ii) May only be held with those offerors (other than offerors under 
paragraph (b)(1)(i) of this section) whose exclusion from, or inclusion 
in, the competitive range is uncertain;
    (2) May be conducted to enhance Government understanding of 
proposals; allow reasonable interpretation of the proposal; or 
facilitate the Government's evaluation process. Such communications 
shall not be used to cure proposal deficiencies or material omissions, 
materially alter the technical or cost elements of the proposal, and/or 
otherwise revise the proposal. Such communications may be considered in 
rating proposals for the purpose of establishing the competitive range;
    (3) Are for the purpose of addressing issues that must be explored 
to determine whether a proposal should be placed in the competitive 
range. Such communications shall not provide an opportunity for the 
offeror to revise its proposal, but may address--
    (i) Ambiguities in the proposal or other concerns (e.g., perceived 
deficiencies, weaknesses, errors, omissions, or mistakes (see 14.407)); 
and
    (ii) Information relating to relevant past performance; and
    (4) Shall address adverse past performance information to which the 
offeror has not previously had an opportunity to comment.
    (c) Competitive range. (1) Agencies shall evaluate all proposals in 
accordance with 15.305(a), and, if discussions are to be conducted, 
establish the competitive range. Based on the ratings of each proposal 
against all evaluation criteria, the contracting officer shall establish 
a competitive range comprised of all of the most highly rated proposals, 
unless the range is further reduced for purposes of efficiency pursuant 
to paragraph (c)(2) of this section.
    (2) After evaluating all proposals in accordance with 15.305(a) and 
paragraph (c)(1) of this section, the contracting officer may determine 
that the number of most highly rated proposals that might otherwise be 
included in the competitive range exceeds the number at which an 
efficient competition can be conducted. Provided the solicitation 
notifies offerors that the competitive range can be limited for purposes 
of efficiency (see 52.215-1(f)(4)), 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 (10 U.S.C. 2305(b)(4) and 41 U.S.C. 253b(d)).
    (3) If the contracting officer, after complying with paragraph 
(d)(3) of this section, decides that an offeror's proposal should no 
longer be included in the competitive range, the proposal shall be 
eliminated from consideration for award. Written notice of this decision 
shall be provided to unsuccessful offerors in accordance with 15.503.
    (4) Offerors excluded or otherwise eliminated from the competitive 
range may request a debriefing (see 15.505 and 15.506).
    (d) Exchanges with offerors after establishment of the competitive 
range. Negotiations are exchanges, in either a competitive or sole 
source environment, between the Government and offerors, that are 
undertaken with the intent of allowing the offeror to revise its 
proposal. These negotiations may include bargaining. Bargaining includes 
persuasion, alteration of assumptions and positions, give-and-take, and 
may apply to price, schedule, technical requirements, type of contract, 
or other terms of a proposed contract. When negotiations are conducted 
in a competitive acquisition, they take place after establishment of the 
competitive range and are called discussions.
    (1) Discussions are tailored to each offeror's proposal, and must be 
conducted by the contracting officer with each offeror within the 
competitive range.
    (2) The primary objective of discussions is to maximize the 
Government's ability to obtain best value, based on the requirement and 
the evaluation factors set forth in the solicitation.
    (3) At a minimum, the contracting officer must, subject to 
paragraphs (d)(5) and (e) of this section and 15.307(a), indicate to, or 
discuss with, each offeror still being considered for award, 
deficiencies, significant weaknesses, and adverse past performance 
information to which the offeror has not yet had an opportunity to 
respond.

[[Page 306]]

The contracting officer also is encouraged to discuss other aspects of 
the offeror's proposal that could, in the opinion of the contracting 
officer, be altered or explained to enhance materially the proposal's 
potential for award. However, the contracting officer is not required to 
discuss every area where the proposal could be improved. The scope and 
extent of discussions are a matter of contracting officer judgment.
    (4) In discussing other aspects of the proposal, the Government may, 
in situations where the solicitation stated that evaluation credit would 
be given for technical solutions exceeding any mandatory minimums, 
negotiate with offerors for increased performance beyond any mandatory 
minimums, and the Government may suggest to offerors that have exceeded 
any mandatory minimums (in ways that are not integral to the design), 
that their proposals would be more competitive if the excesses were 
removed and the offered price decreased.
    (5) If, after discussions have begun, an offeror originally in the 
competitive range is no longer considered to be among the most highly 
rated offerors being considered for award, that offeror may be 
eliminated from the competitive range whether or not all material 
aspects of the proposal have been discussed, or whether or not the 
offeror has been afforded an opportunity to submit a proposal revision 
(see 15.307(a) and 15.503(a)(1)).
    (e) Limits on exchanges. Government personnel involved in the 
acquisition shall not engage in conduct that--
    (1) Favors one offeror over another;
    (2) Reveals an offeror's technical solution, including unique 
technology, innovative and unique uses of commercial items, or any 
information that would compromise an offeror's intellectual property to 
another offeror;
    (3) Reveals an offerors price without that offeror's permission. 
However, the contracting officer may inform an offeror that its price is 
considered by the Government to be too high, or too low, and reveal the 
results of the analysis supporting that conclusion. It is also 
permissible, at the Government's discretion, to indicate to all offerors 
the cost or price that the Government's price analysis, market research, 
and other reviews have identified as reasonable (41 U.S.C. 
423(h)(1)(2));
    (4) Reveals the names of individuals providing reference information 
about an offeror's past performance; or
    (5) Knowingly furnishes source selection information in violation of 
3.104 and 41 U.S.C. 423(h)(1)(2).

[62 FR 51230, Sept. 30, 1997, as amended at 66 FR 65369, Dec. 18, 2001]



Sec. 15.307  Proposal revisions.

    (a) If an offerors proposal is eliminated or otherwise removed from 
the competitive range, no further revisions to that offeror's proposal 
shall be accepted or considered.
    (b) The contracting officer may request or allow proposal revisions 
to clarify and document understandings reached during negotiations. At 
the conclusion of discussions, each offeror still in the competitive 
range shall be given an opportunity to submit a final proposal revision. 
The contracting officer is required to establish a common cut-off date 
only for receipt of final proposal revisions. Requests for final 
proposal revisions shall advise offerors that the final proposal 
revisions shall be in writing and that the Government intends to make 
award without obtaining further revisions.



Sec. 15.308  Source selection decision.

    The source selection authority's (SSA) decision shall be based on a 
comparative assessment of proposals against all source selection 
criteria in the solicitation. While the SSA may use reports and analyses 
prepared by others, the source selection decision shall represent the 
SSA's independent judgment. The source selection decision shall be 
documented, and the documentation shall include the rationale for any 
business judgments and tradeoffs made or relied on by the SSA, including 
benefits associated with additional costs. Although the rationale for 
the selection decision must be documented, that documentation need not 
quantify the tradeoffs that led to the decision.

[[Page 307]]

                      Subpart 15.4_Contract Pricing



Sec. 15.400  Scope of subpart.

    This subpart prescribes the cost and price negotiation policies and 
procedures for pricing negotiated prime contracts (including 
subcontracts) and contract modifications, including modifications to 
contracts awarded by sealed bidding.



Sec. 15.401  Definitions.

    As used in this subpart--
    Price means cost plus any fee or profit applicable to the contract 
type.
    Subcontract (except as used in 15.407-2) also includes a transfer of 
commercial items between divisions, subsidiaries, or affiliates of a 
contractor or a subcontractor (10 U.S.C. 2306a(h)(2) and 41 U.S.C. 
254b(h)(2)).

[62 FR 51230, Sept. 30, 1997, as amended at 66 FR 2129, Jan. 10, 2001; 
66 FR 65369, Dec. 18, 2001]



Sec. 15.402  Pricing policy.

    Contracting officers shall--
    (a) Purchase supplies and services from responsible sources at fair 
and reasonable prices. In establishing the reasonableness of the offered 
prices, the contracting officer--
    (1) Shall obtain certified cost or pricing data when required by 
15.403-4, along with data other than certified cost or pricing data as 
necessary to establish a fair and reasonable price; or
    (2) When certified cost or pricing data are not required by 15.403-
4, shall obtain data other than certified cost or pricing data as 
necessary to establish a fair and reasonable price, generally using the 
following order of preference in determining the type of data required:
    (i) No additional data from the offeror, if the price is based on 
adequate price competition, except as provided by 15.403-3(b).
    (ii) Data other than certified cost or pricing data such as--
    (A) Data related to prices (e.g., established catalog or market 
prices, sales to non-governmental and governmental entities), relying 
first on data available within the Government; second, on data obtained 
from sources other than the offeror; and, if necessary, on data obtained 
from the offeror. When obtaining data from the offeror is necessary, 
unless an exception under 15.403-1(b)(1) or (2) applies, such data 
submitted by the offeror shall include, at a minimum, appropriate data 
on the prices at which the same or similar items have been sold 
previously, adequate for evaluating the reasonableness of the price.
    (B) Cost data to the extent necessary for the contracting officer to 
determine a fair and reasonable price.
    (3) Obtain the type and quantity of data necessary to establish a 
fair and reasonable price, but not more data than is necessary. 
Requesting unnecessary data can lead to increased proposal preparation 
costs, generally extend acquisition lead time, and consume additional 
contractor and Government resources. Use techniques such as, but not 
limited to, price analysis, cost analysis, and/or cost realism analysis 
to establish a fair and reasonable price. If a fair and reasonable price 
cannot be established by the contracting officer from the analyses of 
the data obtained or submitted to date, the contracting officer shall 
require the submission of additional data sufficient for the contracting 
officer to support the determination of the fair and reasonable price.
    (b) Price each contract separately and independently and not--
    (1) Use proposed price reductions under other contracts as an 
evaluation factor; or
    (2) Consider losses or profits realized or anticipated under other 
contracts.
    (c) Not include in a contract price any amount for a specified 
contingency to the extent that the contract provides for a price 
adjustment based upon the occurrence of that contingency.

[62 FR 51230, Sept. 30, 1997, as amended at 66 FR 2129, Jan. 10, 2001; 
75 FR 53142, Aug. 30, 2010; 77 FR 204, Jan. 3, 2012]



Sec. 15.403  Obtaining certified cost or pricing data.



Sec. 15.403-1  Prohibition on obtaining certified cost or pricing data 
          (10 U.S.C. 2306a and 41 U.S.C. 254b).

    (a) Certified cost or pricing data shall not be obtained for 
acquisitions at or below the simplified acquisition threshold.

[[Page 308]]

    (b) Exceptions to certified cost or pricing data requirements. The 
contracting officer shall not require certified cost or pricing data to 
support any action (contracts, subcontracts, or modifications) (but may 
require data other than certified cost or pricing data as defined in FAR 
2.101 to support a determination of a fair and reasonable price or cost 
realism)--
    (1) When the contracting officer determines that prices agreed upon 
are based on adequate price competition (see standards in paragraph 
(c)(1) of this subsection);
    (2) When the contracting officer determines that prices agreed upon 
are based on prices set by law or regulation (see standards in paragraph 
(c)(2) of this subsection);
    (3) When a commercial item is being acquired (see standards in 
paragraph (c)(3) of this subsection);
    (4) When a waiver has been granted (see standards in paragraph 
(c)(4) of this subsection); or
    (5) When modifying a contract or subcontract for commercial items 
(see standards in paragraph (c)(3) of this subsection).
    (c) Standards for exceptions from certified cost or pricing data 
requirements--(1) Adequate price competition. A price is based on 
adequate price competition if--
    (i) Two or more responsible offerors, competing independently, 
submit priced offers that satisfy the Government's expressed requirement 
and if--
    (A) Award will be made to the offeror whose proposal represents the 
best value (see 2.101) where price is a substantial factor in source 
selection; and
    (B) There is no finding that the price of the otherwise successful 
offeror is unreasonable. Any finding that the price is unreasonable must 
be supported by a statement of the facts and approved at a level above 
the contracting officer;
    (ii) There was a reasonable expectation, based on market research or 
other assessment, that two or more responsible offerors, competing 
independently, would submit priced offers in response to the 
solicitation's expressed requirement, even though only one offer is 
received from a responsible offeror and if--
    (A) Based on the offer received, the contracting officer can 
reasonably conclude that the offer was submitted with the expectation of 
competition, e.g., circumstances indicate that--
    (1) The offeror believed that at least one other offeror was capable 
of submitting a meaningful offer; and
    (2) The offeror had no reason to believe that other potential 
offerors did not intend to submit an offer; and
    (B) The determination that the proposed price is based on adequate 
price competition and is reasonable has been approved at a level above 
the contracting officer; or
    (iii) Price analysis clearly demonstrates that the proposed price is 
reasonable in comparison with current or recent prices for the same or 
similar items, adjusted to reflect changes in market conditions, 
economic conditions, quantities, or terms and conditions under contracts 
that resulted from adequate price competition.
    (2) Prices set by law or regulation. Pronouncements in the form of 
periodic rulings, reviews, or similar actions of a governmental body, or 
embodied in the laws, are sufficient to set a price.
    (3) Commercial items. (i) Any acquisition of an item that the 
contracting officer determines meets the commercial item definition in 
2.101, or any modification, as defined in paragraph (3)(i) of that 
definition, that does not change the item from a commercial item to a 
noncommercial item, is exempt from the requirement for certified cost or 
pricing data. If the contracting officer determines that an item claimed 
to be commercial is, in fact, not commercial and that no other exception 
or waiver applies, (e.g. the acquisition is not based on adequate price 
competition; the acquisition is not based on prices set by law or 
regulation; and the acquisition exceeds the threshold for the submission 
of certified cost or pricing data at 15.403-4(a)(1)) the contracting 
officer shall require submission of certified cost or pricing data.
    (ii) In accordance with section 868 of Pub. L. 110-417:
    (A) When purchasing services that are not offered and sold 
competitively in substantial quantities in the commercial marketplace, 
but are of a type

[[Page 309]]

offered and sold competitively in substantial quantities in the 
commercial marketplace, they may be considered commercial items (thus 
meeting the purpose of 41 U.S.C 254b and 10 U.S.C. 2306a for truth in 
negotiations) only if the contracting officer determines in writing that 
the offeror has submitted sufficient information to evaluate, through 
price analysis, the reasonableness of the price of such services.
    (B) In order to make this determination, the contracting officer may 
request the offeror to submit prices paid for the same or similar 
commercial items under comparable terms and conditions by both 
Government and commercial customers; and
    (C) If the contracting officer determines that the information 
described in paragraph (c)(3)(ii)(B) of this section is not sufficient 
to determine the reasonableness of price, other relevant information 
regarding the basis for price or cost, including information on labor 
costs, material costs and overhead rates may be requested.
    (iii) The following requirements apply to minor modifications 
defined in paragraph (3)(ii) of the definition of a commercial item at 
2.101 that do not change the item from a commercial item to a 
noncommercial item:
    (A) For acquisitions funded by any agency other than DoD, NASA, or 
Coast Guard, such modifications of a commercial item are exempt from the 
requirement for submission of certified cost or pricing data.
    (B) For acquisitions funded by DoD, NASA, or Coast Guard, such 
modifications of a commercial item are exempt from the requirement for 
submission of certified cost or pricing data provided the total price of 
all such modifications under a particular contract action does not 
exceed the greater of the threshold for obtaining certified cost or 
pricing data in 15.403-4 or 5 percent of the total price of the contract 
at the time of contract award.
    (C) For acquisitions funded by DoD, NASA, or Coast Guard such 
modifications of a commercial item are not exempt from the requirement 
for submission of certified cost or pricing data on the basis of the 
exemption provided for at 15.403-1(c)(3) if the total price of all such 
modifications under a particular contract action exceeds the greater of 
the threshold for obtaining certified cost or pricing data in 15.403-4 
or 5 percent of the total price of the contract at the time of contract 
award.
    (iv) Any acquisition for noncommercial supplies or services treated 
as commercial items at 12.102(f)(1), except sole source contracts 
greater than $17.5 million, is exempt from the requirements for 
certified cost or pricing data (41 U.S.C. 428a).
    (4) Waivers. The head of the contracting activity (HCA) may, without 
power of delegation, waive the requirement for submission of certified 
cost or pricing data in exceptional cases. The authorization for the 
waiver and the supporting rationale shall be in writing. The HCA may 
consider waiving the requirement if the price can be determined to be 
fair and reasonable without submission of certified cost or pricing 
data. For example, if certified cost or pricing data were furnished on 
previous production buys and the contracting officer determines such 
data are sufficient, when combined with updated data, a waiver may be 
granted. If the HCA has waived the requirement for submission of 
certified cost or pricing data, the contractor or higher-tier 
subcontractor to whom the waiver relates shall be considered as having 
been required to provide certified cost or pricing data. Consequently, 
award of any lower-tier subcontract expected to exceed the certified 
cost or pricing data threshold requires the submission of certified cost 
or pricing data unless--
    (i) An exception otherwise applies to the subcontract; or
    (ii) The waiver specifically includes the subcontract and the 
rationale supporting the waiver for that subcontract.

[62 FR 51230, Sept. 30, 1997, as amended at 64 FR 10545, Mar. 4, 1999; 
64 FR 51836, Sept. 24, 1999; 66 FR 2129, Jan. 10, 2001; 69 FR 8314, Feb. 
23, 2004; 69 FR 76352, Dec. 20, 2004; 70 FR 33660, June 8, 2005; 71 FR 
36930, June 28, 2006; 71 FR 57367, Sept. 28, 2006; 74 FR 11827, Mar. 19, 
2009; 74 FR 52853, Oct. 14, 2009; 75 FR 13414, Mar. 19, 2010; 75 FR 
53133, 53143, Aug. 30, 2010; 77 FR 204, Jan. 3, 2012]

[[Page 310]]



Sec. 15.403-2  Other circumstances where certified cost or pricing data 
          are not required.

    (a) The exercise of an option at the price established at contract 
award or initial negotiation does not require submission of certified 
cost or pricing data.
    (b) Certified cost or pricing data are not required for proposals 
used solely for overrun funding or interim billing price adjustments.

[75 FR 53143, Aug. 30, 2010]



Sec. 15.403-3  Requiring data other than certified cost or pricing data.

    (a)(1) In those acquisitions that do not require certified cost or 
pricing data, the contracting officer shall--
    (i) Obtain whatever data are available from Government or other 
secondary sources and use that data in determining a fair and reasonable 
price;
    (ii) Require submission of data other than certified cost or pricing 
data, as defined in 2.101, from the offeror to the extent necessary to 
determine a fair and reasonable price (10 U.S.C. 2306a(d)(1) and 41 
U.S.C. 254b(d)(1)) if the contracting officer determines that adequate 
data from sources other than the offeror are not available. This 
includes requiring data from an offeror to support a cost realism 
analysis;
    (iii) Consider whether cost data are necessary to determine a fair 
and reasonable price when there is not adequate price competition;
    (iv) Require that the data submitted by the offeror include, at a 
minimum, appropriate data on the prices at which the same item or 
similar items have previously been sold, adequate for determining the 
reasonableness of the price unless an exception under 15.403-1(b)(1) or 
(2) applies; and
    (v) Consider the guidance in section 3.3, chapter 3, volume I, of 
the Contract Pricing Reference Guide cited at 15.404-1(a)(7) to 
determine the data an offeror shall be required to submit.
    (2) The contractor's format for submitting the data should be used 
(see 15.403-5(b)(2)).
    (3) The contracting officer shall ensure that data used to support 
price negotiations are sufficiently current to permit negotiation of a 
fair and reasonable price. Requests for updated offeror data should be 
limited to data that affect the adequacy of the proposal for 
negotiations, such as changes in price lists.
    (4) As specified in section 808 of the Strom Thurmond National 
Defense Authorization Act for Fiscal Year 1999 (Pub. L. 105-261), an 
offeror who does not comply with a requirement to submit data for a 
contract or subcontract in accordance with paragraph (a)(1) of this 
subsection is ineligible for award unless the HCA determines that it is 
in the best interest of the Government to make the award to that 
offeror, based on consideration of the following:
    (i) The effort made to obtain the data.
    (ii) The need for the item or service.
    (iii) Increased cost or significant harm to the Government if award 
is not made.
    (b) Adequate price competition. When adequate price competition 
exists (see 15.403-1(c)(1)), generally no additional data are necessary 
to determine the reasonableness of price. However, if there are unusual 
circumstances where it is concluded that additional data are necessary 
to determine the reasonableness of price, the contracting officer shall, 
to the maximum extent practicable, obtain the additional data from 
sources other than the offeror. In addition, the contracting officer 
should request data to determine the cost realism of competing offers or 
to evaluate competing approaches.
    (c) Commercial items. (1) At a minimum, the contracting officer must 
use price analysis to determine whether the price is fair and reasonable 
whenever the contracting officer acquires a commercial item (see 15.404-
1(b)). The fact that a price is included in a catalog does not, in and 
of itself, make it fair and reasonable. If the contracting officer 
cannot determine whether an offered price is fair and reasonable, even 
after obtaining additional data from sources other than the offeror, 
then the contracting officer shall require the offeror to submit data 
other than certified cost or pricing data to support further analysis 
(see 15.404-1). This data may include history of sales to non-
governmental and governmental entities, cost data, or any other 
information the contracting officer requires

[[Page 311]]

to determine the price is fair and reasonable. Unless an exception under 
15.403-1(b)(1) or (2) applies, the contracting officer shall require 
that the data submitted by the offeror include, at a minimum, 
appropriate data on the prices at which the same item or similar items 
have previously been sold, adequate for determining the reasonableness 
of the price.
    (2) Limitations relating to commercial items (10 U.S.C. 2306a(d)(2) 
and 41 U.S.C. 254b(d)(2)). (i) The contracting officer shall limit 
requests for sales data relating to commercial items to data for the 
same or similar items during a relevant time period.
    (ii) The contracting officer shall, to the maximum extent 
practicable, limit the scope of the request for data relating to 
commercial items to include only data that are in the form regularly 
maintained by the offeror as part of its commercial operations.
    (iii) The Government shall not disclose outside the Government data 
obtained relating to commercial items that is exempt from disclosure 
under 24.202(a) or the Freedom of Information Act (5 U.S.C. 552(b)).
    (3) For services that are not offered and sold competitively in 
substantial quantities in the commercial marketplace, but are of a type 
offered and sold competitively in substantial quantities in the 
commercial marketplace, see 15.403-1(c)(3)(ii).

[75 FR 53143, Aug. 30, 2010]



Sec. 15.403-4  Requiring certified cost or pricing data (10 U.S.C. 2306a 
          and 41 U.S.C. 254b).

    (a)(1) The contracting officer shall obtain certified cost or 
pricing data only if the contracting officer concludes that none of the 
exceptions in 15.403-1(b) applies. However, if the contracting officer 
has reason to believe exceptional circumstances exist and has sufficient 
data available to determine a fair and reasonable price, then the 
contracting officer should consider requesting a waiver under the 
exception at 15.403-1(b)(4). The threshold for obtaining certified cost 
or pricing data is $700,000. Unless an exception applies, certified cost 
or pricing data are required before accomplishing any of the following 
actions expected to exceed the current threshold or, in the case of 
existing contracts, the threshold specified in the contract:
    (i) The award of any negotiated contract (except for undefinitized 
actions such as letter contracts).
    (ii) The award of a subcontract at any tier, if the contractor and 
each higher-tier subcontractor were required to furnish certified cost 
or pricing data (but see waivers at 15.403-1(c)(4)).
    (iii) The modification of any sealed bid or negotiated contract 
(whether or not certified cost or pricing data were initially required) 
or any subcontract covered by paragraph (a)(1)(ii) of this subsection. 
Price adjustment amounts must consider both increases and decreases 
(e.g., a $200,000 modification resulting from a reduction of $500,000 
and an increase of $300,000 is a pricing adjustment exceeding $700,000). 
This requirement does not apply when unrelated and separately priced 
changes for which certified cost or pricing data would not otherwise be 
required are included for administrative convenience in the same 
modification. Negotiated final pricing actions (such as termination 
settlements and total final price agreements for fixed-price incentive 
and redeterminable contracts) are contract modifications requiring 
certified cost or pricing data if--
    (A) The total final price agreement for such settlements or 
agreements exceeds the pertinent threshold set forth at paragraph (a)(1) 
of this subsection; or
    (B) The partial termination settlement plus the estimate to complete 
the continued portion of the contract exceeds the pertinent threshold 
set forth at paragraph (a)(1) of this subsection (see 49.105(c)(15)).
    (2) Unless prohibited because an exception at 15.403-1(b) applies, 
the head of the contracting activity, without power of delegation, may 
authorize the contracting officer to obtain certified cost or pricing 
data for pricing actions below the pertinent threshold in paragraph 
(a)(1) of this subsection, provided the action exceeds the simplified 
acquisition threshold. The head of the contracting activity shall 
justify the requirement for certified cost or pricing data. The 
documentation shall include

[[Page 312]]

a written finding that certified cost or pricing data are necessary to 
determine whether the price is fair and reasonable and the facts 
supporting that finding.
    (b) When certified cost or pricing data are required, the 
contracting officer shall require the contractor or prospective 
contractor to submit to the contracting officer (and to have any 
subcontractor or prospective subcontractor submit to the prime 
contractor or appropriate subcontractor tier) the following in support 
of any proposal:
    (1) The certified cost or pricing data and data other than certified 
cost or pricing data required by the contracting officer to determine 
that the price is fair and reasonable.
    (2) A Certificate of Current Cost or Pricing Data, in the format 
specified in 15.406-2, certifying that to the best of its knowledge and 
belief, the cost or pricing data were accurate, complete, and current as 
of the date of agreement on price or, if applicable, an earlier date 
agreed upon between the parties that is as close as practicable to the 
date of agreement on price.
    (c) If certified cost or pricing data are requested and submitted by 
an offeror, but an exception is later found to apply, the data must not 
be considered certified cost or pricing data as defined in 2.101 and 
must not be certified in accordance with 15.406-2.
    (d) The requirements of this subsection also apply to contracts 
entered into by an agency on behalf of a foreign government.

[62 FR 51230, Sept. 30, 1997, as amended at 65 FR 60553, Oct. 11, 2000; 
66 FR 2129, Jan. 10, 2001; 71 FR 57367, Sept. 28, 2006; 75 FR 53133, 
53144, Aug. 30, 2010]



Sec. 15.403-5  Instructions for submission of certified cost or pricing 
          data and data other than certified cost or pricing data.

    (a) Taking into consideration the policy at 15.402, the contracting 
officer shall specify in the solicitation (see 15.408 (l) and (m))--
    (1) Whether certified cost or pricing data are required;
    (2) That, in lieu of submitting certified cost or pricing data, the 
offeror may submit a request for exception from the requirement to 
submit certified cost or pricing data;
    (3) Any requirement for data other than certified cost or pricing 
data; and
    (4) The requirement for necessary preaward or postaward access to 
offeror's records.
    (b)(1) Format for submission of certified cost or pricing data. When 
certification is required, the contracting officer may require 
submission of certified cost or pricing data in the format indicated in 
Table 15-2 of 15.408, specify an alternative format, or permit 
submission in the contractor's format (See 15.408(l)(1)), unless the 
data are required to be submitted on one of the termination forms 
specified in subpart 49.6.
    (2) Format for submission of data other than certified cost or 
pricing data. When required by the contracting officer, data other than 
certified cost or pricing data may be submitted in the offeror's own 
format unless the contracting officer decides that use of a specific 
format is essential for evaluating and determining that the price is 
fair and reasonable and the format has been described in the 
solicitation.
    (3) Format for submission of data supporting forward pricing rate 
agreements. Data supporting forward pricing rate agreements or final 
indirect cost proposals shall be submitted in a form acceptable to the 
contracting officer.

[75 FR 53145, Aug. 30, 2010]



Sec. 15.404  Proposal analysis.



Sec. 15.404-1  Proposal analysis techniques.

    (a) General. The objective of proposal analysis is to ensure that 
the final agreed-to price is fair and reasonable.
    (1) The contracting officer is responsible for evaluating the 
reasonableness of the offered prices. The analytical techniques and 
procedures described in this section may be used, singly or in 
combination with others, to ensure that the final price is fair and 
reasonable. The complexity and circumstances of each acquisition should 
determine the level of detail of the analysis required.
    (2) Price analysis shall be used when certified cost or pricing data 
are not required (see paragraph (b) of this subsection and 15.404-3).

[[Page 313]]

    (3) Cost analysis shall be used to evaluate the reasonableness of 
individual cost elements when certified cost or pricing data are 
required. Price analysis should be used to verify that the overall price 
offered is fair and reasonable.
    (4) Cost analysis may also be used to evaluate data other than 
certified cost or pricing data to determine cost reasonableness or cost 
realism when a fair and reasonable price cannot be determined through 
price analysis alone for commercial or non-commercial items.
    (5) The contracting officer may request the advice and assistance of 
other experts to ensure that an appropriate analysis is performed.
    (6) Recommendations or conclusions regarding the Government's review 
or analysis of an offeror's or contractor's proposal shall not be 
disclosed to the offeror or contractor without the concurrence of the 
contracting officer. Any discrepancy or mistake of fact (such as 
duplications, omissions, and errors in computation) contained in the 
certified cost or pricing data or data other than certified cost or 
pricing data submitted in support of a proposal shall be brought to the 
contracting officer's attention for appropriate action.
    (7) The Air Force Institute of Technology (AFIT) and the Federal 
Acquisition Institute (FAI) jointly prepared a five-volume set of 
Contract Pricing Reference Guides to guide pricing and negotiation 
personnel. The five guides are: I Price Analysis, II Quantitative 
Techniques for Contract Pricing, III Cost Analysis, IV Advanced Issues 
in Contract Pricing, and V Federal Contract Negotiation Techniques. 
These references provide detailed discussion and examples applying 
pricing policies to pricing problems. They are to be used for 
instruction and professional guidance. However, they are not directive 
and should be considered informational only. They are available via the 
internet at http://www.acq.osd.mil/dpap/

cpic/cp/contract--pricing--reference--

guides.html.
    (b) Price analysis for commercial and non-commercial items. (1) 
Price analysis is the process of examining and evaluating a proposed 
price without evaluating its separate cost elements and proposed profit. 
Unless an exception from the requirement to obtain certified cost or 
pricing data applies under 15.403-1(b)(1) or (b)(2), at a minimum, the 
contracting officer shall obtain appropriate data, without 
certification, on the prices at which the same or similar items have 
previously been sold and determine if the data is adequate for 
evaluating the reasonableness of the price. Price analysis may include 
evaluating data other than certified cost or pricing data obtained from 
the offeror or contractor when there is no other means for determining a 
fair and reasonable price. Contracting officers shall obtain data other 
than certified cost or pricing data from the offeror or contractor for 
all acquisitions (including commercial item acquisitions), if that is 
the contracting officer's only means to determine the price to be fair 
and reasonable.
    (2) The Government may use various price analysis techniques and 
procedures to ensure a fair and reasonable price. Examples of such 
techniques include, but are not limited to, the following:
    (i) Comparison of proposed prices received in response to the 
solicitation. Normally, adequate price competition establishes a fair 
and reasonable price (see 15.403-1(c)(1)(i)).
    (ii) Comparison of the proposed prices to historical prices paid, 
whether by the Government or other than the Government, for the same or 
similar items. This method may be used for commercial items including 
those ``of a type'' or requiring minor modifications.
    (A) The prior price must be a valid basis for comparison. If there 
has been a significant time lapse between the last acquisition and the 
present one, if the terms and conditions of the acquisition are 
significantly different, or if the reasonableness of the prior price is 
uncertain, then the prior price may not be a valid basis for comparison.
    (B) The prior price must be adjusted to account for materially 
differing terms and conditions, quantities and market and economic 
factors. For similar items, the contracting officer must also adjust the 
prior price to account for material differences between

[[Page 314]]

the similar item and the item being procured.
    (C) Expert technical advice should be obtained when analyzing 
similar items, or commercial items that are ``of a type'' or requiring 
minor modifications, to ascertain the magnitude of changes required and 
to assist in pricing the required changes.
    (iii) Use of parametric estimating methods/application of rough 
yardsticks (such as dollars per pound or per horsepower, or other units) 
to highlight significant inconsistencies that warrant additional pricing 
inquiry.
    (iv) Comparison with competitive published price lists, published 
market prices of commodities, similar indexes, and discount or rebate 
arrangements.
    (v) Comparison of proposed prices with independent Government cost 
estimates.
    (vi) Comparison of proposed prices with prices obtained through 
market research for the same or similar items.
    (vii) Analysis of data other than certified cost or pricing data (as 
defined at 2.101) provided by the offeror.
    (3) The first two techniques at 15.404-1(b)(2) are the preferred 
techniques. However, if the contracting officer determines that 
information on competitive proposed prices or previous contract prices 
is not available or is insufficient to determine that the price is fair 
and reasonable, the contracting officer may use any of the remaining 
techniques as appropriate to the circumstances applicable to the 
acquisition.
    (4) Value analysis can give insight into the relative worth of a 
product and the Government may use it in conjunction with the price 
analysis techniques listed in paragraph (b)(2) of this section.
    (c) Cost analysis. (1) Cost analysis is the review and evaluation of 
any separate cost elements and profit or fee in an offeror's or 
contractor's proposal, as needed to determine a fair and reasonable 
price or to determine cost realism, and the application of judgment to 
determine how well the proposed costs represent what the cost of the 
contract should be, assuming reasonable economy and efficiency.
    (2) The Government may use various cost analysis techniques and 
procedures to ensure a fair and reasonable price, given the 
circumstances of the acquisition. Such techniques and procedures include 
the following:
    (i) Verification of cost data or pricing data and evaluation of cost 
elements, including--
    (A) The necessity for, and reasonableness of, proposed costs, 
including allowances for contingencies;
    (B) Projection of the offeror's cost trends, on the basis of current 
and historical cost or pricing data;
    (C) Reasonableness of estimates generated by appropriately 
calibrated and validated parametric models or cost-estimating 
relationships; and
    (D) The application of audited or negotiated indirect cost rates, 
labor rates, and cost of money or other factors.
    (ii) Evaluating the effect of the offeror's current practices on 
future costs. In conducting this evaluation, the contracting officer 
shall ensure that the effects of inefficient or uneconomical past 
practices are not projected into the future. In pricing production of 
recently developed complex equipment, the contracting officer should 
perform a trend analysis of basic labor and materials, even in periods 
of relative price stability.
    (iii) Comparison of costs proposed by the offeror for individual 
cost elements with--
    (A) Actual costs previously incurred by the same offeror;
    (B) Previous cost estimates from the offeror or from other offerors 
for the same or similar items;
    (C) Other cost estimates received in response to the Government's 
request;
    (D) Independent Government cost estimates by technical personnel; 
and
    (E) Forecasts of planned expenditures.
    (iv) Verification that the offeror's cost submissions are in 
accordance with the contract cost principles and procedures in part 31 
and, when applicable, the requirements and procedures in 48 CFR Chapter 
99 (Appendix to the FAR looseleaf edition), Cost Accounting Standards.
    (v) Review to determine whether any cost data or pricing data, 
necessary to make the offeror's proposal suitable for

[[Page 315]]

negotiation, have not been either submitted or identified in writing by 
the offeror. If there are such data, the contracting officer shall 
attempt to obtain and use them in the negotiations or make satisfactory 
allowance for the incomplete data.
    (vi) Analysis of the results of any make-or-buy program reviews, in 
evaluating subcontract costs (see 15.407-2).
    (d) Cost realism analysis. (1) Cost realism analysis is the process 
of independently reviewing and evaluating specific elements of each 
offeror's proposed cost estimate to determine whether the estimated 
proposed cost elements are realistic for the work to be performed; 
reflect a clear understanding of the requirements; and are consistent 
with the unique methods of performance and materials described in the 
offeror's technical proposal.
    (2) Cost realism analyses shall be performed on cost-reimbursement 
contracts to determine the probable cost of performance for each 
offeror.
    (i) The probable cost may differ from the proposed cost and should 
reflect the Government's best estimate of the cost of any contract that 
is most likely to result from the offeror's proposal. The probable cost 
shall be used for purposes of evaluation to determine the best value.
    (ii) The probable cost is determined by adjusting each offeror's 
proposed cost, and fee when appropriate, to reflect any additions or 
reductions in cost elements to realistic levels based on the results of 
the cost realism analysis.
    (3) Cost realism analyses may also be used on competitive fixed-
price incentive contracts or, in exceptional cases, on other competitive 
fixed-price-type contracts when new requirements may not be fully 
understood by competing offerors, there are quality concerns, or past 
experience indicates that contractors' proposed costs have resulted in 
quality or service shortfalls. Results of the analysis may be used in 
performance risk assessments and responsibility determinations. However, 
proposals shall be evaluated using the criteria in the solicitation, and 
the offered prices shall not be adjusted as a result of the analysis.
    (e) Technical analysis. (1) The contracting officer should request 
that personnel having specialized knowledge, skills, experience, or 
capability in engineering, science, or management perform a technical 
analysis of the proposed types and quantities of materials, labor, 
processes, special tooling, equipment or real property, the 
reasonableness of scrap and spoilage, and other associated factors set 
forth in the proposal(s) in order to determine the need for and 
reasonableness of the proposed resources, assuming reasonable economy 
and efficiency.
    (2) At a minimum, the technical analysis should examine the types 
and quantities of material proposed and the need for the types and 
quantities of labor hours and the labor mix. Any other data that may be 
pertinent to an assessment of the offeror's ability to accomplish the 
technical requirements or to the cost or price analysis of the service 
or product being proposed should also be included in the analysis.
    (3) The contracting officer should request technical assistance in 
evaluating pricing related to items that are ``similar to'' items being 
purchased, or commercial items that are ``of a type'' or requiring minor 
modifications, to ascertain the magnitude of changes required and to 
assist in pricing the required changes.
    (f) Unit prices. (1) Except when pricing an item on the basis of 
adequate price competition or catalog or market price, unit prices shall 
reflect the intrinsic value of an item or service and shall be in 
proportion to an item's base cost (e.g., manufacturing or acquisition 
costs). Any method of distributing costs to line items that distorts the 
unit prices shall not be used. For example, distributing costs equally 
among line items is not acceptable except when there is little or no 
variation in base cost.
    (2) Except for the acquisition of commercial items, contracting 
officers shall require that offerors identify in their proposals those 
items of supply that they will not manufacture or to which they will not 
contribute significant value, unless adequate price competition is 
expected (10 U.S.C. 2304 and

[[Page 316]]

41 U.S.C. 254(d)(5)(A)(i)). Such information shall be used to determine 
whether the intrinsic value of an item has been distorted through 
application of overhead and whether such items should be considered for 
breakout. The contracting officer should require such information in all 
other negotiated contracts when appropriate.
    (g) Unbalanced pricing. (1) Unbalanced pricing may increase 
performance risk and could result in payment of unreasonably high 
prices. Unbalanced pricing exists when, despite an acceptable total 
evaluated price, the price of one or more contract line items is 
significantly over or understated as indicated by the application of 
cost or price analysis techniques. The greatest risks associated with 
unbalanced pricing occur when--
    (i) Startup work, mobilization, first articles, or first article 
testing are separate line items;
    (ii) Base quantities and option quantities are separate line items; 
or
    (iii) The evaluated price is the aggregate of estimated quantities 
to be ordered under separate line items of an indefinite-delivery 
contract.
    (2) All offers with separately priced line items or subline items 
shall be analyzed to determine if the prices are unbalanced. If cost or 
price analysis techniques indicate that an offer is unbalanced, the 
contracting officer shall--
    (i) Consider the risks to the Government associated with the 
unbalanced pricing in determining the competitive range and in making 
the source selection decision; and
    (ii) Consider whether award of the contract will result in paying 
unreasonably high prices for contract performance.
    (3) An offer may be rejected if the contracting officer determines 
that the lack of balance poses an unacceptable risk to the Government.

[62 FR 51230, Sept. 30, 1997, as amended at 63 FR 58602, Oct. 30, 1998; 
64 FR 51837, Sept. 24, 1999; 65 FR 16286, Mar. 27, 2000; 71 FR 67779, 
Nov. 22, 2006; 72 FR 27384, May 15, 2007; 73 FR 54016, Sept. 17, 2008; 
75 FR 53145, Aug. 30, 2010; 77 FR 56744, Sept. 13, 2012; 78 FR 37692, 
June 21, 2013]



Sec. 15.404-2  Data to support proposal analysis.

    (a) Field pricing assistance. (1) The contracting officer should 
request field pricing assistance when the information available at the 
buying activity is inadequate to determine a fair and reasonable price. 
The contracting officer shall tailor requests to reflect the minimum 
essential supplementary information needed to conduct a technical or 
cost or pricing analysis.
    (2) The contracting officer shall tailor the type of information and 
level of detail requested in accordance with the specialized resources 
available at the buying activity and the magnitude and complexity of the 
required analysis. Field pricing assistance is generally available to 
provide--
    (i) Technical, audit, and special reports associated with the cost 
elements of a proposal, including subcontracts;
    (ii) Information on related pricing practices and history;
    (iii) Information to help contracting officers determine 
commerciality and a fair and reasonable price, including--
    (A) Verifying sales history to source documents;
    (B) Identifying special terms and conditions;
    (C) Identifying customarily granted or offered discounts for the 
item;
    (D) Verifying the item to an existing catalog or price list;
    (E) Verifying historical data for an item previously not determined 
commercial that the offeror is now trying to qualify as a commercial 
item; and
    (F) Identifying general market conditions affecting determinations 
of commerciality and a fair and reasonable price.
    (iv) Information relative to the business, technical, production, or 
other capabilities and practices of an offeror.
    (3) When field pricing assistance is requested, contracting officers 
are encouraged to team with appropriate field experts throughout the 
acquisition process, including negotiations. Early communication with 
these experts will assist in determining the extent of assistance 
required, the specific areas for which assistance is needed, a realistic 
review schedule, and the information necessary to perform the review.

[[Page 317]]

    (4) When requesting field pricing assistance on a contractor's 
request for equitable adjustment, the contracting officer shall provide 
the information listed in 43.204(b)(5).
    (5) Field pricing information and other reports may include 
proprietary or source selection information (see 2.101). This 
information must be appropriately identified and protected accordingly.
    (b) Reporting field pricing information. (1) Depending upon the 
extent and complexity of the field pricing review, results, including 
supporting rationale, may be reported directly to the contracting 
officer orally, in writing, or by any other method acceptable to the 
contracting officer.
    (i) Whenever circumstances permit, the contracting officer and field 
pricing experts are encouraged to use telephonic and/or electronic means 
to request and transmit pricing information.
    (ii) When it is necessary to have written technical and audit 
reports, the contracting officer shall request that the audit agency 
concurrently forward the audit report to the requesting contracting 
officer and the administrative contracting officer (ACO). The completed 
field pricing assistance results may reference audit information, but 
need not reconcile the audit recommendations and technical 
recommendations. A copy of the information submitted to the contracting 
officer by field pricing personnel shall be provided to the audit 
agency.
    (2) Audit and field pricing information, whether written or reported 
telephonically or electronically, shall be made a part of the official 
contract file (see 4.807(f)).
    (c) Audit assistance for prime contracts or subcontracts. (1) The 
contracting officer should contact the cognizant audit office directly, 
particularly when an audit is the only field pricing support required. 
The audit office shall send the audit report, or otherwise transmit the 
audit recommendations, directly to the contracting officer.
    (i) The auditor shall not reveal the audit conclusions or 
recommendations to the offeror/contractor without obtaining the 
concurrence of the contracting officer. However, the auditor may discuss 
statements of facts with the contractor.
    (ii) The contracting officer should be notified immediately of any 
information disclosed to the auditor after submission of a report that 
may significantly affect the audit findings and, if necessary, a 
supplemental audit report shall be issued.
    (2) The contracting officer shall not request a separate preaward 
audit of indirect costs unless the information already available from an 
existing audit, completed within the preceding 12 months, is considered 
inadequate for determining the reasonableness of the proposed indirect 
costs (41 U.S.C. 254d and 10 U.S.C. 2313).
    (3) The auditor is responsible for the scope and depth of the audit. 
Copies of updated information that will significantly affect the audit 
should be provided to the auditor by the contracting officer.
    (4) General access to the offeror's books and financial records is 
limited to the auditor. This limitation does not preclude the 
contracting officer or the ACO, or their representatives, from 
requesting that the offeror provide or make available any data or 
records necessary to analyze the offeror's proposal.
    (d) Deficient proposals. The ACO or the auditor, as appropriate, 
shall notify the contracting officer immediately if the data provided 
for review is so deficient as to preclude review or audit, or if the 
contractor or offeror has denied access to any records considered 
essential to conduct a satisfactory review or audit. Oral notifications 
shall be confirmed promptly in writing, including a description of 
deficient or denied data or records. The contracting officer immediately 
shall take appropriate action to obtain the required data. Should the 
offeror/contractor again refuse to provide adequate data, or provide 
access to necessary data, the contracting officer shall withhold the 
award or price adjustment and refer the contract action to a higher 
authority, providing details of the attempts made to resolve the matter 
and a statement of the practicability of obtaining

[[Page 318]]

the supplies or services from another source.

[62 FR 51230, Sept. 30, 1997, as amended at 64 FR 51837, Sept. 24, 1999; 
67 FR 13063, Mar. 20, 2002; 75 FR 53146, Aug. 30, 2010]



Sec. 15.404-3  Subcontract pricing considerations.

    (a) The contracting officer is responsible for the determination of 
a fair and reasonable price for the prime contract, including 
subcontracting costs. The contracting officer should consider whether a 
contractor or subcontractor has an approved purchasing system, has 
performed cost or price analysis of proposed subcontractor prices, or 
has negotiated the subcontract prices before negotiation of the prime 
contract, in determining the reasonableness of the prime contract price. 
This does not relieve the contracting officer from the responsibility to 
analyze the contractor's submission, including subcontractor's certified 
cost or pricing data.
    (b) The prime contractor or subcontractor shall--
    (1) Conduct appropriate cost or price analyses to establish the 
reasonableness of proposed subcontract prices;
    (2) Include the results of these analyses in the price proposal; and
    (3) When required by paragraph (c) of this subsection, submit 
subcontractor certified cost or pricing data to the Government as part 
of its own certified cost or pricing data.
    (c) Any contractor or subcontractor that is required to submit 
certified cost or pricing data also shall obtain and analyze certified 
cost or pricing data before awarding any subcontract, purchase order, or 
modification expected to exceed the certified cost or pricing data 
threshold, unless an exception in 15.403-1(b) applies to that action.
    (1) The contractor shall submit, or cause to be submitted by the 
subcontractor(s), certified cost or pricing data to the Government for 
subcontracts that are the lower of either--
    (i) $12.5 million or more; or
    (ii) Both more than the pertinent certified cost or pricing data 
threshold and more than 10 percent of the prime contractor's proposed 
price, unless the contracting officer believes such submission is 
unnecessary.
    (2) The contracting officer should require the contractor or 
subcontractor to submit to the Government (or cause submission of) 
subcontractor certified cost or pricing data below the thresholds in 
paragraph (c)(1) of this subsection and data other than certified cost 
or pricing data that the contracting officer considers necessary for 
adequately pricing the prime contract.
    (3) Subcontractor certified cost or pricing data shall be submitted 
in the format provided in Table 15-2 of 15.408 or the alternate format 
specified in the solicitation.
    (4) Subcontractor certified cost or pricing data shall be current, 
accurate, and complete as of the date of price agreement, or, if 
applicable, an earlier date agreed upon by the parties and specified on 
the contractor's Certificate of Current Cost or Pricing Data. The 
contractor shall update subcontractor's data, as appropriate, during 
source selection and negotiations.
    (5) If there is more than one prospective subcontractor for any 
given work, the contractor need only submit to the Government certified 
cost or pricing data for the prospective subcontractor most likely to 
receive the award.

[62 FR 51230, Sept. 30, 1997, as amended at 71 FR 57367, Sept. 28, 2006; 
75 FR 53133, 53146, Aug. 30, 2010]



Sec. 15.404-4  Profit.

    (a) General. This subsection prescribes policies for establishing 
the profit or fee portion of the Government prenegotiation objective in 
price negotiations based on cost analysis.
    (1) Profit or fee prenegotiation objectives do not necessarily 
represent net income to contractors. Rather, they represent that element 
of the potential total remuneration that contractors may receive for 
contract performance over and above allowable costs. This potential 
remuneration element and the Government's estimate of allowable costs to 
be incurred in contract performance together equal the Government's 
total prenegotiation objective. Just as actual costs may vary from 
estimated costs, the contractor's actual realized profit or fee may vary 
from negotiated profit or fee, because

[[Page 319]]

of such factors as efficiency of performance, incurrence of costs the 
Government does not recognize as allowable, and the contract type.
    (2) It is in the Government's interest to offer contractors 
opportunities for financial rewards sufficient to stimulate efficient 
contract performance, attract the best capabilities of qualified large 
and small business concerns to Government contracts, and maintain a 
viable industrial base.
    (3) Both the Government and contractors should be concerned with 
profit as a motivator of efficient and effective contract performance. 
Negotiations aimed merely at reducing prices by reducing profit, without 
proper recognition of the function of profit, are not in the 
Government's interest. Negotiation of extremely low profits, use of 
historical averages, or automatic application of predetermined 
percentages to total estimated costs do not provide proper motivation 
for optimum contract performance.
    (b) Policy. (1) Structured approaches (see paragraph (d) of this 
subsection) for determining profit or fee prenegotiation objectives 
provide a discipline for ensuring that all relevant factors are 
considered. Subject to the authorities in 1.301(c), agencies making 
noncompetitive contract awards over $100,000 totaling $50 million or 
more a year--
    (i) Shall use a structured approach for determining the profit or 
fee objective in those acquisitions that require cost analysis; and
    (ii) May prescribe specific exemptions for situations in which 
mandatory use of a structured approach would be clearly inappropriate.
    (2) Agencies may use another agency's structured approach.
    (c) Contracting officer responsibilities. (1) When the price 
negotiation is not based on cost analysis, contracting officers are not 
required to analyze profit.
    (2) When the price negotiation is based on cost analysis, 
contracting officers in agencies that have a structured approach shall 
use it to analyze profit. When not using a structured approach, 
contracting officers shall comply with paragraph (d)(1) of this 
subsection in developing profit or fee prenegotiation objectives.
    (3) Contracting officers shall use the Government prenegotiation 
cost objective amounts as the basis for calculating the profit or fee 
prenegotiation objective. Before applying profit or fee factors, the 
contracting officer shall exclude from the pre-negotiation cost 
objective amounts the purchase cost of contractor-acquired property that 
is categorized as equipment, as defined in FAR 45.101, and where such 
equipment is to be charged directly to the contract. Before applying 
profit or fee factors, the contracting officer shall exclude any 
facilities capital cost of money included in the cost objective amounts. 
If the prospective contractor fails to identify or propose facilities 
capital cost of money in a proposal for a contract that will be subject 
to the cost principles for contracts with commercial organizations (see 
subpart 31.2), facilities capital cost of money will not be an allowable 
cost in any resulting contract (see 15.408(i)).
    (4)(i) The contracting officer shall not negotiate a price or fee 
that exceeds the following statutory limitations, imposed by 10 U.S.C. 
2306(d) and 41 U.S.C. 254(b):
    (A) For experimental, developmental, or research work performed 
under a cost-plus-fixed-fee contract, the fee shall not exceed 15 
percent of the contract's estimated cost, excluding fee.
    (B) For architect-engineer services for public works or utilities, 
the contract price or the estimated cost and fee for production and 
delivery of designs, plans, drawings, and specifications shall not 
exceed 6 percent of the estimated cost of construction of the public 
work or utility, excluding fees.
    (C) For other cost-plus-fixed-fee contracts, the fee shall not 
exceed 10 percent of the contract's estimated cost, excluding fee.
    (ii) The contracting officer's signature on the price negotiation 
memorandum or other documentation supporting determination of fair and 
reasonable price documents the contracting officer's determination that 
the statutory price or fee limitations have not been exceeded.
    (5) The contracting officer shall not require any prospective 
contractor to

[[Page 320]]

submit breakouts or supporting rationale for its profit or fee objective 
but may consider it, if it is submitted voluntarily.
    (6) If a change or modification calls for essentially the same type 
and mix of work as the basic contract and is of relatively small dollar 
value compared to the total contract value, the contracting officer may 
use the basic contract's profit or fee rate as the prenegotiation 
objective for that change or modification.
    (d) Profit-analysis factors--(1) Common factors. Unless it is 
clearly inappropriate or not applicable, each factor outlined in 
paragraphs (d)(1)(i) through (vi) of this subsection shall be considered 
by agencies in developing their structured approaches and by contracting 
officers in analyzing profit, whether or not using a structured 
approach.
    (i) Contractor effort. This factor measures the complexity of the 
work and the resources required of the prospective contractor for 
contract performance. Greater profit opportunity should be provided 
under contracts requiring a high degree of professional and managerial 
skill and to prospective contractors whose skills, facilities, and 
technical assets can be expected to lead to efficient and economical 
contract performance. The subfactors in paragraphs (d)(1)(i) (A) through 
(D) of this subsection shall be considered in determining contractor 
effort, but they may be modified in specific situations to accommodate 
differences in the categories used by prospective contractors for 
listing costs--
    (A) Material acquisition. This subfactor measures the managerial and 
technical effort needed to obtain the required purchased parts and 
material, subcontracted items, and special tooling. Considerations 
include the complexity of the items required, the number of purchase 
orders and subcontracts to be awarded and administered, whether 
established sources are available or new or second sources must be 
developed, and whether material will be obtained through routine 
purchase orders or through complex subcontracts requiring detailed 
specifications. Profit consideration should correspond to the managerial 
and technical effort involved.
    (B) Conversion direct labor. This subfactor measures the 
contribution of direct engineering, manufacturing, and other labor to 
converting the raw materials, data, and subcontracted items into the 
contract items. Considerations include the diversity of engineering, 
scientific, and manufacturing labor skills required and the amount and 
quality of supervision and coordination needed to perform the contract 
task.
    (C) Conversion-related indirect costs. This subfactor measures how 
much the indirect costs contribute to contract performance. The labor 
elements in the allocable indirect costs should be given the profit 
consideration they would receive if treated as direct labor. The other 
elements of indirect costs should be evaluated to determine whether they 
merit only limited profit consideration because of their routine nature, 
or are elements that contribute significantly to the proposed contract.
    (D) General management. This subfactor measures the prospective 
contractor's other indirect costs and general and administrative (G&A) 
expense, their composition, and how much they contribute to contract 
performance. Considerations include how labor in the overhead pools 
would be treated if it were direct labor, whether elements within the 
pools are routine expenses or instead are elements that contribute 
significantly to the proposed contract, and whether the elements require 
routine as opposed to unusual managerial effort and attention.
    (ii) Contract cost risk. (A) This factor measures the degree of cost 
responsibility and associated risk that the prospective contractor will 
assume as a result of the contract type contemplated and considering the 
reliability of the cost estimate in relation to the complexity and 
duration of the contract task. Determination of contract type should be 
closely related to the risks involved in timely, cost-effective, and 
efficient performance. This factor should compensate contractors 
proportionately for assuming greater cost risks.
    (B) The contractor assumes the greatest cost risk in a closely 
priced firm-fixed-price contract under which

[[Page 321]]

it agrees to perform a complex undertaking on time and at a 
predetermined price. Some firm-fixed-price contracts may entail 
substantially less cost risk than others because, for example, the 
contract task is less complex or many of the contractor's costs are 
known at the time of price agreement, in which case the risk factor 
should be reduced accordingly. The contractor assumes the least cost 
risk in a cost-plus-fixed-fee level-of-effort contract, under which it 
is reimbursed those costs determined to be allocable and allowable, plus 
the fixed fee.
    (C) In evaluating assumption of cost risk, contracting officers 
shall, except in unusual circumstances, treat time-and-materials, labor-
hour, and firm-fixed-price, level-of-effort term contracts as cost-plus-
fixed-fee contracts.
    (iii) Federal socioeconomic programs. This factor measures the 
degree of support given by the prospective contractor to Federal 
socioeconomic programs, such as those involving small business concerns, 
small business concerns owned and controlled by socially and 
economically disadvantaged individuals, women-owned small business 
concerns, veteran-owned, HUBZone, service-disabled veteran-owned small 
business concerns, handicapped sheltered workshops, and energy 
conservation. Greater profit opportunity should be provided contractors 
that have displayed unusual initiative in these programs.
    (iv) Capital investments. This factor takes into account the 
contribution of contractor investments to efficient and economical 
contract performance.
    (v) Cost-control and other past accomplishments. This factor allows 
additional profit opportunities to a prospective contractor that has 
previously demonstrated its ability to perform similar tasks effectively 
and economically. In addition, consideration should be given to measures 
taken by the prospective contractor that result in productivity 
improvements, and other cost-reduction accomplishments that will benefit 
the Government in follow-on contracts.
    (vi) Independent development. Under this factor, the contractor may 
be provided additional profit opportunities in recognition of 
independent development efforts relevant to the contract end item 
without Government assistance. The contracting officer should consider 
whether the development cost was recovered directly or indirectly from 
Government sources.
    (2) Additional factors. In order to foster achievement of program 
objectives, each agency may include additional factors in its structured 
approach or take them into account in the profit analysis of individual 
contract actions.

[62 FR 51230, Sept. 30, 1997, as amended at 67 FR 6120, Feb. 8, 2002; 70 
FR 14954, Mar. 23, 2005; 75 FR 38679, July 2 2010]



Sec. 15.405  Price negotiation.

    (a) The purpose of performing cost or price analysis is to develop a 
negotiation position that permits the contracting officer and the 
offeror an opportunity to reach agreement on a fair and reasonable 
price. A fair and reasonable price does not require that agreement be 
reached on every element of cost, nor is it mandatory that the agreed 
price be within the contracting officer's initial negotiation position. 
Taking into consideration the advisory recommendations, reports of 
contributing specialists, and the current status of the contractor's 
purchasing system, the contracting officer is responsible for exercising 
the requisite judgment needed to reach a negotiated settlement with the 
offeror and is solely responsible for the final price agreement. 
However, when significant audit or other specialist recommendations are 
not adopted, the contracting officer should provide rationale that 
supports the negotiation result in the price negotiation documentation.
    (b) The contracting officer's primary concern is the overall price 
the Government will actually pay. The contracting officer's objective is 
to negotiate a contract of a type and with a price providing the 
contractor the greatest incentive for efficient and economical 
performance. The negotiation of a contract type and a price are related 
and should be considered together with the issues of risk and 
uncertainty to the contractor and the Government. Therefore, the 
contracting officer should not become preoccupied with any single 
element and should balance the contract type, cost, and profit or

[[Page 322]]

fee negotiated to achieve a total result--a price that is fair and 
reasonable to both the Government and the contractor.
    (c) The Government's cost objective and proposed pricing arrangement 
directly affect the profit or fee objective. Because profit or fee is 
only one of several interrelated variables, the contracting officer 
shall not agree on profit or fee without concurrent agreement on cost 
and type of contract.
    (d) If, however, the contractor insists on a price or demands a 
profit or fee that the contracting officer considers unreasonable, and 
the contracting officer has taken all authorized actions (including 
determining the feasibility of developing an alternative source) without 
success, the contracting officer shall refer the contract action to a 
level above the contracting officer. Disposition of the action should be 
documented.



Sec. 15.406  Documentation.



Sec. 15.406-1  Prenegotiation objectives.

    (a) The prenegotiation objectives establish the Government's initial 
negotiation position. They assist in the contracting officer's 
determination of fair and reasonable price. They should be based on the 
results of the contracting officer's analysis of the offeror's proposal, 
taking into consideration all pertinent information including field 
pricing assistance, audit reports and technical analysis, fact-finding 
results, independent Government cost estimates and price histories.
    (b) The contracting officer shall establish prenegotiation 
objectives before the negotiation of any pricing action. The scope and 
depth of the analysis supporting the objectives should be directly 
related to the dollar value, importance, and complexity of the pricing 
action. When cost analysis is required, the contracting officer shall 
document the pertinent issues to be negotiated, the cost objectives, and 
a profit or fee objective.



Sec. 15.406-2  Certificate of current cost or pricing data.

    (a) When certified cost or pricing data are required, the 
contracting officer shall require the contractor to execute a 
Certificate of Current Cost or Pricing Data, using the format in this 
paragraph, and must include the executed certificate in the contract 
file.

               Certificate of Current Cost or Pricing Data

    This is to certify that, to the best of my knowledge and belief, the 
cost or pricing data (as defined in section 2.101 of the Federal 
Acquisition Regulation (FAR) and required under FAR subsection 15.403-4) 
submitted, either actually or by specific identification in writing, to 
the Contracting Officer or to the Contracting Officer's representative 
in support of ----* are accurate, complete, and current as of ----**. 
This certification includes the cost or pricing data supporting any 
advance agreements and forward pricing rate agreements between the 
offeror and the Government that are part of the proposal.

Firm____________________________________________________________________

Signature_______________________________________________________________

Name____________________________________________________________________

Title___________________________________________________________________

Date of execution***____________________________________________________

    * Identify the proposal, request for price adjustment, or other 
submission involved, giving the appropriate identifying number (e.g., 
RFP No.).
    ** Insert the day, month, and year when price negotiations were 
concluded and price agreement was reached or, if applicable, an earlier 
date agreed upon between the parties that is as close as practicable to 
the date of agreement on price.
    *** Insert the day, month, and year of signing, which should be as 
close as practicable to the date when the price negotiations were 
concluded and the contract price was agreed to.

                          (End of certificate)

    (b) The certificate does not constitute a representation as to the 
accuracy of the contractor's judgment on the estimate f future costs or 
projections. It applies to the data upon which the judgment or estimate 
was based. This distinction between fact and judgment should be clearly 
understood. If the contractor had information reasonably available at 
the time of agreement showing that the negotiated price was not based on 
accurate, complete, and current data, the contractor's responsibility is 
not limited by any lack of personal knowledge of the information on the 
part of its negotiators.

[[Page 323]]

    (c) The contracting officer and contractor are encouraged to reach a 
prior agreement on criteria for establishing closing or cutoff dates 
when appropriate in order to minimize delays associated with proposal 
updates. Closing or cutoff dates should be included as part of the data 
submitted with the proposal and, before agreement on price, data should 
be updated by the contractor to the latest closing or cutoff dates for 
which the data are available. Use of cutoff dates coinciding with 
reports is acceptable, as certain data may not be reasonably available 
before normal periodic closing dates (e.g., actual indirect costs). Data 
within the contractor's or a subcontractor's organization on matters 
significant to contractor management and to the Government will be 
treated as reasonably available. What is significant depends upon the 
circumstances of each acquisition.
    (d) Possession of a Certificate of Current Cost or Pricing Data is 
not a substitute for examining and analyzing the contractor's proposal.
    (e) If certified cost or pricing data are requested by the 
Government and submitted by an offeror, but an exception is later found 
to apply, the data shall not be considered certified cost or pricing 
data and shall not be certified in accordance with this subsection.

[62 FR 51230, Sept. 30, 1997, as amended at 66 FR 2129, Jan. 10, 2001; 
75 FR 53146, Aug. 30, 2010]



Sec. 15.406-3  Documenting the negotiation.

    (a) The contracting officer shall document in the contract file the 
principal elements of the negotiated agreement. The documentation (e.g., 
price negotiation memorandum (PNM)) shall include the following:
    (1) The purpose of the negotiation.
    (2) A description of the acquisition, including appropriate 
identifying numbers (e.g., RFP No.).
    (3) The name, position, and organization of each person representing 
the contractor and the Government in the negotiation.
    (4) The current status of any contractor systems (e.g., purchasing, 
estimating, accounting, and compensation) to the extent they affected 
and were considered in the negotiation.
    (5) If certified cost or pricing data were not required in the case 
of any price negotiation exceeding the certified cost or pricing data 
threshold, the exception used and the basis for it.
    (6) If certified cost or pricing data were required, the extent to 
which the contracting officer--
    (i) Relied on the certified cost or pricing data submitted and used 
them in negotiating the price;
    (ii) Recognized as inaccurate, incomplete, or noncurrent any 
certified cost or pricing data submitted; the action taken by the 
contracting officer and the contractor as a result; and the effect of 
the defective data on the price negotiated; or
    (iii) Determined that an exception applied after the data were 
submitted and, therefore, considered not to be certified cost or pricing 
data.
    (7) A summary of the contractor's proposal, any field pricing 
assistance recommendations, including the reasons for any pertinent 
variances from them, the Government's negotiation objective, and the 
negotiated position. Where the determination of a fair and reasonable 
price is based on cost analysis, the summary shall address each major 
cost element. When determination of a fair and reasonable price is based 
on price analysis, the summary shall include the source and type of data 
used to support the determination.
    (8) The most significant facts or considerations controlling the 
establishment of the prenegotiation objectives and the negotiated 
agreement including an explanation of any significant differences 
between the two positions.
    (9) To the extent such direction has a significant effect on the 
action, a discussion and quantification of the impact of direction given 
by Congress, other agencies, and higher-level officials (i.e., officials 
who would not normally exercise authority during the award and review 
process for the instant contract action).
    (10) The basis for the profit or fee prenegotiation objective and 
the profit or fee negotiated.
    (11) Documentation of fair and reasonable pricing.

[[Page 324]]

    (b) Whenever field pricing assistance has been obtained, the 
contracting officer shall forward a copy of the negotiation 
documentation to the office(s) providing assistance. When appropriate, 
information on how advisory field support can be made more effective 
should be provided separately.

[62 FR 51230, Sept. 30, 1997, as amended at 75 FR 53146, Aug. 30, 2010]



Sec. 15.407  Special cost or pricing areas.



Sec. 15.407-1  Defective certified cost or pricing data.

    (a) If, before agreement on price, the contracting officer learns 
that any certified cost or pricing data submitted are inaccurate, 
incomplete, or noncurrent, the contracting officer shall immediately 
bring the matter to the attention of the prospective contractor, whether 
the defective data increase or decrease the contract price. The 
contracting officer shall consider any new data submitted to correct the 
deficiency, or consider the inaccuracy, incompleteness, or noncurrency 
of the data when negotiating the contract price. The price negotiation 
memorandum shall reflect the adjustments made to the data or the 
corrected data used to negotiate the contract price.
    (b)(1) If, after award, certified cost or pricing data are found to 
be inaccurate, incomplete, or noncurrent as of the date of final 
agreement on price or an earlier date agreed upon by the parties given 
on the contractor's or subcontractor's Certificate of Current Cost or 
Pricing Data, the Government is entitled to a price adjustment, 
including profit or fee, of any significant amount by which the price 
was increased because of the defective data. This entitlement is ensured 
by including in the contract one of the clauses prescribed in 15.408(b) 
and (c) and is set forth in the clauses at 52.215-10, Price Reduction 
for Defective Certified Cost or Pricing Data, and 52.215-11, Price 
Reduction for Defective Certified Cost or Pricing Data--Modifications. 
The clauses give the Government the right to a price adjustment for 
defects in certified cost or pricing data submitted by the contractor, a 
prospective subcontractor, or an actual subcontractor.
    (2) In arriving at a price adjustment, the contracting officer shall 
consider the time by which the certified cost or pricing data became 
reasonably available to the contractor, and the extent to which the 
Government relied upon the defective data.
    (3) The clauses referred to in paragraph (b)(1) of this subsection 
recognize that the Government's right to a price adjustment is not 
affected by any of the following circumstances:
    (i) The contractor or subcontractor was a sole source supplier or 
otherwise was in a superior bargaining position;
    (ii) The contracting officer should have known that the certified 
cost or pricing data in issue were defective even though the contractor 
or subcontractor took no affirmative action to bring the character of 
the data to the attention of the contracting officer;
    (iii) The contract was based on an agreement about the total cost of 
the contract and there was no agreement about the cost of each item 
procured under such contract; or
    (iv) Certified cost or pricing data were required; however, the 
contractor or subcontractor did not submit a Certificate of Current Cost 
or Pricing Data relating to the contract.
    (4) Subject to paragraphs (b) (5) and (6) of this subsection, the 
contracting officer shall allow an offset for any understated certified 
cost or pricing data submitted in support of price negotiations, up to 
the amount of the Government's claim for overstated pricing data arising 
out of the same pricing action (e.g., the initial pricing of the same 
contract or the pricing of the same change order).
    (5) An offset shall be allowed only in an amount supported by the 
facts and if the contractor--
    (i) Certifies to the contracting officer that, to the best of the 
contractor's knowledge and belief, the contractor is entitled to the 
offset in the amount requested; and
    (ii) Proves that the certified cost or pricing data were available 
before the ``as of'' date specified on the Certificate of Current Cost 
or Pricing Data but were not submitted. Such offsets need not be in the 
same cost groupings (e.g., material, direct labor, or indirect costs).

[[Page 325]]

    (6) An offset shall not be allowed if--
    (i) The understated data were known by the contractor to be 
understated before the ``as of'' date specified on the Certificate of 
Current Cost or Pricing Data; or
    (ii) The Government proves that the facts demonstrate that the price 
would not have increased in the amount to be offset even if the 
available data had been submitted before the ``as of'' date specified on 
the Certificate of Current Cost or Pricing Data.
    (7)(i) In addition to the price adjustment, the Government is 
entitled to recovery of any overpayment plus interest on the 
overpayments. The Government is also entitled to penalty amounts on 
certain of these overpayments. Overpayment occurs only when payment is 
made for supplies or services accepted by the Government. Overpayments 
do not result from amounts paid for contract financing, as defined in 
32.001.
    (ii) In calculating the interest amount due, the contracting officer 
shall--
    (A) Determine the defective pricing amounts that have been overpaid 
to the contractor;
    (B) Consider the date of each overpayment (the date of overpayment 
for this interest calculation shall be the date payment was made for the 
related completed and accepted contract items; or for subcontract 
defective pricing, the date payment was made to the prime contractor, 
based on prime contract progress billings or deliveries, which included 
payments for a completed and accepted subcontract item); and
    (C) Apply the underpayment interest rate(s) in effect for each 
quarter from the time of overpayment to the time of repayment, utilizing 
rate(s) prescribed by the Secretary of the Treasury under 26 U.S.C. 
6621(a)(2).
    (iii) In arriving at the amount due for penalties on contracts where 
the submission of defective certified cost or pricing data was a knowing 
submission, the contracting officer shall obtain an amount equal to the 
amount of overpayment made. Before taking any contractual actions 
concerning penalties, the contracting officer shall obtain the advice of 
counsel.
    (iv) In the demand letter, the contracting officer shall separately 
include--
    (A) The repayment amount;
    (B) The penalty amount (if any);
    (C) The interest amount through a specified date; and
    (D) A statement that interest will continue to accrue until 
repayment is made.
    (c) If, after award, the contracting officer learns or suspects that 
the data furnished were not accurate, complete, and current, or were not 
adequately verified by the contractor as of the time of negotiation, the 
contracting officer shall request an audit to evaluate the accuracy, 
completeness, and currency of the data. The Government may evaluate the 
profit-cost relationships only if the audit reveals that the data 
certified by the contractor were defective. The contracting officer 
shall not reprice the contract solely because the profit was greater 
than forecast or because a contingency specified in the submission 
failed to materialize.
    (d) For each advisory audit received based on a postaward review 
that indicates defective pricing, the contracting officer shall make a 
determination as to whether or not the data submitted were defective and 
relied upon. Before making such a determination, the contracting officer 
should give the contractor an opportunity to support the accuracy, 
completeness, and currency of the data in question. The contracting 
officer shall prepare a memorandum documenting both the determination 
and any corrective action taken as a result. The contracting officer 
shall send one copy of this memorandum to the auditor and, if the 
contract has been assigned for administration, one copy to the 
administrative contracting officer (ACO). A copy of the memorandum or 
other notice of the contracting officer's determination shall be 
provided to the contractor. When the contracting officer determines that 
the contractor submitted defective cost or pricing data, the contracting 
officer, in accordance with agency procedures, shall ensure that 
information relating to the contracting officer's final determination is 
reported in accordance with 42.1503(h).

[[Page 326]]

Agencies shall ensure updated information that changes a contracting 
officer's prior final determination is reported into the FAPIIS module 
of PPIRS in the event of a--
    (1) Contracting officer's decision in accordance with the Contract 
Disputes Act;
    (2) Board of Contract Appeals decision; or
    (3) Court decision.
    (e) If both the contractor and subcontractor submitted, and the 
contractor certified, or should have certified, cost or pricing data, 
the Government has the right, under the clauses at 52.215-10, Price 
Reduction for Defective Certified Cost or Pricing Data, and 52.215-11, 
Price Reduction for Defective Certified Cost or Pricing Data--
Modifications, to reduce the prime contract price if it was 
significantly increased because a subcontractor submitted defective 
data. This right applies whether these data supported subcontract cost 
estimates or supported firm agreements between subcontractor and 
contractor.
    (f) If Government audit discloses defective subcontractor certified 
cost or pricing data, the information necessary to support a reduction 
in prime contract and subcontract prices may be available only from the 
Government. To the extent necessary to secure a prime contract price 
reduction, the contracting officer should make this information 
available to the prime contractor or appropriate subcontractors, upon 
request. If release of the information would compromise Government 
security or disclose trade secrets or confidential business information, 
the contracting officer shall release it only under conditions that will 
protect it from improper disclosure. Information made available under 
this paragraph shall be limited to that used as the basis for the prime 
contract price reduction. In order to afford an opportunity for 
corrective action, the contracting officer should give the prime 
contractor reasonable advance notice before determining to reduce the 
prime contract price.
    (1) When a prime contractor includes defective subcontract data in 
arriving at the price but later awards the subcontract to a lower priced 
subcontractor (or does not subcontract for the work), any adjustment in 
the prime contract price due to defective subcontract data is limited to 
the difference (plus applicable indirect cost and profit markups) 
between the subcontract price used for pricing the prime contract, and 
either the actual subcontract price or the actual cost to the 
contractor, if not subcontracted, provided the data on which the actual 
subcontract price is based are not themselves defective.
    (2) Under cost-reimbursement contracts and under all fixed-price 
contracts except firm-fixed-price contracts and fixed-price contracts 
with economic price adjustment, payments to subcontractors that are 
higher than they would be had there been no defective subcontractor 
certified cost or pricing data shall be the basis for disallowance or 
nonrecognition of costs under the clauses prescribed in 15.408(b) and 
(c). The Government has a continuing and direct financial interest in 
such payments that is unaffected by the initial agreement on prime 
contract price.

[62 FR 51230, Sept. 30, 1997, as amended at 66 FR 65354, Dec. 18, 2001; 
75 FR 53146, Aug. 30, 2010; 75 FR 60260, Sept. 29, 2010; 78 FR 46787, 
Aug. 1, 2013]



Sec. 15.407-2  Make-or-buy programs.

    (a) General. The prime contractor is responsible for managing 
contract performance, including planning, placing, and administering 
subcontracts as necessary to ensure the lowest overall cost and 
technical risk to the Government. When make-or-buy programs are 
required, the Government may reserve the right to review and agree on 
the contractor's make-or-buy program when necessary to ensure 
negotiation of reasonable contract prices, satisfactory performance, or 
implementation of socioeconomic policies. Consent to subcontracts and 
review of contractors' purchasing systems are separate actions covered 
in part 44.
    (b) Definition. Make item, as used in this subsection, means an item 
or work effort to be produced or performed by the prime contractor or 
its affiliates, subsidiaries, or divisions.
    (c) Acquisitions requiring make-or-buy programs. (1) Contracting 
officers may

[[Page 327]]

require prospective contractors to submit make-or-buy program plans for 
negotiated acquisitions requiring certified cost or pricing data whose 
estimated value is $12.5 million or more, except when the proposed 
contract is for research or development and, if prototypes or hardware 
are involved, no significant follow-on production is anticipated.
    (2) Contracting officers may require prospective contractors to 
submit make-or-buy programs for negotiated acquisitions whose estimated 
value is under $12.5 million only if the contracting officer--
    (i) Determines that the information is necessary; and
    (ii) Documents the reasons in the contract file.
    (d) Solicitation requirements. When prospective contractors are 
required to submit proposed make-or-buy programs, the solicitation shall 
include--
    (1) A statement that the program and required supporting information 
must accompany the offer; and
    (2) A description of factors to be used in evaluating the proposed 
program, such as capability, capacity, availability of small, small 
disadvantaged, women-owned, veteran-owned, HUBZone, and service-disabled 
veteran-owned small business concerns for subcontracting, establishment 
of new facilities in or near labor surplus areas, delivery or 
performance schedules, control of technical and schedule interfaces, 
proprietary processes, technical superiority or exclusiveness, and 
technical risks involved.
    (e) Program requirements. To support a make-or-buy program, the 
following information shall be supplied by the contractor in its 
proposal:
    (1) Items and work included. The information required from a 
contractor in a make-or-buy program shall be confined to those major 
items or work efforts that normally would require company management 
review of the make-or-buy decision because they are complex, costly, 
needed in large quantities, or require additional equipment or real 
property to produce. Raw materials, commercial items (see 2.101), and 
off-the-shelf items (see 46.101) shall not be included, unless their 
potential impact on contract cost or schedule is critical. Normally, 
make-or-buy programs should not include items or work efforts estimated 
to cost less than 1 percent of the total estimated contract price or any 
minimum dollar amount set by the agency.
    (2) The offeror's program should include or be supported by the 
following information:
    (i) A description of each major item or work effort.
    (ii) Categorization of each major item or work effort as ``must 
make,'' ``must buy, or ``can either make or buy.''
    (iii) For each item or work effort categorized as ``can either make 
or buy,'' a proposal either to ``make'' or to ``buy.''
    (iv) Reasons for categorizing items and work efforts as ``must 
make'' or ``must buy,'' and proposing to ``make'' or to ``buy'' those 
categorized as ``can either make or buy.'' The reasons must include the 
consideration given to the evaluation factors described in the 
solicitation and must be in sufficient detail to permit the contracting 
officer to evaluate the categorization or proposal.
    (v) Designation of the plant or division proposed to make each item 
or perform each work effort, and a statement as to whether the existing 
or proposed new facility is in or near a labor surplus area.
    (vi) Identification of proposed subcontractors, if known, and their 
location and size status (also see Subpart 19.7 for subcontracting plan 
requirements).
    (vii) Any recommendations to defer make-or-buy decisions when 
categorization of some items or work efforts is impracticable at the 
time of submission.
    (viii) Any other information the contracting officer requires in 
order to evaluate the program.
    (f) Evaluation, negotiation, and agreement. Contracting officers 
shall evaluate and negotiate proposed make-or-buy programs as soon as 
practicable after their receipt and before contract award.
    (1) When the program is to be incorporated in the contract and the 
design status of the product being acquired does not permit accurate 
precontract

[[Page 328]]

identification of major items or work efforts, the contracting officer 
shall notify the prospective contractor in writing that these items or 
efforts, when identifiable, shall be added under the clause at 52.215-9, 
Changes or Additions to Make-or-Buy Program.
    (2) Contracting officers normally shall not agree to proposed ``make 
items'' when the products or services are not regularly manufactured or 
provided by the contractor and are available--quality, quantity, 
delivery, and other essential factors considered--from another firm at 
equal or lower prices, or when they are regularly manufactured or 
provided by the contractor, but are available--quality, quantity, 
delivery, and other essential factors considered--from another firm at 
lower prices. However, the contracting officer may agree to these as 
``make items'' if an overall lower Governmentwide cost would result or 
it is otherwise in the best interest of the Government. If this 
situation occurs in any fixed-price incentive or cost-plus-incentive-fee 
contract, the contracting officer shall specify these items in the 
contract and state that they are subject to paragraph (d) of the clause 
at 52.215-9, Changes or Additions to Make-or-Buy Program (see 
15.408(a)). If the contractor proposes to reverse the categorization of 
such items during contract performance, the contract price shall be 
subject to equitable reduction.
    (g) Incorporating make-or-buy programs in contracts. The contracting 
officer may incorporate the make-or-buy program in negotiated contracts 
for--
    (1) Major systems (see part 34) or their subsystems or components, 
regardless of contract type; or
    (2) Other supplies and services if--
    (i) The contract is a cost-reimbursable contract, or a cost-sharing 
contract in which the contractor's share of the cost is less than 25 
percent; and
    (ii) The contracting officer determines that technical or cost risks 
justify Government review and approval of changes or additions to the 
make-or-buy program.

[62 FR 51230, Sept. 30, 1997, as amended at 66 FR 2129, Jan. 10, 2001; 
70 FR 14954, Mar. 23, 2005; 71 FR 57367, Sept. 28, 2005; 72 FR 27384, 
May 15, 2007; 75 FR 53133, 53147, Aug. 30, 2010]



Sec. 15.407-3  Forward pricing rate agreements.

    (a) When certified cost or pricing data are required, offerors are 
required to describe any forward pricing rate agreements (FPRAs) in each 
specific pricing proposal to which the rates apply and to identify the 
latest cost or pricing data already submitted in accordance with the 
FPRA. All data submitted in connection with the FPRA, updated as 
necessary, form a part of the total data that the offeror certifies to 
be accurate, complete, and current at the time of agreement on price for 
an initial contract or for a contract modification. (See the Certificate 
of Current Cost or Pricing Data at 15.406-2.)
    (b) Contracting officers will use FPRA rates as bases for pricing 
all contracts, modifications, and other contractual actions to be 
performed during the period covered by the agreement. Conditions that 
may affect the agreement's validity shall be reported promptly to the 
ACO. If the ACO determines that a changed condition invalidates the 
agreement, the ACO shall notify all interested parties of the extent of 
its effect and status of efforts to establish a revised FPRA.
    (c) Contracting officers shall not require certification at the time 
of agreement for data supplied in support of FPRA's or other advance 
agreements. When a forward pricing rate agreement or other advance 
agreement is used to price a contract action that requires a 
certificate, the certificate supporting that contract action shall cover 
the data supplied to support the FPRA or other advance agreement, and 
all other data supporting the action.

[62 FR 51230, Sept. 30, 1997, as amended at 75 FR 53147, Aug. 30, 2010]



Sec. 15.407-4  Should-cost review.

    (a) General. (1) Should-cost reviews are a specialized form of cost 
analysis. Should-cost reviews differ from traditional evaluation methods 
because they do not assume that a contractor's historical costs reflect 
efficient and economical operation. Instead, these reviews evaluate the 
economy and efficiency of the contractor's existing

[[Page 329]]

work force, methods, materials, equipment, real property, operating 
systems, and management. These reviews are accomplished by a multi-
functional team of Government contracting, contract administration, 
pricing, audit, and engineering representatives. The objective of 
should-cost reviews is to promote both short and long-range improvements 
in the contractor's economy and efficiency in order to reduce the cost 
of performance of Government contracts. In addition, by providing 
rationale for any recommendations and quantifying their impact on cost, 
the Government will be better able to develop realistic objectives for 
negotiation.
    (2) There are two types of should-cost reviews--program should-cost 
review (see paragraph (b) of this subsection) and overhead should-cost 
review (see paragraph (c) of this subsection). These should-cost reviews 
may be performed together or independently. The scope of a should-cost 
review can range from a large-scale review examining the contractor's 
entire operation (including plant-wide overhead and selected major 
subcontractors) to a small-scale tailored review examining specific 
portions of a contractor's operation.
    (b) Program should-cost review. (1) A program should-cost review is 
used to evaluate significant elements of direct costs, such as material 
and labor, and associated indirect costs, usually associated with the 
production of major systems. When a program should-cost review is 
conducted relative to a contractor proposal, a separate audit report on 
the proposal is required.
    (2) A program should-cost review should be considered, particularly 
in the case of a major system acquisition (see part 34), when--
    (i) Some initial production has already taken place;
    (ii) The contract will be awarded on a sole source basis;
    (iii) There are future year production requirements for substantial 
quantities of like items;
    (iv) The items being acquired have a history of increasing costs;
    (v) The work is sufficiently defined to permit an effective analysis 
and major changes are unlikely;
    (vi) Sufficient time is available to plan and adequately conduct the 
should-cost review; and
    (vii) Personnel with the required skills are available or can be 
assigned for the duration of the should-cost review.
    (3) The contracting officer should decide which elements of the 
contractor's operation have the greatest potential for cost savings and 
assign the available personnel resources accordingly. The expertise of 
on-site Government personnel should be used, when appropriate. While the 
particular elements to be analyzed are a function of the contract work 
task, elements such as manufacturing, pricing and accounting, management 
and organization, and subcontract and vendor management are normally 
reviewed in a should-cost review.
    (4) In acquisitions for which a program should-cost review is 
conducted, a separate program should-cost review team report, prepared 
in accordance with agency procedures, is required. The contracting 
officer shall consider the findings and recommendations contained in the 
program should-cost review team report when negotiating the contract 
price. After completing the negotiation, the contracting officer shall 
provide the ACO a report of any identified uneconomical or inefficient 
practices, together with a report of correction or disposition 
agreements reached with the contractor. The contracting officer shall 
establish a follow-up plan to monitor the correction of the uneconomical 
or inefficient practices.
    (5) When a program should-cost review is planned, the contracting 
officer should state this fact in the acquisition plan or acquisition 
plan updates (see subpart 7.1) and in the solicitation.
    (c) Overhead should-cost review. (1) An overhead should-cost review 
is used to evaluate indirect costs, such as fringe benefits, shipping 
and receiving, real property, and equipment, depreciation, plant 
maintenance and security, taxes, and general and administrative 
activities.
    It is normally used to evaluate and negotiate an FPRA with the 
contractor. When an overhead should-cost

[[Page 330]]

review is conducted, a separate audit report is required.
    (2) The following factors should be considered when selecting 
contractor sites for overhead should-cost reviews:
    (i) Dollar amount of Government business.
    (ii) Level of Government participation.
    (iii) Level of noncompetitive Government contracts.
    (iv) Volume of proposal activity.
    (v) Major system or program.
    (vi) Corporate reorganizations, mergers, acquisitions, or takeovers.
    (vii) Other conditions (e.g., changes in accounting systems, 
management, or business activity).
    (3) The objective of the overhead should-cost review is to evaluate 
significant indirect cost elements in-depth, and identify and recommend 
corrective actions regarding inefficient and uneconomical practices. If 
it is conducted in conjunction with a program should-cost review, a 
separate overhead should-cost review report is not required. However, 
the findings and recommendations of the overhead should-cost team, or 
any separate overhead should-cost review report, shall be provided to 
the ACO. The ACO should use this information to form the basis for the 
Government position in negotiating an FPRA with the contractor. The ACO 
shall establish a follow-up plan to monitor the correction of the 
uneconomical or inefficient practices.

[62 FR 51230, Sept. 30, 1997, as amended at 72 FR 27384, May 15, 2007]



Sec. 15.407-5  Estimating systems.

    (a) Using an acceptable estimating system for proposal preparation 
benefits both the Government and the contractor by increasing the 
accuracy and reliability of individual proposals. Cognizant audit 
activities, when it is appropriate to do so, shall establish and manage 
regular programs for reviewing selected contractors' estimating systems 
or methods, in order to reduce the scope of reviews to be performed on 
individual proposals, expedite the negotiation process, and increase the 
reliability of proposals. The results of estimating system reviews shall 
be documented in survey reports.
    (b) The auditor shall send a copy of the estimating system survey 
report and a copy of the official notice of corrective action required 
to each contracting office and contract administration office having 
substantial business with that contractor. Significant deficiencies not 
corrected by the contractor shall be a consideration in subsequent 
proposal analyses and negotiations.



Sec. 15.408  Solicitation provisions and contract clauses.

    (a) Changes or Additions to Make-or-Buy Program. The contracting 
officer shall insert the clause at 52.215-9, Changes or Additions to 
Make-or-Buy Program, in solicitations and contracts when it is 
contemplated that a make-or- buy program will be incorporated in the 
contract. If a less economical ``make'' or ``buy'' categorization is 
selected for one or more items of significant value, the contracting 
officer shall use the clause with--
    (1) Its Alternate I, if a fixed-price incentive contract is 
contemplated; or
    (2) Its Alternate II, if a cost-plus-incentive-fee contract is 
contemplated.
    (b) Price Reduction for Defective Certified Cost or Pricing Data. 
The contracting officer shall, when contracting by negotiation, insert 
the clause at 52.215-10, Price Reduction for Defective Certified Cost or 
Pricing Data, in solicitations and contracts when it is contemplated 
that certified cost or pricing data will be required from the contractor 
or any subcontractor (see 15.403-4).
    (c) Price Reduction for Defective Certified Cost or Pricing Data--
Modifications. The contracting officer shall, when contracting by 
negotiation, insert the clause at 52.215-11, Price Reduction for 
Defective Certified Cost or Pricing Data--Modifications, in 
solicitations and contracts when it is contemplated that certified cost 
or pricing data will be required from the contractor or any 
subcontractor (see 15.403-4) for the pricing of contract modifications, 
and the clause prescribed in paragraph (b) of this section has not been 
included.
    (d) Subcontractor Certified Cost or Pricing Data. The contracting 
officer shall

[[Page 331]]

insert the clause at 52.215-12, Subcontractor Certified Cost or Pricing 
Data, in solicitations and contracts when the clause prescribed in 
paragraph (b) of this section is included.
    (e) Subcontractor Certified Cost or Pricing Data--Modifications. The 
contracting officer shall insert the clause at 52.215-13, Subcontractor 
Certified Cost or Pricing Data--Modifications, in solicitations and 
contracts when the clause prescribed in paragraph (c) of this section is 
included.
    (f) Integrity of Unit Prices. (1) The contracting officer shall 
insert the clause at 52.215-14, Integrity of Unit Prices, in 
solicitations and contracts except for--
    (i) Acquisitions at or below the simplified acquisition threshold;
    (ii) Construction or architect-engineer services under part 36;
    (iii) Utility services under part 41;
    (iv) Service contracts where supplies are not required;
    (v) Acquisitions of commercial items; and
    (vi) Contracts for petroleum products.
    (2) The contracting officer shall insert the clause with its 
Alternate I when contracting without adequate price competition or when 
prescribed by agency regulations.
    (g) Pension Adjustments and Asset Reversions. The contracting 
officer shall insert the clause at 52.215-15, Pension Adjustments and 
Asset Reversions, in solicitations and contracts for which it is 
anticipated that certified cost or pricing data will be required or for 
which any preaward or postaward cost determinations will be subject to 
part 31.
    (h) Facilities Capital Cost of Money. The contracting officer shall 
insert the provision at 52.215-16, Facilities Capital Cost of Money, in 
solicitations expected to result in contracts that are subject to the 
cost principles for contracts with commercial organizations (see subpart 
31.2).
    (i) Waiver of Facilities Capital Cost of Money. If the prospective 
contractor does not propose facilities capital cost of money in its 
offer, the contracting officer shall insert the clause at 52.215-17, 
Waiver of Facilities Capital Cost of Money, in the resulting contract.
    (j) Reversion or Adjustment of Plans for Postretirement Benefits 
(PRB) Other Than Pensions. The contracting officer shall insert the 
clause at 52.215-18, Reversion or Adjustment of Plans for Postretirement 
Benefits (PRB) Other Than Pensions, in solicitations and contracts for 
which it is anticipated that certified cost or pricing data will be 
required or for which any preaward or postaward cost determinations will 
be subject to part 31.
    (k) Notification of Ownership Changes. The contracting officer shall 
insert the clause at 52.215-19, Notification of Ownership Changes, in 
solicitations and contracts for which it is contemplated that certified 
cost or pricing data will be required or for which any preaward or 
postaward cost determination will be subject to subpart 31.2.
    (l) Requirements for Certified Cost or Pricing Data and Data Other 
Than Certified Cost or Pricing Data. Considering the hierarchy at 
15.402, the contracting officer shall insert the provision at 52.215-20, 
Requirements for Certified Cost or Pricing Data and Data Other Than 
Certified Cost or Pricing Data, in solicitations if it is reasonably 
certain that certified cost or pricing data or data other than certified 
cost or pricing data will be required. This provision also provides 
instructions to offerors on how to request an exception from the 
requirement to submit certified cost or pricing data. The contracting 
officer shall--
    (1) Use the provision with its Alternate I to specify a format for 
certified cost or pricing data other than the format required by Table 
15-2 of this section;
    (2) Use the provision with its Alternate II if copies of the 
proposal are to be sent to the ACO and contract auditor;
    (3) Use the provision with its Alternate III if submission via 
electronic media is required; and
    (4) Replace the basic provision with its Alternate IV if certified 
cost or pricing data are not expected to be required because an 
exception may apply, but data other than certified cost or pricing data 
will be required as described in 15.403-3.

[[Page 332]]

    (m) Requirements for Certified Cost or Pricing Data and Data Other 
Than Certified Cost or Pricing Data--Modifications. Considering the 
hierarchy at 15.402, the contracting officer shall insert the clause at 
52.215-21, Requirements for Certified Cost or Pricing Data and Data 
Other Than Certified Cost or Pricing Data--Modifications, in 
solicitations and contracts if it is reasonably certain that certified 
cost or pricing data or data other than certified cost or pricing data 
will be required for modifications. This clause also provides 
instructions to contractors on how to request an exception from the 
requirement to submit certified cost or pricing data. The contracting 
officer shall--
    (1) Use the clause with its Alternate I to specify a format for 
certified cost or pricing data other than the format required by Table 
15-2 of this section;
    (2) Use the clause with its Alternate II if copies of the proposal 
are to be sent to the ACO and contract auditor;
    (3) Use the clause with its Alternate III if submission via 
electronic media is required; and
    (4) Replace the basic clause with its Alternate IV if certified cost 
or pricing data are not expected to be required because an exception may 
apply, but data other than certified cost or pricing data will be 
required as described in 15.403-3.
    (n) Limitations on Pass-Through Charges. (1) The contracting officer 
shall insert the provision at 52.215-22, Limitations on Pass-Through 
Charges--Identification of Subcontract Effort, in solicitations 
containing the clause at 52.215-23.
    (2)(i) Except as provided in paragraph (n)(2)(ii) of this section, 
the contracting officer shall insert the clause 52.215-23, Limitations 
on Pass-Through Charges, in solicitations and contracts including task 
or delivery orders as follows:
    (A) For civilian agencies, insert the clause when--
    (1) The total estimated contract or order value exceeds the 
simplified acquisition threshold as defined in section 2.101 and
    (2) The contemplated contract type is expected to be a cost-
reimbursement type contract as defined in Subpart 16.3; or
    (B) For DoD, insert the clause when--
    (1) The total estimated contract or order value exceeds the 
threshold for obtaining cost or pricing data in 15.403-4; and
    (2) The contemplated contract type is expected to be any contract 
type except--
    (i) A firm-fixed-price contract awarded on the basis of adequate 
price competition;
    (ii) A fixed-price contract with economic price adjustment awarded 
on the basis of adequate price competition;
    (iii) A firm-fixed-price contract for the acquisition of a 
commercial item;
    (iv) A fixed-price contract with economic price adjustment, for the 
acquisition of a commercial item;
    (v) A fixed-price incentive contract awarded on the basis of 
adequate price competition; or
    (vi) A fixed-price incentive contract for the acquisition of a 
commercial item.
    (ii) The clause may be used when the total estimated contract or 
order value is below the thresholds identified in 15.408(n)(2)(i) and 
for any contract type, when the contracting officer determines that 
inclusion of the clause is appropriate.
    (iii) Use the clause 52.215-23 with its Alternate I when the 
contracting officer determines that the prospective contractor has 
demonstrated that its functions provide added value to the contracting 
effort and there are no excessive pass-through charges.

   Table 15-2--Instructions for Submitting Cost/Price Proposals When 
               Certified Cost or Pricing Data Are Required

    This document provides instructions for preparing a contract pricing 
proposal when cost or pricing data are required.

    Note 1: There is a clear distinction between submitting certified 
cost or pricing data and merely making available books, records, and 
other documents without identification. The requirement for submission 
of certified cost or pricing data is met when all accurate certified 
cost or pricing data reasonably available to the offeror have been 
submitted, either actually or by specific identification, to the 
Contracting Officer or an authorized representative. As later data come 
into your possession, it should be submitted promptly to the Contracting 
Officer

[[Page 333]]

in a manner that clearly shows how the data relate to the offeror's 
price proposal. The requirement for submission of certified cost or 
pricing data continues up to the time of agreement on price, or an 
earlier date agreed upon between the parties if applicable.
    Note 2: By submitting your proposal, you grant the Contracting 
Officer or an authorized representative the right to examine records 
that formed the basis for the pricing proposal. That examination can 
take place at any time before award. It may include those books, 
records, documents, and other types of factual data (regardless of form 
or whether the data are specifically referenced or included in the 
proposal as the basis for pricing) that will permit an adequate 
evaluation of the proposed price.

                         I. General Instructions

    A. You must provide the following information on the first page of 
your pricing proposal:
    (1) Solicitation, contract, and/or modification number;
    (2) Name and address of offeror;
    (3) Name and telephone number of point of contact;
    (4) Name of contract administration office (if available);
    (5) Type of contract action (that is, new contract, change order, 
price revision/redetermination, letter contract, unpriced order, or 
other);
    (6) Proposed cost; profit or fee; and total;
    (7) Whether you will require the use of Government property in the 
performance of the contract, and, if so, what property;
    (8) Whether your organization is subject to cost accounting 
standards; whether your organization has submitted a CASB Disclosure 
Statement, and if it has been determined adequate; whether you have been 
notified that you are or may be in noncompliance with your Disclosure 
Statement or CAS (other than a noncompliance that the cognizant Federal 
agency official has determined to have an immaterial cost impact), and, 
if yes, an explanation; whether any aspect of this proposal is 
inconsistent with your disclosed practices or applicable CAS, and, if 
so, an explanation; and whether the proposal is consistent with your 
established estimating and accounting principles and procedures and FAR 
Part 31, Cost Principles, and, if not, an explanation;
    (9) The following statement: This proposal reflects our estimates 
and/or actual costs as of this date and conforms with the instructions 
in FAR 15.403-5(b)(1) and Table 15-2. By submitting this proposal, we 
grant the Contracting Officer and authorized representative(s) the right 
to examine, at any time before award, those records, which include 
books, documents, accounting procedures and practices, and other data, 
regardless of type and form or whether such supporting information is 
specifically referenced or included in the proposal as the basis for 
pricing, that will permit an adequate evaluation of the proposed price.
    (10) Date of submission; and
    (11) Name, title, and signature of authorized representative.
    B. In submitting your proposal, you must include an index, 
appropriately referenced, of all the certified cost or pricing data and 
information accompanying or identified in the proposal.In addition, you 
must annotate any future additions and/or revisions, up to the date of 
agreement on price, or an earlier date agreed upon by the parties, on a 
supplemental index.
    C. As part of the specific information required, you must submit, 
with your proposal--
    (1) Certified cost or pricing data (as defined at FAR 2.101). You 
must clearly identify on your cover sheet that certified cost or pricing 
data are included as part of the proposal.
    (2) Information reasonably required to explain your estimating 
process, including--
    (i) The judgmental factors applied and the mathematical or other 
methods used in the estimate, including those used in projecting from 
known data; and
    (ii) The nature and amount of any contingencies included in the 
proposed price.
    D. You must show the relationship between contract line item prices 
and the total contract price. You must attach cost-element breakdowns 
for each proposed line item, using the appropriate format prescribed in 
the ``Formats for Submission of Line Item Summaries'' section of this 
table. You must furnish supporting breakdowns for each cost element, 
consistent with your cost accounting system.
    E. When more than one contract line item is proposed, you must also 
provide summary total amounts covering all line items for each element 
of cost.
    F. Whenever you have incurred costs for work performed before 
submission of a proposal, you must identify those costs in your cost/
price proposal.
    G. If you have reached an agreement with Government representatives 
on use of forward pricing rates/factors, identify the agreement, include 
a copy, and describe its nature.
    H. As soon as practicable after final agreement on price or an 
earlier date agreed to by the parties, but before the award resulting 
from the proposal, you must, under the conditions stated in FAR 15.406-
2, submit a Certificate of Current Cost or Pricing Data.

                            II. Cost Elements

    Depending on your system, you must provide breakdowns for the 
following basic cost elements, as applicable:
    A. Materials and services. Provide a consolidated priced summary of 
individual material

[[Page 334]]

quantities included in the various tasks, orders, or contract line items 
being proposed and the basis for pricing (vendor quotes, invoice prices, 
etc.). Include raw materials, parts, components, assemblies, and 
services to be produced or performed by others. For all items proposed, 
identify the item and show the source, quantity, and price. Conduct 
price analyses of all subcontractor proposals. Conduct cost analyses for 
all subcontracts when certified cost or pricing data are submitted by 
the subcontractor. Include these analyses as part of your own certified 
cost or pricing data submissions for subcontracts expected to exceed the 
appropriate threshold in FAR 15.403-4. Submit the subcontractor 
certified cost or pricing data and data other than certified cost or 
pricing data as part of your own certified cost or pricing data as 
required in paragraph IIA(2) of this table. These requirements also 
apply to all subcontractors if required to submit certified cost or 
pricing data.
    (1) Adequate Price Competition. Provide data showing the degree of 
competition and the basis for establishing the source and reasonableness 
of price for those acquisitions (such as subcontracts, purchase orders, 
material order, etc.) exceeding, or expected to exceed, the appropriate 
threshold set forth at FAR 15.403-4 priced on the basis of adequate 
price competition. For interorganizational transfers priced at other 
than the cost of comparable competitive commercial work of the division, 
subsidiary, or affiliate of the contractor, explain the pricing method 
(see FAR 31.205-26(e)).
    (2) All Other. Obtain certified cost or pricing data from 
prospective sources for those acquisitions (such as subcontracts, 
purchase orders, material order, etc.) exceeding the threshold set forth 
in FAR 15.403-4 and not otherwise exempt, in accordance with FAR 15.403-
1(b) (i.e., adequate price competition, commercial items, prices set by 
law or regulation or waiver). Also provide data showing the basis for 
establishing source and reasonableness of price. In addition, provide a 
summary of your cost analysis and a copy of certified cost or pricing 
data submitted by the prospective source in support of each subcontract, 
or purchase order that is the lower of either $12.5 million or more, or 
both more than the pertinent certified cost or pricing data threshold 
and more than 10 percent of the prime contractor's proposed price. Also 
submit any information reasonably required to explain your estimating 
process (including the judgmental factors applied and the mathematical 
or other methods used in the estimate, including those used in 
projecting from known data, and the nature and amount of any 
contingencies included in the price). The Contracting Officer may 
require you to submit cost or pricing data in support of proposals in 
lower amounts. Subcontractor certified cost or pricing data must be 
accurate, complete and current as of the date of final price agreement, 
or an earlier date agreed upon by the parties, given on the prime 
contractor's Certificate of Current Cost or Pricing Data. The prime 
contractor is responsible for updating a prospective subcontractor's 
data. For standard commercial items fabricated by the offeror that are 
generally stocked in inventory, provide a separate cost breakdown, if 
priced based on cost. For interorganizational transfers priced at cost, 
provide a separate breakdown of cost elements. Analyze the certified 
cost or pricing data and submit the results of your analysis of the 
prospective source's proposal. When submission of a prospective source's 
certified cost or pricing data is required as described in this 
paragraph, it must be included as part of your own certified cost or 
pricing data. You must also submit any data other than certified cost or 
pricing data obtained from a subcontractor, either actually or by 
specific identification, along with the results of any analysis 
performed on that data.
    B. Direct Labor. Provide a time-phased (e.g., monthly, quarterly, 
etc.) breakdown of labor hours, rates, and cost by appropriate category, 
and furnish bases for estimates.
    C. Indirect Costs. Indicate how you have computed and applied your 
indirect costs, including cost breakdowns. Show trends and budgetary 
data to provide a basis for evaluating the reasonableness of proposed 
rates. Indicate the rates used and provide an appropriate explanation.
    D. Other Costs. List all other costs not otherwise included in the 
categories described above (e.g., special tooling, travel, computer and 
consultant services, preservation, packaging and packing, spoilage and 
rework, and Federal excise tax on finished articles) and provide bases 
for pricing.
    E. Royalties. If royalties exceed $1,500, you must provide the 
following information on a separate page for each separate royalty or 
license fee:
    (1) Name and address of licensor.
    (2) Date of license agreement.
    (3) Patent numbers.
    (4) Patent application serial numbers, or other basis on which the 
royalty is payable.
    (5) Brief description (including any part or model numbers of each 
contract item or component on which the royalty is payable).
    (6) Percentage or dollar rate of royalty per unit.
    (7) Unit price of contract item.
    (8) Number of units.
    (9) Total dollar amount of royalties.
    (10) If specifically requested by the Contracting Officer, a copy of 
the current license agreement and identification of applicable claims of 
specific patents (see FAR 27.202 and 31.205-37).
    F. Facilities Capital Cost of Money. When you elect to claim 
facilities capital cost of

[[Page 335]]

money as an allowable cost, you must submit Form CASB-CMF and show the 
calculation of the proposed amount (see FAR 31.205-10).

           III. Formats for Submission of Line Item Summaries

              A. New Contracts (Including Letter Contracts)

----------------------------------------------------------------------------------------------------------------
                             Proposed contract estimate--      Proposed contract
     Cost elements (1)              total cost (2)          estimate--unit cost (3)          Reference (4)
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------

                         Column and Instruction

    (1) Enter appropriate cost elements.
    (2) Enter those necessary and reasonable costs that, in your 
judgment, will properly be incurred in efficient contract performance. 
When any of the costs in this column have already been incurred (e.g., 
under a letter contract), describe them on an attached supporting page. 
When preproduction or startup costs are significant, or when 
specifically requested to do so by the Contracting Officer, provide a 
full identification and explanation of them.
    (3) Optional, unless required by the Contracting Officer.
    (4) Identify the attachment in which the information supporting the 
specific cost element may be found. (Attach separate pages as 
necessary.)

               B. Change Orders, Modifications, and Claims

----------------------------------------------------------------------------------------------------------------
                                      Cost of
 Cost elements    Estimated cost   deleted work   Net cost to be   Cost of work     Net cost of
      (1)          of all work        already       deleted (4)      added (5)      change (6)     Reference (7)
                   deleted (2)     performed (3)
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------

                         Column and Instruction

    (1) Enter appropriate cost elements.
    (2) Include the current estimates of what the cost would have been 
to complete the deleted work not yet performed (not the original 
proposal estimates), and the cost of deleted work already performed.
    (3) Include the incurred cost of deleted work already performed, 
using actuals incurred if possible, or, if actuals are not available, 
estimates from your accounting records. Attach a detailed inventory of 
work, materials, parts, components, and hardware already purchased, 
manufactured, or performed and deleted by the change, indicating the 
cost and proposed disposition of each line item. Also, if you desire to 
retain these items or any portion of them, indicate the amount offered 
for them.
    (4) Enter the net cost to be deleted, which is the estimated cost of 
all deleted work less the cost of deleted work already performed. Column 
(2) minus Column (3) equals Column (4).
    (5) Enter your estimate for cost of work added by the change. When 
nonrecurring costs are significant, or when specifically requested to do 
so by the Contracting Officer, provide a full identification and 
explanation of them. When any of the costs in this column have already 
been incurred, describe them on an attached supporting schedule.
    (6) Enter the net cost of change, which is the cost of work added, 
less the net cost to be deleted. Column (5) minus Column (4) equals 
Column (6). When this result is negative, place the amount in 
parentheses.
    (7) Identify the attachment in which the information supporting the 
specific cost element may be found. (Attach separate pages as 
necessary.)

                    C. Price Revision/Redetermination

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------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
           Number of    Number of                                                                                                       Incurred               Estimated
 Cutoff      units     units to be   Contract    Redetermination    Difference      Cost        Incurred cost--      Incurred cost--   cost--work    Total      cost to    Estimated   Reference
date (1)   completed    completed   amount (4)   proposal amount        (6)       elements     preproduction (8)     completed units   in process   incurred   complete   total cost     (14)
              (2)          (3)                         (5)                           (7)                                   (9)            (10)     cost (11)     (12)        (13)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 337]]

    (Use as applicable).

                         Column and Instruction

    (1) Enter the cutoff date required by the contract, if applicable.
    (2) Enter the number of units completed during the period for which 
experienced costs of production are being submitted.
    (3) Enter the number of units remaining to be completed under the 
contract.
    (4) Enter the cumulative contract amount.
    (5) Enter your redetermination proposal amount.
    (6) Enter the difference between the contract amount and the 
redetermination proposal amount. When this result is negative, place the 
amount in parentheses. Column (4) minus Column (5) equals Column (6).
    (7) Enter appropriate cost elements. When residual inventory exists, 
the final costs established under fixed-price-incentive and fixed-price-
redeterminable arrangements should be net of the fair market value of 
such inventory. In support of subcontract costs, submit a listing of all 
subcontracts subject to repricing action, annotated as to their status.
    (8) Enter all costs incurred under the contract before starting 
production and other nonrecurring costs (usually referred to as startup 
costs) from your books and records as of the cutoff date. These include 
such costs as preproduction engineering, special plant rearrangement, 
training program, and any identifiable nonrecurring costs such as 
initial rework, spoilage, pilot runs, etc. In the event the amounts are 
not segregated in or otherwise available from your records, enter in 
this column your best estimates. Explain the basis for each estimate and 
how the costs are charged on your accounting records (e.g., included in 
production costs as direct engineering labor, charged to manufacturing 
overhead). Also show how the costs would be allocated to the units at 
their various stages of contract completion.
    (9) Enter in Column (9) the production costs from your books and 
records (exclusive of preproduction costs reported in Column (8)) of the 
units completed as of the cutoff date.
    (10) Enter in Column (10) the costs of work in process as determined 
from your records or inventories at the cutoff date. When the amounts 
for work in process are not available in your records but reliable 
estimates for them can be made, enter the estimated amounts in Column 
(10) and enter in Column (9) the differences between the total incurred 
costs (exclusive of preproduction costs) as of the cutoff date and these 
estimates. Explain the basis for the estimates, including identification 
of any provision for experienced or anticipated allowances, such as 
shrinkage, rework, design changes, etc. Furnish experienced unit or lot 
costs (or labor hours) from inception of contract to the cutoff date, 
improvement curves, and any other available production cost history 
pertaining to the item(s) to which your proposal relates.
    (11) Enter total incurred costs (Total of Columns (8), (9), and 
(10)).
    (12) Enter those necessary and reasonable costs that in your 
judgment will properly be incurred in completing the remaining work to 
be performed under the contract with respect to the item(s) to which 
your proposal relates.
    (13) Enter total estimated cost (Total of Columns (11) and (12)).
    (14) Identify the attachment in which the information supporting the 
specific cost element may be found. (Attach separate pages as 
necessary.)

[62 FR 51230, Sept. 30, 1997, as amended at 63 FR 58596, Oct. 30, 1998; 
66 FR 2129, Jan. 10, 2001; 67 FR 6115, Feb. 8, 2002; 71 FR 57367, Sept. 
28, 2006; 72 FR 63049, Nov. 7, 2007; 74 FR 52855, Oct. 14, 2009; 75 FR 
53133, 53147, Aug. 30, 2010; 75 FR 77745, Dec. 13, 2010]

Subpart 15.5_Preaward, Award, and Postaward Notifications, Protests, and 
                                Mistakes



Sec. 15.501  Definition.

    Day, as used in this subpart, has the meaning set forth at 33.101.



Sec. 15.502  Applicability.

    This subpart applies to competitive proposals, as described in 
6.102(b), and a combination of competitive procedures, as described in 
6.102(c). The procedures in 15.504, 15.506, 15.507, 15.508, and 15.509, 
with reasonable modification, should be followed for sole source 
acquisitions and acquisitions described in 6.102(d)(1) and (2).



Sec. 15.503  Notifications to unsuccessful offerors.

    (a) Preaward notices--(1) Preaward notices of exclusion from 
competitive range. The contracting officer shall notify offerors 
promptly in writing when their proposals are excluded from the 
competitive range or otherwise eliminated from the competition. The 
notice shall state the basis for the determination and that a proposal 
revision will not be considered.
    (2) Preaward notices for small business programs. (i) In addition to 
the notice in paragraph (a)(1) of this section, the contracting officer 
shall notify each offeror in writing prior to award, upon

[[Page 338]]

completion of negotiations, determinations of responsibility, and, if 
necessary, the process in 19.304(d)--
    (A) When using a small business set-aside (see subpart 19.5);
    (B) When a small disadvantaged business concern receives a benefit 
based on its disadvantaged status (see subpart 19.11 and 19.1202) and is 
the apparently successful offeror;
    (C) When using the HUBZone procedures in 19.1305 or 19.1307;
    (D) When using the service-disabled veteran-owned small business 
procedures in 19.1405; or
    (E) When using the Woman-Owned Small Business Program procedures in 
19.1505.
    (ii) The notice shall state--
    (A) The name and address of the apparently successful offeror;
    (B) That the Government will not consider subsequent revisions of 
the offeror's proposal; and
    (C) That no response is required unless a basis exists to challenge 
the size status or small business status of the apparently successful 
offeror (e.g., small business concern, small disadvantaged business 
concern, HUBZone small business concern, service-disabled veteran-owned 
small business concern, economically disadvantaged women-owned small 
business concern, or women-owned small business concern eligible under 
the Women-Owned Small Business Program).
    (iii) The notice is not required when the contracting officer 
determines in writing that the urgency of the requirement necessitates 
award without delay or when the contract is entered into under the 8(a) 
program (see 19.805-2).
    (b) Postaward notices. (1) Within 3 days after the date of contract 
award, the contracting officer shall provide written notification to 
each offeror whose proposal was in the competitive range but was not 
selected for award (10 U.S.C. 2305(b)(5) and 41 U.S.C. 253b(c)) or had 
not been previously notified under paragraph (a) of this section. The 
notice shall include--
    (i) The number of offerors solicited;
    (ii) The number of proposals received;
    (iii) The name and address of each offeror receiving an award;
    (iv) The items, quantities, and any stated unit prices of each 
award. If the number of items or other factors makes listing any stated 
unit prices impracticable at that time, only the total contract price 
need be furnished in the notice. However, the items, quantities, and any 
stated unit prices of each award shall be made publicly available, upon 
request; and
    (v) In general terms, the reason(s) the offeror's proposal was not 
accepted, unless the price information in paragraph (b)(1)(iv) of this 
section readily reveals the reason. In no event shall an offeror's cost 
breakdown, profit, overhead rates, trade secrets, manufacturing 
processes and techniques, or other confidential business information be 
disclosed to any other offeror.
    (2) Upon request, the contracting officer shall furnish the 
information described in paragraph (b)(1) of this section to 
unsuccessful offerors in solicitations using simplified acquisition 
procedures in part 13.
    (3) Upon request, the contracting officer shall provide the 
information in paragraph (b)(1) of this section to unsuccessful offerors 
that received a preaward notice of exclusion from the competitive range.

[62 FR 51230, Sept. 30, 1997, as amended at 63 FR 35721, June 30, 1998; 
63 FR 36121, July 1, 1998; 63 FR 70267, Dec. 18, 1998; 65 FR 80265, Dec. 
20, 2000; 66 FR 17756, Apr. 3, 2001; 66 FR 66986, 66990, Dec. 27, 2001; 
69 FR 25276, May 5, 2004; 76 FR 18309, Apr. 1, 2011]



Sec. 15.504  Award to successful offeror.

    The contracting officer shall award a contract to the successful 
offeror by furnishing the executed contract or other notice of the award 
to that offeror.
    (a) If the award document includes information that is different 
than the latest signed proposal, as amended by the offeror's written 
correspondence, both the offeror and the contracting officer shall sign 
the contract award.
    (b) When an award is made to an offeror for less than all of the 
items that may be awarded and additional items are being withheld for 
subsequent award, each notice shall state that the Government may make 
subsequent awards on those additional items within the proposal 
acceptance period.

[[Page 339]]

    (c) If the Optional Form (OF) 307, Contract Award, Standard Form 
(SF) 26, Award/Contract, or SF 33, Solicitation, Offer and Award, is not 
used to award the contract, the first page of the award document shall 
contain the Government's acceptance statement from Block 15 of that 
form, exclusive of the Item 3 reference language, and shall contain the 
contracting officer's name, signature, and date. In addition, if the 
award document includes information that is different than the signed 
proposal, as amended by the offeror's written correspondence, the first 
page shall include the contractor's agreement statement from Block 14 of 
the OF 307 and the signature of the contractor's authorized 
representative.



Sec. 15.505  Preaward debriefing of offerors.

    Offerors excluded from the competitive range or otherwise excluded 
from the competition before award may request a debriefing before award 
(10 U.S.C. 2305(b)(6)(A) and 41 U.S.C. 253b(f)-(h)).
    (a)(1) The offeror may request a preaward debriefing by submitting a 
written request for debriefing to the contracting officer within 3 days 
after receipt of the notice of exclusion from the competition.
    (2) At the offeror's request, this debriefing may be delayed until 
after award. If the debriefing is delayed until after award, it shall 
include all information normally provided in a postaward debriefing (see 
15.506(d)). Debriefings delayed pursuant to this paragraph could affect 
the timeliness of any protest filed subsequent to the debriefing.
    (3) If the offeror does not submit a timely request, the offeror 
need not be given either a preaward or a postaward debriefing. Offerors 
are entitled to no more than one debriefing for each proposal.
    (b) The contracting officer shall make every effort to debrief the 
unsuccessful offeror as soon as practicable, but may refuse the request 
for a debriefing if, for compelling reasons, it is not in the best 
interests of the Government to conduct a debriefing at that time. The 
rationale for delaying the debriefing shall be documented in the 
contract file. If the contracting officer delays the debriefing, it 
shall be provided no later than the time postaward debriefings are 
provided under 15.506. In that event, the contracting officer shall 
include the information at 15.506(d) in the debriefing.
    (c) Debriefings may be done orally, in writing, or by any other 
method acceptable to the contracting officer.
    (d) The contracting officer should normally chair any debriefing 
session held. Individuals who conducted the evaluations shall provide 
support.
    (e) At a minimum, preaward debriefings shall include--
    (1) The agency's evaluation of significant elements in the offeror's 
proposal;
    (2) A summary of the rationale for eliminating the offeror from the 
competition; and
    (3) Reasonable responses to relevant questions about whether source 
selection procedures contained in the solicitation, applicable 
regulations, and other applicable authorities were followed in the 
process of eliminating the offeror from the competition.
    (f) Preaward debriefings shall not disclose--
    (1) The number of offerors;
    (2) The identity of other offerors;
    (3) The content of other offerors proposals;
    (4) The ranking of other offerors;
    (5) The evaluation of other offerors; or
    (6) Any of the information prohibited in 15.506(e).
    (g) An official summary of the debriefing shall be included in the 
contract file.



Sec. 15.506  Postaward debriefing of offerors.

    (a)(1) An offeror, upon its written request received by the agency 
within 3 days after the date on which that offeror has received 
notification of contract award in accordance with 15.503(b), shall be 
debriefed and furnished the basis for the selection decision and 
contract award.
    (2) To the maximum extent practicable, the debriefing should occur 
within 5 days after receipt of the written request. Offerors that 
requested a postaward debriefing in lieu of a

[[Page 340]]

preaward debriefing, or whose debriefing was delayed for compelling 
reasons beyond contract award, also should be debriefed within this time 
period.
    (3) An offeror that was notified of exclusion from the competition 
(see 15.505(a)), but failed to submit a timely request, is not entitled 
to a debriefing.
    (4)(i) Untimely debriefing requests may be accommodated.
    (ii) Government accommodation of a request for delayed debriefing 
pursuant to 15.505(a)(2), or any untimely debriefing request, does not 
automatically extend the deadlines for filing protests. Debriefings 
delayed pursuant to 15.505(a)(2) could affect the timeliness of any 
protest filed subsequent to the debriefing.
    (b) Debriefings of successful and unsuccessful offerors may be done 
orally, in writing, or by any other method acceptable to the contracting 
officer.
    (c) The contracting officer should normally chair any debriefing 
session held. Individuals who conducted the evaluations shall provide 
support.
    (d) At a minimum, the debriefing information shall include--
    (1) The Government's evaluation of the significant weaknesses or 
deficiencies in the offeror's proposal, if applicable;
    (2) The overall evaluated cost or price (including unit prices), and 
technical rating, if applicable, of the successful offeror and the 
debriefed offeror, and past performance information on the debriefed 
offeror;
    (3) The overall ranking of all offerors, when any ranking was 
developed by the agency during the source selection;
    (4) A summary of the rationale for award;
    (5) For acquisitions of commercial items, the make and model of the 
item to be delivered by the successful offeror; and
    (6) Reasonable responses to relevant questions about whether source 
selection procedures contained in the solicitation, applicable 
regulations, and other applicable authorities were followed.
    (e) The debriefing shall not include point-by-point comparisons of 
the debriefed offeror's proposal with those of other offerors. Moreover, 
the debriefing shall not reveal any information prohibited from 
disclosure by 24.202 or exempt from release under the Freedom of 
Information Act (5 U.S.C. 552) including--
    (1) Trade secrets;
    (2) Privileged or confidential manufacturing processes and 
techniques;
    (3) Commercial and financial information that is privileged or 
confidential, including cost breakdowns, profit, indirect cost rates, 
and similar information; and
    (4) The names of individuals providing reference information about 
an offeror's past performance.
    (f) An official summary of the debriefing shall be included in the 
contract file.



Sec. 15.507  Protests against award.

    (a) Protests against award in negotiated acquisitions shall be 
handled in accordance with part 33. Use of agency protest procedures 
that incorporate the alternative dispute resolution provisions of 
Executive Order 12979 is encouraged for both preaward and postaward 
protests.
    (b) If a protest causes the agency, within 1 year of contract award, 
to--
    (1) Issue a new solicitation on the protested contract award, the 
contracting officer shall provide the information in paragraph (c) of 
this section to all prospective offerors for the new solicitation; or
    (2) Issue a new request for revised proposals on the protested 
contract award, the contracting officer shall provide the information in 
paragraph (c) of this section to offerors that were in the competitive 
range and are requested to submit revised proposals.
    (c) The following information will be provided to appropriate 
parties:
    (1) Information provided to unsuccessful offerors in any debriefings 
conducted on the original award regarding the successful offeror's 
proposal; and
    (2) Other nonproprietary information that would have been provided 
to the original offerors.



Sec. 15.508  Discovery of mistakes.

    Mistakes in a contractor's proposal that are disclosed after award 
shall be processed substantially in accordance with the procedures for 
mistakes in bids at 14.407-4.

[[Page 341]]



Sec. 15.509  Forms.

    Optional Form 307, Contract Award, Standard Form (SF) 26, Award/
Contract, or SF 33, Solicitation, Offer and Award, may be used to award 
negotiated contracts in which the signature of both parties on a single 
document is appropriate. Note however, if using the SF 26 for a 
negotiated procurement, block 18 is not to be used. If these forms are 
not used, the award document shall incorporate the agreement and award 
language from the OF 307.

[62 FR 51230, Sept. 30, 1997, as amended at 75 FR 13416, Mar. 19, 2010]

                   Subpart 15.6_Unsolicited Proposals



Sec. 15.600  Scope of subpart.

    This subpart sets forth policies and procedures concerning the 
submission, receipt, evaluation, and acceptance or rejection of 
unsolicited proposals.



Sec. 15.601  Definitions.

    As used in this subpart--
    Advertising material means material designed to acquaint the 
Government with a prospective contractor's present products, services, 
or potential capabilities, or designed to stimulate the Government's 
interest in buying such products or services.
    Commercial item offer means an offer of a commercial item that the 
vendor wishes to see introduced in the Government's supply system as an 
alternate or a replacement for an existing supply item. This term does 
not include innovative or unique configurations or uses of commercial 
items that are being offered for further development and that may be 
submitted as an unsolicited proposal.
    Contribution means a concept, suggestion, or idea presented to the 
Government for its use with no indication that the source intends to 
devote any further effort to it on the Government's behalf.

[62 FR 51230, Sept. 30, 1997, as amended at 66 FR 2129, Jan. 10, 2001]



Sec. 15.602  Policy.

    It is the policy of the Government to encourage the submission of 
new and innovative ideas in response to Broad Agency Announcements, 
Small Business Innovation Research topics, Small Business Technology 
Transfer Research topics, Program Research and Development 
Announcements, or any other Government-initiated solicitation or 
program. When the new and innovative ideas do not fall under topic areas 
publicized under those programs or techniques, the ideas may be 
submitted as unsolicited proposals.



Sec. 15.603  General.

    (a) Unsolicited proposals allow unique and innovative ideas or 
approaches that have been developed outside the Government to be made 
available to Government agencies for use in accomplishment of their 
missions. Unsolicited proposals are offered with the intent that the 
Government will enter into a contract with the offeror for research and 
development or other efforts supporting the Government mission, and 
often represent a substantial investment of time and effort by the 
offeror.
    (b) Advertising material, commercial item offers, or contributions, 
as defined in 15.601, or routine correspondence on technical issues, are 
not unsolicited proposals.
    (c) A valid unsolicited proposal must--
    (1) Be innovative and unique;
    (2) Be independently originated and developed by the offeror;
    (3) Be prepared without Government supervision, endorsement, 
direction, or direct Government involvement;
    (4) Include sufficient detail to permit a determination that 
Government support could be worthwhile and the proposed work could 
benefit the agency's research and development or other mission 
responsibilities;
    (5) Not be an advance proposal for a known agency requirement that 
can be acquired by competitive methods; and
    (6) Not address a previously published agency requirement.
    (d) Unsolicited proposals in response to a publicized general 
statement of agency needs are considered to be independently originated.

[[Page 342]]

    (e) Agencies must evaluate unsolicited proposals for energy-savings 
performance contracts in accordance with the procedures in 10 CFR 
436.33(b).

[62 FR 51230, Sept. 30, 1997, as amended at 66 FR 65352, Dec. 18, 2002; 
69 FR 17769]



Sec. 15.604  Agency points of contact.

    (a) Preliminary contact with agency technical or other appropriate 
personnel before preparing a detailed unsolicited proposal or submitting 
proprietary information to the Government may save considerable time and 
effort for both parties (see 15.201). Agencies must make available to 
potential offerors of unsolicited proposals at least the following 
information:
    (1) Definition (see 2.101) and content (see 15.605) of an 
unsolicited proposal acceptable for formal evaluation.
    (2) Requirements concerning responsible prospective contractors (see 
subpart 9.1), and organizational conflicts of interest (see subpart 
9.5).
    (3) Guidance on preferred methods for submitting ideas/concepts to 
the Government, such as any agency: upcoming solicitations; Broad Agency 
Announcements; Small Business Innovation Research programs; Small 
Business Technology Transfer Research programs; Program Research and 
Development Announcements; or grant programs.
    (4) Agency points of contact for information regarding advertising, 
contributions, and other types of transactions similar to unsolicited 
proposals.
    (5) Information sources on agency objectives and areas of potential 
interest.
    (6) Procedures for submission and evaluation of unsolicited 
proposals.
    (7) Instructions for identifying and marking proprietary information 
so that it is protected and restrictive legends conform to 15.609.
    (b) Only the cognizant contracting officer has the authority to bind 
the Government regarding unsolicited proposals.

[62 FR 51230, Sept. 30, 1997, as amended at 66 FR 2129, Jan. 10, 2001]



Sec. 15.605  Content of unsolicited proposals.

    Unsolicited proposals should contain the following information to 
permit consideration in an objective and timely manner:
    (a) Basic information including--
    (1) Offeror's name and address and type of organization; e.g., 
profit, nonprofit, educational, small business;
    (2) Names and telephone numbers of technical and business personnel 
to be contacted for evaluation or negotiation purposes;
    (3) Identification of proprietary data to be used only for 
evaluation purposes;
    (4) Names of other Federal, State, or local agencies or parties 
receiving the proposal or funding the proposed effort;
    (5) Date of submission; and
    (6) Signature of a person authorized to represent and contractually 
obligate the offeror.
    (b) Technical information including--
    (1) Concise title and abstract (approximately 200 words) of the 
proposed effort;
    (2) A reasonably complete discussion stating the objectives of the 
effort or activity, the method of approach and extent of effort to be 
employed, the nature and extent of the anticipated results, and the 
manner in which the work will help to support accomplishment of the 
agency's mission;
    (3) Names and biographical information on the offeror's key 
personnel who would be involved, including alternates; and
    (4) Type of support needed from the agency; e.g., Government 
property or personnel resources.
    (c) Supporting information including--
    (1) Proposed price or total estimated cost for the effort in 
sufficient detail for meaningful evaluation;
    (2) Period of time for which the proposal is valid (a 6-month 
minimum is suggested);
    (3) Type of contract preferred;
    (4) Proposed duration of effort;
    (5) Brief description of the organization, previous experience, 
relevant past performance, and facilities to be used;
    (6) Other statements, if applicable, about organizational conflicts 
of interest, security clearances, and environmental impacts; and
    (7) The names and telephone numbers of agency technical or other 
agency

[[Page 343]]

points of contact already contacted regarding the proposal.

[62 FR 51230, Sept. 30, 1997, as amended at 72 FR 27384, May 15, 2007]



Sec. 15.606  Agency procedures.

    (a) Agencies shall establish procedures for controlling the receipt, 
evaluation, and timely disposition of unsolicited proposals consistent 
with the requirements of this subpart. The procedures shall include 
controls on the reproduction and disposition of proposal material, 
particularly data identified by the offeror as subject to duplication, 
use, or disclosure restrictions.
    (b) Agencies shall establish agency points of contact (see 15.604) 
to coordinate the receipt and handling of unsolicited proposals.



Sec. 15.606-1  Receipt and initial review.

    (a) Before initiating a comprehensive evaluation, the agency contact 
point shall determine if the proposal--
    (1) Is a valid unsolicited proposal, meeting the requirements of 
15.603(c);
    (2) Is suitable for submission in response to an existing agency 
requirement (see 15.602);
    (3) Is related to the agency mission;
    (4) Contains sufficient technical information and cost-related or 
price-related information for evaluation;
    (5) Has overall scientific, technical, or socioeconomic merit;
    (6) Has been approved by a responsible official or other 
representative authorized to obligate the offeror contractually; and
    (7) Complies with the marking requirements of 15.609.
    (b) If the proposal meets these requirements, the contact point 
shall promptly acknowledge receipt and process the proposal.
    (c) If a proposal is rejected because the proposal does not meet the 
requirements of paragraph (a) of this subsection, the agency contact 
point shall promptly inform the offeror of the reasons for rejection in 
writing and of the proposed disposition of the unsolicited proposal.

[62 FR 51230, Sept. 30, 1997, as amended at 69 FR 17769, Apr. 5, 2004]



Sec. 15.606-2  Evaluation.

    (a) Comprehensive evaluations shall be coordinated by the agency 
contact point, who shall attach or imprint on each unsolicited proposal, 
circulated for evaluation, the legend required by 15.609(d). When 
performing a comprehensive evaluation of an unsolicited proposal, 
evaluators shall consider the following factors, in addition to any 
others appropriate for the particular proposal:
    (1) Unique, innovative and meritorious methods, approaches, or 
concepts demonstrated by the proposal;
    (2) Overall scientific, technical, or socioeconomic merits of the 
proposal;
    (3) Potential contribution of the effort to the agency's specific 
mission;
    (4) The offeror's capabilities, related experience, facilities, 
techniques, or unique combinations of these that are integral factors 
for achieving the proposal objectives;
    (5) The qualifications, capabilities, and experience of the proposed 
principal investigator, team leader, or key personnel critical to 
achieving the proposal objectives; and
    (6) The realism of the proposed cost.
    (b) The evaluators shall notify the agency point of contact of their 
recommendations when the evaluation is completed.



Sec. 15.607  Criteria for acceptance and negotiation of an unsolicited 
          proposal.

    (a) A favorable comprehensive evaluation of an unsolicited proposal 
does not, in itself, justify awarding a contract without providing for 
full and open competition. The agency point of contact shall return an 
unsolicited proposal to the offeror, citing reasons, when its 
substance--
    (1) Is available to the Government without restriction from another 
source;
    (2) Closely resembles a pending competitive acquisition requirement;
    (3) Does not relate to the activity's mission; or
    (4) Does not demonstrate an innovative and unique method, approach, 
or concept, or is otherwise not deemed a meritorious proposal.
    (b) The contracting officer may commence negotiations on a sole 
source basis only when--

[[Page 344]]

    (1) An unsolicited proposal has received a favorable comprehensive 
evaluation;
    (2) A justification and approval has been obtained (see 6.302-
1(a)(2)(i) for research proposals or other appropriate provisions of 
subpart 6.3, and 6.303-2(c));
    (3) The agency technical office sponsoring the contract furnishes 
the necessary funds; and
    (4) The contracting officer has complied with the synopsis 
requirements of subpart 5.2.

[62 FR 51230, Sept. 30, 1997, as amended at 76 FR 14562, Mar. 16, 2011]



Sec. 15.608  Prohibitions.

    (a) Government personnel shall not use any data, concept, idea, or 
other part of an unsolicited proposal as the basis, or part of the 
basis, for a solicitation or in negotiations with any other firm unless 
the offeror is notified of and agrees to the intended use. However, this 
prohibition does not preclude using any data, concept, or idea in the 
proposal that also is available from another source without restriction.
    (b) Government personnel shall not disclose restrictively marked 
information (see 3.104 and 15.609) included in an unsolicited proposal. 
The disclosure of such information concerning trade secrets, processes, 
operations, style of work, apparatus, and other matters, except as 
authorized by law, may result in criminal penalties under 18 U.S.C. 
1905.



Sec. 15.609  Limited use of data.

    (a) An unsolicited proposal may include data that the offeror does 
not want disclosed to the public for any purpose or used by the 
Government except for evaluation purposes. If the offeror wishes to 
restrict the data, the title page must be marked with the following 
legend:

                       Use and Disclosure of Data

    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. However, 
if a contract is awarded to this offeror as a result of--or in 
connection with--the submission of these 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 these data if they 
are obtained from another source without restriction. The data subject 
to this restriction are contained in Sheets [insert numbers or other 
identification of sheets].

    (b) The offeror shall also 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.
    (c) The agency point of contact shall return to the offeror any 
unsolicited proposal marked with a legend different from that provided 
in paragraph (a) of this section. The return letter will state that the 
proposal cannot be considered because it is impracticable for the 
Government to comply with the legend and that the agency will consider 
the proposal if it is resubmitted with the proper legend.
    (d) The agency point of contact shall place a cover sheet on the 
proposal or clearly mark it as follows, unless the offeror clearly 
states in writing that no restrictions are imposed on the disclosure or 
use of the data contained in the proposal:

                Unsolicited Proposal--Use of Data Limited

    All Government personnel must exercise extreme care to ensure that 
the information in this proposal is not disclosed to an individual who 
has not been authorized access to such data in accordance with FAR 
3.104, and is not duplicated, used, or disclosed in whole or in part for 
any purpose other than evaluation of the proposal, without the written 
permission of the offeror. If a contract is awarded on the basis of this 
proposal, the terms of the contract shall control disclosure and use. 
This notice does not limit the Government's right to use information 
contained in the proposal if it is obtainable from another source 
without restriction. This is a Government notice, and shall not by 
itself be construed to impose any liability upon the Government or 
Government personnel for disclosure or use of data contained in this 
proposal.

    (e) Use the notice in paragraph (d) of this section solely as a 
manner of handling unsolicited proposals that will be compatible with 
this subpart. However, do not use this notice to justify withholding of 
a record, or to improperly deny the public access to a record,

[[Page 345]]

where an obligation is imposed by the Freedom of Information Act (5 
U.S.C. 552). An offeror should identify trade secrets, commercial or 
financial information, and privileged or confidential information to the 
Government (see paragraph (a) of this section).
    (f) When an agency receives an unsolicited proposal without any 
restrictive legend from an educational or nonprofit organization or 
institution, and an evaluation outside the Government is necessary, the 
agency point of contact shall--
    (1) Attach a cover sheet clearly marked with the legend in paragraph 
(d) of this section;
    (2) Change the beginning of this legend to read ``All Government and 
non-Government personnel * * * ''; and
    (3) Require any non-Government evaluator to agree in writing that 
data in the proposal will not be disclosed to others outside the 
Government.
    (g) If the proposal is received with the restrictive legend (see 
paragraph (a) of this section), the modified cover sheet shall also be 
used and permission shall be obtained from the offeror before release of 
the proposal for evaluation by non-Government personnel.
    (h) When an agency receives an unsolicited proposal with or without 
a restrictive legend from other than an educational or nonprofit 
organization or institution, and evaluation by Government personnel 
outside the agency or by experts outside of the Government is necessary, 
written permission must be obtained from the offeror before release of 
the proposal for evaluation. The agency point of contact shall--
    (1) Clearly mark the cover sheet with the legend in paragraph (d) or 
as modified in paragraph (f) of this section; and
    (2) Obtain a written agreement from any non-Government evaluator 
stating that data in the proposal will not be disclosed to persons 
outside the Government.

[62 FR 51230, Sept. 30, 1997, as amended at 67 FR 13056, Mar. 20, 2002]

                       PART 16_TYPES OF CONTRACTS

Sec.

Sec. 16.000 Scope of part.

Sec. 16.001 Definitions.

                  Subpart 16.1_Selecting Contract Types


Sec. 16.101 General.

Sec. 16.102 Policies.

Sec. 16.103 Negotiating contract type.

Sec. 16.104 Factors in selecting contract types.

Sec. 16.105 Solicitation provision.

                   Subpart 16.2_Fixed-Price Contracts


Sec. 16.201 General.

Sec. 16.202 Firm-fixed-price contracts.

Sec. 16.202-1 Description.

Sec. 16.202-2 Application.

Sec. 16.203 Fixed-price contracts with economic price adjustment.

Sec. 16.203-1 Description.

Sec. 16.203-2 Application.

Sec. 16.203-3 Limitations.

Sec. 16.203-4 Contract clauses.

Sec. 16.204 Fixed-price incentive contracts.

Sec. 16.205 Fixed-price contracts with prospective price 
          redetermination.

Sec. 16.205-1 Description.

Sec. 16.205-2 Application.

Sec. 16.205-3 Limitations.

Sec. 16.205-4 Contract clause.

Sec. 16.206 Fixed-ceiling-price contracts with retroactive price 
          redetermination.

Sec. 16.206-1 Description.

Sec. 16.206-2 Application.

Sec. 16.206-3 Limitations.

Sec. 16.206-4 Contract clause.

Sec. 16.207 Firm-fixed-price, level-of-effort term contracts.

Sec. 16.207-1 Description.

Sec. 16.207-2 Application.

Sec. 16.207-3 Limitations.

                Subpart 16.3_Cost-Reimbursement Contracts


Sec. 16.301 General.

Sec. 16.301-1 Description.

Sec. 16.301-2 Application.

Sec. 16.301-3 Limitations.

Sec. 16.302 Cost contracts.

Sec. 16.303 Cost-sharing contracts.

Sec. 16.304 Cost-plus-incentive-fee contracts.

Sec. 16.305 Cost-plus-award-fee contracts.

Sec. 16.306 Cost-plus-fixed-fee contracts.

Sec. 16.307 Contract clauses.

                    Subpart 16.4_Incentive Contracts


Sec. 16.401 General.

Sec. 16.402 Application of predetermined, formula-type incentives.

Sec. 16.402-1 Cost incentives.

Sec. 16.402-2 Performance incentives.

Sec. 16.402-3 Delivery incentives.

Sec. 16.402-4 Structuring multiple-incentive contracts.

Sec. 16.403 Fixed-price incentive contracts.

Sec. 16.403-1 Fixed-price incentive (firm target) contracts.

Sec. 16.403-2 Fixed-price incentive (successive targets) contracts.

[[Page 346]]


Sec. 16.404 Fixed-price contracts with award fees.

Sec. 16.405 Cost-reimbursement incentive contracts.

Sec. 16.405-1 Cost-plus-incentive-fee contracts.

Sec. 16.405-2 Cost-plus-award-fee contracts.

Sec. 16.406 Contract clauses.

               Subpart 16.5_Indefinite-Delivery Contracts


Sec. 16.500 Scope of subpart.

Sec. 16.501-1 Definitions.

Sec. 16.501-2 General.

Sec. 16.502 Definite-quantity contracts.

Sec. 16.503 Requirements contracts.

Sec. 16.504 Indefinite-quantity contracts.

Sec. 16.505 Ordering.

Sec. 16.506 Solicitation provisions and contract clauses.

    Subpart 16.6_Time-and-Materials, Labor-Hour, and Letter Contracts


Sec. 16.600 Scope.

Sec. 16.601 Time-and-materials contracts.

Sec. 16.602 Labor-hour contracts.

Sec. 16.603 Letter contracts.

Sec. 16.603-1 Description.

Sec. 16.603-2 Application.

Sec. 16.603-3 Limitations.

Sec. 16.603-4 Contract clauses.

                         Subpart 16.7_Agreements


Sec. 16.701 Scope.

Sec. 16.702 Basic agreements.

Sec. 16.703 Basic ordering agreements.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 
20113.

    Source: 48 FR 42219, Sept. 19, 1983, unless otherwise noted.



Sec. 16.000  Scope of part.

    This part describes types of contracts that may be used in 
acquisitions. It prescribes policies and procedures and provides 
guidance for selecting a contract type appropriate to the circumstances 
of the acquisition.

[48 FR 42219, Sept. 19, 1983, as amended at 60 FR 34756, July 3, 1995; 
61 FR 39197, July 26, 1996]



Sec. 16.001  Definitions.

    As used in this part--
    Award-Fee Board means the team of individuals identified in the 
award-fee plan who have been designated to assist the Fee-Determining 
Official in making award-fee determinations.
    Fee-Determining Official (FDO) means the designated Agency 
official(s) who reviews the recommendations of the Award-Fee Board in 
determining the amount of award fee to be earned by the contractor for 
each evaluation period.
    Rollover of unearned award fee means the process of transferring 
unearned award fee, which the contractor had an opportunity to earn, 
from one evaluation period to a subsequent evaluation period, thus 
allowing the contractor an additional opportunity to earn that 
previously unearned award fee.

[74 FR 52858, Oct. 14, 2009]

                  Subpart 16.1_Selecting Contract Types



Sec. 16.101  General.

    (a) A wide selection of contract types is available to the 
Government and contractors in order to provide needed flexibility in 
acquiring the large variety and volume of supplies and services required 
by agencies. Contract types vary according to (1) the degree and timing 
of the responsibility assumed by the contractor for the costs of 
performance and (2) the amount and nature of the profit incentive 
offered to the contractor for achieving or exceeding specified standards 
or goals.
    (b) The contract types are grouped into two broad categories: fixed-
price contracts (see subpart 16.2) and cost-reimbursement contracts (see 
subpart 16.3). The specific contract types range from firm-fixed-price, 
in which the contractor has full responsibility for the performance 
costs and resulting profit (or loss), to cost-plus-fixed-fee, in which 
the contractor has minimal responsibility for the performance costs and 
the negotiated fee (profit) is fixed. In between are the various 
incentive contracts (see subpart 16.4), in which the contractor's 
responsibility for the performance costs and the profit or fee 
incentives offered are tailored to the uncertainties involved in 
contract performance.



Sec. 16.102  Policies.

    (a) Contracts resulting from sealed bidding shall be firm-fixed-
price contracts or fixed-price contracts with economic price adjustment.
    (b) Contracts negotiated under part 15 may be of any type or 
combination

[[Page 347]]

of types that will promote the Government's interest, except as 
restricted in this part (see 10 U.S.C. 2306(a) and 41 U.S.C. 254(a)). 
Contract types not described in this regulation shall not be used, 
except as a deviation under subpart 1.4.
    (c) The cost-plus-a-percentage-of-cost system of contracting shall 
not be used (see 10 U.S.C. 2306(a) and 41 U.S.C. 254(b)). Prime 
contracts (including letter contracts) other than firm-fixed-price 
contracts shall, by an appropriate clause, prohibit cost- plus-a-
percentage-of-cost subcontracts (see clauses prescribed in subpart 44.2 
for cost-reimbursement contracts and subparts 16.2 and 16.4 for fixed-
price contracts).
    (d) No contract may be awarded before the execution of any 
determination and findings (D&F's) required by this part. Minimum 
requirements for the content of D&F's required by this part are 
specified in 1.704.

[48 FR 42219, Sept. 19, 1983, as amended at 50 FR 1741, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985]



Sec. 16.103  Negotiating contract type.

    (a) Selecting the contract type is generally a matter for 
negotiation and requires the exercise of sound judgment. Negotiating the 
contract type and negotiating prices are closely related and should be 
considered together. The objective is to negotiate a contract type and 
price (or estimated cost and fee) that will result in reasonable 
contractor risk and provide the contractor with the greatest incentive 
for efficient and economical performance.
    (b) A firm-fixed-price contract, which best utilizes the basic 
profit motive of business enterprise, shall be used when the risk 
involved is minimal or can be predicted with an acceptable degree of 
certainty. However, when a reasonable basis for firm pricing does not 
exist, other contract types should be considered, and negotiations 
should be directed toward selecting a contract type (or combination of 
types) that will appropriately tie profit to contractor performance.
    (c) In the course of an acquisition program, a series of contracts, 
or a single long-term contract, changing circumstances may make a 
different contract type appropriate in later periods than that used at 
the outset. In particular, contracting officers should avoid protracted 
use of a cost-reimbursement or time-and-materials contract after 
experience provides a basis for firmer pricing.
    (d) Each contract file shall include documentation to show why the 
particular contract type was selected. Exceptions to this requirement 
are:
    (1) Each contract file shall include documentation to show why the 
particular contract type was selected. This shall be documented in the 
acquisition plan, or in the contract file if a written acquisition plan 
is not required by agency procedures.
    (i) Explain why the contract type selected must be used to meet the 
agency need.
    (ii) Discuss the Government's additional risks and the burden to 
manage the contract type selected (e.g., when a cost-reimbursement 
contract is selected, the Government incurs additional cost risks, and 
the Government has the additional burden of managing the contractor's 
costs). For such instances, acquisition personnel shall discuss--
    (A) How the Government identified the additional risks (e.g., pre-
award survey, or past performance information);
    (B) The nature of the additional risks (e.g., inadequate 
contractor's accounting system, weaknesses in contractor's internal 
control, non-compliance with Cost Accounting Standards, or lack of or 
inadequate earned value management system); and
    (C) How the Government will manage and mitigate the risks.
    (iii) Discuss the Government resources necessary to properly plan 
for, award, and administer the contract type selected (e.g., resources 
needed and the additional risks to the Government if adequate resources 
are not provided).
    (iv) For other than a firm-fixed price contract, at a minimum the 
documentation should include--
    (A) An analysis of why the use of other than a firm-fixed-price 
contract (e.g., cost reimbursement, time and materials, labor hour) is 
appropriate;

[[Page 348]]

    (B) Rationale that detail the particular facts and circumstances 
(e.g., complexity of the requirements, uncertain duration of the work, 
contractor's technical capability and financial responsibility, or 
adequacy of the contractor's accounting system), and associated 
reasoning essential to support the contract type selection;
    (C) An assessment regarding the adequacy of Government resources 
that are necessary to properly plan for, award, and administer other 
than firm-fixed-price contracts; and
    (D) A discussion of the actions planned to minimize the use of other 
than firm-fixed-price contracts on future acquisitions for the same 
requirement and to transition to firm-fixed-price contracts to the 
maximum extent practicable.
    (v) A discussion of why a level-of-effort, price redetermination, or 
fee provision was included.
    (2) Exceptions to the requirements at (d)(1) of this section are--
    (i) Fixed-price acquisitions made under simplified acquisition 
procedures;
    (ii) Contracts on a firm-fixed-price basis other than those for 
major systems or research and development; and
    (iii) Awards on the set-aside portion of sealed bid partial set-
asides for small business.
    (3) Awards on the set-aside portion of sealed bid partial set-asides 
for small business.

[48 FR 42219, Sept. 19, 1983, as amended at 50 FR 1742, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 54 FR 5054, Jan. 31, 1989; 60 FR 34756, July 
3, 1995; 60 FR 48260, Sept. 18, 1995; 61 FR 39198, July 26, 1996; 76 FR 
14546, Mar. 16, 2011; 77 FR 12927, Mar. 2, 2012]



Sec. 16.104  Factors in selecting contract types.

    There are many factors that the contracting officer should consider 
in selecting and negotiating the contract type. They include the 
following:
    (a) Price competition. Normally, effective price competition results 
in realistic pricing, and a fixed-price contract is ordinarily in the 
Government's interest.
    (b) Price analysis. Price analysis with or without competition, may 
provide a basis for selecting the contract type. The degree to which 
price analysis can provide a realistic pricing standard should be 
carefully considered. (See 15.404-1(b).)
    (c) Cost analysis. In the absence of effective price competition and 
if price analysis is not sufficient, the cost estimates of the offeror 
and the Government provide the bases for negotiating contract pricing 
arrangements. It is essential that the uncertainties involved in 
performance and their possible impact upon costs be identified and 
evaluated, so that a contract type that places a reasonable degree of 
cost responsibility upon the contractor can be negotiated.
    (d) Type and complexity of the requirement. Complex requirements, 
particularly those unique to the Government, usually result in greater 
risk assumption by the Government. This is especially true for complex 
research and development contracts, when performance uncertainties or 
the likelihood of changes makes it difficult to estimate performance 
costs in advance. As a requirement recurs or as quantity production 
begins, the cost risk should shift to the contractor, and a fixed-price 
contract should be considered.
    (e) Combining contract types. If the entire contract cannot be firm-
fixed-price, the contracting officer shall consider whether or not a 
portion of the contract can be established on a firm-fixed-price basis.
    (f) Urgency of the requirement. If urgency is a primary factor, the 
Government may choose to assume a greater proportion of risk or it may 
offer incentives tailored to performance outcomes to ensure timely 
contract performance.
    (g) Period of performance or length of production run. In times of 
economic uncertainty, contracts extending over a relatively long period 
may require economic price adjustment or price redetermination clauses.
    (h) Contractor's technical capability and financial responsibility.
    (i) Adequacy of the contractor's accounting system. Before agreeing 
on a contract type other than firm-fixed-price, the contracting officer 
shall ensure that the contractor's accounting system will permit timely 
development of all necessary cost data in the form

[[Page 349]]

required by the proposed contract type. This factor may be critical--
    (1) When the contract type requires price revision while performance 
is in progress; or
    (2) When a cost-reimbursement contract is being considered and all 
current or past experience with the contractor has been on a fixed-price 
basis. See 42.302(a)(12).
    (j) Concurrent contracts. If performance under the proposed contract 
involves concurrent operations under other contracts, the impact of 
those contracts, including their pricing arrangements, should be 
considered.
    (k) Extent and nature of proposed subcontracting. If the contractor 
proposes extensive subcontracting, a contract type reflecting the actual 
risks to the prime contractor should be selected.
    (l) Acquisition history. Contractor risk usually decreases as the 
requirement is repetitively acquired. Also, product descriptions or 
descriptions of services to be performed can be defined more clearly.

[48 FR 42219, Sept. 19, 1983, as amended at 50 FR 1742, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 62 FR 44814, Aug. 22, 1997; 62 FR 51270, 
Sept. 30, 1997; 76 FR 14547, Mar. 16, 2011]



Sec. 16.105  Solicitation provision.

    The contracting officer shall complete and insert the provision at 
52.216-1, Type of Contract, in a solicitation unless it is for--
    (a) A fixed-price acquisition made under simplified acquisition 
procedures; or
    (b) Information or planning purposes.

[60 FR 34756, July 3, 1995, as amended at 61 FR 39198, July 26, 1996]

                   Subpart 16.2_Fixed-Price Contracts



Sec. 16.201  General.

    (a) Fixed-price types of contracts provide for a firm price or, in 
appropriate cases, an adjustable price. Fixed-price contracts providing 
for an adjustable price may include a ceiling price, a target price 
(including target cost), or both. Unless otherwise specified in the 
contract, the ceiling price or target price is subject to adjustment 
only by operation of contract clauses providing for equitable adjustment 
or other revision of the contract price under stated circumstances. The 
contracting officer shall use firm-fixed-price or fixed-price with 
economic price adjustment contracts when acquiring commercial items, 
except as provided in 12.207(b).
    (b) Time-and-materials contracts and labor-hour contracts are not 
fixed-price contracts.

[77 FR 197, Jan. 3, 2012]



Sec. 16.202  Firm-fixed-price contracts.



Sec. 16.202-1  Description.

    A firm-fixed-price contract provides for a price that is not subject 
to any adjustment on the basis of the contractor's cost experience in 
performing the contract. This contract type places upon the contractor 
maximum risk and full responsibility for all costs and resulting profit 
or loss. It provides maximum incentive for the contractor to control 
costs and perform effectively and imposes a minimum administrative 
burden upon the contracting parties. The contracting officer may use a 
firm-fixed-price contract in conjunction with an award-fee incentive 
(see 16.404) and performance or delivery incentives (see 16.402-2 and 
16.402-3) when the award fee or incentive is based solely on factors 
other than cost. The contract type remains firm-fixed-price when used 
with these incentives.

[48 FR 42219, Sept. 19, 1983, as amended at 68 FR 13201, Mar. 18, 2003]



Sec. 16.202-2  Application.

    A firm-fixed-price contract is suitable for acquiring commercial 
items (see parts 2 and 12) or for acquiring other supplies or services 
on the basis of reasonably definite functional or detailed 
specifications (see part 11) when the contracting officer can establish 
fair and reasonable prices at the outset, such as when--
    (a) There is adequate price competition;
    (b) There are reasonable price comparisons with prior purchases of 
the same or similar supplies or services made on a competitive basis or 
supported by valid certified cost or pricing data;

[[Page 350]]

    (c) Available cost or pricing information permits realistic 
estimates of the probable costs of performance; or
    (d) Performance uncertainties can be identified and reasonable 
estimates of their cost impact can be made, and the contractor is 
willing to accept a firm fixed price representing assumption of the 
risks involved.

[48 FR 42219, Sept. 19, 1983, as amended at 60 FR 48248, Sept. 18, 1995; 
75 FR 53148, Aug. 30, 2010]



Sec. 16.203  Fixed-price contracts with economic price adjustment.



Sec. 16.203-1  Description.

    (a) A fixed-price contract with economic price adjustment provides 
for upward and downward revision of the stated contract price upon the 
occurrence of specified contingencies. Economic price adjustments are of 
three general types:
    (1) Adjustments based on established prices. These price adjustments 
are based on increases or decreases from an agreed-upon level in 
published or otherwise established prices of specific items or the 
contract end items.
    (2) Adjustments based on actual costs of labor or material. These 
price adjustments are based on increases or decreases in specified costs 
of labor or material that the contractor actually experiences during 
contract performance.
    (3) Adjustments based on cost indexes of labor or material. These 
price adjustments are based on increases or decreases in labor or 
material cost standards or indexes that are specifically identified in 
the contract.
    (b) The contracting officer may use a fixed-price contract with 
economic price adjustment in conjunction with an award-fee incentive 
(see 16.404) and performance or delivery incentives (see 16.402-2 and 
16.402-3) when the award fee or incentive is based solely on factors 
other than cost. The contract type remains fixed-price with economic 
price adjustment when used with these incentives.

[48 FR 42219, Sept. 19, 1983, as amended at 68 FR 13201, Mar. 18, 2003]



Sec. 16.203-2  Application.

    A fixed-price contract with economic price adjustment may be used 
when (i) there is serious doubt concerning the stability of market or 
labor conditions that will exist during an extended period of contract 
performance, and (ii) contingencies that would otherwise be included in 
the contract price can be identified and covered separately in the 
contract. Price adjustments based on established prices should normally 
be restricted to industry-wide contingencies. Price adjustments based on 
labor and material costs should be limited to contingencies beyond the 
contractor's control. For use of economic price adjustment in sealed bid 
contracts, see 14.408-4.
    (a) In establishing the base level from which adjustment will be 
made, the contracting officer shall ensure that contingency allowances 
are not duplicated by inclusion in both the base price and the 
adjustment requested by the contractor under economic price adjustment 
clause.
    (b) In contracts that do not require submission of certified cost or 
pricing data, the contracting officer shall obtain adequate data to 
establish the base level from which adjustment will be made and may 
require verification of data submitted.

[48 FR 42219, Sept. 19, 1983, as amended at 50 FR 1742, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 60 FR 34739, July 3, 1995; 75 FR 53148, Aug. 
30, 2010]



Sec. 16.203-3  Limitations.

    A fixed-price contract with economic price adjustment shall not be 
used unless the contracting officer determines that it is necessary 
either to protect the contractor and the Government against significant 
fluctuations in labor or material costs or to provide for contract price 
adjustment in the event of changes in the contractor's established 
prices.



Sec. 16.203-4  Contract clauses.

    (a) Adjustment based on established prices--standard supplies. (1) 
The contracting officer shall, when contracting by negotiation, insert 
the clause at 52.216-2, Economic Price Adjustment--

[[Page 351]]

Standard Supplies, or an agency-prescribed clause as authorized in 
subparagraph (2) below, in solicitations and contracts when all of the 
following conditions apply:
    (i) A fixed-price contract is contemplated.
    (ii) The requirement is for standard supplies that have an 
established catalog or market price.
    (iii) The contracting officer has made the determination specified 
in 16.203-3.
    (2) If all the conditions in subparagraph (a)(1) above apply and the 
contracting officer determines that the use of the clause at 52.216-2 is 
inappropriate, the contracting officer may use an agency-prescribed 
clause instead of the clause at 52.216-2.
    (3) If the negotiated unit price reflects a net price after applying 
a trade discount from a catalog or list price, the contracting officer 
shall document in the contract file both the catalog or list price and 
the discount. (This does not apply to prompt payment or cash discounts.)
    (b) Adjustment based on established prices--semistandard supplies. 
(1) The contracting officer shall, when contracting by negotiation, 
insert the clause at 52.216-3, Economic Price Adjustment--Semistandard 
Supplies, or an agency-prescribed clause as authorized in subparagraph 
(2) below, in solicitations and contracts when all of the following 
conditions apply:
    (i) A fixed price contract is contemplated.
    (ii) The requirement is for semistandard supplies for which the 
prices can be reasonably related to the prices of nearly equivalent 
standard supplies that have an established catalog or market price.
    (iii) The contracting officer has made the determination specified 
in 16.203-3.
    (2) If all conditions in subparagraph (b)(1) above apply and the 
contracting officer determines that the use of the clause at 52.216-3 is 
inappropriate, the contracting officer may use an agency-prescribed 
clause instead of the clause at 52.216-3.
    (3) If the negotiated unit price reflects a net price after applying 
a trade discount from a catalog or list price, the contracting officer 
shall document in the contract file both the catalog or list price and 
the discount. (This does not apply to prompt payment or cash discounts.)
    (4) Before entering into the contract, the contracting officer and 
contractor must agree in writing on the identity of the standard 
supplies and the corresponding contract line items to which the clause 
applies.
    (5) If the supplies are standard, except for preservation, 
packaging, and packing requirements, the clause prescribed in 16.203-
4(a), shall be used rather than this clause.
    (c) Adjustments based on actual cost of labor or material. (1) The 
contracting officer shall, when contracting by negotiation, insert a 
clause that is substantially the same as the clause at 52.216-4, 
Economic Price Adjustment--Labor and Material, or an agency-prescribed 
clause as authorized in subparagraph (2) below, in solicitation and 
contracts when all of the following conditions apply:
    (i) A fixed-price contract is contemplated.
    (ii) There is no major element of design engineering or development 
work involved.
    (iii) One or more identifiable labor or material cost factors are 
subject to change.
    (iv) The contracting officer has made the determination specified in 
16.203-3.
    (2) If all conditions in subparagraph (c)(1) above apply and the 
contracting officer determines that the use of the clause at 52.216-4 is 
inappropriate, the contracting officer may use an agency-prescribed 
clause instead of the clause at 52.216-4.
    (3) The contracting officer shall describe in detail in the contract 
Schedule--
    (i) The types of labor and materials subject to adjustment under the 
clause;
    (ii) The labor rates, including fringe benefits (if any) and unit 
prices of materials that may be increased or decreased; and
    (iii) The quantities of the specified labor and materials allocable 
to each unit to be delivered under the contract.
    (4) In negotiating adjustments under the clause, the contracting 
officer shall--
    (i) Consider work in process and materials on hand at the time of 
changes

[[Page 352]]

in labor rates, including fringe benefits (if any) or material prices;
    (ii) Not include in adjustments any indirect cost (except fringe 
benefits as defined in 31.205-6(m)) or profit; and
    (iii) Consider only those fringe benefits specified in the contract 
Schedule.
    (d) Adjustments based on cost indexes of labor or material. The 
contracting officer should consider using an economic price adjustment 
clause based on cost indexes of labor or material under the 
circumstances and subject to approval as described in subparagraphs (1) 
and (2) below.
    (1) A clause providing adjustment based on cost indexes of labor or 
materials may be appropriate when--
    (i) The contract involves an extended period of performance with 
significant costs to be incurred beyond 1 year after performance begins;
    (ii) The contract amount subject to adjustment is substantial; and
    (iii) The economic variables for labor and materials are too 
unstable to permit a reasonable division of risk between the Government 
and the contractor, without this type of clause.
    (2) Any clause using this method shall be prepared and approved 
under agency procedures. Because of the variations in circumstances and 
clause wording that may arise, no standard clause is prescribed.

[48 FR 42219, Sept. 19, 1983, as amended at 52 FR 19803, May 27, 1987; 
60 FR 48217, Sept. 18, 1995; 62 FR 259, Jan. 2, 1997]



Sec. 16.204  Fixed-price incentive contracts.

    A fixed-price incentive contract is a fixed-price contract that 
provides for adjusting profit and establishing the final contract price 
by a formula based on the relationship of final negotiated total cost to 
total target cost. Fixed-price incentive contracts are covered in 
subpart 16.4, Incentive Contracts. See 16.403 for more complete 
descriptions, application, and limitations for these contracts. 
Prescribed clauses are found at 16.406.

[48 FR 42219, Sept. 19, 1983, as amended at 59 FR 11387, Mar. 10, 1994; 
62 FR 12695, Mar. 17, 1997]



Sec. 16.205  Fixed-price contracts with prospective price 
          redetermination.



Sec. 16.205-1  Description.

    A fixed-price contract with prospective price redetermination 
provides for (a) a firm fixed price for an initial period of contract 
deliveries or performance and (b) prospective redetermination, at a 
stated time or times during performance, of the price for subsequent 
periods of performance.



Sec. 16.205-2  Application.

    A fixed-price contract with prospective price redetermination may be 
used in acquisitions of quantity production or services for which it is 
possible to negotiate a fair and reasonable firm fixed price for an 
initial period, but not for subsequent periods of contract performance.
    (a) The initial period should be the longest period for which it is 
possible to negotiate a fair and reasonable firm fixed price. Each 
subsequent pricing period should be at least 12 months.
    (b) The contract may provide for a ceiling price based on evaluation 
of the uncertainties involved in performance and their possible cost 
impact. This ceiling price should provide for assumption of a reasonable 
proportion of the risk by the contractor and, once established, may be 
adjusted only by operation of contract clauses providing for equitable 
adjustment or other revision of the contract price under stated 
circumstances.



Sec. 16.205-3  Limitations.

    This contract type shall not be used unless--
    (a) Negotiations have established that (1) the conditions for use of 
a firm-fixed-price contract are not present (see 16.202-2), and (2) a 
fixed-price incentive contract would not be more appropriate;
    (b) The contractor's accounting system is adequate for price 
redetermination;
    (c) The prospective pricing periods can be made to conform with 
operation of the contractor's accounting system; and
    (d) There is reasonable assurance that price redetermination actions 
will

[[Page 353]]

take place promptly at the specified times.



Sec. 16.205-4  Contract clause.

    The contracting officer shall, when contracting by negotiation, 
insert the clause at 52.216-5, Price Redetermination--Prospective, in 
solicitations and contracts when a fixed-price contract is contemplated 
and the conditions specified in 16.205-2 and 16.205-3(a) through (d) 
apply.



Sec. 16.206  Fixed-ceiling-price contracts with retroactive price 
          redetermination.



Sec. 16.206-1  Description.

    A fixed-ceiling-price contract with retroactive price 
redetermination provides for (a) a fixed ceiling price and (b) 
retroactive price redetermination within the ceiling after completion of 
the contract.



Sec. 16.206-2  Application.

    A fixed-ceiling-price contract with retroactive price 
redetermination is appropriate for research and development contracts 
estimated at $150,000 or less when it is established at the outset that 
a fair and reasonable firm fixed price cannot be negotiated and that the 
amount involved and short performance period make the use of any other 
fixed-price contract type impracticable.
    (a) A ceiling price shall be negotiated for the contract at a level 
that reflects a reasonable sharing of risk by the contractor. The 
established ceiling price may be adjusted only if required by the 
operation of contract clauses providing for equitable adjustment or 
other revision of the contract price under stated circumstances.
    (b) The contract should be awarded only after negotiation of a 
billing price that is as fair and reasonable as the circumstances 
permit.
    (c) Since this contract type provides the contractor no cost control 
incentive except the ceiling price, the contracting officer should make 
clear to the contractor during discussion before award that the 
contractor's management effectiveness and ingenuity will be considered 
in retroactively redetermining the price.

[48 FR 42219, Sept. 19, 1983, as amended at 75 FR 53133, Aug. 30, 2010]



Sec. 16.206-3  Limitations.

    This contract type shall not be used unless--
    (a) The contract is for research and development and the estimated 
cost is $150,000 or less;
    (b) The contractor's accounting system is adequate for price 
redetermination;
    (c) There is reasonable assurance that the price redetermination 
will take place promptly at the specified time; and
    (d) The head of the contracting activity (or a higher-level 
official, if required by agency procedures) approves its use in writing.

[48 FR 42219, Sept. 19, 1983, as amended at 75 FR 53133, Aug. 30, 2010]



Sec. 16.206-4  Contract clause.

    The contracting officer shall, when contracting by negotiation, 
insert the clause at 52.216-6, Price Redetermination--Retroactive, in 
solicitations and contracts when a fixed-price contract is contemplated 
and the conditions in 16.206-2 and 16.206-3(a) through (d) apply.



Sec. 16.207  Firm-fixed-price, level-of-effort term contracts.



Sec. 16.207-1  Description.

    A firm-fixed-price, level-of-effort term contract requires (a) the 
contractor to provide a specified level of effort, over a stated period 
of time, on work that can be stated only in general terms and (b) the 
Government to pay the contractor a fixed dollar amount.



Sec. 16.207-2  Application.

    A firm-fixed-price, level-of-effort term contract is suitable for 
investigation or study in a specific research and development area. The 
product of the contract is usually a report showing the results achieved 
through application of the required level of effort. However, payment is 
based on the effort expended rather than on the results achieved.

[[Page 354]]



Sec. 16.207-3  Limitations.

    This contract type may be used only when--
    (a) The work required cannot otherwise be clearly defined;
    (b) The required level of effort is identified and agreed upon in 
advance;
    (c) There is reasonable assurance that the intended result cannot be 
achieved by expending less than the stipulated effort; and
    (d) The contract price is $150,000 or less, unless approved by the 
chief of the contracting office.

[48 FR 42219, Sept. 19, 1983, as amended at 75 FR 53133, Aug. 30, 2010]

                Subpart 16.3_Cost-Reimbursement Contracts



Sec. 16.301  General.



Sec. 16.301-1  Description.

    Cost-reimbursement types of contracts provide for payment of 
allowable incurred costs, to the extent prescribed in the contract. 
These contracts establish an estimate of total cost for the purpose of 
obligating funds and establishing a ceiling that the contractor may not 
exceed (except at its own risk) without the approval of the contracting 
officer.



Sec. 16.301-2  Application.

    (a) The contracting officer shall use cost-reimbursement contracts 
only when--
    (1) Circumstances do not allow the agency to define its requirements 
sufficiently to allow for a fixed-price type contract (see 7.105); or
    (2) Uncertainties involved in contract performance do not permit 
costs to be estimated with sufficient accuracy to use any type of fixed-
price contract.
    (b) The contracting officer shall document the rationale for 
selecting the contract type in the written acquisition plan and ensure 
that the plan is approved and signed at least one level above the 
contracting officer (see 7.103(j) and 7.105). See also 16.103(d).

[76 FR 14547, Mar. 16, 2011, as amended at 77 FR 12927, Mar. 2, 2012]



Sec. 16.301-3  Limitations.

    (a) A cost-reimbursement contract may be used only when--
    (1) The factors in 16.104 have been considered;
    (2) A written acquisition plan has been approved and signed at least 
one level above the contracting officer;
    (3) The contractor's accounting system is adequate for determining 
costs applicable to the contract or order; and
    (4) Prior to award of the contract or order, adequate Government 
resources are available to award and manage a contract other than firm-
fixed-priced (see 7.104(e)). This includes appropriate Government 
surveillance during performance in accordance with 1.602-2, to provide 
reasonable assurance that efficient methods and effective cost controls 
are used.
    (b) The use of cost-reimbursement contracts is prohibited for the 
acquisition of commercial items (see parts 2 and 12).

[48 FR 42219, Sept. 19, 1983, as amended at 50 FR 1742, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 59 FR 64785, Dec. 15, 1994; 60 FR 48248, 
Sept. 18, 1995; 63 FR 34073, June 22, 1998; 76 FR 14547, Mar. 16, 2011; 
77 FR 12927, Mar. 2, 2012; 77 FR 44066, July 26, 2012]



Sec. 16.302  Cost contracts.

    (a) Description. A cost contract is a cost-reimbursement contract in 
which the contractor receives no fee.
    (b) Application. A cost contract may be appropriate for research and 
development work, particularly with nonprofit educational institutions 
or other nonprofit organizations.
    (c) Limitations. See 16.301-3.

[48 FR 42219, Sept. 19, 1983, as amended at 72 FR 27384, May 15, 2007]



Sec. 16.303  Cost-sharing contracts.

    (a) Description. A cost-sharing contract is a cost-reimbursement 
contract in which the contractor receives no fee and is reimbursed only 
for an agreed-upon portion of its allowable costs.
    (b) Application. A cost-sharing contract may be used when the 
contractor agrees to absorb a portion of the costs, in the expectation 
of substantial compensating benefits.
    (c) Limitations. See 16.301-3.

[[Page 355]]



Sec. 16.304  Cost-plus-incentive-fee contracts.

    A cost-plus-incentive-fee contract is a cost-reimbursement contract 
that provides for an initially negotiated fee to be adjusted later by a 
formula based on the relationship of total allowable costs to total 
target costs. Cost-plus-incentive-fee contracts are covered in subpart 
16.4, Incentive Contracts. See 16.405-1 for a more complete description 
and discussion of application of these contracts. See 16.301-3 for 
limitations.

[48 FR 42219, Sept. 19, 1983, as amended at 62 FR 12695, Mar. 17, 1997]



Sec. 16.305  Cost-plus-award-fee contracts.

    A cost-plus-award-fee contract is a cost-reimbursement contract that 
provides for a fee consisting of (a) a base amount (which may be zero) 
fixed at inception of the contract and (b) an award amount, based upon a 
judgmental evaluation by the Government, sufficient to provide 
motivation for excellence in contract performance. Cost-plus-award-fee 
contracts are covered in subpart 16.4, Incentive Contracts. See 
16.401(e) for a more complete description and discussion of the 
application of these contracts. See 16.301-3 and 16.401(e)(5) for 
limitations.

[48 FR 42219, Sept. 19, 1983, as amended at 62 FR 12695, Mar. 17, 1997; 
74 FR 52858, Oct. 14, 2009]



Sec. 16.306  Cost-plus-fixed-fee contracts.

    (a) Description. A cost-plus-fixed-fee contract is a cost-
reimbursement contract that provides for payment to the contractor of a 
negotiated fee that is fixed at the inception of the contract. The fixed 
fee does not vary with actual cost, but may be adjusted as a result of 
changes in the work to be performed under the contract. This contract 
type permits contracting for efforts that might otherwise present too 
great a risk to contractors, but it provides the contractor only a 
minimum incentive to control costs.
    (b) Application. (1) A cost-plus-fixed-fee contract is suitable for 
use when the conditions of 16.301-2 are present and, for example--
    (i) The contract is for the performance of research or preliminary 
exploration or study, and the level of effort required is unknown; or
    (ii) The contract is for development and test, and using a cost-
plus- incentive-fee contract is not practical.
    (2) A cost-plus-fixed-fee contract normally should not be used in 
development of major systems (see part 34) once preliminary exploration, 
studies, and risk reduction have indicated a high degree of probability 
that the development is achievable and the Government has established 
reasonably firm performance objectives and schedules.
    (c) Limitations. No cost-plus-fixed-fee contract shall be awarded 
unless the contracting officer complies with all limitations in 15.404-
4(c)(4)(i) and 16.301-3.
    (d) Completion and term forms. A cost-plus-fixed-fee contract may 
take one of two basic forms--completion or term.
    (1) The completion form describes the scope of work by stating a 
definite goal or target and specifying an end product. This form of 
contract normally requires the contractor to complete and deliver the 
specified end product (e.g., a final report of research accomplishing 
the goal or target) within the estimated cost, if possible, as a 
condition for payment of the entire fixed fee. However, in the event the 
work cannot be completed within the estimated cost, the Government may 
require more effort without increase in fee, provided the Government 
increases the estimated cost.
    (2) The term form describes the scope of work in general terms and 
obligates the contractor to devote a specified level of effort for a 
stated time period. Under this form, if the performance is considered 
satisfactory by the Government, the fixed fee is payable at the 
expiration of the agreed-upon period, upon contractor statement that the 
level of effort specified in the contract has been expended in 
performing the contract work. Renewal for further periods of performance 
is a new acquisition that involves new cost and fee arrangements.
    (3) Because of the differences in obligation assumed by the 
contractor, the completion form is preferred over the term form whenever 
the work, or specific milestones for the work, can be

[[Page 356]]

defined well enough to permit development of estimates within which the 
contractor can be expected to complete the work.
    (4) The term form shall not be used unless the contractor is 
obligated by the contract to provide a specific level of effort within a 
definite time period.

[48 FR 42219, Sept. 19, 1983, as amended at 50 FR 1742, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 60 FR 37777, July 21, 1995; 62 FR 236, Jan. 
2, 1997; 63 FR 34073, June 22, 1998]



Sec. 16.307  Contract clauses.

    (a)(1) The contracting officer shall insert the clause at 52.216-7, 
Allowable Cost and Payment, in solicitations and contracts when a cost-
reimbursement contract or a time-and-materials contract (other than a 
contract for a commercial item) is contemplated. If the contract is a 
time-and-materials contract, the clause at 52.216-7 applies in 
conjunction with the clause at 52.232-7, but only to the portion of the 
contract that provides for reimbursement of materials (as defined in the 
clause at 52.232-7) at actual cost. Further, the clause at 52.216-7 does 
not apply to labor-hour contracts.
    (2) If the contract is a construction contract and contains the 
clause at 52.232-27, Prompt Payment for Construction Contracts, the 
contracting officer shall use the clause at 52.216-7 with its Alternate 
I.
    (3) If the contract is with an educational institution, the 
contracting officer shall use the clause at 52.216-7 with its Alternate 
II.
    (4) If the contract is with a State or local government, the 
contracting officer shall use the clause at 52.216-7 with its Alternate 
III.
    (5) If the contract is with a nonprofit organization other than an 
educational institution, a State or local government, or a nonprofit 
organization exempted under OMB Circular No. A-122, the contracting 
officer shall use the clause at 52.216-7 with its Alternate IV.
    (b) The contracting officer shall insert the clause at 52.216-8, 
Fixed Fee, in solicitations and contracts when a cost-plus-fixed-fee 
contract (other than a construction contract) is contemplated.
    (c) The contracting officer shall insert the clause at 52.216-9, 
Fixed-Fee--Construction, in solicitations and contracts when a cost-
plus-fixed-fee construction contract is contemplated.
    (d) The contracting officer shall insert the clause at 52.216-10, 
Incentive Fee, in solicitations and contracts when a cost-plus-
incentive-fee contract is contemplated.
    (e)(1) The contracting officer shall insert the clause at 52.216-11, 
Cost Contract--No Fee, in solicitations and contracts when a cost-
reimbursement contract is contemplated that provides no fee and is not a 
cost-sharing contract.
    (2) If a cost-reimbursement research and development contract with 
an educational institution or a nonprofit organization that provides no 
fee or other payment above cost and is not a cost-sharing contract is 
contemplated, and if the contracting officer determines that withholding 
of a portion of allowable costs is not required, the contracting officer 
shall use the clause with its Alternate I.
    (f)(1) The contracting officer shall insert the clause at 52.216-12, 
Cost-Sharing Contract--No Fee, in solicitations and contracts when a 
cost-sharing contract is contemplated.
    (2) If a cost-sharing research and development contract with an 
educational institution or a nonprofit organization is contemplated, and 
if the contracting officer determines that withholding of a portion of 
allowable costs is not required, the contracting officer shall use the 
clause with its Alternate I.
    (g) The contracting officer shall insert the clause at 52.216-15, 
Predetermined Indirect Cost Rates, in solicitations and contracts when a 
cost-reimbursement research and development contract with an educational 
institution (see 42.705-3(b)) is contemplated and predetermined indirect 
cost rates are to be used.

[48 FR 42219, Sept. 19, 1983, as amended at 50 FR 23606, June 4, 1985; 
61 FR 31622, June 20, 1996; 61 FR 67419, Dec. 20, 1996; 71 FR 74664, 
Dec. 12, 2006; 72 FR 27384, May 15, 2007; 77 FR 44061, July 26, 2012]

                    Subpart 16.4_Incentive Contracts



Sec. 16.401  General.

    (a) Incentive contracts as described in this subpart are appropriate 
when a

[[Page 357]]

firm-fixed-price contract is not appropriate and the required supplies 
or services can be acquired at lower costs and, in certain instances, 
with improved delivery or technical performance, by relating the amount 
of profit or fee payable under the contract to the contractor's 
performance. Incentive contracts are designed to obtain specific 
acquisition objectives by--
    (1) Establishing reasonable and attainable targets that are clearly 
communicated to the contractor; and
    (2) Including appropriate incentive arrangements designed to (i) 
motivate contractor efforts that might not otherwise be emphasized and 
(ii) discourage contractor inefficiency and waste.
    (b) When predetermined, formula-type incentives on technical 
performance or delivery are included, increases in profit or fee are 
provided only for achievement that surpasses the targets, and decreases 
are provided for to the extent that such targets are not met. The 
incentive increases or decreases are applied to performance targets 
rather than minimum performance requirements.
    (c) The two basic categories of incentive contracts are fixed-price 
incentive contracts (see 16.403 and 16.404) and cost-reimbursement 
incentive contracts (see 16.405). Since it is usually to the 
Government's advantage for the contractor to assume substantial cost 
responsibility and an appropriate share of the cost risk, fixed-price 
incentive contracts are preferred when contract costs and performance 
requirements are reasonably certain. Cost-reimbursement incentive 
contracts are subject to the overall limitations in 16.301 that apply to 
all cost-reimbursement contracts.
    (d) A determination and finding, signed by the head of the 
contracting activity, shall be completed for all incentive- and award-
fee contracts justifying that the use of this type of contract is in the 
best interest of the Government. This determination shall be documented 
in the contract file and, for award-fee contracts, shall address all of 
the suitability items in 16.401(e)(1).
    (e) Award-fee contracts are a type of incentive contract.
    (1) Application. An award-fee contract is suitable for use when--
    (i) The work to be performed is such that it is neither feasible nor 
effective to devise predetermined objective incentive targets applicable 
to cost, schedule, and technical performance;
    (ii) The likelihood of meeting acquisition objectives will be 
enhanced by using a contract that effectively motivates the contractor 
toward exceptional performance and provides the Government with the 
flexibility to evaluate both actual performance and the conditions under 
which it was achieved; and
    (iii) Any additional administrative effort and cost required to 
monitor and evaluate performance are justified by the expected benefits 
as documented by a risk and cost benefit analysis to be included in the 
Determination and Findings referenced in 16.401(e)(5)(iii).
    (2) Award-fee amount. The amount of award fee earned shall be 
commensurate with the contractor's overall cost, schedule, and technical 
performance as measured against contract requirements in accordance with 
the criteria stated in the award-fee plan. Award fee shall not be earned 
if the contractor's overall cost, schedule, and technical performance in 
the aggregate is below satisfactory. The basis for all award-fee 
determinations shall be documented in the contract file to include, at a 
minimum, a determination that overall cost, schedule and technical 
performance in the aggregate is or is not at a satisfactory level. This 
determination and the methodology for determining the award fee are 
unilateral decisions made solely at the discretion of the Government.
    (3) Award-fee plan. All contracts providing for award fees shall be 
supported by an award-fee plan that establishes the procedures for 
evaluating award fee and an Award-Fee Board for conducting the award-fee 
evaluation. Award-fee plans shall--
    (i) Be approved by the FDO unless otherwise authorized by agency 
procedures;

[[Page 358]]

    (ii) Identify the award-fee evaluation criteria and how they are 
linked to acquisition objectives which shall be defined in terms of 
contract cost, schedule, and technical performance. Criteria should 
motivate the contractor to enhance performance in the areas rated, but 
not at the expense of at least minimum acceptable performance in all 
other areas;
    (iii) Describe how the contractor's performance will be measured 
against the award-fee evaluation criteria;
    (iv) Utilize the adjectival rating and associated description as 
well as the award-fee pool earned percentages shown below in Table 16-1. 
Contracting officers may supplement the adjectival rating description. 
The method used to determine the adjectival rating must be documented in 
the award-fee plan;

                               Table 16-1
------------------------------------------------------------------------
                                  Award-Fee Pool
  Award-Fee Adjectival Rating    Available To Be        Description
                                      Earned
------------------------------------------------------------------------
Excellent.....................  91%--100%........  Contractor has
                                                    exceeded almost all
                                                    of the significant
                                                    award-fee criteria
                                                    and has met overall
                                                    cost, schedule, and
                                                    technical
                                                    performance
                                                    requirements of the
                                                    contract in the
                                                    aggregate as defined
                                                    and measured against
                                                    the criteria in the
                                                    award-fee plan for
                                                    the award-fee
                                                    evaluation period.
Very Good.....................  76%--90%.........  Contractor has
                                                    exceeded many of the
                                                    significant award-
                                                    fee criteria and has
                                                    met overall cost,
                                                    schedule, and
                                                    technical
                                                    performance
                                                    requirements of the
                                                    contract in the
                                                    aggregate as defined
                                                    and measured against
                                                    the criteria in the
                                                    award-fee plan for
                                                    the award-fee
                                                    evaluation period.
Good..........................  51%--75%.........  Contractor has
                                                    exceeded some of the
                                                    significant award-
                                                    fee criteria and has
                                                    met overall cost,
                                                    schedule, and
                                                    technical
                                                    performance
                                                    requirements of the
                                                    contract in the
                                                    aggregate as defined
                                                    and measured against
                                                    the criteria in the
                                                    award-fee plan for
                                                    the award-fee
                                                    evaluation period.
Satisfactory..................  No Greater Than    Contractor has met
                                 50%.               overall cost,
                                                    schedule, and
                                                    technical
                                                    performance
                                                    requirements of the
                                                    contract in the
                                                    aggregate as defined
                                                    and measured against
                                                    the criteria in the
                                                    award-fee plan for
                                                    the award-fee
                                                    evaluation period.
Unsatisfactory................  0%...............  Contractor has failed
                                                    to meet overall
                                                    cost, schedule, and
                                                    technical
                                                    performance
                                                    requirements of the
                                                    contract in the
                                                    aggregate as defined
                                                    and measured against
                                                    the criteria in the
                                                    award-fee plan for
                                                    the award-fee
                                                    evaluation period.
------------------------------------------------------------------------

    (v) Prohibit earning any award fee when a contractor's overall cost, 
schedule, and technical performance in the aggregate is below 
satisfactory;
    (vi) Provide for evaluation period(s) to be conducted at stated 
intervals during the contract period of performance so that the 
contractor will periodically be informed of the quality of its 
performance and the areas in which improvement is expected (e.g. six 
months, nine months, twelve months, or at specific milestones); and
    (vii) Define the total award-fee pool amount and how this amount is 
allocated across each evaluation period.
    (4) Rollover of unearned award fee. The use of rollover of unearned 
award fee is prohibited.
    (5) Limitations. No award-fee contract shall be awarded unless--
    (i) All of the limitations in 16.301-3, that are applicable to cost-
reimbursement contracts only, are complied with;
    (ii) An award-fee plan is completed in accordance with the 
requirements in 16.401(e)(3); and
    (iii) A determination and finding is completed in accordance with 
16.401(d) addressing all of the suitability items in 16.401(e)(1).
    (f) Incentive- and Award-Fee Data Collection and Analysis. Each 
agency shall collect relevant data on award fee and incentive fees paid 
to contractors and include performance measures to evaluate such data on 
a regular basis to determine effectiveness of award and incentive fees 
as a tool for improving contractor performance and achieving desired 
program outcomes. This information should be considered as part of the 
acquisition planning process (see 7.105) in determining the appropriate 
type of contract to be utilized for future acquisitions.

[[Page 359]]

    (g) Incentive- and Award-Fee Best Practices. Each agency head shall 
provide mechanisms for sharing proven incentive strategies for the 
acquisition of different types of products and services among 
contracting and program management officials.

[48 FR 42219, Sept. 19, 1983, as amended at 62 FR 12695, Mar. 17, 1997; 
74 FR 52858, Oct. 14, 2009; 75 FR 60263, Sept. 29, 2010]



Sec. 16.402  Application of predetermined, formula-type incentives.



Sec. 16.402-1  Cost incentives.

    (a) Most incentive contracts include only cost incentives, which 
take the form of a profit or fee adjustment formula and are intended to 
motivate the contractor to effectively manage costs. No incentive 
contract may provide for other incentives without also providing a cost 
incentive (or constraint).
    (b) Except for award-fee contracts (see 16.404 and 16.401 (e)), 
incentive contracts include a target cost, a target profit or fee, and a 
profit or fee adjustment formula that (within the constraints of a price 
ceiling or minimum and maximum fee) provides that--
    (1) Actual cost that meets the target will result in the target 
profit or fee;
    (2) Actual cost that exceeds the target will result in downward 
adjustment of target profit or fee; and
    (3) Actual cost that is below the target will result in upward 
adjustment of target profit or fee.

[48 FR 42219, Sept. 19, 1983, as amended at 62 FR 12696, Mar. 17, 1997; 
62 FR 51379, Oct. 1, 1997; 74 FR 52859, Oct. 14, 2009]



Sec. 16.402-2  Performance incentives.

    (a) Performance incentives may be considered in connection with 
specific product characteristics (e.g., a missile range, an aircraft 
speed, an engine thrust, or a vehicle maneuverability) or other specific 
elements of the contractor's performance. These incentives should be 
designed to relate profit or fee to results achieved by the contractor, 
compared with specified targets.
    (b) To the maximum extent practicable, positive and negative 
performance incentives shall be considered in connection with service 
contracts for performance of objectively measurable tasks when quality 
of performance is critical and incentives are likely to motivate the 
contractor.
    (c) Technical performance incentives may be particularly appropriate 
in major systems contracts, both in development (when performance 
objectives are known and the fabrication of prototypes for test and 
evaluation is required) and in production (if improved performance is 
attainable and highly desirable to the Government).
    (d) Technical performance incentives may involve a variety of 
specific characteristics that contribute to the overall performance of 
the end item. Accordingly, the incentives on individual technical 
characteristics must be balanced so that no one of them is exaggerated 
to the detriment of the overall performance of the end item.
    (e) Performance tests and/or assessments of work performance are 
generally essential in order to determine the degree of attainment of 
performance targets. Therefore, the contract must be as specific as 
possible in establishing test criteria (such as testing conditions, 
instrumentation precision, and data interpretation) and performance 
standards (such as the quality levels of services to be provided).
    (f) Because performance incentives present complex problems in 
contract administration, the contracting officer should negotiate them 
in full coordination with Government engineering and pricing 
specialists.
    (g) It is essential that the Government and contractor agree 
explicitly on the effect that contract changes (e.g., pursuant to the 
Changes clause) will have on performance incentives.
    (h) The contracting officer must exercise care, in establishing 
performance criteria, to recognize that the contractor should not be 
rewarded or penalized for attainments of Government-furnished 
components.

[48 FR 42219, Sept. 19, 1983, as amended at 62 FR 44815, Aug. 22, 1997]



Sec. 16.402-3  Delivery incentives.

    (a) Delivery incentives should be considered when improvement from a 
required delivery schedule is a significant Government objective. It is 
important to determine the Government's primary objectives in a given 
contract

[[Page 360]]

(e.g., earliest possible delivery or earliest quantity production).
    (b) Incentive arrangements on delivery should specify the 
application of the reward-penalty structure in the event of Government-
caused delays or other delays beyond the control, and without the fault 
or negligence, of the contractor or subcontractor.



Sec. 16.402-4  Structuring multiple-incentive contracts.

    A properly structured multiple-incentive arrangement should--
    (a) Motivate the contractor to strive for outstanding results in all 
incentive areas; and
    (b) Compel trade-off decisions among the incentive areas, consistent 
with the Government's overall objectives for the acquisition. Because of 
the interdependency of the Government's cost, the technical performance, 
and the delivery goals, a contract that emphasizes only one of the goals 
may jeopardize control over the others. Because outstanding results may 
not be attainable for each of the incentive areas, all multiple-
incentive contracts must include a cost incentive (or constraint) that 
operates to preclude rewarding a contractor for superior technical 
performance or delivery results when the cost of those results outweighs 
their value to the Government.



Sec. 16.403  Fixed-price incentive contracts.

    (a) Description. A fixed-price incentive contract is a fixed-price 
contract that provides for adjusting profit and establishing the final 
contract price by application of a formula based on the relationship of 
total final negotiated cost to total target cost. The final price is 
subject to a price ceiling, negotiated at the outset. The two forms of 
fixed-price incentive contracts, firm target and successive targets, are 
further described in 16.403-1 and 16.403-2 below.
    (b) Application. A fixed-price incentive contract is appropriate 
when--
    (1) A firm-fixed-price contract is not suitable;
    (2) The nature of the supplies or services being acquired and other 
circumstances of the acquisition are such that the contractor's 
assumption of a degree of cost responsibility will provide a positive 
profit incentive for effective cost control and performance; and
    (3) If the contract also includes incentives on technical 
performance and/or delivery, the performance requirements provide a 
reasonable opportunity for the incentives to have a meaningful impact on 
the contractor's management of the work.
    (c) Billing prices. In fixed-price incentive contracts, billing 
prices are established as an interim basis for payment. These billing 
prices may be adjusted, within the ceiling limits, upon request of 
either party to the contract, when it becomes apparent that final 
negotiated cost will be substantially different from the target cost.

[48 FR 42219, Sept. 19, 1983, as amended at 59 FR 64785, Dec. 15, 1994]



Sec. 16.403-1  Fixed-price incentive (firm target) contracts.

    (a) Description. A fixed-price incentive (firm target) contract 
specifies a target cost, a target profit, a price ceiling (but not a 
profit ceiling or floor), and a profit adjustment formula. These 
elements are all negotiated at the outset. The price ceiling is the 
maximum that may be paid to the contractor, except for any adjustment 
under other contract clauses. When the contractor completes performance, 
the parties negotiate the final cost, and the final price is established 
by applying the formula. When the final cost is less than the target 
cost, application of the formula results in a final profit greater than 
the target profit; conversely, when final cost is more than target cost, 
application of the formula results in a final profit less than the 
target profit, or even a net loss. If the final negotiated cost exceeds 
the price ceiling, the contractor absorbs the difference as a loss. 
Because the profit varies inversely with the cost, this contract type 
provides a positive, calculable profit incentive for the contractor to 
control costs.
    (b) Application. A fixed-price incentive (firm target) contract is 
appropriate when the parties can negotiate at the outset a firm target 
cost, target profit, and profit adjustment formula that will provide a 
fair and reasonable incentive and a ceiling that provides

[[Page 361]]

for the contractor to assume an appropriate share of the risk. When the 
contractor assumes a considerable or major share of the cost 
responsibility under the adjustment formula, the target profit should 
reflect this responsibility.
    (c) Limitations. This contract type may be used only when--
    (1) The contractor's accounting system is adequate for providing 
data to support negotiation of final cost and incentive price revision; 
and
    (2) Adequate cost or pricing information for establishing reasonable 
firm targets is available at the time of initial contract negotiation.
    (d) Contract Schedule. The contracting officer shall specify in the 
contract Schedule the target cost, target profit, and target price for 
each item subject to incentive price revision.

[48 FR 42219, Sept. 19, 1983, as amended at 59 FR 64785, Dec. 15, 1994]



Sec. 16.403-2  Fixed-price incentive (successive targets) contracts.

    (a) Description. (1) A fixed-price incentive (successive targets) 
contract specifies the following elements, all of which are negotiated 
at the outset:
    (i) An initial target cost.
    (ii) An initial target profit.
    (iii) An initial profit adjustment formula to be used for 
establishing the firm target profit, including a ceiling and floor for 
the firm target profit. (This formula normally provides for a lesser 
degree of contractor cost responsibility than would a formula for 
establishing final profit and price.)
    (iv) The production point at which the firm target cost and firm 
target profit will be negotiated (usually before delivery or shop 
completion of the first item).
    (v) A ceiling price that is the maximum that may be paid to the 
contractor, except for any adjustment under other contract clauses 
providing for equitable adjustment or other revision of the contract 
price under stated circumstances.
    (2) When the production point specified in the contract is reached, 
the parties negotiate the firm target cost, giving consideration to cost 
experience under the contract and other pertinent factors. The firm 
target profit is established by the formula. At this point, the parties 
have two alternatives, as follows:
    (i) They may negotiate a firm fixed price, using the firm target 
cost plus the firm target profit as a guide.
    (ii) If negotiation of a firm fixed price is inappropriate, they may 
negotiate a formula for establishing the final price using the firm 
target cost and firm target profit. The final cost is then negotiated at 
completion, and the final profit is established by formula, as under the 
fixed-price incentive (firm target) contract (see 16.403-1 above).
    (b) Application. A fixed-price incentive (successive targets) 
contract is appropriate when--
    (1) Available cost or pricing information is not sufficient to 
permit the negotiation of a realistic firm target cost and profit before 
award;
    (2) Sufficient information is available to permit negotiation of 
initial targets; and
    (3) There is reasonable assurance that additional reliable 
information will be available at an early point in the contract 
performance so as to permit negotiation of either (i) a firm fixed price 
or (ii) firm targets and a formula for establishing final profit and 
price that will provide a fair and reasonable incentive. This additional 
information is not limited to experience under the contract, itself, but 
may be drawn from other contracts for the same or similar items.
    (c) Limitations. This contract type may be used only when--
    (1) The contractor's accounting system is adequate for providing 
data for negotiating firm targets and a realistic profit adjustment 
formula, as well as later negotiation of final costs; and
    (2) Cost or pricing information adequate for establishing a 
reasonable firm target cost is reasonably expected to be available at an 
early point in contract performance.
    (d) Contract Schedule. The contracting officer shall specify in the 
contract Schedule the initial target cost, initial target profit, and 
initial target price for each item subject to incentive price revision.

[48 FR 42219, Sept. 19, 1983, as amended at 59 FR 64785, Dec. 15, 1994]

[[Page 362]]



Sec. 16.404  Fixed-price contracts with award fees.

    Award-fee provisions may be used in fixed-price contracts when the 
Government wishes to motivate a contractor and other incentives cannot 
be used because contractor performance cannot be measured objectively. 
Such contracts shall establish a fixed price (including normal profit) 
for the effort. This price will be paid for satisfactory contract 
performance. Award fee earned (if any) will be paid in addition to that 
fixed price. See 16.401(e) for the requirements relative to utilizing 
this contract type.

[74 FR 52859, Oct. 14, 2009]



Sec. 16.405  Cost-reimbursement incentive contracts.

    See 16.301 for requirements applicable to all cost-reimbursement 
contracts, for use in conjunction with the following subsections.

[48 FR 42219, Sept. 19, 1983. Redesignated at 62 FR 12696, Mar. 17, 
1997]



Sec. 16.405-1  Cost-plus-incentive-fee contracts.

    (a) Description. The cost-plus-incentive-fee contract is a cost-
reimbursement contract that provides for the initially negotiated fee to 
be adjusted later by a formula based on the relationship of total 
allowable costs to total target costs. This contract type specifies a 
target cost, a target fee, minimum and maximum fees, and a fee 
adjustment formula. After contract performance, the fee payable to the 
contractor is determined in accordance with the formula. The formula 
provides, within limits, for increases in fee above target fee when 
total allowable costs are less than target costs, and decreases in fee 
below target fee when total allowable costs exceed target costs. This 
increase or decrease is intended to provide an incentive for the 
contractor to manage the contract effectively. When total allowable cost 
is greater than or less than the range of costs within which the fee-
adjustment formula operates, the contractor is paid total allowable 
costs, plus the minimum or maximum fee.
    (b) Application. (1) A cost-plus-incentive-fee contract is 
appropriate for services or development and test programs when--
    (i) A cost-reimbursement contract is necessary (see 16.301-2) and
    (ii) A target cost and a fee adjustment formula can be negotiated 
that are likely to motivate the contractor to manage effectively.
    (2) The contract may include technical performance incentives when 
it is highly probable that the required development of a major system is 
feasible and the Government has established its performance objectives, 
at least in general terms. This approach may also apply to other 
acquisitions, if the use of both cost and technical performance 
incentives is desirable and administratively practical.
    (3) The fee adjustment formula should provide an incentive that will 
be effective over the full range of reasonably foreseeable variations 
from target cost. If a high maximum fee is negotiated, the contract 
shall also provide for a low minimum fee that may be a zero fee or, in 
rare cases, a negative fee.
    (c) Limitations. No cost-plus-incentive-fee contract shall be 
awarded unless all limitations in 16.301-3 are complied with.

[48 FR 42219, Sept. 19, 1983. Redesignated at 62 FR 12696, Mar. 17, 
1997, as amended at 62 FR 44815, Aug. 22, 1997]



Sec. 16.405-2  Cost-plus-award-fee contracts.

    A cost-plus-award-fee contract is a cost-reimbursement contract that 
provides for a fee consisting of (1) a base amount fixed at inception of 
the contract, if applicable and at the discretion of the contracting 
officer, and (2) an award amount that the contractor may earn in whole 
or in part during performance and that is sufficient to provide 
motivation for excellence in the areas of cost, schedule, and technical 
performance. See 16.401(e) for the requirements relative to utilizing 
this contract type.

[74 FR 52859, Oct. 14, 2009]



Sec. 16.406  Contract clauses.

    (a) Insert the clause at 52.216-16, Incentive Price Revision--Firm 
Target, in solicitations and contracts when a

[[Page 363]]

fixed-price incentive (firm target) contract is contemplated. If the 
contract calls for supplies or services to be ordered under a 
provisioning document or Government option and the prices are to be 
subject to the incentive price revision under the clause, the 
contracting officer shall use the clause with its Alternate I.
    (b) Insert the clause at 52.216-17, Incentive Price Revision--
Successive Targets, in solicitations and contracts when a fixed-price 
incentive (successive targets) contract is contemplated. If the contract 
calls for supplies or services to be ordered under a provisioning 
document or Government option and the prices are to be subject to 
incentive price revision under the clause, the contracting officer shall 
use the clause with its Alternate I.
    (c) The clause at 52.216-7, Allowable Cost and Payment, is 
prescribed in 16.307(a) for insertion in solicitations and contracts 
when a cost-plus-incentive-fee contract or a cost-plus-award-fee 
contract is contemplated.
    (d) The clause at 52.216-10, Incentive Fee, is prescribed in 
16.307(d) for insertion in solicitations and contracts when a cost-plus-
incentive-fee contract is contemplated.
    (e) Insert an appropriate award-fee clause in solicitations and 
contracts when an award-fee contract is contemplated, provided that the 
clause--
    (1) Is prescribed by or approved under agency acquisition 
regulations;
    (2) Is compatible with the clause at 52.216-7, Allowable Cost and 
Payment; and
    (3) Expressly provides that the award amount and the award-fee 
determination methodology are unilateral decisions made solely at the 
discretion of the Government.

[48 FR 42219, Sept. 19, 1983. Redesignated and amended at 62 FR 12696, 
Mar. 17, 1997; 64 FR 72449, Dec. 27, 1999]

               Subpart 16.5_Indefinite-Delivery Contracts



Sec. 16.500  Scope of subpart.

    (a) This subpart prescribes policies and procedures for making 
awards of indefinite-delivery contracts and establishes a preference for 
making multiple awards of indefinite-quantity contracts.
    (b) This subpart does not limit the use of other than competitive 
procedures authorized by part 6.
    (c) Nothing in this subpart restricts the authority of the General 
Services Administration (GSA) to enter into schedule, multiple award, or 
task or delivery order contracts under any other provision of law. 
Therefore, GSA regulations and the coverage for the Federal Supply 
Schedule program in subpart 8.4 and part 38 take precedence over this 
subpart.
    (d) The statutory multiple award preference implemented by this 
subpart does not apply to architect-engineer contracts subject to the 
procedures in subpart 36.6. However, agencies are not precluded from 
making multiple awards for architect-engineer services using the 
procedures in this subpart, provided the selection of contractors and 
placement of orders are consistent with subpart 36.6.

[65 FR 24318, Apr. 25, 2000]



Sec. 16.501-1  Definitions.

    As used in this subpart--
    Delivery-order contract means a contract for supplies that does not 
procure or specify a firm quantity of supplies (other than a minimum or 
maximum quantity) and that provides for the issuance of orders for the 
delivery of supplies during the period of the contract.
    Task-order contract means a contract for services that does not 
procure or specify a firm quantity of services (other than a minimum or 
maximum quantity) and that provides for the issuance of orders for the 
performance of tasks during the period of the contract.

[60 FR 49725, Sept. 26, 1995, as amended at 65 FR 24318, Apr. 25, 2000; 
75 FR 13421, Mar. 19, 2010]



Sec. 16.501-2  General.

    (a) There are three types of indefinite-delivery contracts: 
Definite-quantity contracts, requirements contracts, and indefinite-
quantity contracts. The appropriate type of indefinite-delivery contract 
may be used to acquire supplies and/or services when the exact

[[Page 364]]

times and/or exact quantities of future deliveries are not known at the 
time of contract award. Pursuant to 10 U.S.C. 2304d and section 303K of 
the Federal Property and Administrative Services Act of 1949, 
requirements contracts and indefinite-quantity contracts are also known 
as delivery-order contracts or task-order contracts.
    (b) The various types of indefinite-delivery contracts offer the 
following advantages:
    (1) All three types permit (i) Government stocks to be maintained at 
minimum levels and (ii) direct shipment to users.
    (2) Indefinite-quantity contracts and requirements contracts also 
permit (i) flexibility in both quantities and delivery scheduling and 
(ii) ordering of supplies or services after requirements materialize.
    (3) Indefinite-quantity contracts limit the Government's obligation 
to the minimum quantity specified in the contract.
    (4) Requirements contracts may permit faster deliveries when 
production lead time is involved, because contractors are usually 
willing to maintain limited stocks when the Government will obtain all 
of its actual purchase requirements from the contractor.
    (c) Indefinite-delivery contracts may provide for any appropriate 
cost or pricing arrangement under part 16. Cost or pricing arrangements 
that provide for an estimated quantity of supplies or services (e.g., 
estimated number of labor hours) must comply with the appropriate 
procedures of this subpart.

[48 FR 42219, Sept. 19, 1983. Redesignated and amended at 60 FR 49725, 
Sept. 26, 1995; 75 FR 13421, Mar. 19, 2010]



Sec. 16.502  Definite-quantity contracts.

    (a) Description. A definite-quantity contract provides for delivery 
of a definite quantity of specific supplies or services for a fixed 
period, with deliveries or performance to be scheduled at designated 
locations upon order.
    (b) Application. A definite-quantity contract may be used when it 
can be determined in advance that (1) a definite quantity of supplies or 
services will be required during the contract period and (2) the 
supplies or services are regularly available or will be available after 
a short lead time.

[48 FR 42219, Sept. 19, 1983, as amended at 60 FR 49725, Sept. 26, 1995]



Sec. 16.503  Requirements contracts.

    (a) Description. A requirements contract provides for filling all 
actual purchase requirements of designated Government activities for 
supplies or services during a specified contract period (from one 
contractor), with deliveries or performance to be scheduled by placing 
orders with the contractor.
    (1) For the information of offerors and contractors, the contracting 
officer shall state a realistic estimated total quantity in the 
solicitation and resulting contract. This estimate is not a 
representation to an offeror or contractor that the estimated quantity 
will be required or ordered, or that conditions affecting requirements 
will be stable or normal. The contracting officer may obtain the 
estimate from records of previous requirements and consumption, or by 
other means, and should base the estimate on the most current 
information available.
    (2) The contract shall state, if feasible, the maximum limit of the 
contractor's obligation to deliver and the Government's obligation to 
order. The contract may also specify maximum or minimum quantities that 
the Government may order under each individual order and the maximum 
that it may order during a specified period of time.
    (b) Application. (1) A requirements contract may be appropriate for 
acquiring any supplies or services when the Government anticipates 
recurring requirements but cannot predetermine the precise quantities of 
supplies or services that designated Government activities will need 
during a definite period.
    (2) No requirements contract in an amount estimated to exceed $103 
million (including all options) may be awarded to a single source unless 
a determination is executed in accordance with 16.504(c)(1)(ii)(D).
    (c) Government property furnished for repair. When a requirements 
contract is used to acquire work (e.g., repair, modification, or 
overhaul) on existing items of Government property, the contracting 
officer shall specify in the

[[Page 365]]

Schedule that failure of the Government to furnish such items in the 
amounts or quantities described in the Schedule as estimated or maximum 
will not entitle the contractor to any equitable adjustment in price 
under the Government Property clause of the contract.
    (d) Limitations on use of requirements contracts for advisory and 
assistance services. (1) Except as provided in paragraph (d)(2) of this 
section, no solicitation for a requirements contract for advisory and 
assistance services in excess of three years and $12.5 million 
(including all options) may be issued unless the contracting officer or 
other official designated by the head of the agency determines in 
writing that the services required are so unique or highly specialized 
that it is not practicable to make multiple awards using the procedures 
in 16.504.
    (2) The limitation in paragraph (d)(1) of this section is not 
applicable to an acquisition of supplies or services that includes the 
acquisition of advisory and assistance services, if the contracting 
officer or other official designated by the head of the agency 
determines that the advisory and assistance services are necessarily 
incident to, and not a significant component of, the contract.

[48 FR 42219, Sept. 19, 1983, as amended at 56 FR 15150, Apr. 15, 1991; 
60 FR 49725, Sept. 26, 1995; 71 FR 57367, Sept. 28, 2006; 73 FR 54010, 
Sept. 17, 2008; 75 FR 13421, Mar. 19, 2010; 75 FR 53133, Aug. 30, 2010]



Sec. 16.504  Indefinite-quantity contracts.

    (a) Description. An indefinite-quantity contract provides for an 
indefinite quantity, within stated limits, of supplies or services 
during a fixed period. The Government places orders for individual 
requirements. Quantity limits may be stated as number of units or as 
dollar values.
    (1) The contract must require the Government to order and the 
contractor to furnish at least a stated minimum quantity of supplies or 
services. In addition, if ordered, the contractor must furnish any 
additional quantities, not to exceed the stated maximum. The contracting 
officer should establish a reasonable maximum quantity based on market 
research, trends on recent contracts for similar supplies or services, 
survey of potential users, or any other rational basis.
    (2) To ensure that the contract is binding, the minimum quantity 
must be more than a nominal quantity, but it should not exceed the 
amount that the Government is fairly certain to order.
    (3) The contract may also specify maximum or minimum quantities that 
the Government may order under each task or delivery order and the 
maximum that it may order during a specific period of time.
    (4) A solicitation and contract for an indefinite quantity must--
    (i) Specify the period of the contract, including the number of 
options and the period for which the Government may extend the contract 
under each option;
    (ii) Specify the total minimum and maximum quantity of supplies or 
services the Government will acquire under the contract;
    (iii) Include a statement of work, specifications, or other 
description, that reasonably describes the general scope, nature, 
complexity, and purpose of the supplies or services the Government will 
acquire under the contract in a manner that will enable a prospective 
offeror to decide whether to submit an offer;
    (iv) State the procedures that the Government will use in issuing 
orders, including the ordering media, and, if multiple awards may be 
made, state the procedures and selection criteria that the Government 
will use to provide awardees a fair opportunity to be considered for 
each order (see 16.505(b)(1));
    (v) Include the name, address, telephone number, facsimile number, 
and e-mail address of the agency task and delivery order ombudsman (see 
16.505(b)(8)) if multiple awards may be made;
    (vi) Include a description of the activities authorized to issue 
orders; and
    (vii) Include authorization for placing oral orders, if appropriate, 
provided that the Government has established procedures for obligating 
funds and that oral orders are confirmed in writing.

[[Page 366]]

    (b) Application. Contracting officers may use an indefinite-quantity 
contract when the Government cannot predetermine, above a specified 
minimum, the precise quantities of supplies or services that the 
Government will require during the contract period, and it is 
inadvisable for the Government to commit itself for more than a minimum 
quantity. The contracting officer should use an indefinite-quantity 
contract only when a recurring need is anticipated.
    (c) Multiple award preference--(1) Planning the acquisition. (i) 
Except for indefinite-quantity contracts for advisory and assistance 
services as provided in paragraph (c)(2) of this section, the 
contracting officer must, to the maximum extent practicable, give 
preference to making multiple awards of indefinite-quantity contracts 
under a single solicitation for the same or similar supplies or services 
to two or more sources.
    (ii)(A) The contracting officer must determine whether multiple 
awards are appropriate as part of acquisition planning. The contracting 
officer must avoid situations in which awardees specialize exclusively 
in one or a few areas within the statement of work, thus creating the 
likelihood that orders in those areas will be awarded on a sole-source 
basis; however, each awardee need not be capable of performing every 
requirement as well as any other awardee under the contracts. The 
contracting officer should consider the following when determining the 
number of contracts to be awarded:
    (1) The scope and complexity of the contract requirement.
    (2) The expected duration and frequency of task or delivery orders.
    (3) The mix of resources a contractor must have to perform expected 
task or delivery order requirements.
    (4) The ability to maintain competition among the awardees 
throughout the contracts' period of performance.
    (B) The contracting officer must not use the multiple award approach 
if--
    (1) Only one contractor is capable of providing performance at the 
level of quality required because the supplies or services are unique or 
highly specialized;
    (2) Based on the contracting officer's knowledge of the market, more 
favorable terms and conditions, including pricing, will be provided if a 
single award is made;
    (3) The expected cost of administration of multiple contracts 
outweighs the expected benefits of making multiple awards;
    (4) The projected orders are so integrally related that only a 
single contractor can reasonably perform the work;
    (5) The total estimated value of the contract is less than the 
simplified acquisition threshold; or
    (6) Multiple awards would not be in the best interests of the 
Government.
    (C) The contracting officer must document the decision whether or 
not to use multiple awards in the acquisition plan or contract file. The 
contracting officer may determine that a class of acquisitions is not 
appropriate for multiple awards (see subpart 1.7).
    (D)(1) No task or delivery order contract in an amount estimated to 
exceed $103 million (including all options) may be awarded to a single 
source unless the head of the agency determines in writing that--
    (i) The task or delivery orders expected under the contract are so 
integrally related that only a single source can reasonably perform the 
work;
    (ii) The contract provides only for firm-fixed price (see 16.202) 
task or delivery orders for--
    (A) Products for which unit prices are established in the contract; 
or
    (B) Services for which prices are established in the contract for 
the specific tasks to be performed;
    (iii) Only one source is qualified and capable of performing the 
work at a reasonable price to the Government; or
    (iv) It is necessary in the public interest to award the contract to 
a single source due to exceptional circumstances.
    (2) The head of the agency must notify Congress within 30 days after 
any determination under paragraph (c)(1)(ii)(D)(1)(iv) of this section.
    (3) The requirement for a determination for a single-award contract 
greater than $103 million:
    (i) Is in addition to any applicable requirements of Subpart 6.3.

[[Page 367]]

    (ii) Is not applicable for architect-engineer services awarded 
pursuant to Subpart 36.6.
    (2) Contracts for advisory and assistance services. (i) Except as 
provided in paragraph (c)(2)(ii) of this section, if an indefinite-
quantity contract for advisory and assistance services exceeds 3 years 
and $12.5 million, including all options, the contracting officer must 
make multiple awards unless--
    (A) The contracting officer or other official designated by the head 
of the agency determines in writing, as part of acquisition planning, 
that multiple awards are not practicable. The contracting officer or 
other official must determine that only one contractor can reasonably 
perform the work because either the scope of work is unique or highly 
specialized or the tasks so integrally related;
    (B) The contracting officer or other official designated by the head 
of the agency determines in writing, after the evaluation of offers, 
that only one offeror is capable of providing the services required at 
the level of quality required; or
    (C) Only one offer is received.
    (ii) The requirements of paragraph (c)(2)(i) of this section do not 
apply if the contracting officer or other official designated by the 
head of the agency determines that the advisory and assistance services 
are incidental and not a significant component of the contract.

[65 FR 24318, Apr. 25, 2000, as amended at 71 FR 57367, Sept. 28, 2006; 
73 FR 54010, Sept. 17, 2008; 75 FR 13421, Mar. 19, 2010; 75 FR 53133, 
Aug. 30, 2010; 78 FR 13767, Feb. 28, 2013]



Sec. 16.505  Ordering.

    (a) General(1) (1) In general, the contracting officer does not 
synopsize orders under indefinite-delivery contracts; except see 
16.505(a)(4) and (11), and 16.505(b)(2)(ii)(D).
    (2) Individual orders shall clearly describe all services to be 
performed or supplies to be delivered so the full cost or price for the 
performance of the work can be established when the order is placed. 
Orders shall be within the scope, issued within the period of 
performance, and be within the maximum value of the contract.
    (3) Performance-based acquisition methods must be used to the 
maximum extent practicable, if the contract or order is for services 
(see 37.102(a) and Subpart 37.6).
    (4) The following requirements apply when procuring items peculiar 
to one manufacturer:
    (i) The contracting officer must justify restricting consideration 
to an item peculiar to one manufacturer (e.g., a particular brand-name, 
product, or a feature of a product that is peculiar to one 
manufacturer). A brand-name item, even if available on more than one 
contract, is an item peculiar to one manufacturer. Brand-name 
specifications shall not be used unless the particular brand-name, 
product, or feature is essential to the Government's requirements and 
market research indicates other companies' similar products, or products 
lacking the particular feature, do not meet, or cannot be modified to 
meet, the agency's needs.
    (ii) Requirements for use of items peculiar to one manufacturer 
shall be justified and approved using the format(s) and requirements 
from paragraphs (b)(2)(ii)(A), (B), and (C) of this section, modified to 
show the brand-name justification. A justification is required unless a 
justification covering the requirements in the order was previously 
approved for the contract in accordance with 6.302-1(c) or unless the 
base contract is a single-award contract awarded under full and open 
competition. Justifications for the use of brand-name specifications 
must be completed and approved at the time the requirement for a brand-
name is determined.
    (iii)(A) For an order in excess of $25,000, the contracting officer 
shall--
    (1) Post the justification and supporting documentation on the 
agency Web site used (if any) to solicit offers for orders under the 
contract; or
    (2) Provide the justification and supporting documentation along 
with the solicitation to all contract awardees.
    (B) The justifications for brand-name acquisitions may apply to the 
portion of the acquisition requiring the brand-name item. If the 
justification is to cover only the portion of the acquisition which is 
brand-name, then it

[[Page 368]]

should so state; the approval level requirements will then only apply to 
that portion.
    (C) The requirements in paragraph (a)(4)(iii)(A) of this section do 
not apply when disclosure would compromise the national security (e.g., 
would result in disclosure of classified information) or create other 
security risks.
    (D) The justification is subject to the screening requirement in 
paragraph (b)(2)(ii)(D)(4) of this section.
    (5) When acquiring information technology and related services, 
consider the use of modular contracting to reduce program risk (see 
39.103(a)).
    (6) Orders may be placed by using any medium specified in the 
contract.
    (7) Orders placed under indefinite-delivery contracts must contain 
the following information:
    (i) Date of order.
    (ii) Contract number and order number.
    (iii) For supplies and services, contract item number and 
description, quantity, and unit price or estimated cost or fee.
    (iv) Delivery or performance schedule.
    (v) Place of delivery or performance (including consignee).
    (vi) Any packaging, packing, and shipping instructions.
    (vii) Accounting and appropriation data.
    (viii) Method of payment and payment office, if not specified in the 
contract (see 32.1110(e)).
    (8) Orders placed under a task-order contract or delivery-order 
contract awarded by another agency (i.e., a Governmentwide acquisition 
contract, or multi-agency contract)--
    (i) Are not exempt from the development of acquisition plans (see 
subpart 7.1), and an information technology acquisition strategy (see 
part 39);
    (ii) May not be used to circumvent conditions and limitations 
imposed on the use of funds (e.g., 31 U.S.C. 1501(a)(1)); and
    (iii) Must comply with all FAR requirements for a bundled contract 
when the order meets the definition of ``bundled contract'' (see 
2.101(b)).
    (9) In accordance with section 1427(b) of Public Law 108-136, orders 
placed under multi-agency contracts for services that substantially or 
to a dominant extent specify performance of architect-engineer services, 
as defined in 2.101, shall--
    (i) Be awarded using the procedures at Subpart 36.6; and
    (ii) Require the direct supervision of a professional architect or 
engineer licensed, registered or certified in the State, Federal 
District, or outlying area, in which the services are to be performed.
    (10)(i) No protest under subpart 33.1 is authorized in connection 
with the issuance or proposed issuance of an order under a task-order 
contract or delivery-order contract, except for--
    (A) A protest on the grounds that the order increases the scope, 
period, or maximum value of the contract; or
    (B) A protest of an order valued in excess of $10 million. Protests 
of orders in excess of $10 million may only be filed with the Government 
Accountability Office, in accordance with the procedures at 33.104.
    (ii) The authority to protest the placement of an order under 
(a)(10)(i)(B) of this section expires on September 30, 2016, for 
agencies other than DoD, NASA, and the Coast Guard (41 U.S.C. 4103(d) 
and 41 U.S.C. 4106(f)). The authority to protest the placement of an 
order under (a)(10)(i)(B) of this section does not expire for DoD, NASA, 
and the Coast Guard.
    (11) Publicize orders funded in whole or in part by the American 
Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) as follows:
    (i) Notices of proposed orders shall follow the procedures in 5.704 
for posting orders.
    (ii) Award notices for orders shall follow the procedures in 5.705.
    (12) When using the Governmentwide commercial purchase card as a 
method of payment, orders at or below the micro-purchase threshold are 
exempt from verification in the System for Award Management database as 
to whether the contractor has a delinquent debt subject to collection 
under the Treasury Offset Program (TOP).
    (b) Orders under multiple-award contracts--(1) Fair opportunity. (i) 
The contracting officer must provide each

[[Page 369]]

awardee a fair opportunity to be considered for each order exceeding 
$3,000 issued under multiple delivery-order contracts or multiple task-
order contracts, except as provided for in paragraph (b)(2) of this 
section.
    (ii) The contracting officer may exercise broad discretion in 
developing appropriate order placement procedures. The contracting 
officer should keep submission requirements to a minimum. Contracting 
officers may use streamlined procedures, including oral presentations. 
If the order does not exceed the simplified acquisition threshold, the 
contracting officer need not contact each of the multiple awardees under 
the contract before selecting an order awardee if the contracting 
officer has information available to ensure that each awardee is 
provided a fair opportunity to be considered for each order. The 
competition requirements in part 6 and the policies in subpart 15.3 do 
not apply to the ordering process. However, the contracting officer 
must--
    (A) Develop placement procedures that will provide each awardee a 
fair opportunity to be considered for each order and that reflect the 
requirement and other aspects of the contracting environment;
    (B) Not use any method (such as allocation or designation of any 
preferred awardee) that would not result in fair consideration being 
given to all awardees prior to placing each order;
    (C) Tailor the procedures to each acquisition;
    (D) Include the procedures in the solicitation and the contract; and
    (E) Consider price or cost under each order as one of the factors in 
the selection decision.
    (iii) Orders exceeding the simplified acquisition threshold. (A) 
Each order exceeding the simplified acquisition threshold shall be 
placed on a competitive basis in accordance with paragraph 
(b)(1)(iii)(B) of this section, unless supported by a written 
determination that one of the circumstances described at 16.505(b)(2)(i) 
applies to the order and the requirement is waived on the basis of a 
justification that is prepared in accordance with 16.505(b)(2)(ii)(B);
    (B) The contracting officer shall--
    (1) Provide a fair notice of the intent to make a purchase, 
including a clear description of the supplies to be delivered or the 
services to be performed and the basis upon which the selection will be 
made to all contractors offering the required supplies or services under 
the multiple-award contract; and
    (2) Afford all contractors responding to the notice a fair 
opportunity to submit an offer and have that offer fairly considered.
    (iv) Orders exceeding $5 million. For task or delivery orders in 
excess of $5 million, the requirement to provide all awardees a fair 
opportunity to be considered for each order shall include, at a 
minimum--
    (A) A notice of the task or delivery order that includes a clear 
statement of the agency's requirements;
    (B) A reasonable response period;
    (C) Disclosure of the significant factors and subfactors, including 
cost or price, that the agency expects to consider in evaluating 
proposals, and their relative importance;
    (D) Where award is made on a best value basis, a written statement 
documenting the basis for award and the relative importance of quality 
and price or cost factors; and
    (E) An opportunity for a postaward debriefing in accordance with 
paragraph (b)(6) of this section.
    (v) The contracting officer should consider the following when 
developing the procedures:
    (A)(1) Past performance on earlier orders under the contract, 
including quality, timeliness and cost control.
    (2) Potential impact on other orders placed with the contractor.
    (3) Minimum order requirements.
    (4) The amount of time contractors need to make informed business 
decisions on whether to respond to potential orders.
    (5) Whether contractors could be encouraged to respond to potential 
orders by outreach efforts to promote exchanges of information, such 
as--
    (i) Seeking comments from two or more contractors on draft 
statements of work;
    (ii) Using a multiphased approach when effort required to respond to 
a potential order may be resource intensive (e.g., requirements are 
complex or need

[[Page 370]]

continued development), where all contractors are initially considered 
on price considerations (e.g., rough estimates), and other 
considerations as appropriate (e.g., proposed conceptual approach, past 
performance). The contractors most likely to submit the highest value 
solutions are then selected for one-on-one sessions with the Government 
to increase their understanding of the requirements, provide suggestions 
for refining requirements, and discuss risk reduction measures.
    (B) Formal evaluation plans or scoring of quotes or offers are not 
required.
    (2) Exceptions to the fair opportunity process. (i) The contracting 
officer shall give every awardee a fair opportunity to be considered for 
a delivery-order or task-order exceeding $3,000 unless one of the 
following statutory exceptions applies:
    (A) The agency need for the supplies or services is so urgent that 
providing a fair opportunity would result in unacceptable delays.
    (B) Only one awardee is capable of providing the supplies or 
services required at the level of quality required because the supplies 
or services ordered are unique or highly specialized.
    (C) The order must be issued on a sole-source basis in the interest 
of economy and efficiency because it is a logical follow-on to an order 
already issued under the contract, provided that all awardees were given 
a fair opportunity to be considered for the original order.
    (D) It is necessary to place an order to satisfy a minimum 
guarantee.
    (E) For orders exceeding the simplified acquisition threshold, a 
statute expressly authorizes or requires that the purchase be made from 
a specified source.
    (F) In accordance with section 1331 of Public Law 111-240 (15 U.S.C. 
644(r)), contracting officers may, at their discretion, set aside orders 
for any of the small business concerns identified in 19.000(a)(3). When 
setting aside orders for small business concerns, the specific small 
business program eligibility requirements identified in part 19 apply.
    (ii) The justification for an exception to fair opportunity shall be 
in writing as specified in paragraphs (b)(2)(ii)(A) or (B) of this 
section. No justification is needed for the exception described in 
paragraph (b)(2)(i)(F) of this section.
    (A) Orders exceeding $3,000, but not exceeding the simplified 
acquisition threshold. The contracting officer shall document the basis 
for using an exception to the fair opportunity process. If the 
contracting officer uses the logical follow-on exception, the rationale 
shall describe why the relationship between the initial order and the 
follow-on is logical (e.g., in terms of scope, period of performance, or 
value).
    (B) Orders exceeding the simplified acquisition threshold. As a 
minimum, each justification shall include the following information and 
be approved in accordance with paragraph (b)(2)(ii)(C) of this section:
    (1) Identification of the agency and the contracting activity, and 
specific identification of the document as a ``Justification for an 
Exception to Fair Opportunity.''
    (2) Nature and/or description of the action being approved.
    (3) A description of the supplies or services required to meet the 
agency's needs (including the estimated value).
    (4) Identification of the exception to fair opportunity (see 
16.505(b)(2)) and the supporting rationale, including a demonstration 
that the proposed contractor's unique qualifications or the nature of 
the acquisition requires use of the exception cited. If the contracting 
officer uses the logical follow-on exception, the rationale shall 
describe why the relationship between the initial order and the follow-
on is logical (e.g., in terms of scope, period of performance, or 
value).
    (5) A determination by the contracting officer that the anticipated 
cost to the Government will be fair and reasonable.
    (6) Any other facts supporting the justification.
    (7) A statement of the actions, if any, the agency may take to 
remove or overcome any barriers that led to the exception to fair 
opportunity before any subsequent acquisition for the supplies or 
services is made.
    (8) The contracting officer's certification that the justification 
is accurate and complete to the best of the

[[Page 371]]

contracting officer's knowledge and belief.
    (9) Evidence that any supporting data that is the responsibility of 
technical or requirements personnel (e.g., verifying the Government's 
minimum needs or requirements or other rationale for an exception to 
fair opportunity) and which form a basis for the justification have been 
certified as complete and accurate by the technical or requirements 
personnel.
    (10) A written determination by the approving official that one of 
the circumstances in (b)(2)(i)(A) through (E) of this section applies to 
the order.
    (C) Approval. (1) For proposed orders exceeding the simplified 
acquisition threshold, but not exceeding $650,000, the ordering activity 
contracting officer's certification that the justification is accurate 
and complete to the best of the ordering activity contracting officer's 
knowledge and belief will serve as approval, unless a higher approval 
level is established in accordance with agency procedures.
    (2) For a proposed order exceeding $650,000, but not exceeding $12.5 
million, the justification must be approved by the competition advocate 
of the activity placing the order, or by an official named in paragraph 
(b)(2)(ii)(C)(3) or (4) of this section. This authority is not 
delegable.
    (3) For a proposed order exceeding $12.5 million, but not exceeding 
$62.5 million (or, for DoD, NASA, and the Coast Guard, not exceeding 
$85.5 million), the justification must be approved by--
    (i) The head of the procuring activity placing the order;
    (ii) A designee who--
    (A) If a member of the armed forces, is a general or flag officer;
    (B) If a civilian, is serving in a position in a grade above GS-15 
under the General Schedule (or in a comparable or higher position under 
another schedule); or
    (iii) An official named in paragraph (b)(2)(ii)(C)(4) of this 
section.
    (4) For a proposed order exceeding $62.5 million (or, for DoD, NASA, 
and the Coast Guard, over $85.5 million), the justification must be 
approved by the senior procurement executive of the agency placing the 
order. This authority is not delegable, except in the case of the Under 
Secretary of Defense for Acquisition, Technology, and Logistics, acting 
as the senior procurement executive for the Department of Defense.
    (D) Posting. (1) Except as provided in paragraph (b)(2)(ii)(D)(5) of 
this section, within 14 days after placing an order exceeding the 
simplified acquisition threshold that does not provide for fair 
opportunity in accordance with 16.505(b), the contract officer shall--
    (i) Publish a notice in accordance with 5.301; and
    (ii) Make publicly available the justification required at 
(b)(2)(ii)(B) of this section.
    (2) The justification shall be made publicly available--
    (i) At the GPE http://www.fedbizopps.gov;
    (ii) On the Web site of the agency, which may provide access to the 
justifications by linking to the GPE; and
    (iii) Must remain posted for a minimum of 30 days.
    (3) In the case of an order permitted under paragraph (b)(2)(i)(A) 
of this subsection, the justification shall be posted within 30 days 
after award of the order.
    (4) Contracting officers shall carefully screen all justifications 
for contractor proprietary data and remove all such data, and such 
references and citations as are necessary to protect the proprietary 
data, before making the justifications available for public inspection. 
Contracting officers shall also be guided by the exemptions to 
disclosure of information contained in the Freedom of Information Act (5 
U.S.C. 552) and the prohibitions against disclosure in 24.202 in 
determining whether other data should be removed. Although the submitter 
notice process set out in Executive Order 12600 ``Predisclosure 
Notification Procedures for Confidential Commercial Information'' does 
not apply, if the justification appears to contain proprietary data, the 
contracting officer should provide the contractor that submitted the 
information an opportunity to review the justification for proprietary 
data before making the justification available for public inspection, 
redacted as necessary. This process must

[[Page 372]]

not prevent or delay the posting of the justification in accordance with 
the timeframes required in paragraphs (1) and (3).
    (5) The posting requirement of this section does not apply--
    (i) When disclosure would compromise the national security (e.g., 
would result in disclosure of classified information) or create other 
security risks; or
    (ii) To a small business set-aside under paragraph (b)(2)(i)(F).
    (3) Pricing orders. If the contract did not establish the price for 
the supply or service, the contracting officer must establish prices for 
each order using the policies and methods in subpart 15.4.
    (4) For additional requirements for cost reimbursement orders see 
16.301-3.
    (5) For additional requirements for time-and-materials or labor-hour 
orders, see 16.601(e).
    (6) Postaward Notices and Debriefing of Awardees for Orders 
Exceeding $5 million. The contracting officer shall notify unsuccessful 
awardees when the total price of a task or delivery order exceeds $5 
million.
    (i) The procedures at 15.503(b)(1) shall be followed when providing 
postaward notification to unsuccessful awardees.
    (ii) The procedures at 15.506 shall be followed when providing 
postaward debriefing to unsuccessful awardees.
    (iii) A summary of the debriefing shall be included in the task or 
delivery order file.
    (7) Decision documentation for orders. (i) The contracting officer 
shall document in the contract file the rationale for placement and 
price of each order, including the basis for award and the rationale for 
any tradeoffs among cost or price and non-cost considerations in making 
the award decision. This documentation need not quantify the tradeoffs 
that led to the decision.
    (ii) The contract file shall also identify the basis for using an 
exception to the fair opportunity process (see paragraph (b)(2)).
    (8) Task-order and delivery-order ombudsman. The head of the agency 
shall designate a task-order and delivery-order ombudsman. The ombudsman 
must review complaints from contractors and ensure they are afforded a 
fair opportunity to be considered, consistent with the procedures in the 
contract. The ombudsman must be a senior agency official who is 
independent of the contracting officer and may be the agency's 
competition advocate.
    (c) Limitation on ordering period for task-order contracts for 
advisory and assistance services. (1) Except as provided for in 
paragraphs (c)(2) and (c)(3), the ordering period of a task-order 
contract for advisory and assistance services, including all options or 
modifications, normally may not exceed 5 years.
    (2) The 5-year limitation does not apply when--
    (i) A longer ordering period is specifically authorized by a 
statute; or
    (ii) The contract is for an acquisition of supplies or services that 
includes the acquisition of advisory and assistance services and the 
contracting officer, or other official designated by the head of the 
agency, determines that the advisory and assistance services are 
incidental and not a significant component of the contract.
    (3) The contracting officer may extend the contract on a sole-source 
basis only once for a period not to exceed 6 months if the contracting 
officer, or other official designated by the head of the agency, 
determines that--
    (i) The award of a follow-on contract is delayed by circumstances 
that were not reasonably foreseeable at the time the initial contract 
was entered into; and
    (ii) The extension is necessary to ensure continuity of services, 
pending the award of the follow-on contract.

[65 FR 24319, Apr. 25, 2000]

    Editorial Note: For Federal Register citations affectingSec. 
16.505, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.fdsys.gov.



Sec. 16.506  Solicitation provisions and contract clauses.

    (a) Insert the clause at 52.216-18, Ordering, in solicitations and 
contracts when a definite-quantity contract, a requirements contract, or 
an indefinite-quantity contract is contemplated.
    (b) Insert a clause substantially the same as the clause at 52.216-
19, Order

[[Page 373]]

Limitations, in solicitations and contracts when a definite-quantity 
contract, a requirements contract, or an indefinite-quantity contract is 
contemplated.
    (c) Insert the clause at 52.216-20, Definite Quantity, in 
solicitations and contracts when a definite-quantity contract is 
contemplated.
    (d)(1) Insert the clause at 52.216-21, Requirements, in 
solicitations and contracts when a requirements contract is 
contemplated.
    (2) If the contract is for nonpersonal services and related supplies 
and covers estimated requirements that exceed a specific Government 
activity's internal capability to produce or perform, use the clause 
with its Alternate I.
    (3) If the contract includes subsistence for both Government use and 
resale in the same Schedule, and similar products may be acquired on a 
brand-name basis, use the clause with its Alternate II (but see 
paragraph (d)(5) of this section).
    (4) If the contract involves a partial small business set-aside, use 
the clause with its Alternate III (but see subparagraph (5) below).
    (5) If the contract--
    (i) Includes subsistence for Government use and resale in the same 
schedule and similar products may be acquired on a brand-name basis; and
    (ii) Involves a partial small business set-aside, use the clause 
with its Alternate IV.
    (e) Insert the clause at 52.216-22, Indefinite Quantity, in 
solicitations and contracts when an indefinite-quantity contract is 
contemplated.
    (f) Insert the provision at 52.216-27, Single or Multiple Awards, in 
solicitations for indefinite-quantity contracts that may result in 
multiple contract awards. Modify the provision to specify the estimated 
number of awards. Do not use this provision for advisory and assistance 
services contracts that exceed 3 years and $12.5 million (including all 
options).
    (g) Insert the provision at 52.216-28, Multiple Awards for Advisory 
and Assistance Services, in solicitations for task-order contracts for 
advisory and assistance services that exceed 3 years and $12.5 million 
(including all options), unless a determination has been made under 
16.504(c)(2)(i)(A). Modify the provision to specify the estimated number 
of awards.
    (h) See 10.001(d) for insertion of the clause at 52.210-1, Market 
Research, when the contract is over $5 million for the procurement of 
items other than commercial items.

[48 FR 42219, Sept. 19, 1983; 60 FR 48260, Sept. 18, 1995. Redesignated 
and amended at 60 FR 49726, 49727, Sept. 26, 1995; 65 FR 24320, Apr. 25, 
2000; 71 FR 57367, Sept. 28, 2006; 75 FR 53133, Aug. 30, 2010; 76 FR 
14565, Mar. 16, 2011]

    Subpart 16.6_Time-and-Materials, Labor-Hour, and Letter Contracts



Sec. 16.600  Scope.

    Time-and-materials contracts and labor-hour contracts are not fixed-
price contracts.

[77 FR 197, Jan. 3, 2012]



Sec. 16.601  Time-and-materials contracts.

    (a) Definitions for the purposes of Time-and-Materials Contracts.
    Direct materials means those materials that enter directly into the 
end product, or that are used or consumed directly in connection with 
the furnishing of the end product or service.
    Hourly rate means the rate(s) prescribed in the contract for payment 
for labor that meets the labor category qualifications of a labor 
category specified in the contract that are--
    (1) Performed by the contractor;
    (2) Performed by the subcontractors; or
    (3) Transferred between divisions, subsidiaries, or affiliates of 
the contractor under a common control.
    Materials means--
    (1) Direct materials, including supplies transferred between 
divisions, subsidiaries, or affiliates of the contractor under a common 
control;
    (2) Subcontracts for supplies and incidental services for which 
there is not a labor category specified in the contract;
    (3) Other direct costs (e.g., incidental services for which there is 
not a labor category specified in the contract, travel, computer usage 
charges, etc.); and
    (4) Applicable indirect costs.

[[Page 374]]

    (b) Description. A time-and-materials contract provides for 
acquiring supplies or services on the basis of--
    (1) Direct labor hours at specified fixed hourly rates that include 
wages, overhead, general and administrative expenses, and profit; and
    (2) Actual cost for materials (except as provided for in 31.205-
26(e) and (f)).
    (c) Application. A time-and-materials contract may be used only when 
it is not possible at the time of placing the contract to estimate 
accurately the extent or duration of the work or to anticipate costs 
with any reasonable degree of confidence. See 12.207(b) for the use of 
time-and-material contracts for certain commercial services.
    (1) Government surveillance. A time-and-materials contract provides 
no positive profit incentive to the contractor for cost control or labor 
efficiency. Therefore, appropriate Government surveillance of contractor 
performance is required to give reasonable assurance that efficient 
methods and effective cost controls are being used.
    (2) Fixed hourly rates. (i) The contract shall specify separate 
fixed hourly rates that include wages, overhead, general and 
administrative expenses, and profit for each category of labor (see 
16.601(f)(1)).
    (ii) For acquisitions of noncommercial items awarded without 
adequate price competition (see 15.403-1(c)(1)), the contract shall 
specify separate fixed hourly rates that include wages, overhead, 
general and administrative expenses, and profit for each category of 
labor to be performed by--
    (A) The contractor;
    (B) Each subcontractor; and
    (C) Each division, subsidiary, or affiliate of the contractor under 
a common control.
    (iii) For contract actions that are not awarded using competitive 
procedures, unless exempt under paragraph (c)(2)(iv) of this section, 
the fixed hourly rates for services transferred between divisions, 
subsidiaries, or affiliates of the contractor under a common control--
    (A) Shall not include profit for the transferring organization; but
    (B) May include profit for the prime contractor.
    (iv) For contract actions that are not awarded using competitive 
procedures, the fixed hourly rates for services that meet the definition 
of commercial item at 2.101 that are transferred between divisions, 
subsidiaries, or affiliates of the contractor under a common control may 
be the established catalog or market rate when--
    (A) It is the established practice of the transferring organization 
to price interorganizational transfers at other than cost for commercial 
work of the contractor or any division, subsidiary or affiliate of the 
contractor under a common control; and
    (B) The contracting officer has not determined the price to be 
unreasonable.
    (3) Material handling costs. When included as part of material 
costs, material handling costs shall include only costs clearly excluded 
from the labor-hour rate. Material handling costs may include all 
appropriate indirect costs allocated to direct materials in accordance 
with the contractor's usual accounting procedures consistent with Part 
31.
    (d) Limitations. A time-and-materials contract or order may be used 
only if--
    (1) The contracting officer prepares a determination and findings 
that no other contract type is suitable. The determination and finding 
shall be--
    (i) Signed by the contracting officer prior to the execution of the 
base period or any option periods of the contracts; and
    (ii) Approved by the head of the contracting activity prior to the 
execution of the base period when the base period plus any option 
periods exceeds three years; and
    (2) The contract or order includes a ceiling price that the 
contractor exceeds at its own risk. Also see 12.207(b) for further 
limitations on use of time-and-materials or labor-hour contracts for 
acquisition of commercial items.
    (e) Post award requirements. Prior to an increase in the ceiling 
price of a time-and-materials or labor-hour contract or order, the 
contracting officer shall--
    (1) Conduct an analysis of pricing and other relevant factors to 
determine if the action is in the best interest of the Government;

[[Page 375]]

    (2) Document the decision in the contract or order file; and
    (3) When making a change that modifies the general scope of--
    (i) A contract, follow the procedures at 6.303;
    (ii) An order issued under the Federal Supply Schedules, follow the 
procedures at 8.405-6; or
    (iii) An order issued under multiple award task and delivery order 
contracts, follow the procedures at 16.505(b)(2).
    (f) Solicitation provisions. (1) The contracting officer shall 
insert the provision at 52.216-29, Time-and-Materials/Labor-Hour 
Proposal Requirements--Non-Commercial Item Acquisitions With Adequate 
Price Competition, in solicitations contemplating use of a Time-and-
Materials or Labor-Hour type of contract for noncommercial items, if the 
price is expected to be based on adequate price competition. If 
authorized by agency procedures, the contracting officer may amend the 
provision to make mandatory one of the three approaches in paragraph (c) 
of the provision, and/or to require the identification of all 
subcontractors, divisions, subsidiaries, or affiliates included in a 
blended labor rate.
    (2) The contracting officer shall insert the provision at 52.216-30, 
Time-and-Materials/Labor-Hour Proposal Requirements--Non-Commercial Item 
Acquisitions without Adequate Price Competition, in solicitations for 
noncommercial items contemplating use of a Time-and-Materials or Labor-
Hour type of contract if the price is not expected to be based on 
adequate price competition.
    (3) The contracting officer shall insert the provision at 52.216-31, 
Time-and-Materials/Labor-Hour Proposal Requirements--Commercial Item 
Acquisitions, in solicitations contemplating use of a Commercial Time-
and-Materials or Labor-Hour contract.

[71 FR 74664, 74677, Dec. 12, 2006, as amended at 78 FR 13767, Feb. 28, 
2013]



Sec. 16.602  Labor-hour contracts.

    Description. A labor-hour contract is a variation of the time-and-
materials contract, differing only in that materials are not supplied by 
the contractor. See 12.207(b), 16.601(c), and 16.601(d) for application 
and limitations, for time-and-materials contracts that also apply to 
labor-hour contracts. See 12.207(b) for the use of labor-hour contracts 
for certain commercial services.

[71 FR 74677, Dec. 12, 2006]



Sec. 16.603  Letter contracts.



Sec. 16.603-1  Description.

    A letter contract is a written preliminary contractual instrument 
that authorizes the contractor to begin immediately manufacturing 
supplies or performing services.



Sec. 16.603-2  Application.

    (a) A letter contract may be used when (1) the Government's 
interests demand that the contractor be given a binding commitment so 
that work can start immediately and (2) negotiating a definitive 
contract is not possible in sufficient time to meet the requirement. 
However, a letter contract should be as complete and definite as 
feasible under the circumstances.
    (b) When a letter contract award is based on price competition, the 
contracting officer shall include an overall price ceiling in the letter 
contract.
    (c) Each letter contract shall, as required by the clause at 52.216-
25, Contract Definitization, contain a negotiated definitization 
schedule including (1) dates for submission of the contractor's price 
proposal, required certified cost or pricing data and data other than 
certified cost or pricing data; and, if required, make-or-buy and 
subcontracting plans, (2) a date for the start of negotiations, and (3) 
a target date for definitization, which shall be the earliest 
practicable date for definitization. The schedule will provide for 
definitization of the contract within 180 days after the date of the 
letter contract or before completion of 40 percent of the work to be 
performed, whichever occurs first. However, the contracting officer may, 
in extreme cases and according to agency procedures, authorize an 
additional period. If, after exhausting all reasonable efforts, the 
contracting officer and the contractor cannot negotiate a definitive 
contract because of failure to reach agreement as to price or fee, the

[[Page 376]]

clause at 52.216-25 requires the contractor to proceed with the work and 
provides that the contracting officer may, with the approval of the head 
of the contracting activity, determine a reasonable price or fee in 
accordance with subpart 15.4 and part 31, subject to appeal as provided 
in the Disputes clause.
    (d) The maximum liability of the Government inserted in the clause 
at 52.216-24, Limitation of Government Liability, shall be the estimated 
amount necessary to cover the contractor's requirements for funds before 
definitization. However, it shall not exceed 50 percent of the estimated 
cost of the definitive contract unless approved in advance by the 
official that authorized the letter contract.
    (e) The contracting officer shall assign a priority rating to the 
letter contract if it is appropriate under 11.604.

[48 FR 42219, Sept. 19, 1983, as amended at 60 FR 48248, Sept. 18, 1995; 
62 FR 51270, Sept. 30, 1997; 75 FR 53148, Aug. 30, 2010]



Sec. 16.603-3  Limitations.

    A letter contract may be used only after the head of the contracting 
activity or a designee determines in writing that no other contract is 
suitable. Letter contracts shall not--
    (a) Commit the Government to a definitive contract in excess of the 
funds available at the time the letter contract is executed;
    (b) Be entered into without competition when competition is required 
by part 6; or
    (c) Be amended to satisfy a new requirement unless that requirement 
is inseparable from the existing letter contract. Any such amendment is 
subject to the same requirements and limitations as a new letter 
contract.

[48 FR 42219, Sept. 19, 1983, as amended at 50 FR 1742, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 51 FR 31426, Sept. 3, 1986]



Sec. 16.603-4  Contract clauses.

    (a) The contracting officer shall include in each letter contract 
the clauses required by this regulation for the type of definitive 
contract contemplated and any additional clauses known to be appropriate 
for it.
    (b) In addition, the contracting officer shall insert the following 
clauses in solicitations and contracts when a letter contract is 
contemplated:
    (1) The clause at 52.216-23, Execution and Commencement of Work, 
except that this clause may be omitted from letter contracts awarded on 
SF 26;
    (2) The clause at 52.216-24, Limitation of Government Liability, 
with dollar amounts completed in a manner consistent with 16.603-2(d); 
and
    (3) The clause at 52.216-25, Contract Definitization, with its 
paragraph (b) completed in a manner consistent with 16.603-2(c). If at 
the time of entering into the letter contract, the contracting officer 
knows that the definitive contract will be based on adequate price 
competition or will otherwise meet the criteria of 15.403-1 for not 
requiring submission of certified cost or pricing data, the words ``and 
certified cost or pricing data in accordance with FAR 15.408, Table 15-2 
supporting its proposal'' may be deleted from paragraph (a) of the 
clause. If the letter contract is being awarded on the basis of price 
competition, the contracting officer shall use the clause with its 
Alternate I.
    (c) The contracting officer shall also insert the clause at 52.216-
26, Payments of Allowable Costs Before Definitization, in solicitations 
and contracts if a cost-reimbursement definitive contract is 
contemplated, unless the acquisition involves conversion, alteration, or 
repair of ships.

[48 FR 42219, Sept. 19, 1983, as amended at 60 FR 48217, Sept. 18, 1995; 
62 FR 51270, Sept. 30, 1997; 75 FR 53149, Aug. 30, 2010]

                         Subpart 16.7_Agreements



Sec. 16.701  Scope.

    This subpart prescribes policies and procedures for establishing and 
using basic agreements and basic ordering agreements. (See 13.303 for 
blanket purchase agreements (BPA's) and see 35.015(b) for additional 
coverage of basic agreements with educational institutions and nonprofit 
organizations.)

[48 FR 42219, Sept. 19, 1983, as amended at 62 FR 64926, Dec. 9, 1997]

[[Page 377]]



Sec. 16.702  Basic agreements.

    (a) Description. A basic agreement is a written instrument of 
understanding, negotiated between an agency or contracting activity and 
a contractor, that (1) contains contract clauses applying to future 
contracts between the parties during its term and (2) contemplates 
separate future contracts that will incorporate by reference or 
attachment the required and applicable clauses agreed upon in the basic 
agreement. A basic agreement is not a contract.
    (b) Application. A basic agreement should be used when a substantial 
number of separate contracts may be awarded to a contractor during a 
particular period and significant recurring negotiating problems have 
been experienced with the contractor. Basic agreements may be used with 
negotiated fixed-price or cost-reimbursement contracts.
    (1) Basic agreements shall contain (i) clauses required for 
negotiated contracts by statute, executive order, and this regulation 
and (ii) other clauses prescribed in this regulation or agency 
acquisition regulations that the parties agree to include in each 
contract as applicable.
    (2) Each basic agreement shall provide for discontinuing its future 
applicablity upon 30 days' written notice by either party.
    (3) Each basic agreement shall be reviewed annually before the 
anniversary of its effective date and revised as necessary to conform to 
the requirements of this regulation. Basic agreements may need to be 
revised before the annual review due to mandatory statutory 
requirements. A basic agreement may be changed only by modifying the 
agreement itself and not by a contract incorporating the agreement.
    (4) Discontinuing or modifying a basic agreement shall not affect 
any prior contract incorporating the basic agreement.
    (5) Contracting officers of one agency should obtain and use 
existing basic agreements of another agency to the maximum practical 
extent.
    (c) Limitations. A basic agreement shall not--
    (1) Cite appropriations or obligate funds;
    (2) State or imply any agreement by the Government to place future 
contracts or orders with the contractor; or
    (3) Be used in any manner to restrict competition.
    (d) Contracts incorporating basic agreements. (1) Each contract 
incorporating a basic agreement shall include a scope of work and price, 
delivery, and other appropriate terms that apply to the particular 
contract. The basic agreement shall be incorporated into the contract by 
specific reference (including reference to each amendment) or by 
attachment.
    (2) The contracting officer shall include clauses pertaining to 
subjects not covered by the basic agreement, but applicable to the 
contract being negotiated, in the same manner as if there were no basic 
agreement.
    (3) If an existing contract is modified to effect new acquisition, 
the modification shall incorporate the most recent basic agreement, 
which shall apply only to work added by the modification, except that 
this action is not mandatory if the contract or modification includes 
all clauses required by statute, executive order, and this regulation as 
of the date of the modification. However, if it is in the Government's 
interest and the contractor agrees, the modification may incorporate the 
most recent basic agreement for application to the entire contract as of 
the date of the modification.



Sec. 16.703  Basic ordering agreements.

    (a) Description. A basic ordering agreement is a written instrument 
of understanding, negotiated between an agency, contracting activity, or 
contracting office and a contractor, that contains (1) terms and clauses 
applying to future contracts (orders) between the parties during its 
term, (2) a description, as specific as practicable, of supplies or 
services to be provided, and (3) methods for pricing, issuing, and 
delivering future orders under the basic ordering agreement. A basic 
ordering agreement is not a contract.
    (b) Application. A basic ordering agreement may be used to expedite 
contracting for uncertain requirements for supplies or services when 
specific items, quantities, and prices are not

[[Page 378]]

known at the time the agreement is executed, but a substantial number of 
requirements for the type of supplies or services covered by the 
agreement are anticipated to be purchased from the contractor. Under 
proper circumstances, the use of these procedures can result in 
economies in ordering parts for equipment support by reducing 
administrative lead-time, inventory investment, and inventory 
obsolescence due to design changes.
    (c) Limitations. A basic ordering agreement shall not state or imply 
any agreement by the Government to place future contracts or orders with 
the contractor or be used in any manner to restrict competition.
    (1) Each basic ordering agreement shall--
    (i) Describe the method for determining prices to be paid to the 
contractor for the supplies or services;
    (ii) Include delivery terms and conditions or specify how they will 
be determined;
    (iii) List one or more Government activities authorized to issue 
orders under the agreement;
    (iv) Specify the point at which each order becomes a binding 
contract (e.g., issuance of the order, acceptance of the order in a 
specified manner, or failure to reject the order within a specified 
number of days);
    (v) Provide that failure to reach agreement on price for any order 
issued before its price is established (see paragraph (d)(3) below) is a 
dispute under the Disputes clause included in the basic ordering 
agreement; and
    (vi) If fast payment procedures will apply to orders, include the 
special data required by 13.403.
    (2) Each basic ordering agreement shall be reviewed annually before 
the anniversary of its effective date and revised as necessary to 
conform to the requirements of this regulation. Basic ordering 
agreements may need to be revised before the annual review due to 
mandatory statutory requirements. A basic ordering agreement shall be 
changed only by modifying the agreement itself and not by individual 
orders issued under it. Modifying a basic ordering agreement shall not 
retroactively affect orders previously issued under it.
    (d) Orders. A contracting officer representing any Government 
activity listed in a basic ordering agreement may issue orders for 
required supplies or services covered by that agreement.
    (1) Before issuing an order under a basic ordering agreement, the 
contracting officer shall--
    (i) Obtain competition in accordance with part 6;
    (ii) If the order is being placed after competition, ensure that use 
of the basic ordering agreement is not prejudicial to other offerors; 
and
    (iii) Sign or obtain any applicable justifications and approvals, 
and any determination and findings, in accordance with 1.602-1(b), and 
comply with other requirements, as if the order were a contract awarded 
independently of a basic ordering agreement.
    (2) Contracting officers shall--
    (i) Issue orders under basic ordering agreements on Optional Form 
(OF) 347, Order for Supplies or Services, or on any other appropriate 
contractual instrument;
    (ii) Incorporate by reference the provisions of the basic ordering 
agreement;
    (iii) If applicable, cite the authority under 6.302 in each order; 
and
    (iv) Comply with 5.203 when synopsis is required by 5.201.
    (3) The contracting officer shall neither make any final commitment 
nor authorize the contractor to begin work on an order under a basic 
ordering agreement until prices have been established, unless the order 
establishes a ceiling price limiting the Government's obligation and 
either--
    (i) The basic ordering agreement provides adequate procedures for 
timely pricing of the order early in its performance period; or
    (ii) The need for the supplies or services is compelling and 
unusually urgent (i.e., when the Government would be seriously injured, 
financially or otherwise, if the requirement is not met sooner than 
would be possible if prices were established before the work began). The 
contracting officer shall

[[Page 379]]

proceed with pricing as soon as practical. In no event shall an entire 
order be priced retroactively.

[48 FR 42219, Sept. 19, 1983, as amended at 50 FR 1742, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 61 FR 39198, July 26, 1996; 62 FR 64926, 
Dec. 9, 1997]

                   PART 17_SPECIAL CONTRACTING METHODS

Sec.

Sec. 17.000 Scope of part.

                   Subpart 17.1_Multiyear Contracting


Sec. 17.101 Authority.

Sec. 17.102 Applicability.

Sec. 17.103 Definitions.

Sec. 17.104 General.

Sec. 17.105 Policy.

Sec. 17.105-1 Uses.

Sec. 17.105-2 Objectives.

Sec. 17.106 Procedures.

Sec. 17.106-1 General.

Sec. 17.106-2 Solicitations.

Sec. 17.106-3 Special procedures applicable to DoD, NASA, and the Coast 
          Guard.

Sec. 17.107 Options.

Sec. 17.108 Congressional notification.

Sec. 17.109 Contract clauses.

                          Subpart 17.2_Options


Sec. 17.200 Scope of subpart.

Sec. 17.201 [Reserved]

Sec. 17.202 Use of options.

Sec. 17.203 Solicitations.

Sec. 17.204 Contracts.

Sec. 17.205 Documentation.

Sec. 17.206 Evaluation.

Sec. 17.207 Exercise of options.

Sec. 17.208 Solicitation provisions and contract clauses.

Subpart 17.3 [Reserved]

                 Subpart 17.4_Leader Company Contracting


Sec. 17.401 General.

Sec. 17.402 Limitations.

Sec. 17.403 Procedures.

                  Subpart 17.5_Interagency Acquisitions


Sec. 17.500 Scope of subpart.

Sec. 17.501 General.

Sec. 17.502 Procedures.

Sec. 17.502-1 General.

Sec. 17.502-2 The Economy Act.

Sec. 17.503 Ordering procedures.

Sec. 17.504 Reporting requirements.

             Subpart 17.6_Management and Operating Contracts


Sec. 17.600 Scope of subpart.

Sec. 17.601 Definition.

Sec. 17.602 Policy.

Sec. 17.603 Limitations.

Sec. 17.604 Identifying management and operating contracts.

Sec. 17.605 Award, renewal, and extension.

   Subpart 17.7_Interagency Acquisitions: Acquisitions by Nondefense 
             Agencies on Behalf of the Department of Defense


Sec. 17.700 Scope of subpart.

Sec. 17.701 Definitions.

Sec. 17.702 Applicability.

Sec. 17.703 Policy.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 
20113.

    Source: 48 FR 42231, Sept. 19, 1983, unless otherwise noted.



Sec. 17.000  Scope of part.

    This part prescribes policies and procedures for the acquisition of 
supplies and services through special contracting methods, including--
    (a) Multi-year contracting;
    (b) Options; and
    (c) Leader company contracting.

                   Subpart 17.1_Multiyear Contracting

    Source: 61 FR 39204, July 26, 1996, unless otherwise noted.



Sec. 17.101  Authority.

    This subpart implements Section 304B of the Federal Property and 
Administrative Services Act of 1949 (41 U.S.C. 254c) and 10 U.S.C. 2306b 
and provides policy and procedures for the use of multiyear contracting.



Sec. 17.102  Applicability.

    For DoD, NASA, and the Coast Guard, the authorities cited in 17.101 
do not apply to contracts for the purchase of supplies to which 40 
U.S.C. 759 applies (information resource management supply contracts).



Sec. 17.103  Definitions.

    As used in this subpart--
    Cancellation means the cancellation (within a contractually 
specified time)

[[Page 380]]

of the total requirements of all remaining program years. Cancellation 
results when the contracting officer
    (1) Notifies the contractor of nonavailability of funds for contract 
performance for any subsequent program year, or
    (2) Fails to notify the contractor that funds are available for 
performance of the succeeding program year requirement.
    Cancellation ceiling means the maximum cancellation charge that the 
contractor can receive in the event of cancellation.
    Cancellation charge means the amount of unrecovered costs which 
would have been recouped through amortization over the full term of the 
contract, including the term canceled.
    Multiyear contract means a contract for the purchase of supplies or 
services for more than 1, but not more than 5, program years. A 
multiyear contract may provide that performance under the contract 
during the second and subsequent years of the contract is contingent 
upon the appropriation of funds, and (if it does so provide) may provide 
for a cancellation payment to be made to the contractor if 
appropriations are not made. The key distinguishing difference between 
multiyear contracts and multiple year contracts is that multiyear 
contracts, defined in the statutes cited at 17.101, buy more than 1 
year's requirement (of a product or service) without establishing and 
having to exercise an option for each program year after the first.
    Nonrecurring costs means those costs which are generally incurred on 
a one-time basis and include such costs as plant or equipment 
relocation, plant rearrangement, special tooling and special test 
equipment, preproduction engineering, initial spoilage and rework, and 
specialized work force training.
    Recurring costs means costs that vary with the quantity being 
produced, such as labor and materials.

[48 FR 42231, Sept. 19, 1983, as amended at 66 FR 2129, Jan. 10, 2001; 
67 FR 43514, June 27, 2002]



Sec. 17.104  General.

    (a) Multiyear contracting is a special contracting method to acquire 
known requirements in quantities and total cost not over planned 
requirements for up to 5 years unless otherwise authorized by statute, 
even though the total funds ultimately to be obligated may not be 
available at the time of contract award. This method may be used in 
sealed bidding or contracting by negotiation.
    (b) Multiyear contracting is a flexible contract method applicable 
to a wide range of acquisitions. The extent to which cancellation terms 
are used in multiyear contracts will depend on the unique circumstances 
of each contract. Accordingly, for multiyear contracts, the agency head 
may authorize modification of the requirements of this subpart and the 
clause at 52.217-2, Cancellation Under Multiyear Contracts.
    (c) Agency funding of multiyear contracts shall conform to the 
policies in OMB Circulars A-11 (Preparation and Submission of Budget 
Estimates) and A-34 (Instructions on Budget Execution) and other 
applicable guidance regarding the funding of multiyear contracts. As 
provided by that guidance, the funds obligated for multiyear contracts 
must be sufficient to cover any potential cancellation and/or 
termination costs; and multiyear contracts for the acquisition of fixed 
assets should be fully funded or funded in stages that are economically 
or programmatically viable.
    (d) The termination for convenience procedure may apply to any 
Government contract, including multiyear contracts. As contrasted with 
cancellation, termination can be effected at any time during the life of 
the contract (cancellation is effected between fiscal years) and can be 
for the total quantity or partial quantity (where as cancellation must 
be for all subsequent fiscal years' quantities).

[61 FR 39204, July 26, 1996, as amended at 67 FR 13054, Mar. 20, 2002; 
67 FR 43514, June 27, 2002]



Sec. 17.105  Policy.



Sec. 17.105-1  Uses.

    (a) Except for DoD, NASA, and the Coast Guard, the contracting 
officer may enter into a multiyear contract if the head of the 
contracting activity determines that--

[[Page 381]]

    (1) The need for the supplies or services is reasonably firm and 
continuing over the period of the contract; and
    (2) A multiyear contract will serve the best interests of the United 
States by encouraging full and open competition or promoting economy in 
administration, performance, and operation of the agency's programs.
    (b) For DoD, NASA, and the Coast Guard, the head of the agency may 
enter into a multiyear contract for supplies if--
    (1) The use of such a contract will result in substantial savings of 
the total estimated costs of carrying out the program through annual 
contracts;
    (2) The minimum need to be purchased is expected to remain 
substantially unchanged during the contemplated contract period in terms 
of production rate, procurement rate, and total quantities;
    (3) There is a stable design for the supplies to be acquired, and 
the technical risks associated with such supplies are not excessive;
    (4) There is a reasonable expectation that, throughout the 
contemplated contract period, the head of the agency will request 
funding for the contract at a level to avoid contract cancellation; and
    (5) The estimates of both the cost of the contract and the cost 
avoidance through the use of a multiyear contract are realistic.
    (c) The multiyear contracting method may be used for the acquisition 
of supplies or services.
    (d) If funds are not appropriated to support the succeeding years' 
requirements, the agency must cancel the contract.



Sec. 17.105-2  Objectives.

    Use of multiyear contracting is encouraged to take advantage of one 
or more of the following:
    (a) Lower costs.
    (b) Enhancement of standardization.
    (c) Reduction of administrative burden in the placement and 
administration of contracts.
    (d) Substantial continuity of production or performance, thus 
avoiding annual startup costs, preproduction testing costs, make-ready 
expenses, and phaseout costs.
    (e) Stabilization of contractor work forces.
    (f) Avoidance of the need for establishing quality control 
techniques and procedures for a new contractor each year.
    (g) Broadening the competitive base with opportunity for 
participation by firms not otherwise willing or able to compete for 
lesser quantities, particularly in cases involving high startup costs.
    (h) Providing incentives to contractors to improve productivity 
through investment in capital facilities, equipment, and advanced 
technology.



Sec. 17.106  Procedures.



Sec. 17.106-1  General.

    (a) Method of contracting. The nature of the requirement should 
govern the selection of the method of contracting, since the multiyear 
procedure is compatible with sealed bidding, including two-step sealed 
bidding, and negotiation.
    (b) Type of contract. Given the longer performance period associated 
with multiyear acquisition, consideration in pricing fixed-priced 
contracts should be given to the use of economic price adjustment terms 
and profit objectives commensurate with contractor risk and financing 
arrangements.
    (c) Cancellation procedures. (1) All program years except the first 
are subject to cancellation. For each program year subject to 
cancellation, the contracting officer shall establish a cancellation 
ceiling. Ceilings must exclude amounts for requirements included in 
prior program years. The contracting officer shall reduce the 
cancellation ceiling for each program year in direct proportion to the 
remaining requirements subject to cancellation. For example, consider 
that the total nonrecurring costs (see 15.408, Table 15-2, Formats for 
Submission of Line Items Summaries C(8)) are estimated at 10 percent of 
the total multiyear price, and the percentages for each of the program 
year requirements for 5 years are (i) 30 in the first year, (ii) 30 in 
the second, (iii) 20 in the third, (iv) 10 in the fourth, and (v) 10 in 
the fifth. The cancellation percentages, after deducting 3 percent for 
the first program year,

[[Page 382]]

would be 7, 4, 2, and 1 percent of the total price applicable to the 
second, third, fourth, and fifth program years, respectively.
    (2) In determining cancellation ceilings, the contracting officer 
must estimate reasonable preproduction or startup, labor learning, and 
other nonrecurring costs to be incurred by an ``average'' prime 
contractor or subcontractor, which would be applicable to, and which 
normally would be amortized over, the items or services to be furnished 
under the multiyear requirements. Nonrecurring costs include such costs, 
where applicable, as plant or equipment relocation or rearrangement, 
special tooling and special test equipment, preproduction engineering, 
initial rework, initial spoilage, pilot runs, allocable portions of the 
costs of facilities to be acquired or established for the conduct of the 
work, costs incurred for the assembly, training, and transportation to 
and from the job site of a specialized work force, and unrealized labor 
learning. They shall not include any costs of labor or materials, or 
other expenses (except as indicated above), which might be incurred for 
performance of subsequent program year requirements. The total estimate 
of the above costs must then be compared with the best estimate of the 
contract cost to arrive at a reasonable percentage or dollar figure. To 
perform this calculation, the contracting officer should obtain in-house 
engineering cost estimates identifying the detailed recurring and 
nonrecurring costs, and the effect of labor learning.
    (3) The contracting officer shall establish cancellation dates for 
each program year's requirements regarding production lead time and the 
date by which funding for these requirements can reasonably be 
established. The contracting officer shall include these dates in the 
schedule, as appropriate.
    (d) Cancellation ceilings. Cancellation ceilings and dates may be 
revised after issuing the solicitation if necessary. In sealed bidding, 
the contracting officer shall change the ceiling by amending the 
solicitation before bid opening. In two-step sealed bidding, discussions 
conducted during the first step may indicate the need for revised 
ceilings and dates which may be incorporated in step two. In a 
negotiated acquisition, negotiations with offerors may provide 
information requiring a change in cancellation ceilings and dates before 
final negotiation and contract award.
    (e) Payment of cancellation charges. If cancellation occurs, the 
Government's liability will be determined by the terms of the applicable 
contract.
    (f) Presolicitation or pre-bid conferences. To ensure that all 
interested sources of supply are thoroughly aware of how multiyear 
contracting is accomplished, use of presolicitation or pre-bid 
conferences may be advisable.
    (g) Payment limit. The contracting officer shall limit the 
Government's payment obligation to an amount available for contract 
performance. The contracting officer shall insert the amount for the 
first program year in the contract upon award and modify it for 
successive program years upon availability of funds.
    (h) Termination payment. If the contract is terminated for the 
convenience of the Government in whole, including requirements subject 
to cancellation, the Government's obligation shall not exceed the amount 
specified in the Schedule as available for contract performance, plus 
the cancellation ceiling.

[61 FR 39204, July 26, 1996, as amended at 62 FR 51270, Sept. 30, 1997]



Sec. 17.106-2  Solicitations.

    Solicitations for multiyear contracts shall reflect all the factors 
to be considered for evaluation, specifically including the following:
    (a) The requirements, by item of supply or service, for the--
    (1) First program year; and
    (2) Multiyear contract including the requirements for each program 
year.
    (b) Criteria for comparing the lowest evaluated submission on the 
first program year requirements to the lowest evaluated submission on 
the multiyear requirements.
    (c) A provision that, if the Government determines before award that 
only the first program year requirements are needed, the Government's 
evaluation of the price or estimated cost and fee shall consider only 
the first year.
    (d) A provision specifying a separate cancellation ceiling (on a 
percentage or

[[Page 383]]

dollar basis) and dates applicable to each program year subject to a 
cancellation (see 17.106-1 (c) and (d)).
    (e) A statement that award will not be made on less than the first 
program year requirements.
    (f) The Government's administrative costs of annual contracting may 
be used as a factor in the evaluation only if they can be reasonably 
established and are stated in the solicitation.
    (g) The cancellation ceiling shall not be an evaluation factor.



Sec. 17.106-3  Special procedures applicable to DoD, NASA, and the Coast 
          Guard.

    (a) Participation by subcontractors, suppliers, and vendors. In 
order to broaden the defense industrial base, to the maximum extent 
practicable--
    (1) Multiyear contracting shall be used in such a manner as to seek, 
retain, and promote the use under such contracts of companies that are 
subcontractors, suppliers, and vendors; and
    (2) Upon accrual of any payment or other benefit under such a 
multiyear contract to any subcontractor, supplier, or vendor company 
participating in such contract, such payment or benefit shall be 
delivered to such company in the most expeditious manner practicable.
    (b) Protection of existing authority. To the extent practicable, 
multiyear contracting shall not be carried out in a manner to preclude 
or curtail the existing ability of the Department or agency to provide 
for termination of a prime contract, the performance of which is 
deficient with respect to cost, quality, or schedule.
    (c) Cancellation or termination for insufficient funding. In the 
event funds are not made available for the continuation of a multiyear 
contract awarded using the procedures in this section, the contract 
shall be canceled or terminated.
    (d) Contracts awarded under the multiyear procedure shall be firm-
fixed-price, fixed-price with economic price adjustment, or fixed-price 
incentive.
    (e) Recurring costs in cancellation ceiling. The inclusion of 
recurring costs in cancellation ceilings is an exception to normal 
contract financing arrangements and requires approval by the agency 
head.
    (f) Annual and multiyear proposals. Obtaining both annual and 
multiyear offers provides reduced lead time for making an annual award 
in the event that the multiyear award is not in the Government's 
interest. Obtaining both also provides a basis for the computation of 
savings and other benefits. However, the preparation and evaluation of 
dual offers may increase administrative costs and workload for both 
offerors and the Government, especially for large or complex 
acquisitions. The head of a contracting activity may authorize the use 
of a solicitation requesting only multiyear prices, provided it is found 
that such a solicitation is in the Government's interest, and that dual 
proposals are not necessary to meet the objectives in 17.105-2.
    (g) Level unit prices. Multiyear contract procedures provide for the 
amortization of certain costs over the entire contract quantity 
resulting in identical (level) unit prices (except when the economic 
price adjustment terms apply) for all items or services under the 
multiyear contract. If level unit pricing is not in the Government's 
interest, the head of a contracting activity may approve the use of 
variable unit prices, provided that for competitive proposals there is a 
valid method of evaluation.



Sec. 17.107  Options.

    Benefits may accrue by including options in a multiyear contract. In 
that event, contracting officers must follow the requirements of subpart 
17.2. Options should not include charges for plant and equipment already 
amortized, or other nonrecurring charges which were included in the 
basic contract.



Sec. 17.108  Congressional notification.

    (a) Except for DoD, NASA, and the Coast Guard, a multiyear contract 
which includes a cancellation ceiling in excess of $12.5 million may not 
be awarded until the head of the agency gives written notification of 
the proposed contract and of the proposed cancellation ceiling for that 
contract to

[[Page 384]]

the committees on appropriations of the House of Representatives and 
Senate and the appropriate oversight committees of the House and Senate 
for the agency in question. Information on such committees may not be 
readily available to contracting officers. Accordingly, agencies should 
provide such information through its internal regulations. The contract 
may not be awarded until the thirty-first day after the date of 
notification.
    (b) For DoD, NASA, and the Coast guard, a multiyear contract which 
includes a cancellation ceiling in excess of $125 million may not be 
awarded until the head of the agency gives written notification of the 
proposed contract and of the proposed cancellation ceiling for that 
contract to the committees on armed services and on appropriations of 
the House of Representative and Senate. The contract may not be awarded 
until the thirty-first day after the date of notification.

[61 FR 39204, July 26, 1996, as amended at 71 FR 57367, Sept. 28, 2006; 
75 FR 53133, Aug. 30, 2010]



Sec. 17.109  Contract clauses.

    (a) The contracting officer shall insert the clause at 52.217-2, 
Cancellation Under Multiyear Contracts, in solicitations and contracts 
when a multiyear contract is contemplated.
    (b) Economic price adjustment clauses. Economic price adjustment 
clauses are adaptable to multiyear contracting needs. When the period of 
production is likely to warrant a labor and material costs contingency 
in the contract price, the contracting officer should normally use an 
economic price adjustment clause (see 16.203). When contracting for 
services, the contracting officer--
    (1) Shall add the clause at 52.222-43, Fair Labor Standards Act and 
Service Contract Act-Price Adjustment (Multiple Year and Option 
Contracts), when the contract includes the clause at 52.222-41, Service 
Contract Act of 1965;
    (2) May modify the clause at 52.222-43 in overseas contracts when 
laws, regulations, or international agreements require contractors to 
pay higher wage rates; or
    (3) May use an economic price adjustment clause authorized by 
16.203, when potential fluctuations require coverage and are not 
included in cost contingencies provided for by the clause at 52.222-43.

[61 FR 39204, July 26, 1996, as amended at 72 FR 63078, Nov. 7, 2007]

                          Subpart 17.2_Options



Sec. 17.200  Scope of subpart.

    This subpart prescribes policies and procedures for the use of 
option solicitation provisions and contract clauses. Except as provided 
in agency regulations, this subpart does not apply to contracts for
    (a) Services involving the construction, alteration, or repair 
(including dredging, excavating, and painting) of buildings, bridges, 
roads, or other kinds of real property;
    (b) Architect-engineer services; and
    (c) Research and development services.

However, it does not preclude the use of options in those contracts.

[61 FR 41469, Aug. 8, 1996]



Sec. 17.201  [Reserved]



Sec. 17.202  Use of options.

    (a) Subject to the limitations of paragraphs (b) and (c) of this 
section, for both sealed bidding and contracting by negotiation, the 
contracting officer may include options in contracts when it is in the 
Government's interest. When using sealed bidding, the contracting 
officer shall make a written determination that there is a reasonable 
likelihood that the options will be exercised before including the 
provision at 52.217-5, Evaluation of Options, in the solicitation. (See 
17.207(f) with regard to the exercise of options.)
    (b) Inclusion of an option is normally not in the Government's 
interest when, in the judgment of the contracting officer--
    (1) The foreseeable requirements involve--
    (i) Minimum economic quantities (i.e., quantities large enough to 
permit the recovery of startup costs and production of the required 
supplies at a reasonable price); and

[[Page 385]]

    (ii) Delivery requirements far enough into the future to permit 
competitive acquisition, production, and delivery.
    (2) An indefinite quantity or requirements contract would be more 
appropriate than a contract with options. However, this does not 
preclude the use of an indefinite quantity contract or requirements 
contract with options.
    (c) The contracting officer shall not employ options if--
    (1) The contractor will incur undue risks; e.g., the price or 
availability of necessary materials or labor is not reasonably 
foreseeable;
    (2) Market prices for the supplies or services involved are likely 
to change substantially; or
    (3) The option represents known firm requirements for which funds 
are available unless (i) the basic quantity is a learning or testing 
quantity and (ii) competition for the option is impracticable once the 
initial contract is awarded.
    (d) In recognition of (1) the Government's need in certain service 
contracts for continuity of operations and (2) the potential cost of 
disrupted support, options may be included in service contracts if there 
is an anticipated need for a similar service beyond the first contract 
period.

[48 FR 42231, Sept. 19, 1983, as amended at 53 FR 17858, May 18, 1988; 
56 FR 15150, Apr. 15, 1991; 60 FR 42656, Aug. 16, 1995]



Sec. 17.203  Solicitations.

    (a) Solicitations shall include appropriate option provisions and 
clauses when resulting contracts will provide for the exercise of 
options (see 17.208).
    (b) Solicitations containing option provisions shall state the basis 
of evaluation, either exclusive or inclusive of the option and, when 
appropriate, shall inform offerors that it is anticipated that the 
Government may exercise the option at time of award.
    (c) Solicitations normally should allow option quantities to be 
offered without limitation as to price, and there shall be no limitation 
as to price if the option quantity is to be considered in the evaluation 
for award (see 17.206).
    (d) Solicitations that allow the offer of options at unit prices 
which differ from the unit prices for the basic requirement shall state 
that offerors may offer varying prices for options, depending on the 
quantities actually ordered and the dates when ordered.
    (e) If it is anticipated that the Government may exercise an option 
at the time of award and if the condition specified in paragraph (d) 
above applies, solicitations shall specify the price at which the 
Government will evaluate the option (highest option price offered or 
option price for specified requirements).
    (f) Solicitations may, in unusual circumstances, require that 
options be offered at prices no higher than those for the initial 
requirement; e.g., when (1) the option cannot be evaluated under 17.206, 
or (2) future competition for the option is impracticable.
    (g) Solicitations that require the offering of an option at prices 
no higher than those for the initial requirement shall--
    (1) Specify that the Government will accept an offer containing an 
option price higher than the base price only if the acceptance does not 
prejudice any other offeror; and
    (2) Limit option quantities for additional supplies to not more than 
50 percent of the initial quantity of the same contract line item. In 
unusual circumstances, an authorized person at a level above the 
contracting officer may approve a greater percentage of quantity.
    (h) Include the value of options in determining if the acquisition 
will exceed the World Trade Organization Government Procurement 
Agreement or Free Trade Agreement thresholds.

[48 FR 42231, Sept. 19, 1983, as amended at 53 FR 27464, July 20, 1988; 
58 FR 31141, May 28, 1993; 59 FR 545, Jan. 5, 1994; 64 FR 72419, Dec. 
27, 1999; 69 FR 1053, Jan. 7, 2004; 69 FR 77872, Dec. 28, 2004]



Sec. 17.204  Contracts.

    (a) The contract shall specify limits on the purchase of additional 
supplies or services, or the overall duration of the term of the 
contract, including any extension.
    (b) The contract shall state the period within which the option may 
be exercised.

[[Page 386]]

    (c) The period shall be set so as to provide the contractor adequate 
lead time to ensure continuous production.
    (d) The period may extend beyond the contract completion date for 
service contracts. This is necessary for situations when exercise of the 
option would result in the obligation of funds that are not available in 
the fiscal year in which the contract would otherwise be completed.
    (e) Unless otherwise approved in accordance with agency procedures, 
the total of the basic and option periods shall not exceed 5 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, for 
example, the Service Contract Act (see 22.1002-1), may place additional 
restrictions on the length of contracts.
    (f) Contracts may express options for increased quantities of 
supplies or services in terms of (1) percentage of specific line items, 
(2) increase in specific line items, or (3) additional numbered line 
items identified as the option.
    (g) Contracts may express extensions of the term of the contract as 
an amended completion date or as additional time for performance; e.g., 
days, weeks, or months.

[48 FR 42231, Sept. 19, 1983, as amended at 54 FR 5055, Jan. 31, 1989; 
61 FR 41470, Aug. 8, 1996]



Sec. 17.205  Documentation.

    (a) The contracting officer shall justify in writing the quantities 
or the term under option, the notification period for exercising the 
option, and any limitation on option price under 17.203(g); and shall 
include the justification document in the contract file.
    (b) Any justifications and approvals and any determination and 
findings required by part 6 shall specify both the basic requirement and 
the increase permitted by the option.

[48 FR 42231, Sept. 19, 1983, as amended at 50 FR 1742, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985]



Sec. 17.206  Evaluation.

    (a) In awarding the basic contract, the contracting officer shall, 
except as provided in paragraph (b) of this section, evaluate offers for 
any option quantities or periods contained in a solicitation when it has 
been determined prior to soliciting offers that the Government is likely 
to exercise the options. (See 17.208.)
    (b) The contracting officer need not evaluate offers for any option 
quantities when it is determined that evaluation would not be in the 
best interests of the Government and this determination is approved at a 
level above the contracting officer. An example of a circumstance that 
may support a determination not to evaluate offers for option quantities 
is when there is a reasonable certainty that funds will be unavailable 
to permit exercise of the option.

[53 FR 17858, May 18, 1988]



Sec. 17.207  Exercise of options.

    (a) When exercising an option, the contracting officer shall provide 
written notice to the contractor within the time period specified in the 
contract.
    (b) When the contract provides for economic price adjustment and the 
contractor requests a revision of the price, the contracting officer 
shall determine the effect of the adjustment on prices under the option 
before the option is exercised.
    (c) The contracting officer may exercise options only after 
determining that--
    (1) Funds are available;
    (2) The requirement covered by the option fulfills an existing 
Government need;
    (3) The exercise of the option is the most advantageous method of 
fulfilling the Government's need, price and other factors (see 
paragraphs (d) and (e) below) considered;
    (4) The option was synopsized in accordance with part 5 unless 
exempted by 5.202(a)(10) or other appropriate exemptions in 5.202;
    (5) The contractor is not listed in the System for Award Management 
Exclusions (see FAR 9.405-1); and

[[Page 387]]

    (6) The contractor's past performance evaluations on other contract 
actions have been considered; and
    (7) The contractor's performance on this contract has been 
acceptable, e.g., received satisfactory ratings.
    (d) The contracting officer, after considering price and other 
factors, shall make the determination on the basis of one of the 
following:
    (1) A new solicitation fails to produce a better price or a more 
advantageous offer than that offered by the option. If it is anticipated 
that the best price available is the option price or that this is the 
more advantageous offer, the contracting officer should not use this 
method of testing the market.
    (2) An informal analysis of prices or an examination of the market 
indicates that the option price is better than prices available in the 
market or that the option is the more advantageous offer.
    (3) The time between the award of the contract containing the option 
and the exercise of the option is so short that it indicates the option 
price is the lowest price obtainable or the more advantageous offer. The 
contracting officer shall take into consideration such factors as market 
stability and comparison of the time since award with the usual duration 
of contracts for such supplies or services.
    (e) The determination of other factors under paragraph (c)(3) of 
this section--
    (1) Should take into account the Government's need for continuity of 
operations and potential costs of disrupting operations; and
    (2) May consider the effect on small business.
    (f) Before exercising an option, the contracting officer shall make 
a written determination for the contract file that exercise is in 
accordance with the terms of the option, the requirements of this 
section, and part 6. To satisfy requirements of part 6 regarding full 
and open competition, the option must have been evaluated as part of the 
initial competition and be exercisable at an amount specified in or 
reasonably determinable from the terms of the basic contract, e.g.--
    (1) A specific dollar amount;
    (2) An amount to be determined by applying provisions (or a formula) 
provided in the basic contract, but not including renegotiation of the 
price for work in a fixed-price type contract;
    (3) In the case of a cost-type contract, if--
    (i) The option contains a fixed or maximum fee; or
    (ii) The fixed or maximum fee amount is determinable by applying a 
formula contained in the basic contract (but see 16.102(c));
    (4) A specific price that is subject to an economic price adjustment 
provision; or
    (5) A specific price that is subject to change as the result of 
changes to prevailing labor rates provided by the Secretary of Labor.
    (g) The contract modification or other written document which 
notifies the contractor of the exercise of the option shall cite the 
option clause as authority.

[48 FR 42231, Sept. 19, 1983, as amended at 50 FR 1742, Jan. 11, 1985; 
50 FR 52429, 52434, Dec. 23, 1985; 53 FR 17858, May 18, 1988; 72 FR 
36854, July 5, 2007; 74 FR 31560, July 1, 2009; 78 FR 37679, June 21, 
2013; 78 FR 46787, Aug. 1, 2013]



Sec. 17.208  Solicitation provisions and contract clauses.

    (a) Insert a provision substantially the same as the provision at 
52.217-3, Evaluation Exclusive of Options, in solicitations when the 
solicitation includes an option clause and does not include one of the 
provisions prescribed in paragraph (b) or (c) below.
    (b) Insert a provision substantially the same as the provision at 
52.217-4, Evaluation of Options Exercised at Time of Contract Award, in 
solicitations when the solicitation includes an option clause, the 
contracting officer has determined that there is a reasonable likelihood 
that the option will be exercised, and the option may be exercised at 
the time of contract award.
    (c) Insert a provision substantially the same as the provision at 
52.217-5, Evaluation of Options, in solicitations when--
    (1) The solicitation contains an option clause;
    (2) An option is not to be exercised at the time of contract award;

[[Page 388]]

    (3) A firm-fixed-price contract, a fixed-price contract with 
economic price adjustment, or other type of contract approved under 
agency procedures is contemplated; and
    (4) The contracting officer has determined that there is a 
reasonable likelihood that the option will be exercised. For sealed 
bids, the determination shall be in writing.
    (d) Insert a clause substantially the same as the clause at 52.217-
6, Option for Increased Quantity, in solicitations and contracts, other 
than those for services, when the inclusion of an option is appropriate 
(see 17.200 and 17.202) and the option quantity is expressed as a 
percentage of the basic contract quantity or as an additional quantity 
of a specific line item.
    (e) Insert a clause substantially the same as the clause at 52.217-
7, Option for Increased Quantity--Separately Priced Line Item, in 
solicitations and contracts, other than those for services, when the 
inclusion of an option is appropriate (see 17.200 and 17.202) and the 
option quantity is identified as a separately priced line item having 
the same nomenclature as a corresponding basic contract line item.
    (f) Insert a clause substantially the same as the clause at 52.217-
8, Options to Extend Services, in solicitations and contracts for 
services when the inclusion of an option is appropriate. (See 17.200, 
17.202, and 37.111.)
    (g) Insert a clause substantially the same as the clause at 52.217-
9, Option to Extend the Term of the Contract, in solicitations and 
contracts when the inclusion of an option is appropriate (see 17.200 and 
17.202) and it is necessary to include in the contract any or all of the 
following:
    (1) A requirement that the Government must give the contractor a 
preliminary written notice of its intent to extend the contract.
    (2) A statement that an extension of the contract includes an 
extension of the option.
    (3) A specified limitation on the total duration of the contract.

[48 FR 42231, Sept. 19, 1983, as amended at 53 FR 17858, May 18, 1988; 
54 FR 5055, Jan. 31, 1989; 54 FR 29281, July 11, 1989; 55 FR 38516, 
Sept. 18, 1990; 60 FR 42656, Aug. 16, 1995; 64 FR 51843, Sept. 24, 1999]

Subpart 17.3 [Reserved]

                 Subpart 17.4_Leader Company Contracting



Sec. 17.401  General.

    Leader company contracting is an extraordinary acquisition technique 
that is limited to special circumstances and utilized only when its use 
is in accordance with agency procedures. A developer or sole producer of 
a product or system is designated under this acquisition technique to be 
the leader company, and to furnish assistance and know-how under an 
approved contract to one or more designated follower companies, so they 
can become a source of supply. The objectives of this technique are one 
or more of the following:
    (a) Reduce delivery time.
    (b) Achieve geographic dispersion of suppliers.
    (c) Maximize the use of scarce tooling or special equipment.
    (d) Achieve economies in production.
    (e) Ensure uniformity and reliability in equipment, compatibility or 
standardization of components, and interchangeability of parts.
    (f) Eliminate problems in the use of proprietary data that cannot be 
resolved by more satisfactory solutions.
    (g) Facilitate the transition from development to production and to 
subsequent competitive acquisition of end items or major components.



Sec. 17.402  Limitations.

    (a) Leader company contracting is to be used only when--
    (1) The leader company has the necessary production know-how and is 
able to furnish required assistance to the follower(s);
    (2) No other source can meet the Government's requirements without 
the assistance of a leader company;
    (3) The assistance required of the leader company is limited to that 
which is essential to enable the follower(s) to produce the items; and
    (4) Its use is authorized in accordance with agency procedures.
    (b) When leader company contracting is used, the Government shall 
reserve

[[Page 389]]

the right to approve subcontracts between the leader company and the 
follower(s).



Sec. 17.403  Procedures.

    (a) The contracting officer may award a prime contract to a--
    (1) Leader company, obligating it to subcontract a designated 
portion of the required end items to a specified follower company and to 
assist it to produce the required end items;
    (2) Leader company, for the required assistance to a follower 
company, and a prime contract to the follower for production of the 
items; or
    (3) Follower company, obligating it to subcontract with a designated 
leader company for the required assistance.
    (b) The contracting officer shall ensure that any contract awarded 
under this arrangement contains a firm agreement regarding disclosure, 
if any, of contractor trade secrets, technical designs or concepts, and 
specific data, or software, of a proprietary nature.

                  Subpart 17.5_Interagency Acquisitions

    Source: 75 FR 77735, Dec. 13, 2010, unless otherwise noted.



Sec. 17.500  Scope of subpart.

    (a) This subpart prescribes policies and procedures applicable to 
all interagency acquisitions under any authority, except as provided for 
in paragraph (c) of this section. In addition to complying with the 
interagency acquisition policy and procedures in this subpart, 
nondefense agencies acquiring supplies and services on behalf of the 
Department of Defense shall also comply with the policy and procedures 
at subpart 17.7.
    (b) This subpart applies to interagency acquisitions, see 2.101 for 
definition, when--
    (1) An agency needing supplies or services obtains them using 
another agency's contract; or
    (2) An agency uses another agency to provide acquisition assistance, 
such as awarding and administering a contract, a task order, or delivery 
order.
    (c) This subpart does not apply to--
    (1) Interagency reimbursable work performed by Federal employees 
(other than acquisition assistance), or interagency activities where 
contracting is incidental to the purpose of the transaction; or
    (2) Orders of $500,000 or less issued against Federal Supply 
Schedules.

[75 FR 77735, Dec. 13, 2010, as amended at 77 FR 185, Jan. 3, 2012; 77 
FR 69722, Nov. 20, 2012]



Sec. 17.501  General.

    (a) Interagency acquisitions are commonly conducted through 
indefinite-delivery contracts, such as task- and delivery-order 
contracts. The indefinite-delivery contracts used most frequently to 
support interagency acquisitions are Federal Supply Schedules (FSS), 
Governmentwide acquisition contracts (GWACs), and multi-agency contracts 
(MACs).
    (b) An agency shall not use an interagency acquisition to circumvent 
conditions and limitations imposed on the use of funds.
    (c) An interagency acquisition is not exempt from the requirements 
of subpart 7.3, Contractor Versus Government Performance.
    (d) An agency shall not use an interagency acquisition to make 
acquisitions conflicting with any other agency's authority or 
responsibility (for example, that of the Administrator of General 
Services under title 40, United States Code, ``Public Buildings, 
Property and Works'' and title III of the Federal Property and 
Administrative Services Act of 1949.)



Sec. 17.502  Procedures.



Sec. 17.502-1  General.

    (a) Determination of best procurement approach--(1) Assisted 
acquisitions. Prior to requesting that another agency conduct an 
acquisition on its behalf, the requesting agency shall make a 
determination that the use of an interagency acquisition represents the 
best procurement approach. As part of the best procurement approach 
determination, the requesting agency shall obtain the concurrence of the 
requesting agency's responsible contracting office in accordance with 
internal agency procedures. At a minimum, the determination shall 
include an analysis of procurement approaches, including an evaluation 
by the requesting agency

[[Page 390]]

that using the acquisition services of another agency--
    (i) Satisfies the requesting agency's schedule, performance, and 
delivery requirements (taking into account factors such as the servicing 
agency's authority, experience, and expertise as well as customer 
satisfaction with the servicing agency's past performance);
    (ii) Is cost effective (taking into account the reasonableness of 
the servicing agency's fees); and
    (iii) Will result in the use of funds in accordance with 
appropriation limitations and compliance with the requesting agency's 
laws and policies.
    (2) Direct acquisitions. Prior to placing an order against another 
agency's indefinite-delivery vehicle, the requesting agency shall make a 
determination that use of another agency's contract vehicle is the best 
procurement approach and shall obtain the concurrence of the requesting 
agency's responsible contracting office. At a minimum, the determination 
shall include an analysis, including factors such as:
    (i) The suitability of the contract vehicle;
    (ii) The value of using the contract vehicle, including--
    (A) The administrative cost savings from using an existing contract;
    (B) Lower prices, greater number of vendors, and reasonable vehicle 
access fees; and
    (iii) The expertise of the requesting agency to place orders and 
administer them against the selected contract vehicle throughout the 
acquisition lifecycle.
    (b) Written agreement on responsibility for management and 
administration--(1) Assisted acquisitions. (i) Prior to the issuance of 
a solicitation, the servicing agency and the requesting agency shall 
both sign a written interagency agreement that establishes the general 
terms and conditions governing the relationship between the parties, 
including roles and responsibilities for acquisition planning, contract 
execution, and administration and management of the contract(s) or 
order(s). The requesting agency shall provide to the servicing agency 
any unique terms, conditions, and applicable agency-specific statutes, 
regulations, directives, and other applicable requirements for 
incorporation into the order or contract. In the event there are no 
agency unique requirements beyond the FAR, the requesting agency shall 
so inform the servicing agency contracting officer in writing. For 
acquisitions on behalf of the Department of Defense, also see subpart 
17.7. For patent rights, see 27.304-2. In preparing interagency 
agreements to support assisted acquisitions, agencies should review the 
Office of Federal Procurement Policy guidance, Interagency Acquisitions, 
available at http://www.whitehouse.gov/omb/assets/procurement/iac--
revised.pdf.
    (ii) Each agency's file shall include the interagency agreement 
between the requesting and servicing agency, and shall include 
sufficient documentation to ensure an adequate audit consistent with 
4.801(b).
    (2) Direct acquisitions. The requesting agency administers the 
order; therefore, no written agreement with the servicing agency is 
required.
    (c) Business-case analysis requirements for multi-agency contracts 
and governmentwide acquisition contracts. In order to establish a multi-
agency or governmentwide acquisition contract, a business-case analysis 
must be prepared by the servicing agency and approved in accordance with 
the Office of Federal Procurement Policy (OFPP) business case guidance, 
available at http://www.whitehouse.gov/sites/default/files/omb/
procurement/memo/development-review-and-approval-of-business-cases-for-
certain-interagency-and-agency-specific-acquisitions-memo.pdf. The 
business-case analysis shall--
    (1) Consider strategies for the effective participation of small 
businesses during acquisition planning (see 7.103(u));
    (2) Detail the administration of such contract, including an 
analysis of all direct and indirect costs to the Government of awarding 
and administering such contract;
    (3) Describe the impact such contract will have on the ability of 
the Government to leverage its purchasing power, e.g., will it have a 
negative effect because it dilutes other existing contracts;
    (4) Include an analysis concluding that there is a need for 
establishing the multi-agency contract; and

[[Page 391]]

    (5) Document roles and responsibilities in the administration of the 
contract.

[75 FR 77735, Dec. 13, 2010. as amended at 77 FR 186, Jan. 3, 2012; 77 
FR 69722, Nov. 20, 2012]



Sec. 17.502-2  The Economy Act.

    (a) The Economy Act (31 U.S.C. 1535) authorizes agencies to enter 
into agreements to obtain supplies or services from another agency. The 
FAR applies when one agency uses another agency's contract to obtain 
supplies or services. If the interagency business transaction does not 
result in a contract or an order, then the FAR does not apply. The 
Economy Act also provides authority for placement of orders between 
major organizational units within an agency; procedures for such intra-
agency transactions are addressed in agency regulations.
    (b) The Economy Act applies when more specific statutory authority 
does not exist. Examples of more specific authority are 40 U.S.C. 501 
for the Federal Supply Schedules (subpart 8.4), and 40 U.S.C. 11302(e) 
for Governmentwide acquisition contracts (GWACs).
    (c) Requirements for determinations and findings. (1) Each Economy 
Act order to obtain supplies or services by interagency acquisition 
shall be supported by a determination and findings (D&F). The D&F 
shall--
    (i) State that use of an interagency acquisition is in the best 
interest of the Government;
    (ii) State that the supplies or services cannot be obtained as 
conveniently or economically by contracting directly with a private 
source; and
    (iii) Include a statement that at least one of the following 
circumstances applies:
    (A) The acquisition will appropriately be made under an existing 
contract of the servicing agency, entered into before placement of the 
order, to meet the requirements of the servicing agency for the same or 
similar supplies or services.
    (B) The servicing agency has the capability or expertise to enter 
into a contract for such supplies or services that is not available 
within the requesting agency.
    (C) The servicing agency is specifically authorized by law or 
regulation to purchase such supplies or services on behalf of other 
agencies.
    (2) The D&F shall be approved by a contracting officer of the 
requesting agency with authority to contract for the supplies or 
services to be ordered, or by another official designated by the agency 
head, except that, if the servicing agency is not covered by the FAR, 
approval of the D&F may not be delegated below the senior procurement 
executive of the requesting agency.
    (3) The requesting agency shall furnish a copy of the D&F to the 
servicing agency with the request for order.
    (d) Payment. (1) The servicing agency may ask the requesting agency, 
in writing, for advance payment for all or part of the estimated cost of 
furnishing the supplies or services. Adjustment on the basis of actual 
costs shall be made as agreed to by the agencies.
    (2) If approved by the servicing agency, payment for actual costs 
may be made by the requesting agency after the supplies or services have 
been furnished.
    (3) Bills rendered or requests for advance payment shall not be 
subject to audit or certification in advance of payment.
    (4) In no event shall the servicing agency require, or the 
requesting agency pay, any fee or charge in excess of the actual cost 
(or estimated cost if the actual cost is not known) of entering into and 
administering the contract or other agreement under which the order is 
filled.

[75 FR 77735, Dec. 13, 2010, as amended at 77 FR 186, Jan. 3, 2012]



Sec. 17.503  Ordering procedures.

    (a) Before placing an order for supplies or services with another 
Government agency, the requesting agency shall follow the procedures in 
17.502-1 and, if under the Economy Act, also 17.502-2.
    (b) The order may be placed on any form or document that is 
acceptable to both agencies. The order should include--
    (1) A description of the supplies or services required;
    (2) Delivery requirements;
    (3) A funds citation;

[[Page 392]]

    (4) A payment provision (see 17.502-2(d)) for Economy Act orders); 
and
    (5) Acquisition authority as may be appropriate (see 17.503(d)).
    (c) The requesting and servicing agencies should agree to procedures 
for the resolution of disagreements that may arise under interagency 
acquisitions, including, in appropriate circumstances, the use of a 
third-party forum. If a third party is proposed, consent of the third 
party should be obtained in writing.
    (d) When an interagency acquisition requires the servicing agency to 
award a contract, the following procedures also apply:
    (1) If a justification and approval or a D&F (other than the 
requesting agency's D&F required in 17.502-2(c)) is required by law or 
regulation, the servicing agency shall execute and issue the 
justification and approval or D&F. The requesting agency shall furnish 
the servicing agency any information needed to make the justification 
and approval or D&F.
    (2) The requesting agency shall also be responsible for furnishing 
other assistance that may be necessary, such as providing information or 
special contract terms needed to comply with any condition or limitation 
applicable to the funds of the requesting agency.
    (3) The servicing agency is responsible for compliance with all 
other legal or regulatory requirements applicable to the contract, 
including--
    (i) Having adequate statutory authority for the contractual action; 
and
    (ii) Complying fully with the competition requirements of part 6 
(see 6.002). However, if the servicing agency is not subject to the 
Federal Acquisition Regulation, the requesting agency shall verify that 
contracts utilized to meet its requirements contain provisions 
protecting the Government from inappropriate charges (for example, 
provisions mandated for FAR agencies by part 31), and that adequate 
contract administration will be provided.
    (e) Nonsponsoring Federal agencies may use a Federally Funded 
Research and Development Center (FFRDC) only if the terms of the FFRDC's 
sponsoring agreement permit work from other than a sponsoring agency. 
Work placed with the FFRDC is subject to the acceptance by the sponsor 
and must fall within the purpose, mission, general scope of effort, or 
special competency of the FFRDC. (See 35.017; see also 6.302 for 
procedures to follow where using other than full and open competition.) 
The nonsponsoring agency shall provide to the sponsoring agency 
necessary documentation that the requested work would not place the 
FFRDC in direct competition with domestic private industry.

[75 FR 77735, Dec. 13, 2010, as amended at 77 FR 186, Jan. 3, 2012]



Sec. 17.504  Reporting requirements.

    The senior procurement executive for each executive agency shall 
submit to the Director of OMB an annual report on interagency 
acquisitions, as directed by OMB.

             Subpart 17.6_Management and Operating Contracts



Sec. 17.600  Scope of subpart.

    This subpart prescribes policies and procedures for management and 
operating contracts for the Department of Energy and any other agency 
having requisite statutory authority.



Sec. 17.601  Definition.

    Management and operating contract means an agreement under which the 
Government contracts for the operation, maintenance, or support, on its 
behalf, of a Government-owned or -controlled research, development, 
special production, or testing establishment wholly or principally 
devoted to one or more major programs of the contracting Federal agency.



Sec. 17.602  Policy.

    (a) Heads of agencies, with requisite statutory authority, may 
determine in writing to authorize contracting officers to enter into or 
renew any management and operating contract in accordance with the 
agency's statutory authority, or the Competition in Contracting Act of 
1984, and the agency's regulations governing such contracts. This 
authority shall not be delegated. Every contract so authorized shall 
show its authorization upon its face.

[[Page 393]]

    (b) Agencies may authorize management and operating contracts only 
in a manner consistent with the guidance of this subpart and only if 
they are consistent with the situations described in 17.604.
    (c) Within 2 years of the effective date of this regulation, 
agencies shall review their current contractual arrangements in the 
light of the guidance of this subpart, in order to (1) identify, modify 
as necessary, and authorize management and operating contracts and (2) 
modify as necessary or terminate contracts not so identified and 
authorized, except that any contract with less than 4 years remaining as 
of the effective date of this regulation need not be terminated, nor 
need it be identified, modified, or authorized unless it is renewed or 
its terms are substantially renegotiated.

[48 FR 42163, Sept. 19, 1983, as amended at 50 FR 52434, Dec. 23, 1985]



Sec. 17.603  Limitations.

    (a) Management and operating contracts shall not be authorized for--
    (1) Functions involving the direction, supervision, or control of 
Government personnel, except for supervision incidental to training;
    (2) Functions involving the exercise of police or regulatory powers 
in the name of the Government, other than guard or plant protection 
services;
    (3) Functions of determining basic Government policies;
    (4) Day-to-day staff or management functions of the agency or of any 
of its elements; or
    (5) Functions that can more properly be accomplished in accordance 
with Subpart 45.3, Authorizing the Use and Rental of Government 
Property.
    (b) Since issuance of an authorization under 17.602(a) is deemed 
sufficient proof of compliance with paragraph (a) immediately above, 
nothing in paragraph (a) immediately above shall affect the validity or 
legality of such an authorization.
    (c) For use of project labor agreements, see subpart 22.5.

[61 FR 39204, July 26, 1996, as amended at 66 FR 27415, May 16, 2001; 72 
FR 27384, May 15, 2007; 74 FR 34207, July 14, 2009; 75 FR 19177, Apr. 
13, 2010]



Sec. 17.604  Identifying management and operating contracts.

    A management and operating contract is characterized both by its 
purpose (see 17.601) and by the special relationship it creates between 
Government and contractor. The following criteria can generally be 
applied in identifying management and operating contracts:
    (a) Government-owned or -controlled facilities must be utilized; for 
instance, (1) in the interest of national defense or mobilization 
readiness, (2) to perform the agency's mission adequately, or (3) 
because private enterprise is unable or unwilling to use its own 
facilities for the work.
    (b) Because of the nature of the work, or because it is to be 
performed in Government facilities, the Government must maintain a 
special, close relationship with the contractor and the contractor's 
personnel in various important areas (e.g., safety, security, cost 
control, site conditions).
    (c) The conduct of the work is wholly or at least substantially 
separate from the contractor's other business, if any.
    (d) The work is closely related to the agency's mission and is of a 
long-term or continuing nature, and there is a need (1) to ensure its 
continuity and (2) for special protection covering the orderly 
transition of personnel and work in the event of a change in 
contractors.



Sec. 17.605  Award, renewal, and extension.

    (a) Effective work performance under management and operating 
contracts usually involves high levels of expertise and continuity of 
operations and personnel. Because of program requirements and the 
unusual (sometimes unique) nature of the work performed under management 
and operating contracts, the Government is often limited in its ability 
to effect competition or to replace a contractor. Therefore contracting 
officers should take extraordinary steps before award to assure 
themselves that the prospective contractor's technical and managerial 
capacity are sufficient, that organizational conflicts of interest are 
adequately covered, and that the contract will grant the Government 
broad and continuing rights to involve itself, if necessary, in 
technical and managerial

[[Page 394]]

decisionmaking concerning performance.
    (b) The contracting officer shall review each management and 
operating contract, following agency procedures, at appropriate 
intervals and at least once every 5 years. The review should determine 
whether meaningful improvement in performance or cost might reasonably 
be achieved. Any extension or renewal of an operating and management 
contract must be authorized at a level within the agency no lower than 
the level at which the original contract was authorized in accordance 
with 17.602(a).
    (c) Replacement of an incumbent contractor is usually based largely 
upon expectation of meaningful improvement in performance or cost. 
Therefore, when reviewing contractor performance, contracting officers 
should consider--
    (1) The incumbent contractor's overall performance, including, 
specifically, technical, administrative, and cost performance;
    (2) The potential impact of a change in contractors on program 
needs, including safety, national defense, and mobilization 
considerations; and
    (3) Whether it is likely that qualified offerors will compete for 
the contract.

   Subpart 17.7_Interagency Acquisitions: Acquisitions by Nondefense 
             Agencies on Behalf of the Department of Defense

    Source:  77 FR 69722, Nov. 20, 2012, unless otherwise noted.



Sec. 17.700  Scope of subpart.

    (a) Compliance with this subpart is in addition to the policies and 
procedures for interagency acquisitions set forth in subpart 17.5. This 
subpart prescribes policies and procedures specific to acquisitions of 
supplies and services by nondefense agencies on behalf of the Department 
of Defense (DoD).
    (b) This subpart implements Public Law 110-181, section 801, as 
amended (10 U.S.C. 2304 Note).



Sec. 17.701  Definitions.

    As used in this subpart--
    Department of Defense (DoD) acquisition official means--
    (1) A DoD contracting officer; or
    (2) Any other DoD official authorized to approve a direct 
acquisition or an assisted acquisition on behalf of DoD.
    Nondefense agency means any department or agency of the Federal 
Government other than the Department of Defense.
    Nondefense agency that is an element of the intelligence community 
means the agencies identified in 50 U.S.C. 401a(4), which include the--
    (1) Office of the Director of National Intelligence;
    (2) Central Intelligence Agency;
    (3) Intelligence elements of the Federal Bureau of Investigation, 
Department of Energy, and Drug Enforcement Agency;
    (4) Bureau of Intelligence and Research of the Department of State;
    (5) Office of Intelligence and Analysis of the Department of the 
Treasury;
    (6) The Office of Intelligence and Analysis of the Department of 
Homeland Security and the Office of Intelligence of the Coast Guard; and
    (7) Such other elements of any department or agency as have been 
designated by the President, or designated jointly by the Director of 
National Intelligence and the head of the department or agency 
concerned, as an element of the intelligence community.



Sec. 17.702  Applicability.

    This subpart applies to all acquisitions made by nondefense agencies 
on behalf of DoD. It does not apply to contracts entered into by a 
nondefense agency that is an element of the intelligence community for 
the performance of a joint program conducted to meet the needs of DoD 
and the nondefense agency.



Sec. 17.703  Policy.

    (a) A DoD acquisition official may request a nondefense agency to 
conduct an acquisition on behalf of DoD in excess of the simplified 
acquisition threshold only if the head of the nondefense agency 
conducting the acquisition on DoD's behalf has certified that the agency 
will comply with applicable

[[Page 395]]

procurement requirements for that fiscal year except when waived in 
accordance with paragraph (e) of this section.
    (b) A nondefense agency is compliant with applicable procurement 
requirements if the procurement policies, procedures, and internal 
controls of the nondefense agency applicable to the procurement of 
supplies and services on behalf of DoD, and the manner in which they are 
administered, are adequate to ensure the compliance of the nondefense 
department or agency with--
    (1) The Federal Acquisition Regulation and other laws and 
regulations that apply to procurements of supplies and services by 
Federal agencies; and
    (2) Laws and regulations that apply to procurements of supplies and 
services made by DoD through other Federal agencies, including DoD 
financial management regulations, the Defense Federal Acquisition 
Regulation Supplement (DFARS), DoD class deviations, and the DFARS 
Procedures, Guidance, and Information (PGI). (The DFARS, DoD class 
deviations, and PGI are accessible at: http://www.acq.osd.mil/dpap/
dars).
    (c) Within 30 days of the beginning of each fiscal year, submit 
nondefense agency certifications of compliance to the Director, Defense 
Procurement and Acquisition Policy, Department of Defense, 3060 Defense 
Pentagon, Washington DC 20301-3060.
    (d) The DoD acquisition official, as defined at 17.701, shall 
provide to the servicing nondefense agency contracting officer any DoD-
unique terms, conditions, other related statutes, regulations, 
directives, and other applicable requirements for incorporation into the 
order or contract. In the event there are no DoD-unique requirements 
beyond the FAR, the DoD acquisition official shall so inform the 
servicing nondefense agency contracting officer in writing. Nondefense 
agency contracting officers are responsible for ensuring support 
provided in response to DoD's request complies with paragraph (b) of 
this section.
    (e) Waiver. The limitation in paragraph (a) of this section shall 
not apply to the acquisition of supplies and services on behalf of DoD 
by a nondefense agency during any fiscal year for which the Under 
Secretary of Defense for Acquisition, Technology, and Logistics has 
determined in writing that it is necessary in the interest of DoD to 
acquire supplies and services through the nondefense agency during the 
fiscal year. The written determination shall identify the acquisition 
categories to which the waiver applies.
    (f) Nondefense agency certifications, waivers, and additional 
information are available at http://www.acq.osd.mil/dpap/cpic/cp/
interagency--acquisition.html.

[77 FR 69722, Nov. 20, 2012, as amended at 78 FR 37685, June 21, 2013]

                     PART 18_EMERGENCY ACQUISITIONS

Sec.

Sec. 18.000 Scope of part.

Sec. 18.001 Definition.

            Subpart 18.1_Available Acquisition Flexibilities


Sec. 18.101 General.

Sec. 18.102 System for Award Management.

Sec. 18.103 Synopses of proposed contract actions.

Sec. 18.104 Unusual and compelling urgency.

Sec. 18.105 Federal Supply Schedules (FSSs), multi-agency blanket 
          purchase agreements (BPAs), and multi-agency indefinite 
          delivery contracts.

Sec. 18.106 Acquisitions from Federal Prison Industries, Inc. (FPI).

Sec. 18.107 AbilityOne specification changes.

Sec. 18.108 Qualifications requirements.

Sec. 18.109 Priorities and allocations.

Sec. 18.110 Soliciting from a single source.

Sec. 18.111 Oral requests for proposals.

Sec. 18.112 Letter contracts.

Sec. 18.113 Interagency acquisitions.

Sec. 18.114 Contracting with the Small Business Administration (The 8(a) 
          Program).

Sec. 18.115 HUBZone sole source awards.

Sec. 18.116 Service-disabled Veteran-owned Small Business (SDVOSB) sole 
          source awards.

Sec. 18.117 Awards to economically disadvantaged women-owned small 
          business (EDWOSB) concerns and women-owned small business 
          (WOSB) concerns eligible under the WOSB Program.

Sec. 18.118 Overtime approvals.

Sec. 18.119 Trade agreements.

Sec. 18.120 Use of patented technology under the North American Free 
          Trade Agreement.

Sec. 18.121 Bid guarantees.

Sec. 18.122 Advance payments.

Sec. 18.123 Assignment of claims.

Sec. 18.124 Electronic funds transfer.

[[Page 396]]


Sec. 18.125 Protest to GAO.

Sec. 18.126 Contractor rent-free use of Government property.

Sec. 18.127 Extraordinary contractual actions.

            Subpart 18.2_Emergency Acquisition Flexibilities


Sec. 18.201 Contingency operation.

Sec. 18.202 Defense or recovery from certain attacks.

Sec. 18.203 Emergency declaration or major disaster declaration.

Sec. 18.204 Resources.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 
20113.

    Source: 71 FR 38248, July 5, 2006, unless otherwise noted.



Sec. 18.000  Scope of part.

    (a) This part identifies acquisition flexibilities that are 
available for emergency acquisitions. These flexibilities are specific 
techniques or procedures that may be used to streamline the standard 
acquisition process. This part includes--
    (1) Generally available flexibilities; and
    (2) Emergency acquisition flexibilities that are available only 
under prescribed circumstances.
    (b) The acquisition flexibilities in this part are not exempt from 
the requirements and limitations set forth in FAR Part 3, Improper 
Business Practices and Personal Conflicts of Interest.
    (c) Additional flexibilities may be authorized in an executive 
agency supplement to the FAR.

[71 FR 38248, July 5, 2006, as amended at 72 FR 46344, Aug. 17, 2007]



Sec. 18.001  Definition.

    Emergency acquisition flexibilities, as used in this part, means 
flexibilities provided with respect to any acquisition of supplies or 
services by or for an executive agency that, as determined by the head 
of an executive agency, may be used--
    (a) In support of a contingency operation as defined in 2.101;
    (b) To facilitate the defense against or recovery from nuclear, 
biological, chemical, or radiological attack against the United States; 
or
    (c) When the President issues an emergency declaration, or a major 
disaster declaration.

[71 FR 38248, July 5, 2006, as amended at 74 FR 52860, Oct. 14, 2009]

            Subpart 18.1_ Available Acquisition Flexibilities



Sec. 18.101  General.

    The FAR includes many acquisition flexibilities that are available 
to the contracting officer when certain conditions are met. These 
acquisition flexibilities do not require an emergency declaration or 
designation of contingency operation.



Sec. 18.102  System for award management.

    Contractors are not required to be registered in the System for 
Award Management (SAM) database for contracts awarded to support unusual 
and compelling needs or emergency acquisitions. (See 4.1102). However, 
contractors are required to register with SAM in order to gain access to 
the Disaster Response Registry. Contracting officers shall consult the 
Disaster Response Registry via https://www.acquisition.gov to determine 
the availability of contractors for debris removal, distribution of 
supplies, reconstruction, and other disaster or emergency relief 
activities inside the United States and outlying areas. (See 26.205).

[78 FR 37679, June 21, 2013]



Sec. 18.103  Synopses of proposed contract actions.

    Contracting officers need not submit a synopsis notice when there is 
an unusual and compelling urgency and the Government would be seriously 
injured if the agency complied with the notice time periods. (See 
5.202(a)(2).)



Sec. 18.104  Unusual and compelling urgency.

    Agencies may limit the number of sources and full and open 
competition need not be provided for contracting actions involving 
urgent requirements. (See 6.302-2.)

[[Page 397]]



Sec. 18.105  Federal Supply Schedules (FSSs), multi-agency blanket 
          purchase agreements (BPAs), and multi-agency indefinite 
          delivery contracts.

    Streamlined procedures and a broad range of goods and services may 
be available under Federal Supply Schedule contracts (see Subpart 8.4), 
multi-agency BPAs (see 8.405-3(a)(6)), or multi-agency, indefinite-
delivery contracts (see 16.505(a)(8)). These contracting methods may 
offer agency advance planning, pre-negotiated line items, and special 
terms and conditions that permit rapid response.

[71 FR 38248, July 5, 2006, as amended at 76 FR 14559, Mar. 16, 2011; 77 
FR 194, Jan. 3, 2012]



Sec. 18.106  Acquisitions from Federal Prison Industries, Inc. (FPI).

    Purchase from FPI is not mandatory and a waiver is not required if 
public exigency requires immediate delivery or performance (see 
8.605(b)).

[72 FR 46344, Aug. 17, 2007]



Sec. 18.107  AbilityOne specification changes.

    Contracting officers are not held to the notification required when 
changes in AbilityOne specifications or descriptions are required to 
meet emergency needs. (See 8.712(d).)

[73 FR 53995, Sept. 17, 2008]



Sec. 18.108  Qualifications requirements.

    Agencies may determine not to enforce qualification requirements 
when an emergency exists. (See 9.206-1.)

[71 FR 38248, July 5, 2006. Redesignated at 72 FR 46344, Aug. 17, 2007]



Sec. 18.109  Priorities and allocations.

    The Defense Priorities and Allocations System (DPAS) supports 
approved national defense, emergency preparedness, and energy programs 
and was established to facilitate rapid industrial mobilization in case 
of a national emergency. (See Subpart 11.6.)

[73 FR 21785, Apr. 22, 2008]



Sec. 18.110  Soliciting from a single source.

    For purchases not exceeding the simplified acquisition threshold, 
contracting officers may solicit from one source under certain 
circumstances. (See 13.106-1(b).)

[71 FR 38248, July 5, 2006. Redesignated at 72 FR 46344, Aug. 17, 2007]



Sec. 18.111  Oral requests for proposals.

    Oral requests for proposals are authorized under certain conditions. 
(See 15.203(f).)

[71 FR 38248, July 5, 2006. Redesignated at 72 FR 46344, Aug. 17, 2007]



Sec. 18.112  Letter contracts.

    Letter contracts may be used when contract performance must begin 
immediately. (See 16.603.)

[71 FR 38248, July 5, 2006. Redesignated at 72 FR 46344, Aug. 17, 2007]



Sec. 18.113  Interagency acquisitions.

    Interagency acquisitions are authorized under certain conditions. 
(See Subpart 17.5.)

[71 FR 38248, July 5, 2006. Redesignated at 72 FR 46344, Aug. 17, 2007]



Sec. 18.114  Contracting with the Small Business Administration (The 
          8(a) Program).

    Contracts may be awarded to the Small Business Administration (SBA) 
for performance by eligible 8(a) firms on either a sole source or 
competitive basis. (See Subpart 19.8.)

[71 FR 38248, July 5, 2006. Redesignated at 72 FR 46344, Aug. 17, 2007]



Sec. 18.115  HUBZone sole source awards.

    Contracts may be awarded to Historically Underutilized Business Zone 
(HUBZone) small business concerns on a sole source basis. (See 19.1306.)

[71 FR 38248, July 5, 2006. Redesignated at 72 FR 46344, Aug. 17, 2007]



Sec. 18.116  Service-disabled Veteran-owned Small Business (SDVOSB) sole 
          source awards.

    Contracts may be awarded to Service-disabled Veteran-owned Small 
Business (SDVOSB) concerns on a sole source basis. (See 19.1406.)

[71 FR 38248, July 5, 2006. Redesignated at 72 FR 46344, Aug. 17, 2007]

[[Page 398]]



Sec. 18.117  Awards to economically disadvantaged women-owned small 
          business (EDWOSB) concerns and women-owned small business 
          (WOSB) concerns eligible under the WOSB Program.

    Contracts may be awarded to EDWOSB concerns and WOSB concerns 
eligible under the WOSB Program on a competitive basis. (See subpart 
19.15.)

[76 FR 18309, Apr. 1, 2011, as amended at 77 FR 12916, Mar. 2, 2012]



Sec. 18.118  Overtime approvals.

    Overtime approvals may be retroactive if justified by emergency 
circumstances. (See 22.103-4(i).)

[71 FR 38248, July 5, 2006. Redesignated at 72 FR 46344, Aug. 17, 2007. 
Redesignated at 76 FR 18309, Apr. 1, 2011]



Sec. 18.119  Trade agreements.

    The policies and procedures of FAR 25.4 may not apply to 
acquisitions not awarded under full and open competition (see 
25.401(a)(5)).

[72 FR 46344, Aug. 17, 2007. Redesignated at 76 FR 18309, Apr. 1, 2011]



Sec. 18.120  Use of patented technology under the North American Free 
          Trade Agreement.

    Requirement to obtain authorization prior to use of patented 
technology may be waived in circumstances of extreme urgency or national 
emergency. (See 27.204-1.)

[71 FR 38248, July 5, 2006. Redesignated at 72 FR 46344, Aug. 17, 2007, 
as amended at 72 FR 63049, Nov. 7, 2007. Redesignated at 76 FR 18309, 
Apr. 1, 2011]



Sec. 18.121  Bid guarantees.

    The chief of the contracting office may waive the requirement to 
obtain a bid guarantee for emergency acquisitions when a performance 
bond or a performance bond and payment bond is required. (See 28.101-
1(c).)

[71 FR 38248, July 5, 2006. Redesignated at 72 FR 46344, Aug. 17, 2007. 
Redesignated at 76 FR 18309, Apr. 1, 2011]



Sec. 18.122  Advance payments.

    Agencies may authorize advance payments to facilitate the national 
defense for actions taken under Public Law 85-804 (see Subpart 50.1, 
Extraordinary Contractual Actions). These advance payments may be made 
at or after award of sealed bid contracts, as well as negotiated 
contracts. (See 32.405.)

[71 FR 38248, July 5, 2006. Redesignated at 72 FR 46344, Aug. 17, 2007, 
as amended at 72 FR 63029, Nov. 7, 2007. Redesignated at 76 FR 18309, 
Apr. 1, 2011]



Sec. 18.123  Assignment of claims.

    The use of the no-setoff provision may be appropriate to facilitate 
the national defense in the event of a national emergency or natural 
disaster. (See 32.803(d).)

[71 FR 38248, July 5, 2006. Redesignated at 72 FR 46344, Aug. 17, 2007. 
Redesignated at 76 FR 18309, Apr. 1, 2011]



Sec. 18.124  Electronic funds transfer.

    Electronic funds transfer payments may be waived for acquisitions to 
support unusual and compelling needs or emergency acquisitions. (See 
32.1103(e).)

[71 FR 38248, July 5, 2006. Redesignated at 72 FR 46344, Aug. 17, 2007. 
Redesignated at 76 FR 18309, Apr. 1, 2011]



Sec. 18.125  Protest to GAO.

    When urgent and compelling circumstances exist, agency protest 
override procedures allow the head of the contracting activity to 
determine that the contracting process may continue after GAO has 
received a protest. (See 33.104(b) and (c).)

[71 FR 38248, July 5, 2006. Redesignated at 72 FR 46344, Aug. 17, 2007. 
Redesignated at 76 FR 18309, Apr. 1, 2011]



Sec. 18.126  Contractor rent-free use of Government property.

    Rental requirements do not apply to items of Government production 
and research property that are part of a general program approved by the 
Federal Emergency Management Agency and meet certain criteria. (See 
45.301.)

[71 FR 38248, July 5, 2006, as amended at 72 FR 27384, May 15, 2007. 
Redesignated at 72 FR 46344, Aug. 17, 2007. Redesignated at 76 FR 18309, 
Apr. 1, 2011]

[[Page 399]]



Sec. 18.127  Extraordinary contractual actions.

    Subpart 50.1 prescribes policies and procedures for entering into, 
amending, or modifying contracts in order to facilitate the national 
defense under the extraordinary emergency authority granted by Public 
Law 85-804 (50 U.S.C. 1431-1434). This includes--
    (a) Amending contracts without consideration (see 50.103-2(a));
    (b) Correcting or mitigating mistakes in a contract (see 50.103-
2(b)); and
    (c) Formalizing informal commitments (See 50.103-2(c)).

[71 FR 38248, July 5, 2006. Redesignated at 72 FR 46344, Aug. 17, 2007, 
as amended at 72 FR 63030, Nov. 7, 2007. Redesignated at 76 FR 18309, 
Apr. 1, 2011]

            Subpart 18.2_Emergency Acquisition Flexibilities



Sec. 18.201  Contingency operation.

    (a) Contingency operation is defined in 2.101.
    (b) Micro-purchase threshold. The threshold increases when the head 
of the agency determines the supplies or services are to be used to 
support a contingency operation. (See 2.101 and 13.201(g).)
    (c) Simplified acquisition threshold. The threshold increases when 
the head of the agency determines the supplies or services are to be 
used to support a contingency operation. (See 2.101.)
    (d) SF 44, Purchase Order-Invoice-Voucher. The normal threshold for 
the use of the SF 44 is at or below the micro-purchase threshold. 
Agencies may, however, establish higher dollar limitations for purchases 
made to support a contingency operation. (See 13.306.)
    (e) Test program for certain commercial items. The threshold limits 
authorized for use of the test program may be increased for acquisitions 
to support a contingency operation. (See 13.500(e).)



Sec. 18.202  Defense or recovery from certain attacks.

    (a) Micro-purchase threshold. The threshold increases when the head 
of the agency determines the supplies or services are to be used to 
facilitate defense against or recovery from nuclear, biological, 
chemical, or radiological attack. (See 2.101.)
    (b) Simplified acquisition threshold. The threshold increases when 
the head of the agency determines the supplies or services are to be 
used to facilitate defense against or recovery from nuclear, biological, 
chemical, or radiological attack. (See 2.101.)
    (c) Commercial items to facilitate defense and recovery. Contracting 
officers may treat any acquisition of supplies or services as an 
acquisition of commercial items if the head of the agency determines the 
acquisition is to be used to facilitate the defense against or recovery 
from nuclear, biological, chemical, or radiological attack. (See 
12.102(f)(1) and 13.500(e).)
    (d) Test program for certain commercial items. The threshold limits 
authorized for use of the test program may be increased when it is 
determined the acquisition is to facilitate defense against or recovery 
from nuclear, biological, chemical, or radiological attack. (See 
13.500(e).)



Sec. 18.203  Emergency declaration or major disaster declaration.

    (a) Disaster or emergency assistance activities. Preference will be 
given to local organizations, firms, and individuals when contracting 
for major disaster or emergency assistance activities when the President 
has made a declaration under the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act. Preference may take the form of local area 
set-asides or an evaluation preference. (See 6.208 and Subpart 26.2.)
    (b) Ocean transportation by U.S. flag vessels. The provisions of the 
Cargo Preference Act of 1954 may be waived in emergency situations. (See 
47.502(c).)

[71 FR 38248, July 5, 2006, as amended at 72 FR 46344, Aug. 17, 2007; 72 
FR 63086, Nov. 7, 2007; 76 FR 18309, Apr. 1, 2011]



Sec. 18.204  Resources.

    (a) National Response Framework. The National Response Framework 
(NRF) is a guide to how the Nation conducts all-hazards response. This 
key document establishes a comprehensive, national, all-hazards approach 
to domestic incident response. The Framework identifies the key response 
principles,

[[Page 400]]

roles and structures that organize national response. It describes how 
communities, States, the Federal Government, the private-sector, and 
nongovernmental partners apply these principles for a coordinated, 
effective national response. It also describes special circumstances 
where the Federal Government exercises a larger role, including 
incidents where Federal interests are involved and catastrophic 
incidents where a State would require significant support. The NRF is 
available at http://www.fema.gov/emergency/nrf/.
    (b) OFPP Guidelines. The Office of Federal Procurement Policy (OFPP) 
``Emergency Acquisitions Guide'' is available at http://
www.whitehouse.gov/sites/default/files/omb/assets/procurement--guides/
emergency--acquisitions--guide.pdf''.

[71 FR 38248, July 5, 2006, as amended at 72 FR 46344, Aug. 17, 2007; 74 
FR 52860, Oct. 14, 2009; 76 FR 14572, Mar. 16, 2011]

[[Page 401]]

                   SUBCHAPTER D_SOCIOECONOMIC PROGRAMS

                     PART 19_SMALL BUSINESS PROGRAMS

Sec.

Sec. 19.000 Scope of part.

Sec. 19.001 Definitions.

                       Subpart 19.1_Size Standards


Sec. 19.101 Explanation of terms.

Sec. 19.102 Size standards.

                          Subpart 19.2_Policies


Sec. 19.201 General policy.

Sec. 19.202 Specific policies.

Sec. 19.202-1 Encouraging small business participation in acquisitions.

Sec. 19.202-2 Locating small business sources.

Sec. 19.202-3 Equal low bids.

Sec. 19.202-4 Solicitation.

Sec. 19.202-5 Data collection and reporting requirements.

Sec. 19.202-6 Determination of fair market price.

Sec. 19.203 Relationship among small business programs.

 Subpart 19.3_Determination of Small Business Status for Small Business 
                                Programs


Sec. 19.301 Representations and rerepresentations.

Sec. 19.301-1 Representation by the offeror.

Sec. 19.301-2 Rerepresentation by a contractor that represented itself 
          as a small business concern.

Sec. 19.301-3 Rerepresentation by a contractor that represented itself 
          as other than a small business concern.

Sec. 19.302 Protesting a small business representation or 
          rerepresentation.

Sec. 19.303 Determining North American Industry Classification System 
          (NAICS) codes and size standards.

Sec. 19.304 Disadvantaged business status.

Sec. 19.305 Protesting a representation of disadvantaged business 
          status.

Sec. 19.306 Protesting a firm's status as a HUBZone small business 
          concern.

Sec. 19.307 Protesting a firm's status as a service-disabled veteran-
          owned small business concern.

Sec. 19.308 Protesting a firm's status as an economically disadvantaged 
          women-owned small business (EDWOSB) concern or women-owned 
          small business (WOSB) concern eligible under the WOSB Program.

Sec. 19.309 Solicitation provisions and contract clauses.

     Subpart 19.4_Cooperation With the Small Business Administration


Sec. 19.401 General.

Sec. 19.402 Small Business Administration procurement center 
          representatives.

Sec. 19.403 Small Business Administration breakout procurement center 
          representatives.

               Subpart 19.5_Set-Asides for Small Business


Sec. 19.501 General.

Sec. 19.502 Setting aside acquisitions.

Sec. 19.502-1 Requirements for setting aside acquisitions.

Sec. 19.502-2 Total small business set-asides.

Sec. 19.502-3 Partial set-asides.

Sec. 19.502-4 Multiple-award contracts and small business set-asides.

Sec. 19.502-5 Methods of conducting set-asides.

Sec. 19.502-6 Insufficient causes for not setting aside an acquisition.

Sec. 19.503 Setting aside a class of acquisitions for small business.

Sec. 19.504 Inclusion of Federal Prison Industries, Inc.

Sec. 19.505 Rejecting Small Business Administration recommendations.

Sec. 19.506 Withdrawing or modifying small business set-asides.

Sec. 19.507 Automatic dissolution of a small business set-aside.

Sec. 19.508 Solicitation provisions and contract clauses.

     Subpart 19.6_Certificates of Competency and Determinations of 
                             Responsibility


Sec. 19.601 General.

Sec. 19.602 Procedures.

Sec. 19.602-1 Referral.

Sec. 19.602-2 Issuing or denying a certificate of competency (COC).

Sec. 19.602-3 Resolving differences between the agency and the Small 
          Business Administration.

Sec. 19.602-4 Awarding the contract.

         Subpart 19.7_The Small Business Subcontracting Program


Sec. 19.701 Definitions.

Sec. 19.702 Statutory requirements.

Sec. 19.703 Eligibility requirements for participating in the program.

Sec. 19.704 Subcontracting plan requirements.

Sec. 19.705 Responsibilities of the contracting officer under the 
          subcontracting assistance program.

Sec. 19.705-1 General support of the program.

Sec. 19.705-2 Determining the need for a subcontracting plan.

Sec. 19.705-3 Preparing the solicitation.

[[Page 402]]


Sec. 19.705-4 Reviewing the subcontracting plan.

Sec. 19.705-5 Awards involving subcontracting plans.

Sec. 19.705-6 Postaward responsibilities of the contracting officer.

Sec. 19.705-7 Liquidated damages.

Sec. 19.706 Responsibilities of the cognizant administrative contracting 
          officer.

Sec. 19.707 The Small Business Administration's role in carrying out the 
          program.

Sec. 19.708 Contract clauses.

  Subpart 19.8_Contracting With the Small Business Administration (the 
                              8(a) Program)


Sec. 19.800 General.

Sec. 19.801 [Reserved]

Sec. 19.802 Selecting concerns for the 8(a) Program.

Sec. 19.803 Selecting acquisitions for the 8(a) Program.

Sec. 19.804 Evaluation, offering, and acceptance.

Sec. 19.804-1 Agency evaluation.

Sec. 19.804-2 Agency offering.

Sec. 19.804-3 SBA acceptance.

Sec. 19.804-4 Repetitive acquisitions.

Sec. 19.804-5 Basic ordering agreements.

Sec. 19.804-6 Indefinite delivery contracts.

Sec. 19.805 Competitive 8(a).

Sec. 19.805-1 General.

Sec. 19.805-2 Procedures.

Sec. 19.806 Pricing the 8(a) contract.

Sec. 19.807 Estimating the fair market price.

Sec. 19.808 Contract negotiation.

Sec. 19.808-1 Sole source.

Sec. 19.808-2 Competitive.

Sec. 19.809 Preaward considerations.

Sec. 19.810 SBA appeals.

Sec. 19.811 Preparing the contracts.

Sec. 19.811-1 Sole source.

Sec. 19.811-2 Competitive.

Sec. 19.811-3 Contract clauses.

Sec. 19.812 Contract administration.

Subpart 19.9--19.10 [Reserved]

   Subpart 19.11_Price Evaluation Adjustment for Small Disadvantaged 
                            Business Concerns


Sec. 19.1101 General.

Sec. 19.1102 Applicability.

Sec. 19.1103 Procedures.

Sec. 19.1104 Contract clauses.

    Subpart 19.12_Small Disadvantaged Business Participation Program


Sec. 19.1201 General.

Sec. 19.1202 Evaluation factor or subfactor.

Sec. 19.1202-1 General.

Sec. 19.1202-2 Applicability.

Sec. 19.1202-3 Considerations in developing an evaluation factor or 
          subfactor.

Sec. 19.1202-4 Procedures.

Sec. 19.1203 Incentive subcontracting with small disadvantaged business 
          concerns.

Sec. 19.1204 Solicitation provisions and contract clauses.

Subpart 19.13_Historically Underutilized Business Zone (HUBZone) Program


Sec. 19.1301 General.

Sec. 19.1302 Applicability.

Sec. 19.1303 Status as a HUBZone small business concern.

Sec. 19.1304 Exclusions.

Sec. 19.1305 HUBZone set-aside procedures.

Sec. 19.1306 HUBZone sole source awards.

Sec. 19.1307 Price evaluation preference for HUBZone small business 
          concerns.

Sec. 19.1308 Performance of work requirements (limitations on 
          subcontracting) for general construction or construction by 
          special trade contractors.

Sec. 19.1309 Contract clauses.

Subpart 19.14_Service-Disabled Veteran-Owned Small Business Procurement 
                                 Program


Sec. 19.1401 General.

Sec. 19.1402 Applicability.

Sec. 19.1403 Status as a service-disabled veteran-owned small business 
          concern.

Sec. 19.1404 Exclusions.

Sec. 19.1405 Service-disabled veteran-owned small business set-aside 
          procedures.

Sec. 19.1406 Sole source awards to service-disabled veteran-owned small 
          business concerns.

Sec. 19.1407 Contract clauses.

         Subpart 19.15_Women-Owned Small Business (WOSB) Program


Sec. 19.1500 General.

Sec. 19.1501 Definition.

Sec. 19.1502 Applicability.

Sec. 19.1503 Status.

Sec. 19.1504 Exclusions

Sec. 19.1505 Set-aside procedures.

Sec. 19.1506 Contract clauses.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 
20113.

    Source: 48 FR 42240, Sept. 19, 1983, unless otherwise noted.



Sec. 19.000  Scope of part.

    (a) This part implements the acquisition-related sections of the 
Small Business Act (15 U.S.C. 631, et seq.), applicable sections of the 
Armed Services Procurement Act (10 U.S.C. 2302, et seq.), the Federal 
Property and Administrative Services Act (41 U.S.C. 252), section 7102 
of the Federal Acquisition Streamlining Act of 1994 (Public Law 103-
355), 10 U.S.C. 2323, and Executive Order 12138, May 18, 1979. It 
covers--

[[Page 403]]

    (1) The determination that a concern is eligible for participation 
in the programs identified in this part;
    (2) The respective roles of executive agencies and the Small 
Business Administration (SBA) in implementing the programs;
    (3) Setting acquisitions aside for exclusive competitive 
participation by small business, 8(a) business development participants, 
HUBZone small business concerns, service-disabled veteran-owned small 
business concerns, and economically disadvantaged women-owned small 
business concerns and women-owned small business concerns eligible under 
the Women-Owned Small Business Program;
    (4) The certificate of competency program;
    (5) The subcontracting assistance program;
    (6) The ``8(a)'' business development program (hereafter referred to 
as 8(a) program), under which agencies contract with the SBA for goods 
or services to be furnished under a subcontract by a small disadvantaged 
business concern;
    (7) The use of women-owned small business concerns;
    (8) The use of a price evaluation adjustment for small disadvantaged 
business concerns, and the use of a price evaluation preference for 
HUBZone small business concerns;
    (9) The Small Disadvantaged Business Participation Program;
    (10) [Reserved]
    (11) The use of veteran-owned small business concerns; and
    (12) Sole source awards to HUBZone small business and service-
disabled veteran-owned small business concerns.
    (b) This part, except for subpart 19.6, applies only in the United 
States or its outlying areas. Subpart 19.6 applies worldwide.

[48 FR 42240, Sept. 19, 1983, as amended at 59 FR 64785, Dec. 15, 1994; 
59 FR 67036, Dec. 28, 1994; 63 FR 35721, June 30, 1998; 63 FR 36122, 
July 1, 1998; 63 FR 70268, Dec. 18, 1998; 64 FR 10536, Mar. 4, 1999; 65 
FR 60544, Oct. 11, 2000; 68 FR 28081, May 22, 2003; 69 FR 25276, May 5, 
2004; 71 FR 220, Jan. 3, 2006; 75 FR 77729, Dec. 13, 2010; 76 FR 18309, 
Apr. 1, 2011]



Sec. 19.001  Definitions.

    As used in this part--
    Concern means any business entity organized for profit (even if its 
ownership is in the hands of a nonprofit entity) with a place of 
business located in the United States or its outlying areas and that 
makes a significant contribution to the U.S. economy through payment of 
taxes and/or use of American products, material and/or labor, etc. 
``Concern'' includes but is not limited to an individual, partnership, 
corporation, joint venture, association, or cooperative. For the purpose 
of making affiliation findings (see 19.101), include any business 
entity, whether organized for profit or not, and any foreign business 
entity, i.e., any entity located outside the United States and its 
outlying areas.
    Fair market price means a price based on reasonable costs under 
normal competitive conditions and not on lowest possible cost (see 
19.202-6).
    Industry means all concerns primarily engaged in similar lines of 
activity, as listed and described in the North American Industry 
Classification system (NAICS) manual.
    Nonmanufacturer rule means that a contractor under a small business 
set-aside or 8(a) contract shall be a small business under the 
applicable size standard and shall provide either its own produce or 
that of another domestic small business manufacturing or processing 
concern (see 13 CFR 121.406).

[51 FR 2650, Jan. 17, 1986]

    Editorial Note: For Federal Register citations affecting 19.001, see 
the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and at www.fdsys.gov.

                       Subpart 19.1_Size Standards



Sec. 19.101  Explanation of terms.

    As used in this subpart--
    Affiliates. Business concerns are affiliates of each other if, 
directly or indirectly, either one controls or has the power to control 
the other, or another concern controls or has the power to control both. 
In determining whether affiliation exists, consideration is given to all 
appropriate factors including common ownership, common management, and 
contractual relationships; provided, that restraints imposed

[[Page 404]]

by a franchise agreement are not considered in determining whether the 
franchisor controls or has the power to control the franchisee, if the 
franchisee has the right to profit from its effort, commensurate with 
ownership, and bears the risk of loss or failure. Any business entity 
may be found to be an affiliate, whether or not it is organized for 
profit or located in the United States or its outlying areas.
    (1) Nature of control. Every business concern is considered as 
having one or more parties who directly or indirectly control or have 
the power to control it. Control may be affirmative or negative and it 
is immaterial whether it is exercised so long as the power to control 
exists.
    (2) Meaning of party or parties. The term party or parties includes, 
but is not limited to, two or more persons with an identity of interest 
such as members of the same family or persons with common investments in 
more than one concern. In determining who controls or has the power to 
control a concern, persons with an identity of interest may be treated 
as though they were one person.
    (3) Control through stock ownership. (i) A party is considered to 
control or have the power to control a concern, if the party controls or 
has the power to control 50 percent or more of the concern's voting 
stock.
    (ii) A party is considered to control or have the power to control a 
concern, even though the party owns, controls, or has the power to 
control less than 50 percent of the concern's voting stock, if the block 
of stock the party owns, controls, or has the power to control is large, 
as compared with any other outstanding block of stock. If two or more 
parties each owns, controls, or has the power to control, less than 50 
percent of the voting stock of a concern, and such minority block is 
equal or substantially equal in size, and large as compared with any 
other block outstanding, there is a presumption that each such party 
controls or has the power to control such concern; however, such 
presumption may be rebutted by a showing that such control or power to 
control, in fact, does not exist.
    (iii) If a concern's voting stock is distributed other than as 
described above, its management (officers and directors) is deemed to be 
in control of such concern.
    (4) Stock options and convertible debentures. Stock options and 
convertible debentures exercisable at the time or within a relatively 
short time after a size determination and agreements to merge in the 
future, are considered as having a present effect on the power to 
control the concern. Therefore, in making a size determination, such 
options, debentures, and agreements are treated as though the rights 
held thereunder had been exercised.
    (5) Voting trusts. If the purpose of a voting trust, or similar 
agreement, is to separate voting power from beneficial ownership of 
voting stock for the purpose of shifting control of or the power to 
control a concern in order that such concern or another concern may 
qualify as a small business within the size regulations, such voting 
trust shall not be considered valid for this purpose regardless of 
whether it is or is not valid within the appropriate jurisdiction. 
However, if a voting trust is entered into for a legitimate purpose 
other than that described above, and it is valid within the appropriate 
jurisdiction, it may be considered valid for the purpose of a size 
determination, provided such consideration is determined to be in the 
best interest of the small business program.
    (6) Control through common management. A concern may be found as 
controlling or having the power to control another concern when one or 
more of the following circumstances are found to exist, and it is 
reasonable to conclude that under the circumstances, such concern is 
directing or influencing, or has the power to direct or influence, the 
operation of such other concern.
    (i) Interlocking management. Officers, directors, employees, or 
principal stockholders of one concern serve as a working majority of the 
board of directors or officers of another concern.
    (ii) Common facilities. One concern shares common office space and/
or employees and/or other facilities with another concern, particularly 
where such

[[Page 405]]

concerns are in the same or related industry or field of operation, or 
where such concerns were formerly affiliated.
    (iii) Newly organized concern. Former officers, directors, principal 
stockholders, and/or key employees of one concern organize a new concern 
in the same or a related industry or field operation, and serve as its 
officers, directors, principal stockholders, and/or key employees, and 
one concern is furnishing or will furnish the other concern with 
subcontracts, financial or technical assistance, and/or facilities, 
whether for a fee or otherwise.
    (7) Control through contractual relationships--(i) Definition of a 
joint venture for size determination purposes. A joint venture for size 
determination purposes is an association of persons or concerns with 
interests in any degree or proportion by way of contract, express or 
implied, consorting to engage in and carry out a single specific 
business venture for joint profit, for which purpose they combine their 
efforts, property, money, skill, or knowledge, but not on a continuing 
or permanent basis for conducting business generally. A joint venture is 
viewed as a business entity in determining power to control its 
management.
    (A) For bundled requirements, apply size standards for the 
requirement to individual persons or concerns, not to the combined 
assets, of the joint venture.
    (B) For other than bundled requirements, apply size standards for 
the requirement to individual persons or concerns, not to the combined 
assets, of the joint venture, if--
    (1) A revenue-based size standard applies to the requirement and the 
estimated contract value, including options, exceeds one-half the 
applicable size standard; or
    (2) An employee-based size standard applies to the requirement and 
the estimated contract value, including options, exceeds $10 million.
    (ii) HUBZone joint venture. A HUBZone joint venture of two or more 
HUBZone small business concerns may submit an offer for a HUBZone 
contract as long as each concern is small under the size standard 
corresponding to the NAICS code assigned to the contract, provided one 
of the following conditions apply:
    (A) The aggregate total of the joint venture is small under the size 
standard corresponding to the NAICS code assigned to the contract.
    (B) The aggregate total of the joint venture is not small under the 
size standard corresponding to the NAICS code assigned to the contract 
and either--
    (1) For a revenue-based size standard, the estimated contract value 
exceeds half the size standard corresponding to the NAICS code assigned 
to the contract; or
    (2) For an employee-based size standard, the estimated contract 
value exceeds $10 million.
    (iii) Joint venture. Concerns submitting offers on a particular 
acquisition as joint ventures are considered as affiliated and 
controlling or having the power to control each other with regard to 
performance of the contract. Moreover, an ostensible subcontractor which 
is to perform primary or vital requirements of a contract may have a 
controlling role such to be considered a joint venturer affiliated on 
the contract with the prime contractor. A joint venture affiliation 
finding is limited to particular contracts unless the SBA size 
determination finds general affiliation between the parties. The rules 
governing 8(a) Program joint ventures are described in 13 CFR 124.513.
    (iv) Where a concern is not considered as being an affiliate of a 
concern with which it is participating in a joint venture, it is 
necessary, nevertheless, in computing annual receipts, etc., for the 
purpose of applying size standards, to include such concern's share of 
the joint venture receipts (as distinguished from its share of the 
profits of such venture).
    (v) Franchise and license agreements. If a concern operates or is to 
operate under a franchise (or a license) agreement, the following policy 
is applicable: In determining whether the franchisor controls or has the 
power to control and, therefore, is affiliated with the franchisee, the 
restraints imposed on a franchisee by its franchise agreement shall not 
be considered, provided that the franchisee has the right to profit from 
its effort and the risk of

[[Page 406]]

loss or failure, commensurate with ownership. Even though a franchisee 
may not be controlled by the franchisor by virtue of the contractual 
relationship between them, the franchisee may be controlled by the 
franchisor or others through common ownership or common management, in 
which case they would be considered as affiliated.
    (vi) Size determination for teaming arrangements. For size 
determination purposes, apply the size standard tests in (7)(1)(A) and 
(B) of this section when a teaming arrangement of two or more business 
concerns submits an offer, as appropriate.
    Annual receipts. (1) Annual receipts of a concern which has been in 
business for 3 or more complete fiscal years means the annual average 
gross revenue of the concern taken for the last 3 fiscal years. For the 
purpose of this definition, gross revenue of the concern includes 
revenues from sales of products and services, interest, rents, fees, 
commissions and/or whatever other sources derived, but less returns and 
allowances, sales of fixed assets, interaffiliate transactions between a 
concern and its domestic and foreign affiliates, and taxes collected for 
remittance (and if due, remitted) to a third party. Such revenues shall 
be measured as entered on the regular books of account of the concern 
whether on a cash, accrual, or other basis of accounting acceptable to 
the U.S. Treasury Department for the purpose of supporting Federal 
income tax returns, except when a change in accounting method from cash 
to accrual or accrual to cash has taken place during such 3-year period, 
or when the completed contract method has been used.
    (i) In any case of a change in accounting method from cash to 
accrual or accrual to cash, revenues for such 3-year period shall, prior 
to the calculation of the annual average, be restated to the accrual 
method. In any case, where the completed contract method has been used 
to account for revenues in such 3-year period, revenues must be restated 
on an accrual basis using the percentage of completion method.
    (ii) In the case of a concern which does not keep regular books of 
accounts, but which is subject to U.S. Federal income taxation, annual 
receipts shall be measured as reported, or to be reported to the U.S. 
Treasury Department, Internal Revenue Service, for Federal income tax 
purposes, except that any return based on a change in accounting method 
or on the completed contract method of accounting must be restated as 
provided for in the preceding paragraphs.
    (2) Annual receipts of a concern that has been in business for less 
than 3 complete fiscal years means its total receipts for the period it 
has been in business, divided by the number of weeks including fractions 
of a week that it has been in business, and multiplied by 52. In 
calculating total receipts, the definitions and adjustments related to a 
change of accounting method and the completed contract method of 
paragraph (1) of this definition, are applicable.
    Number of employees is a measure of the average employment of a 
business concern and means its average employment, including the 
employees of its domestic and foreign affiliates, based on the number of 
persons employed on a full-time, part-time, temporary, or other basis 
during each of the pay periods of the preceding 12 months. If a business 
has not been in existence for 12 months, number of employees means the 
average employment of such concern and its affiliates during the period 
that such concern has been in existence based on the number of persons 
employed during each of the pay periods of the period that such concern 
has been in business. If a business has acquired an affiliate during the 
applicable 12-month period, it is necessary, in computing the 
applicant's number of employees, to include the affiliate's number of 
employees during the entire period, rather than only its employees 
during the period in which it has been an affiliate. The employees of a 
former affiliate are not included, even if such concern had been an 
affiliate during a portion of the period.

[51 FR 2650, Jan. 17, 1986, as amended at 64 FR 32743, June 17, 1999; 64 
FR 72444, Dec. 27, 1999; 65 FR 46055, July 26, 2000; 66 FR 2129, Jan. 
10, 2001; 68 FR 28081, May 22, 2003; 75 FR 77729, Dec. 13, 2010]

[[Page 407]]



Sec. 19.102  Size standards.

    (a)(1) The SBA establishes small business size standards on an 
industry-by-industry basis. (See 13 CFR Part 121). Small business size 
standards matched to industry NAICS codes are published by the Small 
Business Administration and are available at http://www.sba.gov/content/
table-small-business-size-standards.
    (2) NAICS codes are updated by the Office of Management and Budget 
through its Economic Classification Policy Committee every five years. 
New NAICS codes are not available for use in Federal contracting until 
the Small Business Administration publishes corresponding industry size 
standards (see 19.102(a)(1)).
    (b) Small business size standards are applied by--
    (1) Classifying the product or service being acquired in the 
industry whose definition, as found in the North American Industry 
Classification System (NAICS) Manual (available at http://
www.census.gov/eos/www/naics/, best describes the principal nature of 
the product or service being acquired;
    (2) Identifying the size standard SBA established for that industry; 
and
    (3) Specifying the size standard in the solicitation, so that 
offerors can appropriately represent themselves as small or large.
    (c) For size standard purposes, a product or service shall be 
classified in only one industry, whose definition best describes the 
principal nature of the product or service being acquired even though 
for other purposes it could be classified in more than one.
    (d) When acquiring a product or service that could be classified in 
two or more industries with different size standards, contracting 
officers shall apply the size standard for the industry accounting for 
the greatest percentage of the contract price.
    (e) If a solicitation calls for more than one item and allows offers 
to be submitted on any or all of the items, an offeror must meet the 
size standard for each item it offers to furnish. If a solicitation 
calling for more than one item requires offers on all or none of the 
items, an offeror may qualify as a small business by meeting the size 
standard for the item accounting for the greatest percentage of the 
total contract price.
    (f) Any concern submitting a bid or offer in its own name, other 
than on a construction or service contract, that proposes to furnish an 
end product it did not manufacture (a ``nonmanufacturer''), is a small 
business if it has no more than 500 employees, and--
    (1) Except as provided in paragraphs (f)(4) through (f)(7) of this 
section, in the case of Government acquisitions set-aside for small 
businesses, furnishes in the performance of the contract, the product of 
a small business manufacturer or producer. The end product furnished 
must be manufactured or produced in the United States or its outlying 
areas. The term ``nonmanufacturer'' includes a concern that can, but 
elects not to, manufacture or produce the end product for the specific 
acquisition. For size determination purposes, there can be only one 
manufacturer of the end product being acquired. The manufacturer of the 
end product being acquired is the concern that, with its own forces, 
transforms inorganic or organic substances including raw materials and/
or miscellaneous parts or components into the end product. However, see 
the limitations on subcontracting at 52.219-14 that apply to any small 
business offeror other than a nonmanufacturer for purposes of set-asides 
and 8(a) awards.
    (2) A concern which purchases items and packages them into a kit is 
considered to be a nonmanufacturer small business and can qualify as 
such for a given acquisition if it meets the size qualifications of a 
small nonmanufacturer for the acquisition, and if more than 50 percent 
of the total value of the kit and its contents is accounted for by items 
manufactured by small business.
    (3) For the purpose of receiving a Certificate of Competency on an 
unrestricted acquisition, a small business nonmanufacturer may furnish 
any domestically produced or manufactured product.
    (4) In the case of acquisitions set aside for small business or 
awarded under section 8(a) of the Small Business Act, when the 
acquisition is for a specific product (or a product in a class

[[Page 408]]

of products) for which the SBA has determined that there are no small 
business manufacturers or processors in the Federal market, then the SBA 
may grant a class waiver so that a nonmanufacturer does not have to 
furnish the product of a small business. For the most current listing of 
classes for which SBA has granted a waiver, contact an SBA Office of 
Government Contracting. A listing is also available on SBA's Internet 
Homepage at http://www.sba/content/class-waivers Contracting officers 
may request that the SBA waive the nonmanufacturer rule for a particular 
class of products.
    (5) For a specific solicitation, a contracting officer may request a 
waiver of that part of the nonmanufacturer rule which requires that the 
actual manufacturer or processor be a small business concern if the 
contracting officer determines that no known domestic small business 
manufacturers or processors can reasonably be expected to offer a 
product meeting the requirements of the solicitation.
    (6) Requests for waivers shall be sent to the Associate 
Administrator for Government Contracting, United States Small Business 
Administration, Mail Code 6250, 409 Third Street, SW., Washington, DC 
20416.
    (7) The SBA provides for an exception to the nonmanufacturer rule 
if--
    (i) The procurement of a manufactured end product processed under 
the procedures set forth in part 13--
    (A) Is set aside for small business; and
    (B) Is not anticipated to exceed $25,000; and
    (ii) The offeror supplies an end product that is manufactured or 
produced in the United States or its outlying areas.
    (8) For non-manufacturer rules pertaining to HUBZone contracts, see 
19.1303(e).

[48 FR 42240, Sept. 19, 1983]

    Editorial Note: For Federal Register citations affecting 19.102, see 
the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and at www.fdsys.gov.

                          Subpart 19.2_Policies



Sec. 19.201  General policy.

    (a) It is the policy of the Government to provide maximum 
practicable opportunities in its acquisitions to small business, 
veteran-owned small business, service-disabled veteran-owned small 
business, HUBZone small business, small disadvantaged business, and 
women-owned small business concerns. Such concerns must also have the 
maximum practicable opportunity to participate as subcontractors in the 
contracts awarded by any executive agency, consistent with efficient 
contract performance. The Small Business Administration (SBA) counsels 
and assists small business concerns and assists contracting personnel to 
ensure that a fair proportion of contracts for supplies and services is 
placed with small business.
    (b) The Department of Commerce will determine on an annual basis, by 
North American Industry Classification System (NAICS) Industry 
Subsector, and region, if any, the authorized small disadvantaged 
business (SDB) procurement mechanisms and applicable factors 
(percentages). The Department of Commerce determination shall only 
affect solicitations that are issued on or after the effective date of 
the determination. The effective date of the Department of Commerce 
determination shall be no less than 60 days after its publication date. 
The Department of Commerce determination shall not affect ongoing 
acquisitions. The SDB procurement mechanisms are a price evaluation 
adjustment for SDB concerns (see Subpart 19.11), an evaluation factor or 
subfactor for participation of SDB concerns (see 19.1202), and monetary 
subcontracting incentive clauses for SDB concerns (see 19.1203). The 
Department of Commerce determination shall also include the applicable 
factors, by NAICS Industry Subsector, to be used in the price evaluation 
adjustment for SDB concerns (see 19.1104). The General Services 
Administration shall post the Department of Commerce determination at 
https://www.acquisition.gov/References/sdbadjustments.htm''. The 
authorized procurement mechanisms shall be applied consistently with the 
policies and

[[Page 409]]

procedures in this subpart. The agencies shall apply the procurement 
mechanisms determined by the Department of Commerce. The Department of 
Commerce, in making its determination, is not limited to the SDB 
procurement mechanisms identified in this section where the Department 
of Commerce has found substantial and persuasive evidence of--
    (1) A persistent and significant underutilization of minority firms 
in a particular industry, attributable to past or present 
discrimination; and
    (2) A demonstrated incapacity to alleviate the problem by using 
those mechanisms.
    (c) Heads of contracting activities are responsible for effectively 
implementing the small business programs within their activities, 
including achieving program goals. They are to ensure that contracting 
and technical personnel maintain knowledge of small business program 
requirements and take all reasonable action to increase participation in 
their activities' contracting processes by these businesses.
    (d) The Small Business Act requires each agency with contracting 
authority to establish an Office of Small and Disadvantaged Business 
Utilization (see section (k) of the Small Business Act). For the 
Department of Defense, in accordance with the National Defense 
Authorization Act for Fiscal Year 2006 (Public Law 109-163), the Office 
of Small and Disadvantaged Business Utilization has been redesignated as 
the Office of Small Business Programs. Management of the office shall be 
the responsibility of an officer or employee of the agency who shall, in 
carrying out the purposes of the Act--
    (1) Be known as the Director of Small and Disadvantaged Business 
Utilization, or for the Department of Defense, the Director of Small 
Business Programs;
    (2) Be appointed by the agency head;
    (3) Be responsible to and report directly to the agency head or the 
deputy to the agency head;
    (4) Be responsible for the agency carrying out the functions and 
duties in sections 8, 15, and 31 of the Small Business Act.
    (5) Work with the SBA procurement center representative (or, if a 
procurement center representative is not assigned, see 19.402(a)) to--
    (i) Identify proposed solicitations that involve bundling;
    (ii) Facilitate small business participation as contractors 
including small business contract teams, where appropriate; and
    (iii) Facilitate small business participation as subcontractors and 
suppliers where participation by small business concerns as contractors 
is unlikely;
    (6) Assist small business concerns in obtaining payments under their 
contracts, late payment, interest penalties, or information on 
contractual payment provisions;
    (7) Have supervisory authority over agency personnel to the extent 
that their functions and duties relate to sections 8, 15, and 31 of the 
Small Business Act.
    (8) Assign a small business technical advisor to each contracting 
activity within the agency to which the SBA has assigned a 
representative (see 19.402)--
    (i) Who shall be a full-time employee of the contracting activity, 
well qualified, technically trained, and familiar with the supplies or 
services contracted for by the activity; and
    (ii) Whose principal duty is to assist the SBA's assigned 
representative in performing functions and duties relating to sections 
8, 15, and 31 of the Small Business Act;
    (9) Cooperate and consult on a regular basis with the SBA in 
carrying out the agency's functions and duties in sections 8, 15, and 31 
of the Small Business Act;
    (10) Make recommendations in accordance with agency procedures as to 
whether a particular acquisition should be awarded under subpart 19.5 as 
a small business set-aside, under subpart 19.8 as a section 8(a) award, 
under subpart 19.13 as a HUBZone set-aside, under subpart 19.14 as a 
service-disabled veteran-owned small business set-aside, or under 
subpart 19.15 as a set-aside for economically disadvantaged women-owned 
small business (EDWOSB) concerns or women-owned small business (WOSB) 
concerns eligible under the WOSB Program.
    (11) Conduct annual reviews to assess the--

[[Page 410]]

    (i) Extent to which small businesses are receiving a fair share of 
Federal procurements, including contract opportunities under the 
programs administered under the Small Business Act;
    (ii) Adequacy of contract bundling documentation and justifications; 
and
    (iii) Actions taken to mitigate the effects of necessary and 
justified contract bundling on small businesses.
    (12) Provide a copy of the assessment made under paragraph (d)(11) 
of this section to the Agency Head and SBA Administrator.
    (e) Small Business Specialists must be appointed and act in 
accordance with agency regulations.
    (f)(1) Each agency shall designate, at levels it determines 
appropriate, personnel responsible for determining whether, in order to 
achieve the contracting agency's goal for SDB concerns, the use of the 
SDB mechanism in Subpart 19.11 has resulted in an undue burden on non-
SDB firms in one of the Industry subsectors and regions identified by 
Department of Commerce following paragraph (b) of this section, or is 
otherwise inappropriate. Determinations under this subpart are for the 
purpose of determining future acquisitions and shall not affect ongoing 
acquisitions. Requests for a determination, including supporting 
rationale, may be submitted to the agency designee. If the agency 
designee makes an affirmative determination that the SDB mechanism has 
an undue burden or is otherwise inappropriate, the determination shall 
be forwarded through agency channels to the OFPP, which shall review the 
determination in consultation with the Department of Commerce and the 
Small Business Administration. At a minimum, the following information 
should be included in any submittal:
    (i) A determination of undue burden or other inappropriate effect, 
including proposed corrective action.
    (ii) The Industry subsector affected.
    (iii) Supporting information to justify the determination, 
including, but not limited to, dollars and percentages of contracts 
awarded by the contracting activity under the affected Industry 
subsector for the previous two fiscal years and current fiscal year to 
date for--
    (A) Total awards;
    (B) Total awards to SDB concerns;
    (C) Awards to SDB concerns awarded contracts under the SDB price 
evaluation adjustment where the SDB concerns would not otherwise have 
been the successful offeror;
    (D) Number of successful and unsuccessful SDB offerors; and
    (E) Number of successful and unsuccessful non-SDB offerors.
    (iv) A discussion of the pertinent findings, including any 
peculiarities related to the industry, regions or demographics.
    (v) A discussion of other efforts the agency has undertaken to 
ensure equal opportunity for SDBs in contracting with the agency.
    (2) After consultation with OFPP, or if the agency does not receive 
a response from OFPP within 90 days after notice is provided to OFPP, 
the contracting agency may limit the use of the SDB mechanism in Subpart 
19.11 until the Department of Commerce determines the updated price 
evaluation adjustment, as required by this section. This limitation 
shall not apply to solicitations that already have been synopsized.

[48 FR 42240, Sept. 19, 1983]

    Editorial Note: For Federal Register citations affecting 19.201, see 
the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and at www.fdsys.gov.



Sec. 19.202  Specific policies.

    In order to further the policy in 19.201(a), contracting officers 
shall comply with the specific policies listed in this section and shall 
consider recommendations of the agency Director of Small and 
Disadvantaged Business Utilization, or the Director's designee, as to 
whether a particular acquisition should be awarded under subpart 19.5, 
19.8, 19.13, 19.14, or 19.15. Agencies shall establish procedures 
including dollar thresholds for review of acquisitions by the Director 
or the Director's designee for the purpose of making these 
recommendations. The contracting officer

[[Page 411]]

shall document the contract file whenever the Director's recommendations 
are not accepted.

[54 FR 25062, June 12, 1989, as amended at 60 FR 48260, Sept. 18, 1995; 
63 FR 70268, Dec. 18, 1998; 68 FR 60006, Oct. 20, 2003; 76 FR 14567, 
Mar. 16, 2011; 76 FR 18309, Apr. 1, 2011]



Sec. 19.202-1  Encouraging small business participation in acquisitions.

    Small business concerns shall be afforded an equitable opportunity 
to compete for all contracts that they can perform to the extent 
consistent with the Government's interest. When applicable, the 
contracting officer shall take the following actions:
    (a) Divide proposed acquisitions of supplies and services (except 
construction) into reasonably small lots (not less than economic 
production runs) to permit offers on quantities less than the total 
requirement.
    (b) Plan acquisitions such that, if practicable, more than one small 
business concern may perform the work, if the work exceeds the amount 
for which a surety may be guaranteed by SBA against loss under 15 U.S.C. 
694b.
    (c) Ensure that delivery schedules are established on a realistic 
basis that will encourage small business participation to the extent 
consistent with the actual requirements of the Government.
    (d) Encourage prime contractors to subcontract with small business 
concerns (see subpart 19.7).
    (e)(1) Provide a copy of the proposed acquisition package to the SBA 
procurement center representative (or, if a procurement center 
representative is not assigned, see 19.402(a)) at least 30 days prior to 
the issuance of the solicitation if--
    (i) The proposed acquisition is for supplies or services currently 
being provided by a small business and the proposed acquisition is of a 
quantity or estimated dollar value, the magnitude of which makes it 
unlikely that small businesses can compete for the prime contract;
    (ii) The proposed acquisition is for construction and seeks to 
package or consolidate discrete construction projects and the magnitude 
of this consolidation makes it unlikely that small businesses can 
compete for the prime contract; or
    (iii) The proposed acquisition is for a bundled requirement. (See 
10.001(c)(2)(i) for mandatory 30-day notice requirement to incumbent 
small business concerns.) The contracting officer shall provide all 
information relative to the justification of contract bundling, 
including the acquisition plan or strategy, and if the acquisition 
involves substantial bundling, the information identified in 7.107(e). 
When the acquisition involves substantial bundling, the contracting 
officer shall also provide the same information to the agency Office of 
Small and Disadvantaged Business Utilization.
    (2) The contracting officer also must provide a statement explaining 
why the--
    (i) Proposed acquisition cannot be divided into reasonably small 
lots (not less than economic production runs) to permit offers on 
quantities less than the total requirement;
    (ii) Delivery schedules cannot be established on a realistic basis 
that will encourage small business participation to the extent 
consistent with the actual requirements of the Government;
    (iii) Proposed acquisition cannot be structured so as to make it 
likely that small businesses can compete for the prime contract;
    (iv) Consolidated construction project cannot be acquired as 
separate discrete projects; or
    (v) Bundling is necessary and justified.
    (3) The 30-day notification process shall occur concurrently with 
other processing steps required prior to the issuance of the 
solicitation.
    (4) If the contracting officer rejects the SBA representative's 
recommendation made in accordance with 19.402(c)(2), the contracting 
officer shall document the basis for the rejection and notify the SBA 
representative in accordance with 19.505.

[48 FR 42240, Sept. 19, 1983, as amended at 56 FR 67132, Dec. 27, 1991; 
57 FR 60581, Dec. 21, 1992; 64 FR 72444, Dec. 27, 1999; 65 FR 46055, 
July 26, 2000; 68 FR 60006, Oct. 20, 2003; 71 FR 36925, June 28, 2006]

[[Page 412]]



Sec. 19.202-2  Locating small business sources.

    The contracting officer must, to the extent practicable, encourage 
maximum participation by small business, veteran-owned small business, 
service-disabled veteran-owned small business, HUBZone small business, 
small disadvantaged business, and women-owned small business concerns in 
acquisitions by taking the following actions:
    (a) Before issuing solicitations, make every reasonable effort to 
find additional small business concerns, unless lists are already 
excessively long and only some of the concerns on the list will be 
solicited. This effort should include contacting the SBA procurement 
center representative (or, if a procurement center representative is not 
assigned, see 19.402(a)).
    (b) Publicize solicitations and contract awards through the 
Governmentwide point of entry (see subparts 5.2 and 5.3).

[48 FR 42240, Sept. 19, 1983, as amended at 63 FR 70268, Dec. 18, 1998; 
65 FR 60544, Oct. 11, 2000; 66 FR 27413, May 16, 2001; 68 FR 43856, July 
24, 2003; 71 FR 36925, June 28, 2006]



Sec. 19.202-3  Equal low bids.

    In the event of equal low bids (see 14.408-6), awards shall be made 
first to small business concerns which are also labor surplus area 
concerns, and second to small business concerns which are not also labor 
surplus area concerns.

[60 FR 48261, Sept. 18, 1995]



Sec. 19.202-4  Solicitation.

    The contracting officer must encourage maximum response to 
solicitations by small business, veteran-owned small business, service-
disabled veteran-owned small business, HUBZone small business, small 
disadvantaged business, and women-owned small business concerns by 
taking the following actions:
    (a) Allow the maximum amount of time practicable for the submission 
of offers.
    (b) Furnish specifications, plans, and drawings with solicitations, 
or furnish information as to where they may be obtained or examined.
    (c) Provide to any small business concern, upon its request, a copy 
of bid sets and specifications with respect to any contract to be let, 
the name and telephone number of an agency contact to answer questions 
related to such prospective contract and adequate citations to each 
major Federal law or agency rule with which such business concern must 
comply in performing such contract other than laws or agency rules with 
which the small business must comply when doing business with other than 
the Government.

[48 FR 42240, Sept. 19, 1983, as amended at 63 FR 70268, Dec. 18, 1998; 
65 FR 60544, Oct. 11, 2000; 68 FR 43856, July 24, 2003]



Sec. 19.202-5  Data collection and reporting requirements.

    Agencies must measure the extent of small business participation in 
their acquisition programs by taking the following actions:
    (a) Require each prospective contractor to represent whether it is a 
small business, veteran-owned small business, service-disabled veteran-
owned small business, HUBZone small business, small disadvantaged 
business, women-owned small business, EDWOSB concern, or WOSB concern 
eligible under the WOSB Program (see the provision at 52.219-1, Small 
Business Program Representations).
    (b) Accurately measure the extent of participation by small 
business, veteran-owned small business, service-disabled veteran-owned 
small business, HUBZone small business, small disadvantaged business, 
and women-owned small business concerns in Government acquisitions in 
terms of the total value of contracts placed during each fiscal year, 
and report data to the SBA at the end of each fiscal year (see subpart 
4.6).
    (c) When the contract includes the clause at 52.219-28, Post Award 
Small Business Program Rerepresentation, and the conditions in the 
clause for rerepresenting are met--
    (1) Require a contractor that represented itself as a small business 
concern prior to award of the contract to rerepresent its size status; 
and
    (2) Permit a contractor that represented itself as other than a 
small

[[Page 413]]

business concern prior to award to rerepresent its size status.

[48 FR 42240, Sept. 19, 1983, as amended at 60 FR 48261, Sept. 18, 1995; 
63 FR 70268, Dec. 18, 1998; 65 FR 60544, Oct. 11, 2000; 72 FR 36854, 
July 5, 2007; 74 FR 11825, Mar. 19, 2009; 76 FR 18309, Apr. 1, 2011]



Sec. 19.202-6  Determination of fair market price.

    (a) The fair market price shall be the price achieved in accordance 
with the reasonable price guidelines in 15.404-1(b) for--
    (1) Total and partial small business set-asides (see subpart 19.5);
    (2) HUBZone set-asides (see subpart 19.13);
    (3) Contracts utilizing the price evaluation adjustment for small 
disadvantaged business concerns (see subpart 19.11);
    (4) Contracts utilizing the price evaluation preference for HUBZone 
small business concerns (see subpart 19.13);
    (5) Service-disabled veteran-owned small business set-asides (see 
subpart 19.14).
    (6) Set-asides for EDWOSB concerns and WOSB concerns eligible under 
the WOSB Program (see subpart 19.15).
    (b) For 8(a) contracts, both with respect to meeting the requirement 
at 19.806(b) and in order to accurately estimate the current fair market 
price, contracting officers shall follow the procedures at 19.807.

[52 FR 38189, Oct. 14, 1987, as amended at 53 FR 43390, Oct. 26, 1988; 
54 FR 46005, Oct. 31, 1989; 62 FR 51270, Sept. 30, 1997; 63 FR 35722, 
June 30, 1998; 63 FR 70268, Dec. 18, 1998; 69 FR 25276, May 5, 2004; 76 
FR 18309, Apr. 1, 2011]



Sec. 19.203  Relationship among small business programs.

    (a) There is no order of precedence among the 8(a) Program (subpart 
19.8), HUBZone Program (subpart 19.13), Service-Disabled Veteran-Owned 
Small Business (SDVOSB) Procurement Program (subpart 19.14), or the 
Women-Owned Small Business (WOSB) Program (subpart 19.15).
    (b) At or below the simplified acquisition threshold. For 
acquisitions of supplies or services that have an anticipated dollar 
value exceeding $3,000 ($15,000 for acquisitions as described in 
13.201(g)(1)), but not exceeding $150,000 ($300,000 for acquisitions 
described in paragraph (1) of the simplified acquisition threshold 
definition at 2.101), the requirement at 19.502-2(a) to exclusively 
reserve acquisitions for small business concerns does not preclude the 
contracting officer from awarding a contract to a small business under 
the 8(a) Program, HUBZone Program, SDVOSB Program, or WOSB Program.
    (c) Above the simplified acquisition threshold. For acquisitions of 
supplies or services that have an anticipated dollar value exceeding the 
simplified acquisition threshold definition at 2.101, the contracting 
officer shall first consider an acquisition for the small business 
socioeconomic contracting programs (i.e., 8(a), HUBZone, SDVOSB, or WOSB 
programs) before considering a small business set-aside (see 19.502-
2(b)). However, if a requirement has been accepted by the SBA under the 
8(a) Program, it must remain in the 8(a) Program unless the SBA agrees 
to its release in accordance with 13 CFR parts 124, 125, and 126.
    (d) In determining which socioeconomic program to use for an 
acquisition, the contracting officer should consider, at a minimum--
    (1) Results of market research that was done to determine if there 
are socioeconomic firms capable of satisfying the agency's requirement; 
and
    (2) Agency progress in fulfilling its small business goals.
    (e) Small business set-asides have priority over acquisitions using 
full and open competition. See requirements for establishing a small 
business set-aside at subpart 19.5.

[75 FR 14567, Mar. 16, 2011, as amended at 76 FR 18309, Apr. 1, 2011; 77 
FR 12932, Mar. 2, 2012]

 Subpart 19.3_Determination of Small Business Status for Small Business 
                                Programs



Sec. 19.301  Representations and rerepresentations.



Sec. 19.301-1  Representation by the offeror.

    (a) To be eligible for award as a small business, an offeror must 
represent in good faith that it is a small business at the time of its 
written representation.

[[Page 414]]

An offeror may represent that it is a small business concern in 
connection with a specific solicitation if it meets the definition of a 
small business concern applicable to the solicitation and has not been 
determined by the Small Business Administration (SBA) to be other than a 
small business.
    (b) The contracting officer shall accept an offeror's representation 
in a specific bid or proposal that it is a small business unless (1) 
another offeror or interested party challenges the concern's small 
business representation or (2) the contracting officer has a reason to 
question the representation. Challenges of and questions concerning a 
specific representation shall be referred to the SBA in accordance with 
19.302.
    (c) An offeror's representation that it is a small business is not 
binding on the SBA. If an offeror's small business status is challenged, 
the SBA will evaluate the status of the concern and make a 
determination, which will be binding on the contracting officer, as to 
whether the offeror is a small business. A concern cannot become 
eligible for a specific award by taking action to meet the definition of 
a small business concern after the SBA has determined that it is not a 
small business.
    (d) If the SBA determines that the status of a concern as a small 
business, veteran-owned small business, service-disabled veteran-owned 
small business, HUBZone small business, small disadvantaged business, or 
women-owned small business has been misrepresented in order to obtain a 
set-aside contract, an 8(a) subcontract, a subcontract that is to be 
included as part or all of a goal contained in a subcontracting plan, or 
a prime or subcontract to be awarded as a result, or in furtherance of 
any other provision of Federal law that specifically references Section 
8(d) of the Small Business Act for a definition of program eligibility, 
the SBA may take action as specified in Sections 16(a) or 16(d) of the 
Act. If the SBA declines to take action, the agency may initiate the 
process. The SBA's regulations on penalties for misrepresentations and 
false statements are contained in 13 CFR 121.108 for small business, 13 
CFR 124.501 for 8(a) small business, 13 CFR 124.1004 for small 
disadvantaged business, 13 CFR 125.29 for veteran or service-disabled 
veteran-owned small business, 13 CFR 126.900 for HUBZone small business, 
and 13 CFR 127.700 for economically disadvantaged women-owned small 
business concerns and women-owned small business (WOSB) concerns 
eligible under the WOSB Program.

[48 FR 42240, Sept. 19, 1983, as amended at 55 FR 3882, Feb. 5, 1990; 60 
FR 48261, Sept. 18, 1995; 62 FR 236, Jan. 2, 1997; 63 FR 70268, Dec. 18, 
1998; 65 FR 60545, Oct. 11, 2000; 69 FR 25276, May 5, 2004. Redesignated 
at 72 FR 36855, July 5, 2007; 75 FR 77738, Dec. 13, 2010; 76 FR 18309, 
Apr. 1, 2011]



Sec. 19.301-2  Rerepresentation by a contractor that represented itself 
          as a small business concern.

    (a) Definition. As used in this subsection--
    Long-term contract means a contract of more than five years in 
duration, including options. However, the term does not include 
contracts that exceed five years in duration because the period of 
performance has been extended for a cumulative period not to exceed six 
months under the clause at 52.217-8, Option to Extend Services, or other 
appropriate authority.
    (b) A contractor that represented itself as a small business concern 
before contract award must rerepresent its size status for the North 
American Industry Classification System (NAICS) code in the contract 
upon the occurrence of any of the following:
    (1) Within 30 days after execution of a novation agreement or within 
30 days after modification of the contract to include the clause at 
52.219-28, Post-Award Small Business Program Rerepresentation, if the 
novation agreement was executed prior to inclusion of this clause in the 
contract.
    (2) Within 30 days after a merger or acquisition of the contractor 
that does not require novation or within 30 days after modification of 
the contract to include the clause at 52.219-28, Post-Award Small 
Business Program Rerepresentation, if the merger or acquisition occurred 
prior to inclusion of this clause in the contract.
    (3) For long-term contracts--
    (i) Within 60 to 120 days prior to the end of the fifth year of the 
contract; and

[[Page 415]]

    (ii) Within 60 to 120 days prior to the date specified in the 
contract for exercising any option thereafter.
    (c) A contractor must rerepresent its size status in accordance with 
the size standard in effect at the time of its rerepresentation that 
corresponds to the NAICS code that was initially assigned to the 
contract.
    (d) After a contractor rerepresents it is other than small in 
accordance with 52.219-28, the agency may no longer include the value of 
options exercised, modifications issued, orders issued, or purchases 
made under blanket purchase agreements on that contract in its small 
business prime contracting goal achievements. Agencies should issue a 
modification to the contract capturing the rerepresentation and report 
it to FPDS within 30 days after notification of the rerepresentation.
    (e) A change in size status does not change the terms and conditions 
of the contract.

[72 FR 36855, July 5, 2007, as amended at 74 FR 11825, Mar. 19, 2009]



Sec. 19.301-3  Rerepresentation by a contractor that represented itself 
          as other than a small business concern.

    A contractor that represented itself as other than small before 
contract award may, but is not required to, rerepresent its size status 
when--
    (a) The conditions in 19.301-2(b) apply; and
    (b) The contractor qualifies as a small business concern under the 
applicable size standard in effect at the time of its rerepresentation.

[72 FR 36855, July 5, 2007, as amended at 74 FR 11825, Mar. 19, 2009]



Sec. 19.302  Protesting a small business representation or 
          rerepresentation.

    (a) An offeror, the SBA, or another interested party may protest the 
small business representation of an offeror in a specific offer. 
However, for competitive 8(a) contracts, the filing of a protest is 
limited to an offeror, the contracting officer, or the SBA.
    (b) Any time after offers are opened, the contracting officer may 
question the small business representation of any offeror in a specific 
offer by filing a contracting officer's protest (see paragraph (c) 
below).
    (c)(1) Any contracting officer who receives a protest, whether 
timely or not, or who, as the contracting officer, wishes to protest the 
small business representation of an offeror, or rerepresentation of a 
contractor, shall promptly forward the protest to the SBA Government 
Contracting Area Office for the geographical area where the principal 
office of the concern in question is located.
    (2) The protest, or confirmation if the protest was initiated 
orally, shall be in writing and shall contain the basis for the protest 
with specific, detailed evidence to support the allegation that the 
offeror is not small. The SBA will dismiss any protest that does not 
contain specific grounds for the protest.
    (d) In order to affect a specific solicitation, a protest must be 
timely. SBA's regulations on timeliness are contained in 13 CFR 
121.1004. SBA's regulations on timeliness related to protests of 
disadvantaged status are contained in 13 CFR 124, Subpart B.
    (1) To be timely, a protest by any concern or other interested party 
must be received by the contracting officer (see (i) and (ii) of this 
section by the close of business of the 5th business day after bid 
opening (in sealed bid acquisitions) or receipt of the special 
notification from the contracting officer that identifies the apparently 
successful offeror (in negotiated acquisitions) (see 15.503(a)(2)).
    (i) A protest may be made orally if it is confirmed in writing 
either within the 5-day period or by letter postmarked no later than 1 
business day after the oral protest.
    (ii) A protest may be made in writing if it is delivered to the 
contracting officer by hand, telegram, or letter within the 5-day 
period.
    (2) A contracting officer's protest is always considered timely 
whether filed before or after award.
    (3) A protest under a Multiple Award Schedule will be timely if 
received by SBA at any time prior to the expiration of the contract 
period, including renewals.
    (e) Upon receipt of a protest from or forwarded by the Contracting 
Office, the SBA will--

[[Page 416]]

    (1) Notify the contracting officer and the protester of the date it 
was received, and that the size of the concern being challenged is under 
consideration by the SBA; and
    (2) Furnish to the concern whose representation is being protested a 
copy of the protest and a blank SBA Form 355, Application for Small 
Business Determination, by certified mail, return receipt requested.
    (f) Within 3 business days after receiving a copy of the protest and 
the form, the challenged concern must file with the SBA a completed SBA 
Form 355 and a statement answering the allegations in the protest, and 
furnish evidence to support its position. If the concern does not submit 
the required material within the 3 business days or another period of 
time granted by the SBA, the SBA may assume that the disclosure would be 
contrary to the concern's interests.
    (g)(1) Within 10 business days after receiving a protest, the 
challenged concern's response, and other pertinent information, the SBA 
will determine the size status of the challenged concern and notify the 
contracting officer, the protester, and the challenged concern of its 
decision by certified mail, return receipt requested.
    (2) The SBA Government Contracting Area Director, or designee, will 
determine the small business status of the questioned concern and notify 
the contracting officer and the concern of the determination. Award may 
be made on the basis of that determination. This determination is final 
unless it is appealed in accordance with paragraph (i) of this section, 
and the contracting officer is notified of the appeal before award. If 
an award was made before the time the contracting officer received 
notice of the appeal, the contract shall be presumed to be valid.
    (h)(1) After receiving a protest involving an offeror being 
considered for award, the contracting officer shall not award the 
contract until (i) the SBA has made a size determination or (ii) 10 
business days have expired since SBA's receipt of a protest, whichever 
occurs first; however, award shall not be withheld when the contracting 
officer determines in writing that an award must be made to protect the 
public interest.
    (2) After the 10-day period has expired, the contracting officer 
may, when practical, continue to withhold award until the SBA's 
determination is received, unless further delay would be disadvantageous 
to the Government.
    (3) Whenever an award is made before the receipt of SBA's size 
determination, the contracting officer shall notify SBA that the award 
has been made.
    (4) If a protest is received that challenges the small business 
status of an offeror not being considered for award, the contracting 
officer is not required to suspend contract action. The contracting 
officer shall forward the protest to the SBA (see paragraph (c)(1) of 
this section) with a notation that the concern is not being considered 
for award, and shall notify the protester of this action.
    (i) An appeal from an SBA size determination may be filed by: any 
concern or other interested party whose protest of the small business 
representation of another concern has been denied by an SBA Government 
Contracting Area Director; any concern or other interested party that 
has been adversely affected by a Government Contracting Area Director's 
decision; or the SBA Associate Administrator for the SBA program 
involved. The appeal must be filed with the--

Office of Hearings and Appeals, Small Business Administration, Suite 
5900, 409 3rd Street, SW., Washington, DC 20416


within the time limits and in strict accordance with the procedures 
contained in subpart C of 13 CFR Part 134. It is within the discretion 
of the SBA Judge whether to accept an appeal from a size determination. 
If the Judge decides not to consider such an appeal, the Judge will 
issue an order denying review and specifying the reasons for the 
decision. The SBA will inform the contracting officer of its ruling on 
the appeal. The SBA decision, if received before award, will apply to 
the pending acquisition. SBA rulings received after award shall not 
apply to that acquisition.
    (j) A protest that is not timely, even though received before award, 
shall be

[[Page 417]]

forwarded to the SBA Government Contracting Area Office (see paragraph 
(c)(1) of this section), with a notation on it that the protest is not 
timely. The protester shall be notified that the protest cannot be 
considered on the instant acquisition but has been referred to SBA for 
its consideration in any future actions. A protest received by a 
contracting officer after award of a contract shall be forwarded to the 
SBA Government Contracting Area Office with a notation that award has 
been made. The protester shall be notified that the award has been made 
and that the protest has been forwarded to SBA for its consideration in 
future actions.
    (k) When a concern is found to be other than small under a protest 
concerning a size status rerepresentation made in accordance with the 
clause at 52.219-28, Post-Award Small Business Program Rerepresentation, 
a contracting officer may permit contract performance to continue, issue 
orders, or exercise option(s), because the contract remains a valid 
contract.

[48 FR 42240, Sept. 19, 1983, as amended at 50 FR 1743, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 51 FR 2664, Jan. 17, 1986; 60 FR 42656, Aug. 
16, 1995; 61 FR 69289, Dec. 31, 1996; 62 FR 44820, Aug. 22, 1997; 62 FR 
51270, Sept. 30, 1997; 63 FR 9053, 9055, Feb. 23, 1998; 63 FR 35722, 
June 30, 1998; 64 FR 32743, June 17, 1999; 67 FR 13054, Mar. 20, 2002; 
72 FR 36855, July 5, 2007]



Sec. 19.303  Determining North American Industry Classification System 
          (NAICS) codes and size standards.

    (a) The contracting officer shall determine the appropriate NAICS 
code and related small business size standard and include them in 
solicitations above the micro-purchase threshold. For information on 
size standards matched to industry NAICS codes, including the use of new 
NAICS codes, see also 19.102(a).
    (b) If different products or services are required in the same 
solicitation, the solicitation shall identify the appropriate small 
business size standard for each product or service.
    (c) The contracting officer's determination is final unless appealed 
as follows:
    (1) An appeal from a contracting officer's NAICS code designation 
and the applicable size standard must be served and filed within 10 
calendar days after the issuance of the initial solicitation. SBA's 
Office of Hearings and Appeals (OHA) will dismiss summarily an untimely 
NAICS code appeal.
    (2)(i) The appeal petition must be in writing and must be addressed 
to the--

Office of Hearings and Appeals, Small Business Administration, Suite 
5900, 409 3rd Street, SW., Washington, DC 20416

    (ii) There is no required format for the appeal; however, the appeal 
must include--
    (A) The solicitation or contract number and the name, address, and 
telephone number of the contracting officer;
    (B) A full and specific statement as to why the size determination 
or NAICS code designation is allegedly erroneous and argument supporting 
the allegation; and
    (C) The name, address, telephone number, and signature of the 
appellant or its attorney.
    (3) The appellant must serve the appeal petition upon--
    (i) The SBA official who issued the size determination;
    (ii) The contracting officer who assigned the NAICS code to the 
acquisition;
    (iii) The business concern whose size status is at issue;
    (iv) All persons who filed protests; and
    (v) SBA's Office of General Counsel.
    (4) Upon receipt of a NAICS code appeal, OHA will notify the 
contracting officer by a notice and order of the date OHA received the 
appeal, the docket number, and Judge assigned to the case. The 
contracting officer's response to the appeal, if any, must include 
argument and evidence (see 13 CFR Part 134), and must be received by OHA 
within 10 calendar days from the date of the docketing notice and order, 
unless otherwise specified by the Administrative Judge. Upon receipt of 
OHA's docketing notice and order, the contracting officer must 
immediately send to OHA a copy of the solicitation relating to the NAICS 
code appeal.
    (5) After close of record, OHA will issue a decision and inform the 
contracting officer. If OHA's decision is received by the contracting 
officer before the date the offers are due, the decision

[[Page 418]]

shall be final and the solicitation must be amended to reflect the 
decision, if appropriate. OHA's decision received after the due date of 
the initial offers shall not apply to the pending solicitation but shall 
apply to future solicitations of the same products or services.

[48 FR 42240, Sept. 19, 1983, as amended at 51 FR 2664, Jan. 17, 1986; 
55 FR 38516, Sept. 18, 1990; 55 FR 52791, Dec. 21, 1990; 60 FR 34756, 
July 3, 1995; 61 FR 39198, July 26, 1996; 62 FR 236, Jan. 2, 1997; 63 FR 
9056, Feb. 23, 1998; 65 FR 46056, 46057, July 26, 2000; 77 FR 56742, 
Sept. 13, 2012]



Sec. 19.304  Disadvantaged business status.

    (a) To be eligible to receive a benefit as a prime contractor based 
on its disadvantaged status, a concern, at the time of its offer, must 
either be certified as a small disadvantaged business (SDB) concern or 
have a completed SDB application pending at the SBA or a Private 
Certifier (see 19.001).
    (b) The contracting officer may accept an offeror's representation 
that it is an SDB concern for general statistical purposes. The 
provision at 52.219-1, Small Business Program Representations, or 
52.212-3(c)(4), Offeror Representations and Certifications-Commercial 
Items, is used to collect SDB data for general statistical purposes.
    (c) The provision at 52.219-22, Small Disadvantaged Business Status, 
or 52.212-3(c)(8), Offeror Representations and Certifications--
Commercial Items, is used to obtain SDB status when the prime contractor 
may receive a benefit based on its disadvantaged status. The mechanisms 
that may provide benefits on the basis of disadvantaged status as a 
prime contractor are a price evaluation adjustment for SDB concerns (see 
Subpart 19.11), and an evaluation factor or subfactor for SDB 
participation (see 19.1202).
    (1) If the apparently successful offeror has represented that it is 
currently certified as an SDB, the contracting officer may confirm that 
the concern is identified as a small disadvantaged business concern by 
accessing SBA's database (PRO-Net) or by contacting the SBA's Office of 
Small Disadvantaged Business Certification and Eligibility.
    (2) If the apparently successful offeror has represented that its 
SDB application is pending at the SBA or a Private Certifier, and its 
position as the apparently successful offeror is due to the application 
of the price evaluation adjustment, the contracting officer shall follow 
the procedure in paragraph (d) of this section.
    (d) Notifications to SBA of potential awards to offerors with 
pending SDB applications. (1) The contracting officer shall notify the 
Small Business Administration Assistant Administrator for SDBCE 409 
Third Street, SW Washington, DC 20416. The notification shall contain 
the name of the apparently successful offeror, and the names of any 
other offerors that have represented that their applications for SDB 
status are pending at the SBA or a Private Certifier and that could 
receive the award due to the application of a price evaluation 
adjustment if the apparently successful offeror is determined not to be 
an SDB by the SBA.
    (2) The SBA will, within 15 calendar days after receipt of the 
notification, determine the disadvantaged status of the apparently 
successful offeror and, as appropriate, any other offerors referred by 
the contracting officer and will notify the contracting officer.
    (3) If the contracting officer does not receive an SBA determination 
within 15 calendar days after the SBA's receipt of the notification, the 
contracting officer shall presume that the apparently successful 
offeror, and any other offerors referred by the contracting officer, are 
not disadvantaged, and shall make award accordingly, unless the 
contracting officer grants an extension to the 15-day response period. 
No written determination is required for the contracting officer to make 
award at any point following the expiration of the 15-day response 
period.
    (4) When the contracting officer makes a written determination that 
award must be made to protect the public interest, the contracting 
officer may proceed to contract award without notifying SBA or before 
receiving a determination of SDB status from SBA during the 15-day 
response period. In both cases, the contracting officer

[[Page 419]]

shall presume that the apparently successful offeror, or any other 
offeror referred to the SBA whose SDB application is pending, is not an 
SDB and shall make award accordingly.

[63 FR 35722, June 30, 1998, as amended at 63 FR 36122, July 1, 1998; 64 
FR 36223, July 2, 1999; 65 FR 60545, Oct. 11, 2000; 75 FR 82567, Dec. 
30, 2010]



Sec. 19.305  Protesting a representation of disadvantaged business 
          status.

    (a) This section applies to protests of a small business concern's 
disadvantaged status as a prime contractor. Protests of a small business 
concern's disadvantaged status as a subcontractor are processed under 
19.703(a)(2). Protests of a concern's size as a prime contractor are 
processed under 19.302. Protests of a concern's size as a subcontractor 
are processed under 19.703(b). An offeror, the contracting officer, or 
the SBA may protest the apparently successful offeror's representation 
of disadvantaged status if the concern is eligible to receive a benefit 
based on its disadvantaged status (see Subpart 19.11 and 19.1202).
    (b) An offeror, excluding an offeror determined by the contracting 
officer to be non-responsive or outside the competitive range, or an 
offeror that SBA has previously found to be ineligible for the 
requirement at issue, may protest the apparently successful offeror's 
representation of disadvantaged status by filing a protest in writing 
with the contracting officer. SBA regulations concerning protests are 
contained in 13 CFR 124, Subpart B. The protest--
    (1) Must be filed within the times specified in 19.302(d)(1); and
    (2) Must contain specific facts or allegations supporting the basis 
of protest.
    (c) The contracting officer or the SBA may protest in writing a 
concern's representation of disadvantaged status at any time following 
bid opening or notification of intended award.
    (1) If a contracting officer's protest is based on information 
provided by a party ineligible to protest directly or ineligible to 
protest under the timeliness standard, the contracting officer must be 
persuaded by the evidence presented before adopting the grounds for 
protest as his or her own.
    (2) The SBA may protest a concern's representation of disadvantaged 
status by filing directly with its Assistant Administrator for Small 
Disadvantaged Business Certification and Eligibility and notifying the 
contracting officer.
    (d) The contracting officer shall return premature protests to the 
protestor. A protest is considered to be premature if it is submitted 
before bid opening or notification of intended award. SBA normally will 
not consider a postaward protest. SBA may consider a postaward protest 
in its discretion where it determines that an SDB determination after 
award is meaningful (e.g., where the contracting officer agrees to 
terminate the contract if the protest is sustained).
    (e) Upon receipt of a protest that is not premature, the contracting 
officer shall withhold award and forward the protest to Small Business 
Administration, Assistant Administrator for SDBCE, 409 Third Street, SW, 
Washington, DC 20416. The contracting officer shall send to SBA--
    (1) The written protest and any accompanying materials;
    (2) The date the protest was received;
    (3) A copy of the protested concern's representation as a small 
disadvantaged business, and the date of such representation; and
    (4) The date of bid opening or date on which notification of the 
apparently successful offeror was sent to unsuccessful offerors.
    (f) When the contracting officer makes a written determination that 
award must be made to protect the public interest, award may be made 
notwithstanding the protest.
    (g) The SBA Assistant Administrator for Small Disadvantaged Business 
Certification and Eligibility will notify the protestor and the 
contracting officer of the date the protest was received and whether it 
will be processed or dismissed for lack of timeliness or specificity. 
For protests that are not dismissed, the SBA will, within 15 working 
days after receipt of the protest, determine the disadvantaged status of 
the challenged offeror and will notify the contracting officer, the 
challenged offeror, and the protestor. Award may

[[Page 420]]

be made on the basis of that determination. The determination is final 
for purposes of the instant acquisition, unless it is appealed and--
    (1) The contracting officer receives the SBA's decision on the 
appeal before award; or
    (2) The contracting officer has agreed to terminate the contract, as 
appropriate, based on the outcome of the appeal (see 13 CFR 124, Subpart 
B).
    (h) If the contracting officer does not receive an SBA determination 
within 15 working days after the SBA's receipt of the protest, the 
contracting officer shall presume that the challenged offeror is 
disadvantaged and may award the contract, unless the SBA requests and 
the contracting officer grants an extension to the 15-day response 
period.
    (i) An SBA determination may be appealed by--
    (1) The party whose protest has been denied;
    (2) The concern whose status was protested; or
    (3) The contracting officer.
    (j) The appeal must be filed with the SBA's Administrator or 
designee within five working days after receipt of the determination. If 
the contracting officer receives the SBA's decision on the appeal before 
award, the decision shall apply to the instant acquisition. If the 
decision is received after award, it will not apply to the instant 
acquisition (but see paragraph (g)(2) of this section).

[63 FR 35722, June 30, 1998, as amended at 63 FR 36122, July 1, 1998]



Sec. 19.306  Protesting a firm's status as a HUBZone small business 
          concern.

    (a) Definition. As used in this section--
    Interested party has the meaning given in 13 CFR 126.103.
    (b) HUBZone Small Business Status. (1) For sole source acquisitions, 
the SBA or the contracting officer may protest the apparently successful 
offeror's HUBZone small business concern status.
    (2) For all other acquisitions, an offeror that is an interested 
party, the contracting officer, or the SBA may protest the apparently 
successful offeror's qualified HUBZone small business concern status.
    (c) Protests relating to whether a HUBZone small business concern is 
a small business for purposes of any Federal program are subject to the 
procedures of subpart 19.3. Protests relating to small business size 
status for the acquisition and the HUBZone qualifying requirements will 
be processed concurrently by SBA.
    (d) All protests must be in writing and must state all specific 
grounds for the protest. Assertions that a protested concern is not a 
qualified HUBZone small business concern, without setting forth specific 
facts or allegations, are insufficient. An offeror must submit its 
protest to the contracting officer. The contracting officer and the SBA 
must submit protests to SBA's Associate Administrator for the HUBZone 
Program (Director/HUB).
    (e)(1) The protest of an offeror that is an interested party must be 
submitted by--
    (i) For sealed bids:
    (A) The close of business on the fifth business day after bid 
opening; or
    (B) The close of business on the fifth business day from the date of 
identification of the apparent successful offeror, if the price 
evaluation preference was not applied at the time of bid opening.
    (ii) For negotiated acquisitions, the close of business on the fifth 
business day after notification by the contracting officer of the 
apparently successful offeror.
    (2) Any protest submitted after these time limits is untimely, 
unless it is submitted by the SBA or the contracting officer. Any 
protest received prior to bid opening or notification of intended award, 
whichever applies, is premature and shall be returned to the protester.
    (f) Except for premature protests, the contracting officer shall 
forward all protests received, notwithstanding whether the contracting 
officer believes that the protest is not sufficiently specific, timely, 
or submitted by an interested party. The contracting officer shall also 
forward a referral letter with the information required by 13 CFR 
126.801(e).

[[Page 421]]

    (g)(1) Protests may be submitted in person or by facsimile, express 
delivery service, or U.S. mail (postmarked within the applicable time 
period) to the Director/HUB, U.S. Small Business Administration, 409 3rd 
Street, SW., Washington, DC 20416, Fax (202) 205-7167.
    (2) The Director/HUB will notify the protester and the contracting 
officer that the protest was received and indicate whether the protest 
will be processed or dismissed for lack of timeliness or specificity. A 
protest will be dismissed if SBA determines the protester is not an 
interested party.
    (h) SBA will determine the HUBZone status of the protested HUBZone 
small business concern within 15 business days after receipt of a 
protest. If SBA does not contact the contracting officer within 15 
business days, the contracting officer may award the contract to the 
apparently successful offeror, unless the contracting officer has 
granted SBA an extension. The contracting officer may award the contract 
after receipt of a protest if the contracting officer determines in 
writing that an award must be made to protect the public interest.
    (i) SBA will notify the contracting officer, the protester, and the 
protested concern of its determination. The determination is effective 
immediately and is final unless overturned on appeal by SBA's Associate 
Deputy Administrator for Government Contracting and Administrator for 
Government Contracting and 8(a) Business Development(AA/GC&BD).
    (j) The protested HUBZone small business concern, the protester, or 
the contracting officer may file appeals of protest determinations with 
SBA's AA/GC&BD. The AA/GC&BD must receive the appeal no later than 5 
business days after the date of receipt of the protest determination. 
SBA will dismiss any appeal received after the 5-day period.
    (k) The appeal must be in writing. The appeal must identify the 
protest determination being appealed and must set forth a full and 
specific statement as to why the decision is erroneous or what 
significant fact the Director/HUB failed to consider.
    (l) The party appealing the decision must provide notice of the 
appeal to the contracting officer and either the protested HUBZone small 
business concern or the original protester, as appropriate. SBA will not 
consider additional information or changed circumstances that were not 
disclosed at the time of the Director/HUB's decision or that are based 
on disagreement with the findings and conclusions contained in the 
determination.
    (m) The AA/GC&BD will make its decision within 5 business days of 
the receipt of the appeal, if practicable, and will base its decision 
only on the information and documentation in the protest record as 
supplemented by the appeal. SBA will provide a copy of the decision to 
the contracting officer, the protester, and the protested HUBZone small 
business concern. The SBA decision, if received before award, will apply 
to the pending acquisition. SBA rulings received after award will not 
apply to that acquisition. The AA/GC&BD's decision is the final 
decision.

[63 FR 70269, Dec. 18, 1998, as amended at 64 FR 51831, Sept. 24, 1999; 
75 FR 77729, Dec. 13, 2010]



Sec. 19.307  Protesting a firm's status as a service-disabled veteran-
          owned small business concern.

    (a) For sole source acquisitions, the SBA or the contracting officer 
may protest the apparently successful offeror's service-disabled 
veteran-owned small business status. For service-disabled veteran-owned 
small business set-asides, any interested party may protest the 
apparently successful offeror's service-disabled veteran-owned small 
business concern status.
    (b) Protests relating to whether a service-disabled veteran-owned 
small business concern is a small business for purposes of any Federal 
program are subject to the procedures of Subpart 19.3. Protests relating 
to small business size status for the acquisition and the service-
disabled veteran-owned small business status requirements will be 
processed concurrently by SBA.
    (c) All protests must be in writing and must state all specific 
grounds for the protest. Assertions that a protested concern is not a 
service-disabled veteran-owned small business concern,

[[Page 422]]

without setting forth specific facts or allegations, are insufficient. 
An offeror must submit its protest to the contracting officer. The 
contracting officer and the SBA must submit protests to SBA's Associate 
Administrator for Government Contracting. The SBA regulations are found 
at 13 CFR 125.24 through 125.28.
    (d) An offeror's protest must be received by close of business on 
the fifth business day after bid opening (in sealed bid acquisitions) or 
by close of business on the fifth business day after notification by the 
contracting officer of the apparently successful offeror (in negotiated 
acquisitions). Any protest received after these time limits is untimely. 
Any protest received prior to bid opening or notification of intended 
award, whichever applies, is premature and shall be returned to the 
protester.
    (e) Except for premature protests, the contracting officer must 
forward to SBA by mail or facsimile transmission (202-205-6390) any 
protest received, notwithstanding whether the contracting officer 
believes that the protest is insufficiently specific or untimely. The 
protest must be accompanied by a referral letter, with the notation on 
the envelope or facsimile cover sheet: ``Attn: Service-Disabled Veteran 
Status Protest,'' and be sent to Associate Administrator for Government 
Contracting AA/GU, U.S. Small Business Administration, 409 3rd Street, 
SW., Washington, DC 20416.
    (f) The referral letter must include information pertaining to the 
solicitation that may be necessary for SBA to determine timeliness and 
standing, including the solicitation number; the name, address, 
telephone number and facsimile number of the contracting officer; 
whether the contract was sole-source or set-aside; whether the protestor 
submitted an offer; whether the protested concern was the apparent 
successful offeror; when the protested concern submitted its offer 
(i.e., made the self-representation that it was a service-disabled 
veteran-owned small business concern); whether the procurement was 
conducted using sealed bid or negotiated procedures; the bid opening 
date, if applicable; when the protest was submitted; when the protester 
received notification about the apparent successful offeror, if 
applicable; and whether a contract has been awarded.
    (g) The Associate Administrator for Government Contracting will 
notify the protester and the contracting officer of the date the protest 
was received and whether the protest will be processed or dismissed for 
lack of timeliness or specificity.
    (h) All questions about service-disabled veteran-owned small 
business size or status must be referred to the SBA for resolution. When 
making its determinations of veteran, service-disabled veteran, or 
service-disabled veteran with a permanent and severe disability status, 
the SBA will rely upon determinations made by the Department of 
Veteran's Affairs, Department of Defense determinations, or such 
determinations identified by documents provided by the U.S. National 
Archives and Records Administration. SBA will determine the service-
disabled veteran-owned small business status of the protested concern 
within 15 business days after receipt of a protest. If SBA does not 
contact the contracting officer within 15 business days, the contracting 
officer may award the contract to the apparently successful offeror, 
unless the contracting officer has granted SBA an extension. The 
contracting officer may award the contract after receipt of a protest if 
the contracting officer determines in writing that an award must be made 
to protect the public interest.
    (i) SBA will notify the contracting officer, the protester, and the 
protested concern of its determination. The determination is effective 
immediately and is final unless overturned on appeal by SBA's Office of 
Hearings and Appeals (OHA) pursuant to 13 CFR part 134.

[69 FR 25277, May 5, 2004, as amended at 70 FR 14954, Mar. 23, 2005]

[[Page 423]]



Sec. 19.308  Protesting a firm's status as an economically disadvantaged 
          women-owned small business (EDWOSB) concern or women-owned 
          small business (WOSB) concern eligible under the WOSB Program.

    (a) An offeror, the contracting officer, or the SBA may protest the 
apparent successful offeror's status as an EDWOSB concern or WOSB 
concern eligible under the WOSB Program.
    (b) Protests relating to small business size status are subject to 
the procedures of subpart 19.3. An interested party (see 19.308(a)) 
seeking to protest both the size and status of an apparent successful 
offeror shall file two separate protests.
    (c) All protests shall be in writing and must state all specific 
grounds for the protest.
    (1) SBA will consider protests challenging the status of a concern 
if--
    (i) The protest presents evidence that the concern is not at least 
51 percent owned and controlled by one or more women who are United 
States citizens; or
    (ii) The protest presents evidence that the concern is not at least 
51 percent owned and controlled by one or more economically 
disadvantaged women, when it is in connection with an EDWOSB contract.
    (2) SBA shall consider protests by a contracting officer when the 
apparent successful offeror has failed to provide all of the required 
documents, as set forth in FAR 19.1503(c).
    (d) Protest by an offeror.
    (1) An offeror shall submit its protest to the contracting officer--
    (i) To be received by the close of business by the fifth business 
day after bid opening (in sealed bid acquisitions); or
    (ii) To be received by the close of business by the fifth business 
day after notification by the contracting officer of the apparent 
successful offeror (in negotiated acquisitions).
    (2) Any protest received after the designated time limit is 
untimely, unless it is from the contracting officer or SBA.
    (e)(1) The contracting officer shall forward all protests to SBA. 
The protests are to be submitted to SBA's Director for Government 
Contracting, U.S. Small Business Administration, 409 Third Street, SW., 
Washington, DC 20416 or by fax to (202) 205-6390, Attn: Women-owned 
Small Business Status Protest. SBA's protest regulations are found in 
subpart F ``Protests'' at 13 CFR 127.600 through 127.605.
    (2) The protest shall include a referral letter written by the 
contracting officer with information pertaining to the solicitation. The 
referral letter must include the following information to allow SBA to 
determine timeliness and standing of the protest:
    (i) The solicitation number; the name, address, telephone number and 
facsimile number of the contracting officer, the successful offeror and 
the protester.
    (ii) Whether the protestor submitted an offer.
    (iii) Whether the protested concern was the apparent successful 
offeror.
    (iv) When the protested concern submitted its offer.
    (v) Whether the acquisition was conducted using sealed bid or 
negotiated procedures.
    (vi) The bid opening date, if applicable.
    (vii) The date the contracting officer received the protest.
    (viii) The date the protestor received notification about the 
apparent successful offeror, if applicable; and
    (ix) Whether a contract has been awarded.
    (f) SBA will notify the protester and the contracting officer of the 
date the protest was received.
    (g) Before SBA decision. The contracting officer may award the 
contract after receipt of the protest but before SBA issues its decision 
if the contracting officer determines in writing that an award must be 
made to prevent significant harm to the public interest.
    (1) SBA will determine the merits of the status protest within 15 
business days after receipt of a protest, or within any extension of 
that time that the contracting officer may grant SBA.
    (2) If SBA does not issue its determination within 15 business days, 
the contracting officer shall contact SBA to obtain the status of its 
decision.
    (3) After contacting SBA, if the contracting officer determines in 
writing

[[Page 424]]

that there is an immediate need and it is in the public's interest to 
proceed with award, the contracting officer may award the contract. This 
determination shall be provided to the SBA Director for Government 
Contracting and a copy shall be included in the contract file.
    (h) After SBA decision. SBA will notify the contracting officer, the 
protester, and the protested concern of its determination. The 
determination is effective immediately and is final unless overturned on 
appeal by SBA's Office of Hearings and Appeals (OHA) pursuant to 13 CFR 
part 134.
    (1) If SBA has denied or dismissed the protest, the contracting 
officer may award the contract to the protested concern. If OHA 
subsequently overturns the SBA Director for Government Contracting's 
determination or dismissal, the contracting officer may apply the OHA 
decision to the procurement in question.
    (2) If SBA has sustained the protest and determined that the concern 
is not eligible under the WOSB Program, and no OHA appeal has been 
filed, then--
    (i) The concern must remove its designation in the System for Award 
Management (SAM) as an EDWOSB or WOSB concern eligible under the WOSB 
Program, and shall not submit an offer as an EDWOSB concern or WOSB 
concern eligible under the WOSB Program, until SBA issues a decision 
that the ineligibility is resolved.
    (ii) The contracting officer shall not award the contract to the 
protested concern.
    (iii) The contracting officer shall terminate the award, shall not 
exercise any options or award further task or delivery orders, if the 
contracting officer receives the determination after contract award.
    (iv) The contracting officer may allow contract performance to 
continue when a written determination is made in accordance with 
19.308(g) and (h), but shall not exercise any options or award further 
task or delivery orders.
    (v) The contracting officer shall update the FPDS to reflect the 
final SBA decision.
    (3) If SBA has sustained the protest and determined that the concern 
is not eligible under the WOSB Program, and a timely OHA appeal has been 
filed, then--
    (i) The contracting officer must consider whether performance can be 
suspended until an OHA decision is rendered.
    (ii) The contracting officer shall either terminate the contract, 
not exercise the next option, or not award further task or delivery 
orders, if OHA affirms the SBA Director for Government Contracting's 
determination finding the protested concern is ineligible. The 
contracting officer may allow contract performance to continue when a 
written determination is made in accordance with 19.308(g) and (h), but 
shall not exercise any options or award further task or delivery orders; 
and
    (iii) The contracting officer shall update the FPDS to reflect OHA's 
decision.
    (iv) The concern must remove its designation in SAM as an EDWOSB or 
WOSB concern eligible under the WOSB Program, and shall not submit an 
offer as an EDWOSB concern or WOSB concern eligible under the WOSB 
Program, until SBA issues a decision that the ineligibility is resolved 
or OHA finds the concern is eligible on appeal.

[76 FR 18309, Apr. 1, 2011, as amended at 77 FR 12916, Mar. 2, 2012; 78 
FR 37679, June 21, 2013]



Sec. 19.309  Solicitation provisions and contract clauses.

    (a)(1) Insert the provision at 52.219-1, Small Business Program 
Representations, in solicitations exceeding the micro-purchase threshold 
when the contract will be performed in the United States or its outlying 
areas.
    (2) Use the provision with its Alternate I in solicitations issued 
by DoD, NASA, or the Coast Guard.
    (b) Insert the provision at 52.219-22, Small Disadvantaged Business 
Status, in solicitations that include the clause at 52.219-23, Notice of 
Price Evaluation Adjustment for Small Disadvantaged Business Concerns, 
or 52.219-25, Small Disadvantaged Business Participation Program--
Disadvantaged Status and Reporting. Use the provision with its

[[Page 425]]

Alternate I in solicitations for acquisitions for which a price 
evaluation adjustment for small disadvantaged business concerns is 
authorized on a regional basis.
    (c) When contracting by sealed bidding, insert the provision at 
52.219-2, Equal Low Bids, in solicitations when the contract will be 
performed in the United States or its outlying areas.
    (d) Insert the clause at 52.219-28, Post-Award Small Business 
Program Rerepresentation, in solicitations and contracts exceeding the 
micro-purchase threshold when the contract will be performed in the 
United States or its outlying areas.

[64 FR 51832, Sept. 24, 1999, as amended at 67 FR 13066, Mar. 20, 2002; 
68 FR 28081, May 22, 2003. Redesignated at 69 FR 25277, May 5, 2004, as 
amended at 72 FR 36855, July 5, 2007. Redesignated at 76 FR 18309, Apr. 
1, 2011]

     Subpart 19.4_Cooperation With the Small Business Administration



Sec. 19.401  General.

    (a) The Small Business Act is the authority under which the Small 
Business Administration (SBA) and agencies consult and cooperate with 
each other in formulating policies to ensure that small business 
interests will be recognized and protected.
    (b) The Director of Small and Disadvantaged Business Utilization 
serves as the agency focal point for interfacing with SBA.

[48 FR 42240, Sept. 19, 1983, as amended at 60 FR 48261, Sept. 18, 1995]



Sec. 19.402  Small Business Administration procurement center 
          representatives.

    (a)(1) The SBA may assign one or more procurement center 
representatives to any contracting activity or contract administration 
office to carry out SBA policies and programs. Assigned SBA procurement 
center representatives are required to comply with the contracting 
agency's directives governing the conduct of contracting personnel and 
the release of contract information. The SBA must obtain for its 
procurement center representatives security clearances required by the 
contracting agency.
    (2) If a SBA procurement center representative is not assigned to 
the procuring activity or contract administration office, contact the 
SBA Office of Government Contracting Area Office serving the area in 
which the procuring activity is located for assistance in carrying out 
SBA policies and programs. See http://www.sba.gov/content/procurement-
center-representatives for the location of the SBA office servicing the 
activity.
    (b) Upon their request and subject to applicable acquisition and 
security regulations, contracting officers shall give SBA procurement 
center representatives (or, if a procurement center representative is 
not assigned, see paragraph (a) of this section) access to all 
reasonably obtainable contract information that is directly pertinent to 
their official duties.
    (c) The duties assigned by SBA to its procurement center 
representatives include the following:
    (1) Reviewing proposed acquisitions to recommend--
    (i) The setting aside of selected acquisitions not unilaterally set 
aside by the contracting officer;
    (ii) New qualified small business sources, including veteran-owned 
small, service-disabled veteran-owned small, HUBZone small, small 
disadvantaged, economically disadvantaged women-owned small, and women-
owned small eligible under the Woman-Owned Small Business Program; and
    (iii) Breakout of components for competitive acquisitions.
    (2) Reviewing proposed acquisition packages provided in accordance 
with 19.202-1(e). If the SBA procurement center representative (or, if a 
procurement center representative is not assigned, see paragraph (a) of 
this section) believes that the acquisition, as proposed, makes it 
unlikely that small businesses can compete for the prime contract, the 
representative shall recommend any alternate contracting method that the 
representative reasonably believes will increase small business prime 
contracting opportunities. The recommendation shall be made to the 
contracting officer within 15 days after receipt of the package.

[[Page 426]]

    (3) Recommending concerns for inclusion on a list of concerns to be 
solicited in a specific acquisition.
    (4) Appealing to the chief of the contracting office any contracting 
officer's determination not to solicit a concern recommended by the SBA 
for a particular acquisition, when not doing so results in no small 
business being solicited.
    (5) Conducting periodic reviews of the contracting activity to which 
assigned to ascertain whether it is complying with the small business 
policies in this regulation.
    (6) Sponsoring and participating in conferences and training 
designed to increase small business participation in the contracting 
activities of the office.

[48 FR 42240, Sept. 19, 1983, as amended at 51 FR 19715, May 30, 1986; 
56 FR 67132, Dec. 27, 1991; 60 FR 48261, Sept. 18, 1995; 63 FR 70269, 
Dec. 18, 1998; 65 FR 60545, Oct. 11, 2000; 68 FR 43856, July 24, 2003; 
71 FR 36925, June 28, 2006; 76 FR 18310, Apr. 1, 2011; 77 FR 204, Jan. 
3, 2012]



Sec. 19.403  Small Business Administration breakout procurement center 
          representatives.

    (a) The SBA is required by section 403 of Pub. L. 98-577 to assign a 
breakout procurement center representative to each major procurement 
center. A major procurement center means a procurement center that, in 
the opinion of the administrator, purchases substantial dollar amounts 
of other than commercial items, and which has the potential to incur 
significant savings as a result of the placement of a breakout 
procurement representative. The SBA breakout procurement center 
representative is an advocate for (1) the appropriate use of full and 
open competition, and (2) the breakout of items, when appropriate and 
while maintaining the integrity of the system in which such items are 
used. The SBA breakout procurement center representative is in addition 
to the SBA procurement center representative (see 19.402). When an SBA 
breakout procurement center representative is assigned, the SBA is 
required to assign at least two collocated small business technical 
advisors. Assigned SBA breakout procurement center representatives and 
technical advisors are required to comply with the contracting agency's 
directives governing the conduct of contracting personnel and the 
release of contract information. The SBA must obtain for its breakout 
procurement center representatives and technical advisors security 
clearances required by the contracting agency.
    (b) Contracting officers shall comply with 19.402(b) in their 
relationships with SBA breakout procurement center representatives and 
SBA small business technical advisors.
    (c) The SBA breakout procurement center representative is authorized 
to--
    (1) Attend any provisioning conference or similar evaluation session 
during which determinations are made as to whether requirements are to 
be acquired using other than full and open competition and make 
recommendations with respect to such requirements to the members of such 
conference or session;
    (2) Review, at any time, restrictions on competition previously 
imposed on items through acquisition method coding or similar procedures 
and recommend to personnel of the appropriate activity the prompt 
reevaluation of such limitations;
    (3) Review restrictions on competition arising out of restrictions 
on the rights of the United States in technical data and, when 
appropriate, recommend that personnel of the appropriate activity 
initiate a review of the validity of such an asserted restriction;
    (4) Obtain from any governmental source, and make available to 
personnel of the appropriate center, technical data necessary for the 
preparation of a competitive solicitation package for any item of supply 
or service previously acquired noncompetitively due to the 
unavailability of such technical data;
    (5) Have access to procurement records and other data of the 
procurement center commensurate with the level of such representative's 
approved security clearance classification;
    (6) Receive unsolicited engineering proposals and, when 
appropriate--
    (i) Conduct a value analysis of such proposal to determine whether 
it, if adopted, will result in lower costs to the United States without 
substantially impeding legitimate acquisition

[[Page 427]]

objectives and forward to personnel of the appropriate center 
recommendations with respect to such proposal; or
    (ii) Forward such proposals without analysis to personnel of the 
center responsible for reviewing them who shall furnish the breakout 
procurement center representative with information regarding the 
proposal's disposition;
    (7) Review the systems that account for the acquisition and 
management of technical data within the procurement center to ensure 
that such systems provide the maximum availability and access to data 
needed for the preparation of offers to sell to the United States those 
supplies to which such data pertain which potential offerors are 
entitled to receive;
    (8) Appeal the failure by the procurement center to act favorably on 
any recommendation made pursuant to subparagraphs (c) (1) through (7) of 
this section. Such appeal must be in writing and shall be filed and 
processed in accordance with the appeal procedures set out in 19.505;
    (9) Conduct familiarization sessions for contracting officers and 
other appropriate personnel of the procurement center to which assigned. 
Such sessions shall acquaint the participants with the duties and 
objectives of the representative and shall instruct them in the methods 
designed to further the breakout of items for procurement through full 
and open competition; and
    (10) Prepare and personally deliver an annual briefing and report to 
the head of the procurement center to which assigned. Such briefing and 
report shall detail the past and planned activities of the 
representative and shall contain recommendations for improvement in the 
operation of the center as may be appropriate. The head of such center 
shall personally receive the briefing and report and shall, within 60 
calendar days after receipt, respond, in writing, to each recommendation 
made by the representative.
    (d) The duties of the SBA small business technical advisors are to 
assist the SBA breakout procurement center representative in carrying 
out the activities described in (c) (1) through (7) of this section and 
to assist the SBA procurement center representatives (see FAR 19.402).

[51 FR 19715, May 30, 1986, as amended at 54 FR 25062, June 12, 1989]

               Subpart 19.5_Set-Asides for Small Business



Sec. 19.501  General.

    (a) The purpose of small business set-asides is to award certain 
acquisitions exclusively to small business concerns. A ``set-aside for 
small business'' is the reserving of an acquisition exclusively for 
participation by small business concerns. A small business set-aside may 
be open to all small businesses. A small business set-aside of a single 
acquisition or a class of acquisitions may be total or partial.
    (b) The determination to make a small business set-aside may be 
unilateral or joint. A unilateral determination is one that is made by 
the contracting officer. A joint determination is one that is 
recommended by the Small Business Administration (SBA) procurement 
center representative (or, if a procurement center representative is not 
assigned, see 19.402(a)) and concurred in by the contracting officer.
    (c) The contracting officer shall review acquisitions to determine 
if they can be set aside for small business, giving consideration to the 
recommendations of agency personnel having cognizance of the agency's 
small business programs. The contracting officer shall perform market 
research and document why a small business set-aside is inappropriate 
when an acquisition is not set aside for small business, unless an award 
is anticipated to a small business under the 8(a), HUBZone, SDVOSB, or 
WOSB Programs. If the acquisition is set aside for small business based 
on this review, it is a unilateral set-aside by the contracting officer. 
Agencies may establish threshold levels for this review depending upon 
their needs.
    (d) At the request of an SBA procurement center representative, (or, 
if a procurement center representative is not assigned, see 19.402(a)) 
the contracting officer shall make available for review at the 
contracting office (to the extent of the SBA representative's

[[Page 428]]

security clearance) all proposed acquisitions in excess of the micro-
purchase threshold that have not been unilaterally set aside for small 
business.
    (e) To the extent practicable, unilateral determinations initiated 
by a contracting officer shall be used as the basis for small business 
set-asides rather than joint determinations by an SBA procurement center 
representative and a contracting officer.
    (f) All solicitations involving set-asides must specify the 
applicable small business size standard and NAICS code (see 19.303).
    (g) Except as authorized by law, a contract may not be awarded as a 
result of a small business set-aside if the cost to the awarding agency 
exceeds the fair market price.

[48 FR 42240, Sept. 19, 1983]

    Editorial Note: For Federal Register citations affecting section 
19.501, see the List of CFR Sections Affected which appears in the 
Finding Aids section of the printed volume and at www.fdsys.gov.



Sec. 19.502  Setting aside acquisitions.



Sec. 19.502-1  Requirements for setting aside acquisitions.

    (a) The contracting officer shall set aside an individual 
acquisition or class of acquisitions for competition among small 
businesses when--
    (1) It is determined to be in the interest of maintaining or 
mobilizing the Nations full productive capacity, war or national defense 
programs; or
    (2) Assuring that a fair proportion of Government contracts in each 
industry category is placed with small business concerns; and the 
circumstances described in 19.502-2 or 19.502-3(a) exist.
    (b) This requirement does not apply to purchases of $3,000 or less 
($15,000 or less for acquisitions as described in 13.201(g)(1)), or 
purchases from required sources of supply under Part 8 (e.g., Committee 
for Purchase From People Who are Blind or Severely Disabled, and Federal 
Supply Schedule contracts).

[63 FR 70270, Dec. 18, 1998, as amended at 67 FR 56121, Aug. 30, 2002; 
68 FR 4050, Jan. 27, 2003; 69 FR 8314, Feb. 23, 2004; 69 FR 16150, Mar. 
26, 2004; 71 FR 57367, Sept. 28, 2006]



Sec. 19.502-2  Total small business set-asides.

    (a) Before setting aside an acquisition under this paragraph, refer 
to 19.203(b). If the contracting officer does not proceed with the small 
business set-aside and purchases on an unrestricted basis, the 
contracting officer shall include in the contract file the reason for 
this unrestricted purchase. If the contracting officer receives only one 
acceptable offer from a responsible small business concern in response 
to a set-aside, the contracting officer should make an award to that 
firm. If the contracting officer receives no acceptable offers from 
responsible small business concerns, the set-aside shall be withdrawn 
and the requirement, if still valid, shall be resolicited on an 
unrestricted basis. The small business reservation does not preclude the 
award of a contract as described in 19.203.
    (b) Before setting aside an acquisition under this paragraph, refer 
to 19.203(c). The contracting officer shall set aside any acquisition 
over $150,000 for small business participation when there is a 
reasonable expectation that:
    (1) Offers will be obtained from at least two responsible small 
business concerns offering the products of different small business 
concerns (see paragraph (c) of this section); and
    (2) Award will be made at fair market prices. Total small business 
set-asides shall not be made unless such a reasonable expectation exists 
(see 19.502-3 as to partial set-asides). Although past acquisition 
history of an item or similar items is always important, it is not the 
only factor to be considered in determining whether a reasonable 
expectation exists. In making R&D small business set-asides, there must 
also be a reasonable expectation of obtaining from small businesses the 
best scientific and technological sources consistent with the demands of 
the proposed acquisition for the best mix of cost, performances, and 
schedules.
    (c) For small business set-asides other than for construction or 
services, any concern proposing to furnish a product that it did not 
itself manufacture must furnish the product of a small business 
manufacturer unless the

[[Page 429]]

SBA has granted either a waiver or exception to the nonmanufacturer rule 
(see 19.102(f)). In industries where the SBA finds that there are no 
small business manufacturers, it may issue a waiver to the 
nonmanufacturer rule (see 19.102(f) (4) and (5)). In addition, SBA has 
excepted procurements processed under simplified acquisition procedures 
(see part 13), where the anticipated cost of the procurement will not 
exceed $25,000, from the nonmanufacturer rule. Waivers permit small 
businesses to provide any firm's product. The exception permits small 
businesses to provide any domestic firm's product. In both of these 
cases, the contracting officer's determination in paragraph (b)(1) of 
this subsection or the decision not to set aside a procurement reserved 
for small business under paragraph (a) of this subsection will be based 
on the expectation of receiving offers from at least two responsible 
small businesses, including nonmanufacturers, offering the products of 
different concerns.

[60 FR 34757, July 3, 1995]

    Editorial Note: For Federal Register citations affectingSec. 
19.502-2, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.fdsys.gov.



Sec. 19.502-3  Partial set-asides.

    (a) The contracting officer shall set aside a portion of an 
acquisition, except for construction, for exclusive small business 
participation when--
    (1) A total set-aside is not appropriate (see 19.502-2);
    (2) The requirement is severable into two or more economic 
production runs or reasonable lots;
    (3) One or more small business concerns are expected to have the 
technical competence and productive capacity to satisfy the set-aside 
portion of the requirement at a fair market price;
    (4) The acquisition is not subject to simplified acquisition 
procedures; and
    (5) A partial set-aside shall not be made if there is a reasonable 
expectation that only two concerns (one large and one small) with 
capability will respond with offers unless authorized by the head of a 
contracting activity on a case-by-case basis. Similarly, a class of 
acquisitions, not including construction, may be partially set aside. 
Under certain specified conditions, partial set-asides may be used in 
conjunction with multiyear contracting procedures.
    (b) When the contracting officer determines that a portion of an 
acquisition is to be set aside, the requirement shall be divided into a 
set-aside portion and a non-set-aside portion, each of which shall (1) 
be an economic production run or reasonable lot and (2) have terms and a 
delivery schedule comparable to the other. When practicable, the set-
aside portion should make maximum use of small business capacity.
    (c)(1) The contracting officer shall award the non-set-aside portion 
using normal contracting procedures.
    (2)(i) After all awards have been made on the non-set-aside portion, 
the contracting officer shall negotiate with eligible concerns on the 
set-aside portion, as provided in the solicitation, and make award. 
Negotiations shall be conducted only with those offerors who have 
submitted responsive offers on the non-set-aside portion. Negotations 
shall be conducted with small business concerns in the order of priority 
as indicated in the solicitation (but see (ii) below). The set-aside 
portion shall be awarded as provided in the solicitation. An offeror 
entitled to receive the award for quantities of an item under the non-
set-aside portion and who accepts the award of additional quantities 
under the set-aside portion shall not be requested to accept a lower 
price because of the increased quantities of the award, nor shall 
negotiation be conducted with a view to obtaining such a lower price 
based solely upon receipt of award of both portions of the acquisition. 
This does not prevent acceptance by the contracting officer of voluntary 
reductions in the price from the low eligible offeror before award, 
acceptance of voluntary refunds, or the change of prices after award by 
negotiation of a contract modification.
    (ii) If equal low offers are received on the non-set-aside portion 
from concerns eligible for the set-aside portion, the concern that is 
awarded the non-set-aside part of the acquisition shall

[[Page 430]]

have first priority with respect to negotiations for the set-aside.

[48 FR 42240, Sept. 19, 1989, as amended at 53 FR 43390, Oct. 26, 1988; 
60 FR 34757, July 3, 1995]



Sec. 19.502-4  Multiple-award contracts and small business set-asides.

    In accordance with section 1331 of Public Law 111-240 (15 U.S.C. 
644(r)) contracting officers may, at their discretion--
    (a) When conducting multiple-award procurements using full and open 
competition, reserve one or more contract awards for any of the small 
business concerns identified in 19.000(a)(3). The specific program 
eligibility requirements identified in this part apply;
    (b) Set aside part or parts of a multiple-award contract for any of 
the small business concerns identified in 19.000(a)(3). The specific 
program eligibility requirements identified in this part apply; or
    (c) Set aside orders placed under multiple-award contracts for any 
of the small business concerns identified in 19.000(a)(3). For orders 
placed under the Federal Supply Schedules Program see 8.405-5. For all 
other multiple-award contracts see 16.505.

[76 FR 68035, Nov. 2, 2011]



Sec. 19.502-5  Methods of conducting set-asides.

    (a) Total small business set-asides may be conducted by using 
simplified acquisition procedures (see part 13), sealed bids (see part 
14), or competitive proposals (see part 15). Partial small business set-
asides may be conducted using sealed bids (see part 14), or competitive 
proposals (see part 15).
    (b) Except for offers on the non-set-aside portion of partial set-
asides, offers received from concerns that do not qualify as small 
business concerns shall be considered nonresponsive and shall be 
rejected. However, before rejecting an offer otherwise eligible for 
award because of questions concerning the size representation, an SBA 
determination must be obtained (see subpart 19.3).

[50 FR 1743, Jan. 11, 1985, and 50 FR 52429, Dec. 23, 1985, as amended 
at 59 FR 67037, Dec. 28, 1994; 60 FR 34757, July 3, 1995; 63 FR 70270, 
Dec. 18, 1998. Redesignated at 76 FR 68035, Nov. 2, 2011]



Sec. 19.502-6  Insufficient causes for not setting aside an acquisition.

    None of the following is, in itself, sufficient cause for not 
setting aside an acquisition:
    (a) A large percentage of previous contracts for the required 
item(s) has been placed with small business concerns.
    (b) The item is on an established planning list under the Industrial 
Readiness Planning Program. However, a total small business set-aside 
shall not be made when the list contains a large business Planned 
Emergency Producer of the item(s) who has conveyed a desire to supply 
some or all of the required items.
    (c) The item is on a Qualified Products List. However, a total small 
business set-aside shall not be made if the list contains the products 
of large business unless none of the large businesses desires to 
participate in the acquisition.
    (d) A period of less than 30 days is available for receipt of 
offers.
    (e) The acquisition is classified.
    (f) Small business concerns are already receiving a fair proportion 
of the agency's contracts for supplies and services.
    (g) A class small business set-aside of the item or service has been 
made by another contracting activity.
    (h) A ``brand name or equal'' product description will be used in 
the solicitation.

[48 FR 42240, Sept. 19, 1989, as amended at 63 FR 70270, 70292, Dec. 18, 
1998. Redesignated at 76 FR 68035, Nov. 2, 2011]



Sec. 19.503  Setting aside a class of acquisitions for small business.

    (a) A class of acquisitions of selected products or services, or a 
portion of the acquisitions, may be set aside for exclusive 
participation by small business concerns if individual acquisitions in 
the class will meet the criteria in

[[Page 431]]

19.502-1, 19.502-2, or 19.502-3(a). The determination to make a class 
small business set-aside shall not depend on the existence of a current 
acquisition if future acquisitions can be clearly foreseen.
    (b) The determination to set aside a class of acquisitions for small 
business may be either unilateral or joint.
    (c) Each class small business set-aside determination shall be in 
writing and must--
    (1) Specifically identify the product(s) and service(s) it covers;
    (2) Provide that the set-aside does not apply to any acquisition 
automatically reserved for small business concerns under 19.502-2(a).
    (3) Provide that the set-aside applies only to the (named) 
contracting office(s) making the determination; and
    (4) Provide that the set-aside does not apply to any individual 
acquisition if the requirement is not severable into two or more 
economic production runs or reasonable lots, in the case of a partial 
class set-aside.
    (d) The contracting officer shall review each individual acquisition 
arising under a class small business set-aside to identify any changes 
in the magnitude of requirements, specifications, delivery requirements, 
or competitive market conditions that have occurred since the initial 
approval of the class small business set-aside. If there are any changes 
of such a material nature as to result in probable payment of more than 
a fair market price by the Government or in a change in the capability 
of small business concerns to satisfy the requirements, the contracting 
officer may withdraw or modify (see 19.506(a)) the unilateral or joint 
set-aside by giving written notice to the SBA procurement center 
representative (or, if a procurement center representative is not 
assigned, see 19.402(a)) stating the reasons.

[48 FR 42240, Sept. 19, 1989, as amended at 53 FR 43390, Oct. 26, 1988; 
60 FR 34757, July 3, 1995; 63 FR 70270, Dec. 18, 1998; 71 FR 36926, June 
28, 2006]



Sec. 19.504  Inclusion of Federal Prison Industries, Inc.

    When using competitive procedures in accordance with 8.602(a)(4), 
agencies shall include Federal Prison Industries, Inc. (FPI), in the 
solicitation process and consider a timely offer from FPI.

[69 FR 16150, Mar. 26, 2004, as amended at 71 FR 223, Jan. 3, 2006]



Sec. 19.505  Rejecting Small Business Administration recommendations.

    (a) If the contracting officer rejects a recommendation of the SBA 
procurement center representative (or, if a procurement center 
representative is not assigned, see 19.402(a)) or breakout procurement 
center representative, written notice shall be furnished to the 
appropriate SBA representative within 5 working days of the contracting 
officer's receipt of the recommendation.
    (b) The SBA procurement center representative (or, if a procurement 
center representative is not assigned, see 19.402(a)) may appeal the 
contracting officer's rejection to the head of the contracting activity 
(or designee) within 2 working days after receiving the notice. The head 
of the contracting activity (or designee) shall render a decision in 
writing, and provide it to the SBA representative within 7 working days. 
Pending issuance of a decision to the SBA representative, the 
contracting officer shall suspend action on the acquisition.
    (c) If the head of the contracting activity agrees that the 
contracting officer's rejection was appropriate--
    (1) Within 2 working days, the SBA procurement center representative 
(or, if a procurement center representative is not assigned, see 
19.402(a)) may request the contracting officer to suspend action on the 
acquisition until the SBA Administrator appeals to the agency head (see 
paragraph (f) of this section); and
    (2) The SBA must be allowed 15 working days after making such a 
written request, within which the Administrator of SBA--
    (i) May appeal to the Secretary of the Department concerned; and
    (ii) Must notify the contracting officer whether the further appeal 
has, in fact, been taken. If notification is not received by the 
contracting officer within the 15-day period, it is deemed that the SBA 
request to suspend the contract action has been withdrawn and that an 
appeal to the Secretary was not taken.

[[Page 432]]

    (d) When the contracting officer has been notified within the 15-day 
period that the SBA has appealed to the agency head, the head of the 
contracting activity (or designee) shall forward justification for its 
decision to the agency head. The contracting officer shall suspend 
contract action until notification is received that the SBA appeal has 
been settled.
    (e) The agency head shall reply to the SBA within 30 working days 
after receiving the appeal. The decision of the agency head shall be 
final.
    (f) A request to suspend action on an acquisition need not be 
honored if the contracting officer determines that proceeding to 
contract award and performance is in the public interest. The 
contracting officer shall include in the contract file a statement of 
the facts justifying the determination, and shall promptly notify the 
SBA representative of the determination and provide a copy of the 
justification.

[60 FR 48261, Sept. 18, 1995, as amended at 67 FR 13054, Mar. 20, 2002; 
71 FR 36926, June 28, 2006]



Sec. 19.506  Withdrawing or modifying small business set-asides.

    (a) If, before award of a contract involving a small business set-
aside, the contracting officer considers that award would be detrimental 
to the public interest (e.g., payment of more than a fair market price), 
the contracting officer may withdraw the small business set-aside 
determination whether it was unilateral or joint. The contracting 
officer shall initiate a withdrawal of an individual small business set-
aside by giving written notice to the agency small business specialist 
and the SBA procurement center representative (or, if a procurement 
center representative is not assigned, see 19.402(a)) stating the 
reasons. In a similar manner, the contracting officer may modify a 
unilateral or joint class small business set-aside to withdraw one or 
more individual acquisitions.
    (b) If the agency small business specialist does not agree to a 
withdrawal or modification, the case shall be promptly referred to the 
SBA representative (or, if a procurement center representative is not 
assigned, see 19.402(a)) for review.
    (c) The contracting officer shall prepare a written statement 
supporting any withdrawal or modification of a small business set-aside 
and include it in the contract file.

[60 FR 48262, Sept. 18, 1995, as amended at 63 FR 70270, Dec. 18, 1998; 
71 FR 36926, June 28, 2006]



Sec. 19.507  Automatic dissolution of a small business set-aside.

    (a) If a small business set-aside acquisition or portion of an 
acquisition is not awarded, the unilateral or joint determination to set 
the acquisition aside is automatically dissolved for the unawarded 
portion of the set-aside. The required supplies and/or services for 
which no award was made may be acquired by sealed bidding or 
negotiation, as appropriate.
    (b) Before issuing a solicitation for the items called for in a 
small business set-aside that was dissolved, the contracting officer 
shall ensure that the delivery schedule is realistic in the light of all 
relevant factors, including the capabilities of small business concerns.

[48 FR 42240, Sept. 19, 1983, as amended at 50 FR 1743, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 63 FR 70270, Dec. 18, 1998]



Sec. 19.508  Solicitation provisions and contract clauses.

    (a)-(b) [Reserved]
    (c) The contracting officer shall insert the clause at 52.219-6, 
Notice of Total Small Business Set-Aside, in solicitations and contracts 
involving total small business set-asides or reserves. This includes 
multiple-award contracts when orders may be set aside for any of the 
small business concerns identified in 19.000(a)(3), as described in 
8.405-5 and 16.505(b)(2)(i)(F). The clause at 52.219-6 with its 
Alternate I will be used when the acquisition is for a product in a 
class for which the Small Business Administration has waived the 
nonmanufacturer rule (see 19.102(f)(4) and (5)). Use the clause at 
52.219-6 with its Alternate II when including FPI in the competition in 
accordance with 19.504.
    (d) The contracting officer shall insert the clause at 52.219-7, 
Notice of Partial Small Business Set-Aside, in solicitations and 
contracts involving

[[Page 433]]

partial small business set-asides. This includes part or parts of 
multiple-award contracts, including those described in 38.101. The 
clause at 52.219-7 with its Alternate I will be used when the 
acquisition is for a product in a class for which the Small Business 
Administration has waived the nonmanufacturer rule (see 19.102(f)(4) and 
(5)). Use the clause at 52.219-7 with its Alternate II when including 
FPI in the competition in accordance with 19.504.
    (e) The contracting officer shall insert the clause at 52.219-14, 
Limitations on Subcontracting, in solicitations and contracts for 
supplies, services, and construction, if any portion of the requirement 
is to be set aside or reserved for small business and the contract 
amount is expected to exceed $150,000. This includes multiple-award 
contracts when orders may be set aside for small business concerns, as 
described in 8.405-5 and 16.505(b)(2)(i)(F).
    (f) The contracting officer shall insert the clause at 52.219-13, 
Notice of Set-Aside of Orders, in solicitations and contracts to notify 
offerors if an order or orders are to be set aside for any of the small 
business concerns identified in 19.000(a)(3).

[48 FR 42240, June 9, 1987]

    Editorial Note: For Federal Register citations affecting section 
19.508, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.fdsys.gov.

     Subpart 19.6_Certificates of Competency and Determinations of 
                             Responsibility



Sec. 19.601  General.

    (a) A Certificate of Competency (COC) is the certificate issued by 
the Small Business Administration (SBA) stating that the holder is 
responsible (with respect to all elements of responsibility, including, 
but not limited to, capability, competency, capacity, credit, integrity, 
perseverance, tenacity, and limitations on subcontracting) for the 
purpose of receiving and performing a specific Government contract.
    (b) The COC program empowers the Small Business Administration (SBA) 
to certify to Government contracting officers as to all elements of 
responsibility of any small business concern to receive and perform a 
specific Government contract. The COC program does not extend to 
questions concerning regulatory requirements imposed and enforced by 
other Federal agencies.
    (c) The COC program is applicable to all Government acquisitions. A 
contracting officer shall, upon determining an apparent successful small 
business offeror to be nonresponsible, refer that small business to the 
SBA for a possible COC, even if the next acceptable offer is also from a 
small business.
    (d) When a solicitation requires a small business to adhere to the 
limitations on subcontracting, a contracting officer's finding that a 
small business cannot comply with the limitation shall be treated as an 
element of responsibility and shall be subject to the COC process. When 
a solicitation requires a small business to adhere to the definition of 
a nonmanufacturer, a contracting officer's determination that the small 
business does not comply shall be processed in accordance with subpart 
19.3.
    (e) Contracting officers, including those located overseas, are 
required to comply with this subpart for U.S. small business concerns.

[48 FR 42240, Sept. 19, 1983, as amended at 51 FR 2664, Jan. 17, 1986; 
54 FR 34754, Aug. 21, 1989; 59 FR 67036, Dec. 28, 1994; 61 FR 67410, 
Dec. 20, 1996; 62 FR 44820, Aug. 22, 1997]



Sec. 19.602  Procedures.



Sec. 19.602-1  Referral.

    (a) Upon determining and documenting that an apparent successful 
small business offeror lacks certain elements of responsibility 
(including, but not limited to, capability, competency, capacity, 
credit, integrity, perseverance, tenacity, and limitations on 
subcontracting but for sureties see 28.101-3(f) and 28.203(c)), the 
contracting officer shall--
    (1) Withhold contract award (see 19.602-3); and
    (2) Refer the matter to the cognizant SBA Government Contracting 
Area Office (Area Office) serving the area in which the headquarters of 
the offeror is

[[Page 434]]

located, in accordance with agency procedures, except that referral is 
not necessary if the small business concern--
    (i) Is determined to be unqualified and ineligible because it does 
not meet the standard in 9.104-1(g); provided, that the determination is 
approved by the chief of the contracting office; or
    (ii) Is suspended or debarred under Executive Order 11246 or subpart 
9.4.
    (b) If a partial set-aside is involved, the contracting officer 
shall refer to the SBA the entire quantity to which the concern may be 
entitled, if responsible.
    (c) The referral shall include--
    (1) A notice that a small business concern has been determined to be 
nonresponsible, specifying the elements of responsibility the 
contracting officer found lacking; and
    (2) If applicable, a copy of the following:
    (i) Solicitation.
    (ii) Final offer submitted by the concern whose responsibility is at 
issue for the procurement.
    (iii) Abstract of bids or the contracting officer's price 
negotiation memorandum.
    (iv) Preaward survey.
    (v) Technical data package (including drawings, specifications and 
statement of work).
    (vi) Any other justification and documentation used to arrive at the 
nonresponsibility determination.
    (d) For any single acquisition, the contracting officer shall make 
only one referral at a time regarding a determination of 
nonresponsibility.
    (e) Contract award shall be withheld by the contracting officer for 
a period of 15 business days (or longer if agreed to by the SBA and the 
contracting officer) following receipt by the appropriate SBA Area 
Office of a referral that includes all required documentation.

[48 FR 42240, Sept. 19, 1983, as amended at 51 FR 27489, July 31, 1986; 
62 FR 44820, Aug. 22, 1997; 70 FR 57461, Sept. 30, 2005]



Sec. 19.602-2  Issuing or denying a Certificate of Competency (COC).

    Within 15 business days (or a longer period agreed to by the SBA and 
the contracting agency) after receiving a notice that a small business 
concern lacks certain elements of responsibility, the SBA Area Office 
will take the following actions:
    (a) Inform the small business concern of the contracting officer's 
determination and offer it an opportunity to apply to the SBA for a COC. 
(A concern wishing to apply for a COC should notify the SBA Area Office 
serving the geographical area in which the headquarters of the offeror 
is located.)
    (b) Upon timely receipt of a complete and acceptable application, 
elect to visit the applicant's facility to review its responsibility.
    (1) The COC review process is not limited to the areas of 
nonresponsibility cited by the contracting officer.
    (2) The SBA may, at its discretion, independently evaluate the COC 
applicant for all elements of responsibility, but may presume 
responsibility exists as to elements other than those cited as 
deficient.
    (c) Consider denying a COC for reasons of nonresponsibility not 
originally cited by the contracting officer.
    (d) When the Area Director determines that a COC is warranted (for 
contracts valued at $25,000,000 or less), notify the contracting officer 
and provide the following options:
    (1) Accept the Area Director's decision to issue a COC and award the 
contract to the concern. The COC issuance letter will then be sent, 
including as an attachment a detailed rationale for the decision; or
    (2) Ask the Area Director to suspend the case for one or more of the 
following purposes:
    (i) To permit the SBA to forward a detailed rationale for the 
decision to the contracting officer for review within a specified period 
of time.
    (ii) To afford the contracting officer the opportunity to meet with 
the Area Office to review all documentation contained in the case file 
and to attempt to resolve any issues.
    (iii) To submit any information to the SBA Area Office that the 
contracting officer believes the SBA did not consider (at which time the 
SBA Area Office will establish a new suspense date mutually agreeable to 
the contracting officer and the SBA).
    (iv) To permit resolution of an appeal by the contracting agency to 
SBA

[[Page 435]]

Headquarters under 19.602-3. However, there is no contracting officer's 
appeal when the Area Office proposes to issue a COC valued at $100,000 
or less.
    (e) At the completion of the process, notify the concern and the 
contracting officer that the COC is denied or is being issued.
    (f) Refer recommendations for issuing a COC on contracts greater 
than $25,000,000 to SBA Headquarters.

[62 FR 44820, Aug. 22, 1997]



Sec. 19.602-3  Resolving differences between the agency and the Small 
          Business Administration.

    (a) COCs valued between $100,000 and $25,000,000. (1) When 
disagreements arise about a concern's ability to perform, the 
contracting officer and the SBA shall make every effort to reach a 
resolution before the SBA takes final action on a COC. This shall be 
done through the complete exchange of information and in accordance with 
agency procedures. If agreement cannot be reached between the 
contracting officer and the SBA Area Office, the contracting officer 
shall request that the Area Office suspend action and refer the matter 
to SBA Headquarters for review. The SBA Area Office shall honor the 
request for a review if the contracting officer agrees to withhold award 
until the review process is concluded. Without an agreement to withhold 
award, the SBA Area Office will issue the COC in accordance with 
applicable SBA regulations.
    (2) SBA Headquarters will furnish written notice to the procuring 
agency's Director, Office of Small and Disadvantaged Business 
Utilization (OSDBU) or other designated official (with a copy to the 
contracting officer) that the case file has been received and that an 
appeal decision may be requested by an authorized official.
    (3) If the contracting agency decides to file an appeal, it must 
notify SBA Headquarters through its procuring agency's Director, OSDBU, 
or other designated official, within 10 business days (or a time period 
agreed upon by both agencies) that it intends to appeal the issuance of 
the COC.
    (4) The appeal and any supporting documentation shall be filed by 
the procuring agency's Director, OSDBU, or other designated official, 
within 10 business days (or a period agreed upon by both agencies) after 
SBA Headquarters receives the agency's notification in accordance with 
paragraph (a)(3) of this subsection.
    (5) The SBA Associate Administrator for Government Contracting will 
make a final determination, in writing, to issue or to deny the COC.
    (b) SBA Headquarters' decisions on COCs valued over $25,000,000. (1) 
Prior to taking final action, SBA Headquarters will contact the 
contracting agency and offer it the following options:
    (i) To request that the SBA suspend case processing to allow the 
agency to meet with SBA Headquarters personnel and review all 
documentation contained in the case file; or
    (ii) To submit to SBA Headquarters for evaluation any information 
that the contracting agency believes has not been considered.
    (2) After reviewing all available information, the SBA will make a 
final decision to either issue or deny the COC.
    (c) Reconsideration of a COC after issuance. (1) The SBA reserves 
the right to reconsider its issuance of a COC, prior to contract award, 
if--
    (i) The COC applicant submitted false information or omitted 
materially adverse information; or
    (ii) The COC has been issued for more than 60 days (in which case 
the SBA may investigate the firm's current circumstances).
    (2) When the SBA reconsiders and reaffirms the COC, the procedures 
in subsection 19.602-2 do not apply.
    (3) Denial of a COC by the SBA does not preclude a contracting 
officer from awarding a contract to the referred concern, nor does it 
prevent the concern from making an offer on any other procurement.

[62 FR 44821, Aug. 22, 1997]



Sec. 19.602-4  Awarding the contract.

    (a) If new information causes the contracting officer to determine 
that the concern referred to the SBA is actually responsible to perform 
the contract, and award has not already been made under paragraph (c) 
below, the

[[Page 436]]

contracting officer shall reverse the determination of 
nonresponsibility, notify the SBA of this action, withdraw the referral, 
and proceed to award the contract.
    (b) The contracting officer shall award the contract to the concern 
in question if the SBA issues a COC after receiving the referral. An 
SBA-certified concern shall not be required to meet any other 
requirements of responsibility. SBA COC's are conclusive with respect to 
all elements of responsibility of prospective small business 
contractors.
    (c) The contracting officer shall proceed with the acquisition and 
award the contract to another appropriately selected and responsible 
offeror if the SBA has not issued a COC within 15 business days (or a 
longer period of time agreed to with the SBA) after receiving the 
referral.

         Subpart 19.7_The Small Business Subcontracting Program



Sec. 19.701  Definitions.

    As used in this subpart--
    Alaska Native Corporation (ANC) means any Regional Corporation, 
Village Corporation, Urban Corporation, or Group Corporation organized 
under the laws of the State of Alaska in accordance with the Alaska 
Native Claims Settlement Act, as amended (43 U.S.C.A. 1601, et seq.) and 
which is considered a minority and economically disadvantaged concern 
under the criteria at 43 U.S.C. 1626(e)(1). This definition also 
includes ANC direct and indirect subsidiary corporations, joint 
ventures, and partnerships that meet the requirements of 43 U.S.C. 
1626(e)(2).
    Commercial plan means a subcontracting plan (including goals) that 
covers the offeror's fiscal year and that applies to the entire 
production of commercial items sold by either the entire company or a 
portion thereof (e.g., division, plant, or product line).
    Electronic Subcontracting Reporting System (eSRS) means the 
Governmentwide, electronic, web-based system for small business 
subcontracting program reporting.
    Failure to make a good faith effort to comply with the 
subcontracting plan means willful or intentional failure to perform in 
accordance with the requirements of the subcontracting plan, or willful 
or intentional action to frustrate the plan.
    Indian tribe means any Indian tribe, band, group, pueblo, or 
community, including native villages and native groups (including 
corporations organized by Kenai, Juneau, Sitka, and Kodiak) as defined 
in the Alaska Native Claims Settlement Act (43 U.S.C.A. 1601 et seq.), 
that is recognized by the Federal Government as eligible for services 
from the Bureau of Indian Affairs in accordance with 25 U.S.C. 1452(c). 
This definition also includes Indian-owned economic enterprises that 
meet the requirements of 25 U.S.C. 1452(e).
    Individual contract plan means a subcontracting plan that covers the 
entire contract period (including option periods), applies to a specific 
contract, and has goals that are based on the offeror's planned 
subcontracting in support of the specific contract, except that indirect 
costs incurred for common or joint purposes may be allocated on a 
prorated basis to the contract.
    Master plan means a subcontracting plan that contains all the 
required elements of an individual contract plan, except goals, and may 
be incorporated into individual contract plans, provided the master plan 
has been approved.
    Subcontract means any agreement (other than one involving an 
employer-employee relationship) entered into by a Government prime 
contractor or subcontractor calling for supplies and/or services 
required for performance of the contract, contract modification, or 
subcontract.

[63 FR 34064, June 22, 1998, as amended at 66 FR 2130, Jan. 10, 2001; 72 
FR 46348, Aug. 17, 2007; 73 FR 21781, Apr. 22, 2008]



Sec. 19.702  Statutory requirements.

    Any contractor receiving a contract for more than the simplified 
acquisition threshold must agree in the contract that small business, 
veteran-owned small business, service-disabled veteran-owned small 
business, HUBZone small business, small disadvantaged business, and 
women-owned small business concerns will

[[Page 437]]

have the maximum practicable opportunity to participate in contract 
performance consistent with its efficient performance. It is further the 
policy of the United States that its prime contractors establish 
procedures to ensure the timely payment of amounts due pursuant to the 
terms of their subcontracts with small business, veteran-owned small 
business, service-disabled veteran-owned small business, HUBZone small 
business, small disadvantaged business, and women-owned small business 
concerns.
    (a) Except as stated in paragraph (b) of this section, Section 8(d) 
of the Small Business Act (15 U.S.C. 637(d)) imposes the following 
requirements regarding subcontracting with small businesses and small 
business subcontracting plans:
    (1) In negotiated acquisitions, each solicitation of offers to 
perform a contract or contract modification, that individually is 
expected to exceed $650,000 ($1.5 million for construction) and that has 
subcontracting possibilities, shall require the apparently successful 
offeror to submit an acceptable subcontracting plan. If the apparently 
successful offeror fails to negotiate a subcontracting plan acceptable 
to the contracting officer within the time limit prescribed by the 
contracting officer, the offeror will be ineligible for award.
    (2) In sealed bidding acquisitions, each invitation for bids to 
perform a contract or contract modification, that individually is 
expected to exceed $650,000 ($1.5 million for construction) and that has 
subcontracting possibilities, shall require the bidder selected for 
award to submit a subcontracting plan. If the selected bidder fails to 
submit a plan within the time limit prescribed by the contracting 
officer, the bidder will be ineligible for award.
    (b) Subcontracting plans (see subparagraphs (a)(1) and (2) above) 
are not required--
    (1) From small business concerns;
    (2) For personal services contracts;
    (3) For contracts or contract modifications that will be performed 
entirely outside of the United States and its outlying areas; or
    (4) For modifications to contracts within the general scope of the 
contract that do not contain the clause at 52.219-8, Utilization of 
Small Business Concerns (or equivalent prior clauses; e.g., contracts 
awarded before the enactment of Public Law 95-507).
    (c) As stated in 15 U.S.C. 637(d)(8), any contractor or 
subcontractor failing to comply in good faith with the requirements of 
the subcontracting plan is in material breach of its contract. Further, 
15 U.S.C. 637(d)(4)(F) directs that a contractor's failure to make a 
good faith effort to comply with the requirements of the subcontracting 
plan shall result in the imposition of liquidated damages.
    (d) As authorized by 15 U.S.C. 637(d)(11), certain costs incurred by 
a mentor firm in providing developmental assistance to a 
prot[eacute]g[eacute] firm under the Department of Defense Pilot Mentor-
Prot[eacute]g[eacute] Program, may be credited as if they were 
subcontract awards to a prot[eacute]g[eacute] firm for the purpose of 
determining whether the mentor firm attains the applicable goals under 
any subcontracting plan entered into with any executive agency. However, 
the mentor-prot[eacute]g[eacute] agreement must have been approved by 
the Director, Small Business Programs of the cognizant DoD military 
department or defense agency, before developmental assistance costs may 
be credited against subcontract goals. A list of approved agreements may 
be obtained at http://www.acq.osd.mil/osbp/mentor--protege/.

[48 FR 42240, Sept. 19, 1983]

    Editorial Note: For Federal Register citations affectingSec. 
19.702, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.fdsys.gov.



Sec. 19.703  Eligibility requirements for participating in the program.

    (a) Except as provided in paragraph (c) of this section to be 
eligible as a subcontractor under the program, a concern must represent 
itself as a small business, veteran-owned small business, service-
disabled veteran-owned small business, HUBZone small business, small 
disadvantaged business, or woman-owned small business concern.
    (1) To represent itself as a small business, veteran-owned small 
business, service-disabled veteran-owned small business, HUBZone small 
business,

[[Page 438]]

small disadvantaged business, or woman-owned small business concern, a 
concern must meet the appropriate definition (see 2.101 and 19.001).
    (2) In connection with a subcontract, or a requirement for which the 
apparently successful offeror received an evaluation credit for 
proposing one or more SDB subcontractors, the contracting officer or the 
SBA may protest the disadvantaged status of a proposed subcontractor. 
Such protests will be processed in accordance with 13 CFR 124.1007 
through 124.1014. Other interested parties may submit information to the 
contracting officer or the SBA in an effort to persuade the contracting 
officer or the SBA to initiate a protest. Such protests, in order to be 
considered timely, must be submitted to the SBA prior to completion of 
performance by the intended subcontractor.
    (b) A contractor acting in good faith may rely on the written 
representation of its subcontractor regarding the subcontractor's status 
as a small business, small disadvantaged business, veteran-owned small 
business, service-disabled veteran-owned small business, or a woman-
owned small business concern. The contractor, the contracting officer, 
or any other interested party can challenge a subcontractor's size 
status representation by filing a protest, in accordance with 13 CFR 
121.1001 through 121.1008. Protests challenging a subcontractor's small 
disadvantaged business representation must be filed in accordance with 
13 CFR 124.1007 through 124.1014.
    (c)(1) In accordance with 43 U.S.C. 1626, the following procedures 
apply:
    (i) Subcontracts awarded to an ANC or Indian tribe shall be counted 
towards the subcontracting goals for small business and small 
disadvantaged business (SDB) concerns, regardless of the size or Small 
Business Administration certification status of the ANC or Indian tribe.
    (ii) Where one or more subcontractors are in the subcontract tier 
between the prime contractor and the ANC or Indian tribe, the ANC or 
Indian tribe shall designate the appropriate contractor(s) to count the 
subcontract towards its small business and small disadvantaged business 
subcontracting goals.
    (A) In most cases, the appropriate contractor is the contractor that 
awarded the subcontract to the ANC or Indian tribe.
    (B) If the ANC or Indian tribe designates more than one contractor 
to count the subcontract toward its goals, the ANC or Indian tribe shall 
designate only a portion of the total subcontract award to each 
contractor. The sum of the amounts designated to various contractors 
cannot exceed the total value of the subcontract.
    (C) The ANC or Indian tribe shall give a copy of the written 
designation to the contracting officer, the prime contractor, and the 
subcontractors in between the prime contractor and the ANC or Indian 
tribe within 30 days of the date of the subcontract award.
    (D) If the contracting officer does not receive a copy of the ANC's 
or the Indian tribe's written designation within 30 days of the 
subcontract award, the contractor that awarded the subcontract to the 
ANC or Indian tribe will be considered the designated contractor.
    (2) A contractor acting in good faith may rely on the written 
representation of an ANC or an Indian tribe as to the status of the ANC 
or Indian tribe unless an interested party challenges its status or the 
contracting officer has independent reason to question its status. In 
the event of a challenge of a representation of an ANC or Indian tribe, 
the interested parties shall follow the procedures at 26.103(b) through 
(e).
    (d)(1) The contractor shall confirm that a subcontractor 
representing itself as a HUBZone small business concern is certified by 
SBA as a HUBZone small business concern by accessing the System for 
Award Management database or by contacting the SBA. Options for 
contacting the SBA include--
    (i) HUBZone small business database search application Web page at 
http://dsbs.sba.gov/dsbs/dsp--searchhubzone.cfm or http://www.sba.gov/
hubzone.
    (ii) In writing to the Director/HUB, U.S. Small Business 
Administration, 409 3rd Street, SW., Washington DC 20416; or
    (iii) E-mail at [email protected].

[[Page 439]]

    (2) Protests challenging HUBZone small business concern size status 
must be filed in accordance with 13 CFR 121.411.

[48 FR 42240, Sept. 19, 1983]

    Editorial Note: For Federal Register citations affectingSec. 
19.703, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.fdsys.gov.



Sec. 19.704  Subcontracting plan requirements.

    (a) Each subcontracting plan required under 19.702(a)(1) and (2) 
must include--
    (1) Separate percentage goals for using small business (including 
ANCs and Indian tribes), veteran-owned small business, service-disabled 
veteran-owned small business, HUBZone small business, small 
disadvantaged business (including ANCs and Indian tribes) and women-
owned small business concerns as subcontractors;
    (2) A statement of the total dollars planned to be subcontracted and 
a statement of the total dollars planned to be subcontracted to small 
business (including ANCs and Indian tribes), veteran-owned small 
business, service-disabled veteran-owned small business, HUBZone small 
business, small disadvantaged business (including ANCs and Indian 
tribes) and women-owned small business concerns;
    (3) A description of the principal types of supplies and services to 
be subcontracted and an identification of types planned for 
subcontracting to small business (including ANCs and Indian tribes), 
veteran-owned small business, service-disabled veteran-owned small 
business, HUBZone small business, small disadvantaged business 
(including ANCs and Indian tribes), and women-owned small business 
concerns;
    (4) A description of the method used to develop the subcontracting 
goals;
    (5) A description of the method used to identify potential sources 
for solicitation purposes;
    (6) A statement as to whether or not the offeror included indirect 
costs in establishing subcontracting goals, and a description of the 
method used to determine the proportionate share of indirect costs to be 
incurred with small business (including ANCs and Indian tribes), 
veteran-owned small business, service-disabled veteran-owned small 
business, HUBZone small business, small disadvantaged business 
(including ANCs and Indian tribes), and women-owned small business 
concerns;
    (7) The name of an individual employed by the offeror who will 
administer the offeror's subcontracting program, and a description of 
the duties of the individual;
    (8) A description of the efforts the offeror will make to ensure 
that small business, veteran-owned small business, service-disabled 
veteran-owned small business, HUBZone small business, small 
disadvantaged business, and women-owned small business concerns have an 
equitable opportunity to compete for subcontracts;
    (9) Assurances that the offeror will include the clause at 52.219-8, 
Utilization of Small Business Concerns (see 19.708(a)), in all 
subcontracts that offer further subcontracting opportunities, and that 
the offeror will require all subcontractors (except small business 
concerns) that receive subcontracts in excess of $650,000 ($1.5 million 
for construction) to adopt a plan that complies with the requirements of 
the clause at 52.219-9, Small Business Subcontracting Plan (see 
19.708(b));
    (10) Assurances that the offeror will--
    (i) Cooperate in any studies or surveys as may be required;
    (ii) Submit periodic reports so that the Government can determine 
the extent of compliance by the offeror with the subcontracting plan;
    (iii) Submit the Individual Subcontract Report (ISR), and the 
Summary Subcontract Report (SSR) using the Electronic Subcontracting 
Reporting System (eSRS) (http://www.esrs.gov), following the 
instructions in the eSRS;
    (A) The ISR shall be submitted semi-annually during contract 
performance for the periods ending March 31 and September 30. A report 
is also required for each contract within 30 days of contract 
completion. Reports are due 30 days after the close of each reporting 
period, unless otherwise directed by the contracting officer. Reports 
are required when due, regardless of whether

[[Page 440]]

there has been any subcontracting activity since the inception of the 
contract or the previous reporting period.
    (B) The SSR shall be submitted as follows: For DoD and NASA, the 
report shall be submitted semi-annually for the six months ending March 
31 and the twelve months ending September 30. For civilian agencies, 
except NASA, it shall be submitted annually for the twelve-month period 
ending September 30. Reports are due 30 days after the close of each 
reporting period.
    (iv) Ensure that its subcontractors with subcontracting plans agree 
to submit the ISR and/or the SSR using the eSRS;
    (v) Provide its prime contract number, its DUNS number, and the e-
mail address of the offeror's official responsible for acknowledging 
receipt of or rejecting the ISRs to all first-tier subcontractors with 
subcontracting plans so they can enter this information into the eSRS 
when submitting their ISRs; and
    (vi) Require that each subcontractor with a subcontracting plan 
provide the prime contract number, its own DUNS number, and the e-mail 
address of the subcontractor's official responsible for acknowledging 
receipt of or rejecting the ISRs, to its subcontractors with 
subcontracting plans.
    (11) A description of the types of records that will be maintained 
concerning procedures adopted to comply with the requirements and goals 
in the plan, including establishing source lists; and a description of 
the offeror's efforts to locate small business, veteran-owned small 
business, service-disabled veteran-owned small business, HUBZone small 
business, small disadvantaged business, and women-owned small business 
concerns and to award subcontracts to them.
    (b) Contractors may establish, on a plant or division-wide basis, a 
master plan (see 19.701) that contains all the elements required by the 
clause at 52.219-9, Small Business Subcontracting Plan, except goals. 
Master plans shall be effective for a 3-year period after approval by 
the contracting officer; however, it is incumbent upon contractors to 
maintain and update master plans. Changes required to update master 
plans are not effective until approved by the contracting officer. A 
master plan, when incorporated in an individual plan, shall apply to 
that contract throughout the life of the contract.
    (c) For multiyear contracts or contracts containing options, the 
cumulative value of the basic contract and all options is considered in 
determining whether a subcontracting plan is necessary (see 19.705-
2(a)). If a plan is necessary and the offeror is submitting an 
individual contract plan, the plan shall contain all the elements 
required by paragraph (a) of this section and shall contain separate 
statements and goals for the basic contract and for each option.
    (d) A commercial plan (as defined in 19.701) is the preferred type 
of subcontracting plan for contractors furnishing commercial items. Once 
a contractor's commercial plan has been approved, the Government shall 
not require another subcontracting plan from the same contractor while 
the plan remains in effect, as long as the product or service being 
provided by the contractor continues to meet the definition of a 
commercial item. The contractor shall--
    (1) Submit the commercial plan to either the first contracting 
officer awarding a contract subject to the plan during the contractor's 
fiscal year, or, if the contractor has ongoing contracts with commercial 
plans, to the contracting officer responsible for the contract with the 
latest completion date. The contracting officer shall negotiate the 
commercial plan for the Government. The approved commercial plan shall 
remain in effect during the contractor's fiscal year for all Government 
contracts in effect during that period;
    (2) Submit a new commercial plan, 30 working days before the end of 
the Contractor's fiscal year, to the contracting officer responsible for 
the uncompleted Government contract with the latest completion date. The 
contractor must provide to each contracting officer responsible for an 
ongoing contract subject to the plan, the identity of the contracting 
officer that will be negotiating the new plan;
    (3) When the new commercial plan is approved, provide a copy of the 
approved plan to each contracting officer

[[Page 441]]

responsible for an ongoing contract that is subject to the plan; and
    (4) Comply with the reporting requirements stated in paragraph 
(a)(10) of this section by submitting one SSR in eSRS, for all contracts 
covered by its commercial plan. This report will be acknowledged or 
rejected in eSRS by the contracting officer who approved the plan. The 
report shall be submitted within 30 days after the end of the 
Government's fiscal year.

[48 FR 42240, Sept. 19, 1983, as amended at 51 FR 2664, Jan. 17, 1986; 
54 FR 29281, July 11, 1989; 60 FR 48262, Sept. 18, 1995; 61 FR 31643, 
June 20, 1996; 63 FR 34065, June 22, 1998; 63 FR 70271, Dec. 18, 1998; 
65 FR 60545, Oct. 11, 2000; 66 FR 53493, Oct. 22, 2001; 67 FR 1858, Jan. 
14, 2002; 71 FR 57367, Sept. 28, 2006; 72 FR 46348, Aug. 17, 2007; 73 FR 
21781, Apr. 22, 2008; 75 FR 34264, June 16, 2010; 75 FR 53133, Aug. 30, 
2010]



Sec. 19.705  Responsibilities of the contracting officer under the 
          subcontracting assistance program.



Sec. 19.705-1  General support of the program.

    The contracting officer may encourage the development of increased 
subcontracting opportunities in negotiated acquisition by providing 
monetary incentives such as payments based on actual subcontracting 
achievement or award-fee contracting (see the clause at 52.219-10, 
Incentive Subcontracting Program, and 19.708(c)). This subsection does 
not apply to SDB subcontracting (see 19.1203). When using any 
contractual incentive provision based upon rewarding the contractor 
monetarily for exceeding goals in the subcontracting plan, the 
contracting officer must ensure that (a) the goals are realistic and (b) 
any rewards for exceeding the goals are commensurate with the efforts 
the contractor would not have otherwise expended. Incentive provisions 
should normally be negotiated after reaching final agreement with the 
contractor on the subcontracting plan.

[48 FR 42240, Sept. 19, 1983, as amended at 60 FR 48262, Sept. 18, 1995; 
63 FR 34065, June 22, 1998; 63 FR 36123, July 1, 1998]



Sec. 19.705-2  Determining the need for a subcontracting plan.

    The contracting officer must take the following actions to determine 
whether a proposed contractual action requires a subcontracting plan:
    (a) Determine whether the proposed contractual action will meet the 
dollar threshold in 19.702(a)(1) or (2). If the action includes options 
or similar provisions, include their value in determining whether the 
threshold is met.
    (b) Determine whether subcontracting possibilities exist by 
considering relevant factors such as--
    (1) Whether firms engaged in the business of furnishing the types of 
items to be acquired customarily contract for performance of part of the 
work or maintain sufficient in-house capability to perform the work;
    (2) Whether there are likely to be product prequalification 
requirements; and
    (c) If it is determined that there are no subcontracting 
possibilities, the determination must be approved at a level above the 
contracting officer and placed in the contract file.
    (d) In solicitations for negotiated acquisitions, the contracting 
officer may require the submission of subcontracting plans with initial 
offers, or at any other time prior to award. In determining when 
subcontracting plans should be required, as well as when and with whom 
plans should be negotiated, the contracting officer must consider the 
integrity of the competitive process, the goal of affording maximum 
practicable opportunity for small business, veteran-owned small 
business, service-disabled veteran-owned small business, HUBZone small 
business, small disadvantaged business, and women-owned small business 
concerns to participate, and the burden placed on offerors.
    (e) A contract may have no more than one plan. When a modification 
meets the criteria in 19.702 for a plan, or an option is exercised, the 
goals associated with the modification or option shall be added to those 
in the existing subcontract plan.

[48 FR 42240, Sept. 19, 1983, as amended at 51 FR 2664, Jan. 17, 1986; 
51 FR 19716, May 30, 1986; 60 FR 48262, Sept. 18, 1995; 61 FR 2638, Jan. 
26, 1996; 63 FR 70271, Dec. 18, 1998; 65 FR 60545, Oct. 11, 2000; 66 FR 
53493, Oct. 22, 2001; 73 FR 21781, Apr. 22, 2008]

[[Page 442]]



Sec. 19.705-3  Preparing the solicitation.

    The contracting officer shall provide the Small Business 
Administration's (SBA's) procurement center representative (or, if a 
procurement center representative is not assigned, see 19.402(a)) a 
reasonable period of time to review any solicitation requiring 
submission of a subcontracting plan and to submit advisory findings 
before the solicitation is issued.

[71 FR 36926, June 28, 2006]



Sec. 19.705-4  Reviewing the subcontracting plan.

    The contracting officer shall review the subcontracting plan for 
adequacy, ensuring that the required information, goals, and assurances 
are included (see 19.704).
    (a) No detailed standards apply to every subcontracting plan. 
Instead, the contracting officer shall consider each plan in terms of 
the circumstances of the particular acquisition, including--
    (1) Previous involvement of small business concerns as prime 
contractors or subcontractors in similar acquisitions;
    (2) Proven methods of involving small business concerns as 
subcontractors in similar acquisitions; and
    (3) The relative success of methods the contractor intends to use to 
meet the goals and requirements of the plan, as evidenced by records 
maintained by contractors.
    (b) If, under a sealed bid solicitation, a bidder submits a plan 
that does not cover each of the 11 required elements (see 19.704), the 
contracting officer shall advise the bidder of the deficiency and 
request submission of a revised plan by a specific date. If the bidder 
does not submit a plan that incorporates the required elements within 
the time allotted, the bidder shall be ineligible for award. If the 
plan, although responsive, evidences the bidder's intention not to 
comply with its obligations under the clause at 52.219-8, Utilization of 
Small Business Concerns, the contracting officer may find the bidder 
nonresponsible.
    (c) In negotiated acquisitions, the contracting officer shall 
determine whether the plan is acceptable based on the negotiation of 
each of the 11 elements of the plan (see 19.704). Subcontracting goals 
should be set at a level that the parties reasonably expect can result 
from the offeror expending good faith efforts to use small business, 
veteran-owned small business, service-disabled veteran-owned small 
business, HUBZone small business, small disadvantaged business, and 
women-owned small business subcontractors to the maximum practicable 
extent. The contracting officer shall take particular care to ensure 
that the offeror has not submitted unreasonably low goals to minimize 
exposure to liquidated damages and to avoid the administrative burden of 
substantiating good faith efforts. Additionally, particular attention 
should be paid to the identification of steps that, if taken, would be 
considered a good faith effort. No goal should be negotiated upward if 
it is apparent that a higher goal will significantly increase the 
Government's cost or seriously impede the attainment of acquisition 
objectives. An incentive subcontracting clause (see 52.219-10, Incentive 
Subcontracting Program), may be used when additional and unique contract 
effort, such as providing technical assistance, could significantly 
increase subcontract awards to small business, veteran-owned small 
business, service-disabled veteran-owned small business, HUBZone small 
business, or women-owned small business concerns.
    (d) In determining the acceptability of a proposed subcontracting 
plan, the contracting officer should take the following actions:
    (1) Obtain information available from the cognizant contract 
administration office, as provided for in 19.706(a), and evaluate the 
offeror's past performance in awarding subcontracts for the same or 
similar products or services to small business, veteran-owned small 
business, service-disabled veteran-owned small business, HUBZone small 
business, small disadvantaged business, and women-owned small business 
concerns. If information is not available on a specific type of product 
or service, evaluate the offeror's overall past performance and consider 
the performance of other contractors on similar efforts.

[[Page 443]]

    (2) In accordance with 15 U.S.C. 637(d)(4)(F)(iii), ensure that the 
goals offered are attainable in relation to--
    (i) The subcontracting opportunities available to the contractor, 
commensurate with the efficient and economical performance of the 
contract;
    (ii) The pool of eligible subcontractors available to fulfill the 
subcontracting opportunities; and
    (iii) The actual performance of such contractor in fulfilling the 
subcontracting goals specified in prior plans.
    (3) Ensure that the subcontracting goals are consistent with the 
offeror's certified cost or pricing data or data other than certified 
cost or pricing data.
    (4) Evaluate the offeror's make-or-buy policy or program to ensure 
that it does not conflict with the offeror's proposed subcontracting 
plan and is in the Government's interest. If the contract involves 
products or services that are particularly specialized or not generally 
available in the commercial market, consider the offeror's current 
capacity to perform the work and the possibility of reduced 
subcontracting opportunities.
    (5) Evaluate subcontracting potential, considering the offeror's 
make-or-buy policies or programs, the nature of the supplies or services 
to be subcontracted, the known availability of small business, veteran-
owned small business, service-disabled veteran-owned small business, 
HUBZone small business, small disadvantaged business, and women-owned 
small business concerns in the geographical area where the work will be 
performed, and the potential contractor's long-standing contractual 
relationship with its suppliers.
    (6) Advise the offeror of available sources of information on 
potential small business, veteran-owned small business, service-disabled 
veteran-owned small business, HUBZone small business, small 
disadvantaged business, and women-owned small business subcontractors, 
as well as any specific concerns known to be potential subcontractors. 
If the offerors proposed goals are questionable, the contracting officer 
must emphasize that the information should be used to develop realistic 
and acceptable goals.
    (7) Obtain advice and recommendations from the SBA procurement 
center representative (or, if a procurement center representative is not 
assigned, see 19.402(a)) and the agency small business specialist.

[48 FR 42240, Sept. 19, 1983, as amended at 50 FR 1743, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 51 FR 19716, May 30, 1986; 54 FR 30709, July 
21, 1989; 55 FR 52792, Dec. 21, 1990; 60 FR 48262, Sept. 18, 1995; 63 FR 
34066, June 22, 1998; 63 FR 36123, July 1, 1998; 63 FR 70271, Dec. 18, 
1998; 65 FR 60545, Oct. 11, 2000; 66 FR 53493, Oct. 22, 2001; 67 FR 
1858, Jan. 14, 2002; 71 FR 36926, June 28, 2006; 75 FR 53149, Aug. 30, 
2010]



Sec. 19.705-5  Awards involving subcontracting plans.

    (a) In making an award that requires a subcontracting plan, the 
contracting officer shall be responsible for the following:
    (1) Consider the contractor's compliance with the subcontracting 
plans submitted on previous contracts as a factor in determining 
contractor responsibility.
    (2) Assure that a subcontracting plan was submitted when required.
    (3) Notify the SBA procurement center representative (or, if a 
procurement center representative is not assigned, see 19.402(a)) of the 
opportunity to review the proposed contract (including the plan and 
supporting documentation). The notice shall be issued in sufficient time 
to provide the representative a reasonable time to review the material 
and submit advisory recommendations to the contracting officer. Failure 
of the representative to respond in a reasonable period of time shall 
not delay contract award.
    (4) Determine any fee that may be payable if an incentive is used in 
conjunction with the subcontracting plan.
    (5) Ensure that an acceptable plan is incorporated into and made a 
material part of the contract.
    (b) Letter contracts and similar undefinitized instruments, which 
would otherwise meet the requirements of 19.702(a)(1) and (2), shall 
contain at least a preliminary basic plan addressing the requirements of 
19.704 and in such cases require the negotiation of the final plan 
within 90 days after

[[Page 444]]

award or before definitization, whichever occurs first.

[48 FR 42240, Sept. 19, 1983, as amended at 50 FR 1743, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 71 FR 36926, June 28, 2006]



Sec. 19.705-6  Postaward responsibilities of the contracting officer.

    After a contract or contract modification containing a 
subcontracting plan is awarded, the contracting officer who approved the 
plan is responsible for the following:
    (a) Notifying the SBA of the award by sending a copy of the award 
document to the Area Director, Office of Government Contracting, in the 
SBA area office where the contract will be performed.
    (b) Forwarding a copy of each commercial plan and any associated 
approvals to the Area Director, Office of Government Contracting, in the 
SBA area office where the contractor's headquarters is located.
    (c) Giving to the SBA procurement center representative (or, if a 
procurement center representative is not assigned, see 19.402(a)) a copy 
of--
    (1) Any subcontracting plan submitted in response to a sealed bid 
solicitation; and
    (2) The final negotiated subcontracting plan that was incorporated 
into a negotiated contract or contract modification.
    (d) Notifying the SBA procurement center representative (or, if a 
procurement center representative is not assigned, see 19.402(a)) of the 
opportunity to review subcontracting plans in connection with contract 
modifications.
    (e) Forwarding a copy of each plan, or a determination that there is 
no requirement for a subcontracting plan, to the cognizant contract 
administration office.
    (f) Initiating action to assess liquidated damages in accordance 
with 19.705-7 upon a recommendation by the administrative contracting 
officer or receipt of other reliable evidence to indicate that such 
action is warranted.
    (g) Taking action to enforce the terms of the contract upon receipt 
of a notice under 19.706(f).
    (h) Acknowledging receipt of or rejecting the ISR and the SSR in the 
eSRS. Acknowledging receipt does not mean acceptance or approval of the 
report. The report shall be rejected if it is not adequately completed, 
for instance, if there are errors, omissions, or incomplete data. 
Failure to meet the goals of the subcontracting plan is not a valid 
reason for rejecting the report.

[48 FR 42240, Sept. 19, 1983, as amended at 52 FR 19803, May 27, 1987; 
53 FR 27464, July 20, 1988; 53 FR 34228, Sept. 2, 1988; 54 FR 30709, 
July 21, 1989; 55 FR 52792, Dec. 21, 1990; 63 FR 34066, June 22, 1998; 
63 FR 70271, Dec. 18, 1998; 71 FR 36926, June 28, 2006; 73 FR 21781, 
Apr. 22, 2008; 75 FR 34264, June 16, 2010]



Sec. 19.705-7  Liquidated damages.

    (a) Maximum practicable utilization of small business, veteran-owned 
small business, service-disabled veteran-owned small business, HUBZone 
small business, small disadvantaged business and women-owned small 
business concerns as subcontractors in Government contracts is a matter 
of national interest with both social and economic benefits. When a 
contractor fails to make a good faith effort to comply with a 
subcontracting plan, these objectives are not achieved, and 15 U.S.C. 
637(d)(4)(F) directs that liquidated damages shall be paid by the 
contractor.
    (b) The amount of damages attributable to the contractor's failure 
to comply shall be an amount equal to the actual dollar amount by which 
the contractor failed to achieve each subcontracting goal.
    (c) If, at completion of the basic contract or any option, or in the 
case of a commercial plan, at the close of the fiscal year for which the 
plan is applicable, a contractor has failed to meet its subcontracting 
goals, the contracting officer shall review all available information 
for an indication that the contractor has not made a good faith effort 
to comply with the plan. If no such indication is found, the contracting 
officer shall document the file accordingly. If the contracting officer 
decides in accordance with paragraph (d) of this subsection that the 
contractor failed to make a good faith effort to comply with its 
subcontracting plan, the contracting officer shall give

[[Page 445]]

the contractor written notice specifying the failure, advising the 
contractor of the possibility that the contractor may have to pay to the 
Government liquidated damages, and providing a period of 15 working days 
(or longer period as necessary) within which to respond. The notice 
shall give the contractor an opportunity to demonstrate what good faith 
efforts have been made before the contracting officer issues the final 
decision, and shall further state that failure of the contractor to 
respond may be taken as an admission that no valid explanation exists.
    (d) In determining whether a contractor failed to make a good faith 
effort to comply with its subcontracting plan, a contracting officer 
must look to the totality of the contractor's actions, consistent with 
the information and assurances provided in its plan. The fact that the 
contractor failed to meet its subcontracting goals does not, in and of 
itself, constitute a failure to make a good faith effort. For example, 
notwithstanding a contractor's diligent effort to identify and solicit 
offers from small business, veteran-owned small business, service-
disabled veteran-owned small business, HUBZone small business, small 
disadvantaged business and women-owned small business concerns, factors 
such as unavailability of anticipated sources or unreasonable prices may 
frustrate achievement of the contractor's goals. However, when 
considered in the context of the contractor's total effort in accordance 
with its plan, the following, though not all inclusive, may be 
considered as indicators of a failure to make a good faith effort: a 
failure to attempt to identify, contact, solicit, or consider for 
contract award small business, veteran-owned small business, service-
disabled veteran-owned small business, HUBZone small business, small 
disadvantaged business or women-owned small business concerns; a failure 
to designate and maintain a company official to administer the 
subcontracting program and monitor and enforce compliance with the plan; 
a failure to submit the ISR, or the SSR, using the eSRS, or as provided 
in agency regulations; a failure to maintain records or otherwise 
demonstrate procedures adopted to comply with the plan; or the adoption 
of company policies or procedures that have as their objectives the 
frustration of the objectives of the plan.
    (e) If, after consideration of all the pertinent data, the 
contracting officer finds that the contractor failed to make a good 
faith effort to comply with its subcontracting plan, the contracting 
officer shall issue a final decision to the contractor to that effect 
and require the payment of liquidated damages in an amount stated. The 
contracting officer's final decision shall state that the contractor has 
the right to appeal under the clause in the contract entitled Disputes.
    (f) With respect to commercial plans approved under the clause at 
52.219-9, Small Business Subcontracting Plan, the contracting officer 
that approved the plan shall--
    (1) Perform the functions of the contracting officer under this 
subsection on behalf of all agencies with contracts covered by the 
commercial plan;
    (2) Determine whether or not the goals in the commercial plan were 
achieved and, if they were not achieved, review all available 
information for an indication that the contractor has not made a good 
faith effort to comply with the plan, and document the results of the 
review;
    (3) If a determination is made to assess liquidated damages, in 
order to calculate and assess the amount of damages, the contracting 
officer shall ask the contractor to provide--
    (i) Contract numbers for the Government contracts subject to the 
plan;
    (ii) The total Government sales during the contractor's fiscal year; 
and
    (iii) The amount of payments made under the Government contracts 
subject to that plan that contributed to the contractor's total sales 
during the contractor's fiscal year; and
    (4) When appropriate, assess liquidated damages on the Government's 
behalf, based on the pro rata share of subcontracting attributable to 
the Government contracts. For example: The contractor's total actual 
sales were $50 million and its actual subcontracting was $20 million. 
The Government's total payments under contracts subject to the plan 
contributing to the

[[Page 446]]

contractor's total sales were $5 million, which accounted for 10 percent 
of the contractor's total sales. Therefore, the pro rata share of 
subcontracting attributable to the Government contracts would be 10 
percent of $20 million, or $2 million. To continue the example, if the 
contractor failed to achieve its small business goal by 1 percent, the 
liquidated damages would be calculated as 1 percent of $2 million, or 
$20,000. The contracting officer shall make similar calculations for 
each category of small business where the contractor failed to achieve 
its goal and the sum of the dollars for all of the categories equals the 
amount of the liquidated damages to be assessed. A copy of the 
contracting officer's final decision assessing liquidated damages shall 
be provided to other contracting officers with contracts subject to the 
commercial plan.
    (g) Liquidated damages shall be in addition to any other remedies 
that the Government may have.
    (h) Every contracting officer with a contract that is subject to a 
commercial plan shall include in the contract file a copy of the 
approved plan and a copy of the final decision assessing liquidating 
damages, if applicable.

[54 FR 30709, July 21, 1989, as amended at 60 FR 48263, Sept. 18, 1995; 
63 FR 34066, June 22, 1998; 63 FR 70272, Dec. 18, 1998; 65 FR 60545, 
Oct. 11, 2000; 66 FR 53493, Oct. 22, 2001; 73 FR 21781, Apr. 22, 2008]



Sec. 19.706  Responsibilities of the cognizant administrative 
          contracting officer.

    The administrative contracting officer is responsible for assisting 
in evaluating subcontracting plans, and for monitoring, evaluating, and 
documenting contractor performance under the clause prescribed in 
19.708(b) and any subcontracting plan included in the contract. The 
contract administration office shall provide the necessary information 
and advice to support the contracting officer, as appropriate, by 
furnishing--
    (a) Documentation on the contractor's performance and compliance 
with subcontracting plans under previous contracts;
    (b) Information on the extent to which the contractor is meeting the 
plan's goals for subcontracting with eligible small business, veteran-
owned small business, service-disabled veteran-owned small business, 
HUBZone small business, small disadvantaged business, and women-owned 
small business concerns;
    (c) Information on whether the contractor's efforts to ensure the 
participation of small business, veteran-owned small business, service-
disabled veteran-owned small business, HUBZone small business, small 
disadvantaged business, and women-owned small business concerns are in 
accordance with its subcontracting plan;
    (d) Information on whether the contractor is requiring its 
subcontractors to adopt similar subcontracting plans;
    (e) Immediate notice if, during performance, the contractor is 
failing to meet its commitments under the clause prescribed in 19.708(b) 
or the subcontracting plan;
    (f) Immediate notice and rationale if, during performance, the 
contractor is failing to comply in good faith with the subcontracting 
plan; and
    (g) Immediate notice that performance under a contract is complete, 
that the goals were or were not met, and, if not met, whether there is 
any indication of a lack of a good faith effort to comply with the 
subcontracting plan.

[48 FR 42240, Sept. 19, 1983, as amended at 54 FR 30710, July 21, 1989; 
60 FR 48263, Sept. 18, 1995; 63 FR 34067, June 22, 1998; 63 FR 70272, 
Dec. 18, 1998; 65 FR 60545, Oct. 11, 2000; 66 FR 53493, Oct. 22, 2001]



Sec. 19.707  The Small Business Administration's role in carrying out 
          the program.

    (a) Under the program, the SBA may--
    (1) Assist both Government agencies and contractors in carrying out 
their responsibilities with regard to subcontracting plans;
    (2) Review (within 5 working days) any solicitation that meets the 
dollar threshold in 19.702(a)(1) or (2) before the solicitation is 
issued;
    (3) Review (within 5 working days) before execution any negotiated 
contractual document requiring a subcontracting plan, including the plan 
itself, and submit recommendations to the

[[Page 447]]

contracting officer, which shall be advisory in nature; and
    (4) Evaluate compliance with subcontracting plans, either on a 
contract-by-contract basis, or, in the case of contractors having 
multiple contracts, on an aggregate basis.
    (b) The SBA is not authorized to (1) prescribe the extent to which 
any contractor or subcontractor shall subcontract, (2) specify concerns 
to which subcontracts will be awarded, or (3) exercise any authority 
regarding the administration of individual prime contracts or 
subcontracts.

[48 FR 42240, Sept. 19, 1983, as amended at 51 FR 2664, Jan. 17, 1986]



Sec. 19.708  Contract clauses.

    (a) Insert the clause at 52.219-8, Utilization of Small Business 
Concerns, in solicitations and contracts when the contract amount is 
expected to exceed the simplified acquisition threshold unless--
    (1) A personal services contract is contemplated (see 37.104); or
    (2) The contract, together with all of its subcontracts, will be 
performed entirely outside of the United States and its outlying areas.
    (b)(1) Insert the clause at 52.219-9, Small Business Subcontracting 
Plan, in solicitations and contracts that offer subcontracting 
possibilities, are expected to exceed $650,000 ($1.5 million for 
construction of any public facility), and are required to include the 
clause at 52.219-8, Utilization of Small Business Concerns, unless the 
acquisition is set aside or is to be accomplished under the 8(a) 
program. When--
    (i) Contracting by sealed bidding rather than by negotiation, the 
contracting officer shall use the clause with its Alternate I.
    (ii) Contracting by negotiation, and subcontracting plans are 
required with initial proposals as provided for in 19.705-2(d), the 
contracting officer shall use the clause with its Alternate II.
    (iii) The contract action will not be reported in the Federal 
Procurement Data System pursuant to 4.606(c)(5) or (c)(6), the 
contracting officer shall use the clause with its Alternate III.
    (2) Insert the clause at 52.219-16, Liquidated Damages--
Subcontracting Plan, in all solicitations and contracts containing the 
clause at 52.219-9, Small Business Subcontracting Plan, or the clause 
with its Alternate I, II, or III.
    (c)(1) The contracting officer may, when contracting by negotiation, 
insert in solicitations and contracts a clause substantially the same as 
the clause at 52.219-10, Incentive Subcontracting Program, when a 
subcontracting plan is required (see 19.702), and inclusion of a 
monetary incentive is, in the judgment of the contracting officer, 
necessary to increase subcontracting opportunities for small business, 
veteran-owned small business, service-disabled veteran-owned small 
business, HUBZone small business, and women-owned small business 
concerns, and is commensurate with the efficient and economical 
performance of the contract; unless the conditions in paragraph (c)(3) 
of this section are applicable. The contracting officer may vary the 
terms of the clause as specified in paragraph (c)(2) of this section.
    (2) Various approaches may be used in the development of small 
business, veteran-owned small business, service-disabled veteran-owned 
small business, HUBZone small business, and women-owned small business 
concerns' subcontracting incentives. They can take many forms, from a 
fully quantified schedule of payments based on actual subcontract 
achievement to an award-fee approach employing subjective evaluation 
criteria (see paragraph (c)(3) of this section). The incentive should 
not reward the contractor for results other than those that are 
attributable to the contractor's efforts under the incentive 
subcontracting program.
    (3) As specified in paragraph (c)(2) of this section, the 
contracting officer may include small business, veteran-owned small 
business, service-disabled veteran-owned small business, HUBZone small 
business, and women-owned small business subcontracting as one of the 
factors to be considered in determining the award fee in a cost-plus-
award-fee contract; in such cases, however, the contracting officer 
shall not use the clause at 52.219-10, Incentive Subcontracting Program.

[48 FR 42240, Sept. 19, 1983]

    Editorial Note: For Federal Register citations affecting section 
19.708, see the List

[[Page 448]]

of CFR Sections Affected, which appears in the Finding Aids section of 
the printed volume and at www.fdsys.gov.

  Subpart 19.8_Contracting With the Small Business Administration (the 
                              8(a) Program)

    Source: 54 FR 46005, Oct. 31, 1989, unless otherwise noted.



Sec. 19.800  General.

    (a) Section 8(a) of the Small Busines Act (15 U.S.C. 637(a)) 
established a program that authorizes the Small Business Administration 
(SBA) to enter into all types of contracts with other agencies and let 
subcontracts for performing those contracts to firms eligible for 
program participation. The SBA's subcontractors are referred to as 8(a) 
contractors.
    (b) Contracts may be awarded to the SBA for performance by eligible 
8(a) firms on either a sole source or competitive basis.
    (c) When, acting under the authority of the program, the SBA 
certifies to an agency that the SBA is competent and responsible to 
perform a specific contract, the contracting officer is authorized, in 
the contracting officer's discretion, to award the contract to the SBA 
based upon mutually agreeable terms and conditions.
    (d) The SBA refers to this program as the 8(a) Business Development 
(BD) Program.
    (e) The contracting officer shall comply with 19.203 before deciding 
to offer an acquisition to a small business concern under the 8(a) 
Program. For acquisitions above the simplified acquisition threshold, 
the contracting officer shall consider 8(a) set-asides or sole source 
awards before considering small business set-asides.
    (f) When SBA has delegated its 8(a) Program contract execution 
authority to an agency, the contracting officer must refer to its agency 
supplement or other policy directives for appropriate guidance.

[54 FR 46005, Oct. 31, 1989, as amended at 63 FR 70272, Dec. 18, 1998; 
64 FR 32743, June 17, 1999; 64 FR 51832, Sept. 24, 1999; 69 FR 25278, 
May 5, 2004; 75 FR 77730, Dec. 13, 2010; 76 FR 14568, Mar. 16, 2011; 77 
FR 12932, Mar. 2, 2012]



Sec. 19.801  [Reserved]



Sec. 19.802  Selecting concerns for the 8(a) Program.

    Selecting concerns for the 8(a) Program is the responsibility of the 
SBA and is based on the criteria established in 13 CFR 124.101-112.

[48 FR 42240, Sept. 19, 1983, as amended at 64 FR 32744, June 17, 1999]



Sec. 19.803  Selecting acquisitions for the 8(a) Program.

    Through their cooperative efforts, the SBA and an agency match the 
agency's requirements with the capabilities of 8(a) concerns to 
establish a basis for the agency to contract with the SBA under the 
program. Selection is initiated in one of three ways--
    (a) The SBA advises an agency contracting activity through a search 
letter of an 8(a) firm's capabilities and asks the agency to identify 
acquisitions to support the firm's business plans. In these instances, 
the SBA will provide at least the following information in order to 
enable the agency to match an acquisition to the firm's capabilities.
    (1) Identification of the concern and its owners.
    (2) Background information on the concern, including any and all 
information pertaining to the concern's technical ability and capacity 
to perform.
    (3) The firm's present production capacity and related facilities.
    (4) The extent to which contracting assistance is needed in the 
present and the future, described in terms that will enable the agency 
to relate the concern's plans to present and future agency requirements.
    (5) If construction is involved, the request shall also include the 
following:
    (i) The concern's capabilities in and qualifications for 
accomplishing various categories of maintenance, repair, alteration, and 
construction work in specific categories such as mechanical, electrical, 
heating and air conditioning, demolition, building, painting, paving, 
earth work, waterfront work, and general construction work.
    (ii) The concern's capacity in each construction category in terms 
of estimated dollar value (e.g., electrical, up to $100,000).

[[Page 449]]

    (b) The SBA identifies a specific requirement for a particular 8(a) 
firm or firms and asks the agency contracting activity to offer the 
acquisition to the 8(a) Program for the firm(s). In these instances, in 
addition to the information in paragraph (a) of this section, the SBA 
will provide--
    (1) A clear identification of the acquisition sought; e.g., project 
name or number;
    (2) A statement as to how any additional needed equipment and real 
property will be provided in order to ensure that the firm will be fully 
capable of satisfying the agency's requirements;
    (3) If construction, information as to the bonding capability of the 
firm(s); and
    (4) Either--
    (i) If sole source request--
    (A) The reasons why the firm is considered suitable for this 
particular acquisition; e.g., previous contracts for the same or similar 
supply or service; and
    (B) A statement that the firm is eligible in terms of NAICS code, 
business support levels, and business activity targets; or,
    (ii) If competitive, a statement that at least two 8(a) firms are 
considered capable of satisfying the agency's requirements and a 
statement that the firms are also eligible in terms of the NAICS code, 
business support levels, and business activity targets. If requested by 
the contracting activity, SBA will identify at least two such firms and 
provide information concerning the firms' capabilities.
    (c) Agencies may also review other proposed acquisitions for the 
purpose of identifying requirements which may be offered to the SBA. 
Where agencies independently, or through the self marketing efforts of 
an 8(a) firm, identify a requirement for the 8(a) Program, they may 
offer on behalf of a specific 8(a) firm, for the 8(a) Program in 
general, or for 8(a) competition.

[54 FR 46005, Oct. 31, 1989, as amended at 55 FR 3882, Feb. 5, 1990; 61 
FR 67410, Dec. 20, 1996; 63 FR 70272, Dec. 18, 1998; 64 FR 32748, June 
17, 1999; 65 FR 46057, July 26, 2000; 72 FR 27384, May 15, 2007; 75 FR 
77730, Dec. 13, 2010]



Sec. 19.804  Evaluation, offering, and acceptance.



Sec. 19.804-1  Agency evaluation.

    In determining the extent to which a requirement should be offered 
in support of the 8(a) Program, the agency should evaluate--
    (a) Its current and future plans to acquire the specific items or 
work that 8(a) contractors are seeking to provide, identified in terms 
of--
    (1) Quantities required or the number of construction projects 
planned; and
    (2) Performance or delivery requirements, including required monthly 
production rates, when applicable.
    (b) Its current and future plans to acquire items or work similar in 
nature and complexity to that specified in the business plan;
    (c) Problems encountered in previous acquisitions of the items or 
work from the 8(a) contractors and/or other contractors;
    (d) The impact of any delay in delivery;
    (e) Whether the items or work have previously been acquired using 
small business set-asides; and
    (f) Any other pertinent information about known 8(a) contractors, 
the items, or the work. This includes any information concerning the 
firms' capabilities. When necessary, the contracting agency shall make 
an independent review of the factors in 19.803(a) and other aspects of 
the firms' capabilities which would ensure the satisfactory performance 
of the requirement being considered for commitment to the 8(a) Program.



Sec. 19.804-2  Agency offering.

    (a) After completing its evaluation, the agency must notify the SBA 
of the extent of its plans to place 8(a) contracts with the SBA for 
specific quantities of items or work. The notification must identify the 
timeframes within which prime contract and subcontract actions must be 
completed in order for the agency to meet its responsibilities. The 
notification must also contain the following information applicable to 
each prospective contract:
    (1) A description of the work to be performed or items to be 
delivered, and

[[Page 450]]

a copy of the statement of work, if available.
    (2) The estimated period of performance.
    (3) The NAICS code that applies to the principal nature of the 
acquisition.
    (4) The anticipated dollar value of the requirement, including 
options, if any.
    (5) Any special restrictions or geographical limitations on the 
requirement (for construction, include the location of the work to be 
performed).
    (6) Any special capabilities or disciplines needed for contract 
performance.
    (7) The type of contract anticipated.
    (8) The acquisition history, if any, of the requirement, including 
the names and addresses of any small business contractors that have 
performed this requirement during the previous 24 months.
    (9) A statement that prior to the offering no solicitation for the 
specific acquisition has been issued as a small business, HUBZone, 
service-disabled veteran-owned small business set-aside, or a set-aside 
under the Women-Owned Small Business (WOSB) Program, and that no other 
public communication (such as a notice through the Governmentwide point 
of entry (GPE)) has been made showing the contracting agency's clear 
intention to set-aside the acquisition for small business, HUBZone small 
business, service-disabled veteran-owned small business concerns, or a 
set-aside under the WOSB Program.
    (10) Identification of any particular 8(a) concern designated for 
consideration, including a brief justification, such as--
    (i) The 8(a) concern, through its own efforts, marketed the 
requirement and caused it to be reserved for the 8(a) Program; or
    (ii) The acquisition is a follow-on or renewal contract and the 
nominated concern is the incumbent.
    (11) Bonding requirements, if applicable.
    (12) Identification of all SBA field offices that have asked for the 
acquisition for the 8(a) Program.
    (13) A request, if appropriate, that a requirement with an estimated 
contract value under the applicable competitive threshold be awarded as 
an 8(a) competitive contract (see 19.805-1(d)).
    (14) A request, if appropriate, that a requirement with a contract 
value over the applicable competitive threshold be awarded as a sole 
source contract (see 19.805-1(b)).
    (15) Any other pertinent and reasonably available data.
    (b)(1) An agency offering a construction requirement for which no 
specific offeror is nominated should submit it to the SBA District 
Office for the geographical area where the work is to be performed.
    (2) An agency offering a construction requirement on behalf of a 
specific offeror should submit it to the SBA District Office servicing 
that concern.
    (3) Sole source requirements, other than construction, should be 
forwarded directly to the district office that services the nominated 
firm. If the contracting officer is not nominating a specific firm, the 
offering letter should be forwarded to the district office servicing the 
geographical area in which the contracting office is located.
    (c) All requirements for 8(a) competition, other than construction, 
should be forwarded to the district office servicing the geographical 
area in which the contracting office is located. All requirements for 
8(a) construction competition should be forwarded to the district office 
servicing the geographical area in which all or the major portion of the 
construction is to be performed. All requirements, including 
construction, must be synopsized through the GPE. For construction, the 
synopsis must include the geographical area of the competition set forth 
in the SBA's acceptance letter.

[54 FR 46005, Oct. 31, 1989, as amended at 61 FR 67421, Dec. 20, 1996; 
62 FR 44823, Aug. 22, 1997; 64 FR 32744, June 17, 1999; 65 FR 46057, 
July 26, 2000; 66 FR 27413, May 16, 2001; 69 FR 25278, May 5, 2004; 75 
FR 60264, Sept. 29, 2010; 76 FR 14568, Mar. 16, 2011; 76 FR 18311, Apr. 
1, 2011]



Sec. 19.804-3  SBA acceptance.

    (a) Upon receipt of the contracting agency's offer, the SBA will 
determine whether to accept the requirement for the 8(a) Program. The 
SBA's decision whether to accept the requirement will be transmitted to 
the contracting

[[Page 451]]

agency in writing within 10 working days of receipt of the offer if the 
contract is likely to exceed the simplified acquisition threshold and 
within 2 days of receipt if the contract is at or below the simplified 
acquisition threshold. The contracting agency may grant an extension of 
these time periods. If SBA does not respond to an offering letter within 
10 days, the contracting activity may seek SBA's acceptance through the 
Associate Administrator.
    (b) If the acquisition is accepted as a sole source, the SBA will 
advise the contracting activity of the 8(a) firm selected for 
negotiation. Generally, the SBA will accept a contracting activity's 
recommended source.
    (c) For acquisitions not exceeding the simplified acquisition 
threshold, when the contracting activity makes an offer to the 8(a) 
Program on behalf of a specific 8(a) firm and does not receive a reply 
to its offer within 2 days, the contracting activity may assume the 
offer is accepted and proceed with award of an 8(a) contract.
    (d) As part of the acceptance process, SBA will review the 
appropriateness of the NAICS code designation assigned to the 
requirement by the contracting activity.
    (1) SBA will not challenge the NAICS code assigned to the 
requirement by the contracting activity if it is reasonable, even though 
other NAICS codes may also be reasonable.
    (2) If SBA and the contracting activity are unable to agree on a 
NAICS code designation for the requirement, SBA may refuse to accept the 
requirement for the 8(a) Program, appeal the contracting officer's 
determination to the head of the agency pursuant to 19.810, or appeal 
the NAICS code designation to the SBA Office of Hearings and Appeals 
under subpart C of 13 CFR part 134.

[48 FR 42240, Sept. 19, 1983, as amended at 56 FR 55380, Oct. 25, 1991; 
61 FR 67421, Dec. 20, 1996; 64 FR 32744, June 17, 1999; 65 FR 46057, 
July 26, 2000; 75 FR 77730, Dec. 13, 2010]



Sec. 19.804-4  Repetitive acquisitions.

    In order for repetitive acquisitions to be awarded through the 8(a) 
Program, there must be separate offers and acceptances. This allows the 
SBA to determine--
    (a) Whether the requirement should be a competitive 8(a) award;
    (b) A nominated firm's eligibility, whether or not it is the same 
firm that performed the previous contract;
    (c) The effect that contract award would have on the equitable 
distribution of 8(a) contracts; and
    (d) Whether the requirement should continue under the 8(a) Program.

[64 FR 32744, June 17, 1999]



Sec. 19.804-5  Basic ordering agreements.

    (a) The contracting activity must offer, and SBA must accept, each 
order under a basic ordering agreement (BOA) in addition to offering and 
accepting the BOA itself.
    (b) SBA will not accept for award on a sole-source basis any order 
that would cause the total dollar amount of orders issued under a 
specific BOA to exceed the competitive threshold amount in 19.805-1.
    (c) Once an 8(a) concern's program term expires, the concern 
otherwise exits the 8(a) Program, or becomes other than small for the 
NAICS code assigned under the BOA, SBA will not accept new orders for 
the concern.

[64 FR 32744, June 17, 1999, as amended at 65 FR 46057, July 26, 2000]



Sec. 19.804-6  Indefinite delivery contracts.

    (a) Separate offers and acceptances must not be made for individual 
orders under multiple award, Federal Supply Schedule (FSS), multi-agency 
contracts or Governmentwide acquisition contracts. SBA's acceptance of 
the original contract is valid for the term of the contract.
    (b) The requirements of 19.805-1 of this part do not apply to 
individual orders that exceed the competitive threshold as long as the 
original contract was competed.
    (c) An 8(a) concern may continue to accept new orders under a 
multiple award, Federal Supply Schedule (FSS), multi-agency contract or 
Governmentwide acquisition contract even after a concern's program term 
expires, the concern otherwise exits the 8(a) Program, or the concern 
becomes other than small for the NAICS code assigned under the contract.

[72 FR 36855, July 5, 2007]

[[Page 452]]



Sec. 19.805  Competitive 8(a).



Sec. 19.805-1  General.

    (a) Except as provided in paragraph (b) of this subsection, an 
acquisition offered to the SBA under the 8(a) Program shall be awarded 
on the basis of competition limited to eligible 8(a) firms if--
    (1) There is a reasonable expectation that at least two eligible and 
responsible 8(a) firms will submit offers and that award can be made at 
a fair market price; and
    (2) The anticipated total value of the contract, including options, 
will exceed $6.5 million for acquisitions assigned manufacturing North 
American Industry Classification System (NAICS) codes and $4 million for 
all other acquisitions.
    (b) Where an acquisition exceeds the competitive threshold, the SBA 
may accept the requirement for a sole source 8(a) award if--
    (1) There is not a reasonable expectation that at least two eligible 
and responsible 8(a) firms will submit offers at a fair market price; or
    (2) SBA accepts the requirement on behalf of a concern owned by an 
Indian tribe or an Alaska Native Corporation.
    (c) A proposed 8(a) requirement with an estimated value exceeding 
the applicable competitive threshold amount shall not be divided into 
several requirements for lesser amounts in order to use 8(a) sole source 
procedures for award to a single firm.
    (d) The SBA Associate Administrator for 8(a) Business Development 
(AA/BD) may approve an agency request for a competitive 8(a) award below 
the competitive thresholds. Such requests will be approved only on a 
limited basis and will be primarily granted where technical competitions 
are appropriate or where a large number of responsible 8(a) firms are 
available for competition. In determining whether a request to compete 
below the threshold will be approved, the AA/BD will, in part, consider 
the extent to which the requesting agency is supporting the 8(a) Program 
on a noncompetitive basis. The agency may include recommendations for 
competition below the threshold in the offering letter or by separate 
correspondence to the AA/BD.

[54 FR 46005, Oct. 31, 1989, as amended at 61 FR 67421, Dec. 20, 1996; 
64 FR 32744, June 17, 1999; 65 FR 46056, July 26, 2000; 68 FR 4051, Jan. 
27, 2003; 69 FR 8314, Feb. 23, 2004; 71 FR 57367, Sept. 28, 2006; 75 FR 
53133, Aug. 30, 2010; 75 FR 77730, Dec. 13, 2010]



Sec. 19.805-2  Procedures.

    (a) Offers shall be solicited from those sources identified in 
accordance with 19.804-3.
    (b) The SBA will determine the eligibility of the firms for award of 
the contract. Eligibility will be determined by the SBA as of the time 
of submission of initial offers which include price. Eligibility is 
based on Section 8(a) Program criteria.
    (1) In sealed bid acquisitions, upon receipt of offers, the 
contracting officer will provide the SBA a copy of the solicitation, the 
estimated fair market price, and a list of offerors ranked in the order 
of their standing for award (i.e., first low, second low, etc.) with the 
total evaluated price for each offer, differentiating between basic 
requirements and any options. The SBA will consider the eligibility of 
the first low offeror. If the first low offeror is not determined to be 
eligible, the SBA will consider the eligibility of the next low offeror 
until an eligible offeror is identified. The SBA will determine the 
eligibility of the firms and advise the contracting officer within 5 
working days after its receipt of the list of bidders. Once eligibility 
has been established by the SBA, the successful offeror will be 
determined by the contracting activity in accordance with normal 
contracting procedures.
    (2) In negotiated acquisition, the SBA will determine eligibility 
when the successful offeror has been established by the agency and the 
contract transmitted for signature unless a referral has been made under 
19.809, in which case the SBA will determine eligibility at that point.
    (c) In any case in which a firm is determined to be ineligible, the 
SBA will notify the firm of that determination.
    (d) The eligibility of an 8(a) firm for a competitive 8(a) award may 
not be challenged or protested by another 8(a)

[[Page 453]]

firm or any other party as part of a solicitation or proposed contract 
award. Any party with information concerning the eligibility of an 8(a) 
firm to continue participation in the 8(a) Program may submit such 
information to the SBA in accordance with 13 CFR 124.517.

[54 FR 46005, Oct. 31, 1989, as amended at 61 FR 67421, Dec. 20, 1996; 
64 FR 32745, June 17, 1999]



Sec. 19.806  Pricing the 8(a) contract.

    (a) The contracting officer shall price the 8(a) contract in 
accordance with subpart 15.4. If required by subpart 15.4, the SBA shall 
obtain certified cost or pricing data from the 8(a) contractor. If the 
SBA requests audit assistance to determine the proposed price to be fair 
and reasonable in a sole source acquisition, the contracting activity 
shall furnish it to the extent it is available.
    (b) An 8(a) contract, sole source or competitive, may not be awarded 
if the price of the contract results in a cost to the contracting agency 
which exceeds a fair market price.
    (c) If requested by the SBA, the contracting officer shall make 
available the data used to estimate the fair market price within 10 
working days.
    (d) The negotiated contract price and the estimated fair market 
price are subject to the concurrence of the SBA. In the event of a 
disagreement between the contracting officer and the SBA, the SBA may 
appeal in accordance with 19.810.

[54 FR 46005, Oct. 31, 1989, as amended at 62 FR 51270, Sept. 30, 1997; 
64 FR 32745, 32748, June 17, 1999; 75 FR 53149, Aug. 30, 2010]



Sec. 19.807  Estimating the fair market price.

    (a) The contracting officer shall estimate the fair market price of 
the work to be performed by the 8(a) contractor.
    (b) In estimating the fair market price for an acquisition other 
than those covered in paragraph (c) of this section, the contracting 
officer shall use cost or price analysis and consider commercial prices 
for similar products and services, available in-house cost estimates, 
data (including certified cost or pricing data) submitted by the SBA or 
the 8(a) contractor, and data obtained from any other Government agency.
    (c) In estimating a fair market price for a repeat purchase, the 
contracting officer shall consider recent award prices for the same 
items or work if there is comparability in quantities, conditions, 
terms, and performance times. The estimated price should be adjusted to 
reflect differences in specifications, plans, transportation costs, 
packaging and packing costs, and other circumstances. Price indices may 
be used as guides to determine the changes in labor and material costs. 
Comparison of commercial prices for similar items may also be used.

[54 FR 46005, Oct. 31, 1989, as amended at 75 FR 53149, Aug. 30, 2010]



Sec. 19.808  Contract negotiation.



Sec. 19.808-1  Sole source.

    (a) The SBA may not accept for negotiation a sole-source 8(a) 
contract that exceeds $20 million unless the requesting agency has 
completed a justification in accordance with the requirements of 6.303.
    (b) The SBA is responsible for initiating negotiations with the 
agency within the time established by the agency. If the SBA does not 
initiate negotiations within the agreed time and the agency cannot allow 
additional time, the agency may, after notifying the SBA, proceed with 
the acquisition from other sources.
    (c) The SBA should participate, whenever practicable, in negotiating 
the contracting terms. When mutually agreeable, the SBA may authorize 
the contracting activity to negotiate directly with the 8(a) contractor. 
Whether or not direct negotiations take place, the SBA is responsible 
for approving the resulting contract before award.

[54 FR 46005, Oct. 31, 1989, as amended at 55 FR 3883, Feb. 5, 1990; 56 
FR 55378, Oct. 25, 1991; 61 FR 67421, Dec. 20, 1996; 76 FR 14562, Mar. 
16, 2011]



Sec. 19.808-2  Competitive.

    In competitive 8(a) acquisitions subject to part 15, the contracting 
officer conducts negotiations directly with the competing 8(a) firms. 
Conducting competitive negotiations among 8(a) firms prior to SBA's 
formal acceptance of the acquisition for the 8(a) Program may

[[Page 454]]

be grounds for SBA's not accepting the acquisition for the 8(a) Program.

[64 FR 32745, June 17, 1999]



Sec. 19.809  Preaward considerations.

    The contracting officer should request a preaward survey of the 8(a) 
contractor whenever considered useful. If the results of the preaward 
survey or other information available to the contracting officer raise 
substantial doubt as to the firm's ability to perform, the contracting 
officer must refer the matter to SBA for Certificate of Competency 
consideration under subpart 19.6.

[64 FR 32745, June 17, 1999]



Sec. 19.810  SBA appeals.

    (a) The SBA Administrator may submit the following matters for 
determination to the agency head if the SBA and the contracting officer 
fail to agree on them:
    (1) The decision not to make a particular acquisition available for 
award under the 8(a) Program.
    (2) A contracting officer's decision to reject a specific 8(a) firm 
for award of an 8(a) contract after SBA's acceptance of the requirement 
for the 8(a) Program.
    (3) The terms and conditions of a proposed 8(a) contract, including 
the contracting activity's NAICS code designation and estimate of the 
fair market price.
    (b) Notification of a proposed appeal to the agency head by the SBA 
must be received by the contracting officer within 5 working days after 
the SBA is formally notified of the contracting officer's decision. The 
SBA will provide the agency Director for Small and Disadvantaged 
Business Utilization a copy of this notification of the intent to 
appeal. The SBA must send the written appeal to the head of the 
contracting activity within 15 working days of SBA's notification of 
intent to appeal or the contracting activity may consider the appeal 
withdrawn. Pending issuance of a decision by the agency head, the 
contracting officer must suspend action on the acquisition. The 
contracting officer need not suspend action on the acquisition if the 
contracting officer makes a written determination that urgent and 
compelling circumstances that significantly affect the interests of the 
United States will not permit waiting for a decision.
    (c) If the SBA appeal is denied, the decision of the agency head 
shall specify the reasons for the denial, including the reasons why the 
selected firm was determined incapable of performance, if appropriate. 
The decision shall be made a part of the contract file.

[54 FR 46005, Oct. 31, 1989, as amended at 64 FR 32745, June 17, 1999; 
65 FR 46057, July 26, 2000]



Sec. 19.811  Preparing the contracts.



Sec. 19.811-1  Sole source.

    (a) The contract to be awarded by the agency to the SBA shall be 
prepared in accordance with agency procedures and in the same detail as 
would be required in a contract with a business concern. The contracting 
officer shall use the Standard Form 26 as the award form, except for 
construction contracts, in which case the Standard Form 1442 shall be 
used as required in 36.701(a).
    (b) The agency shall prepare the contract that the SBA will award to 
the 8(a) contractor in accordance with agency procedures, as if the 
agency were awarding the contract directly to the 8(a) contractor, 
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) as the authority for use of other than full 
and open competition.
    (2) Appropriate clauses shall be included, as necessary, to reflect 
that the contract is between the SBA and the 8(a) contractor.
    (3) The following items shall be inserted by the SBA--
    (i) The SBA contract number.
    (ii) The effective date.
    (iii) The typed name of the SBA's contracting officer.
    (iv) The signature of the SBA's contracting officer.
    (v) The date signed.
    (4) The SBA will obtain the signature of the 8(a) contractor prior 
to signing and returning the prime contract to the contracting officer 
for signature. The SBA will make every effort to obtain signatures and 
return the contract, and any subsequent bilateral

[[Page 455]]

modification, to the contracting officer within a maximum of 10 working 
days.
    (c) Except in procurements where the SBA will make advance payments 
to its 8(a) contractor, the agency contracting officer may, as an 
alternative to the procedures in paragraphs (a) and (b) of this 
subsection, use a single contract document for both the prime contract 
between the agency and the SBA and its 8(a) contractor. The single 
contract document shall contain the information in paragraphs (b) (1), 
(2), and (3) of this subsection. Appropriate blocks on the Standard Form 
(SF) 26 or 1442 will be asterisked and a continuation sheet appended as 
a tripartite agreement which includes the following:
    (1) Agency acquisition office, prime contract number, name of agency 
contracting officer and lines for signature, date signed, and effective 
date.
    (2) The SBA office, the SBA contract number, name of the SBA 
contracting officer, and lines for signature and date signed.
    (3) Name and lines for the 8(a) contractor's signature and date 
signed.
    (d) For acquisitions not exceeding the simplified acquisition 
threshold, the contracting officer may use the alternative procedures in 
paragraph (c) of this subsection with the appropriate simplified 
acquisition forms.

[54 FR 46005, Oct. 31, 1989, as amended at 55 FR 3883, Feb. 5, 1990; 61 
FR 67421, Dec. 20, 1996; 62 FR 233, Jan. 2, 1997; 62 FR 64940, Dec. 9, 
1997; 64 FR 32745, June 17, 1999; 69 FR 59699, Oct. 5, 2004]



Sec. 19.811-2  Competitive.

    (a) The contract will be prepared in accordance with 14.408-1(d), 
except that appropriate blocks on the Standard Form 26 or 1442 will be 
asterisked and a continuation sheet appended as a tripartite agreement 
which includes the following:
    (1) The agency contracting activity, prime contract number, name of 
agency contracting officer, and lines for signature, date signed, and 
effective date.
    (2) The SBA office, the SBA subcontract number, name of the SBA 
contracting officer and lines for signature and date signed.
    (b) The process for obtaining signatures shall be as specified in 
19.811-1(b)(4).

[54 FR 46005, Oct. 31, 1989, as amended at 60 FR 34739, July 3, 1995; 62 
FR 233, Jan. 2, 1997; 64 FR 32745, June 17, 1999]



Sec. 19.811-3  Contract clauses.

    (a) The contracting officer shall insert the clause at 52.219-11, 
Special 8(a) Contract Conditions, in contracts between the SBA and the 
agency when the acquisition is accomplished using the procedures of 
19.811-1(a) and (b).
    (b) The contracting officer shall insert the clause at 52.219-12, 
Special 8(a) Subcontract Conditions, in contracts between the SBA and 
its 8(a) contractor when the acquisition is accomplished using the 
procedures of 19.811-1(a) and (b).
    (c) The contracting officer shall insert the clause at 52.219-17, 
Section 8(a) Award, in competitive solicitations and contracts when the 
acquisition is accomplished using the procedures of 19.805 and in sole 
source awards which utilize the alternative procedure in 19.811-1(c).
    (d) The contracting officer shall insert the clause at 52.219-18, 
Notification of Competition Limited to Eligible 8(a) Concerns, in 
competitive solicitations and contracts when the acquisition is 
accomplished using the procedures of 19.805.
    (1) The clause at 52.219-18 with its Alternate I will be used when 
competition is to be limited to 8(a) concerns within one or more 
specific SBA districts pursuant to 19.804-2.
    (2) The clause at 52.219-18 with its Alternate II will be used when 
the acquisition is for a product in a class for which the Small Business 
Administration has waived the nonmanufacturer rule (see 19.102(f) (4) 
and (5)).
    (e) The contracting officer shall insert the clause at 52.219-14, 
Limitations on Subcontracting, in any solicitation and contract 
resulting from this subpart. This includes multiple-award contracts when 
orders may be set aside for

[[Page 456]]

8(a) concerns as described in 8.405-5 and 16.505(b)(2)(i)(F).

[54 FR 46005, Oct. 31, 1989, as amended at 55 FR 3883, Feb. 5, 1990; 55 
FR 25529, June 21, 1990; 60 FR 48263, Sept. 18, 1995; 61 FR 39209, July 
26, 1996; 61 FR 67421, Dec. 20, 1996; 76 FR 68035, Nov. 2, 2011]



Sec. 19.812  Contract administration.

    (a) The contracting officer shall assign contract administration 
functions, as required, based on the location of the 8(a) contractor 
(see Federal Directory of Contract Administration Services Components 
(available via the Internet athttps://pubapp.dcma.mil/CASD/main.jsp''.
    (b) The agency shall distribute copies of the contract(s) in 
accordance with part 4. All contracts and modifications, if any, shall 
be distributed to both the SBA and the firm in accordance with the 
timeframes set forth in 4.201.
    (c) To the extent consistent with the contracting activity's 
capability and resources, 8(a) contractors furnishing requirements shall 
be afforded production and technical assistance, including, when 
appropriate, identification of causes of deficiencies in their products 
and suggested corrective action to make such products acceptable.
    (d) An 8(a) contract, whether in the base or an option year, must be 
terminated for convenience if the 8(a) concern to which it was awarded 
transfers ownership or control of the firm or if the contract is 
transferred or novated for any reason to another firm, unless the 
Administrator of the SBA waives the requirement for contract termination 
(13 CFR 124.515). The Administrator may waive the termination 
requirement only if certain conditions exist. Moreover, a waiver of the 
requirement for termination is permitted only if the 8(a) firm's request 
for waiver is made to the SBA prior to the actual relinquishment of 
ownership or control, except in the case of death or incapacity where 
the waiver must be submitted within 60 days after such an occurrence. 
The clauses in the contract entitled ``Special 8(a) Contract 
Conditions'' and ``Special 8(a) Subcontract Conditions'' require the SBA 
and the 8(a) subcontractor to notify the contracting officer when 
ownership of the firm is being transferred. When the contracting officer 
receives information that an 8(a) contractor is planning to transfer 
ownership or control to another firm, the contracting officer must take 
action immediately to preserve the option of waiving the termination 
requirement. The contracting officer should determine the timing of the 
proposed transfer and its effect on contract performance and mission 
support. If the contracting officer determines that the SBA does not 
intend to waive the termination requirement, and termination of the 
contract would severely impair attainment of the agency's program 
objectives or mission, the contracting officer should immediately notify 
the SBA in writing that the agency is requesting a waiver. Within 15 
business days thereafter, or such longer period as agreed to by the 
agency and the SBA, the agency head must either confirm or withdraw the 
request for waiver. Unless a waiver is approved by the SBA, the 
contracting officer must terminate the contract for convenience upon 
receipt of a written request by the SBA. This requirement for a 
convenience termination does not affect the Government's right to 
terminate for default if the cause for termination of an 8(a) contract 
is other than the transfer of ownership or control.

[54 FR 46005, Oct. 31, 1989, as amended at 56 FR 15151, Apr. 15, 1991; 
64 FR 32745, June 17, 1999; 66 FR 2141, Jan. 10, 2001; 77 FR 12949, Mar. 
2, 2012]

Subpart 19.9--19.10 [Reserved]

   Subpart 19.11_Price Evaluation Adjustment for Small Disadvantaged 
                            Business Concerns

    Source: 63 FR 35724, June 30, 1998, unless otherwise noted.



Sec. 19.1101  General.

    A price evaluation adjustment for small disadvantaged business 
concerns shall be applied as determined by the Department of Commerce 
(see 19.201(b)). Joint ventures may qualify provided the requirements 
set forth in 13 CFR 124.1002(f) are met.

[[Page 457]]



Sec. 19.1102  Applicability.

    (a) This subpart applies to the Department of Defense, National 
Aeronautics and Space Administration, and the U.S. Coast Guard. Civilian 
agencies do not have the statutory authority (originally authorized in 
the Federal Acquisition Streamlining Act of 1994 (Public Law 103-355, 
Sec. 7102)) for use of the Small Disadvantaged Business (SDB) price 
evaluation adjustment.
    (b) Use the price evaluation adjustment in competitive acquisitions 
in the authorized NAICS Industry Subsector.
    (c) Do not use the price evaluation adjustment in acquisitions--
    (1) That are less than or equal to the simplified acquisition 
threshold;
    (2) That are awarded pursuant to the 8(a) Program;
    (3) That are set aside for small business concerns;
    (4) That are set aside for HUBZone small business concerns;
    (5) That are set-aside for service-disabled veteran-owned small 
business concerns;
    (6) Where price is not a selection factor so that a price evaluation 
adjustment would not be considered (e.g., architect/engineer 
acquisitions); or
    (7) Where all fair and reasonable offers are accepted (e.g., the 
award of multiple award schedule contracts).

[64 FR 36223, July 2, 1999, as amended at 65 FR 46057, July 26, 2000; 69 
FR 25278, May 5, 2004; 70 FR 57463, Sept. 30, 2005]



Sec. 19.1103  Procedures.

    (a) Give offers from small disadvantaged business concerns a price 
evaluation adjustment by adding the factor determined by the Department 
of Commerce to all offers, except--
    (1) Offers from small disadvantaged business concerns that have not 
waived the evaluation adjustment; or, if a price evaluation adjustment 
for small disadvantaged business concerns is authorized on a regional 
basis, offers from small disadvantaged business concerns, whose address 
is in such a region, that have not waived the evaluation adjustment; or
    (2) An otherwise successful offer from a historically black college 
or university or minority institution.
    (b) Apply the factor to a line item or a group of line items on 
which award may be made. Add other evaluation factors such as 
transportation costs or rent-free use of Government property to the 
offers before applying the price evaluation adjustment.
    (c) Do not evaluate offers using the price evaluation adjustment 
when it would cause award, as a result of this adjustment, to be made at 
a price that exceeds fair market price by more than the factor as 
determined by the Department of Commerce (see 19.202-6(a)).

[63 FR 35724, June 30, 1998, as amended at 63 FR 52427, Sept. 30, 1998; 
64 FR 36223, July 2, 1999; 64 FR 72419, Dec. 27, 1999; 69 FR 1053, Jan. 
7, 2004; 70 FR 33661, June 8, 2005; 70 FR 57463, Sept. 30, 2005; 72 FR 
27384, May 15, 2007]



Sec. 19.1104  Contract clause.

    Insert the clause at 52.219-23, Notice of Price Evaluation 
Adjustment for Small Disadvantaged Business Concerns, in solicitations 
and contracts when the circumstances in 19.1101 and 19.1102 apply. If a 
price evaluation adjustment is authorized on a regional basis, the 
clause shall be included in the solicitation even if the place of 
performance is outside an authorized region. The contracting officer 
shall insert the authorized price evaluation adjustment factor. The 
clause shall be used with its Alternate I when the contracting officer 
determines that there are no small disadvantaged business manufacturers 
that can meet the requirements of the solicitation. The clause shall be 
used with its Alternate II when a price evaluation adjustment is 
authorized on a regional basis.

[63 FR 52427, Sept. 30, 1998, as amended at 64 FR 36223, July 2, 1999]

    Subpart 19.12_Small Disadvantaged Business Participation Program

    Source: 63 FR 36123, July 1, 1998, unless otherwise noted.



Sec. 19.1201  General.

    This subpart addresses the evaluation of the extent of participation 
of small disadvantaged business (SDB) concerns in performance of 
contracts

[[Page 458]]

in the North American Industry Classification System (NAICS) Industry 
Subsectors as determined by the Department of Commerce (see 19.201(b)), 
and to the extent authorized by law. Two mechanisms are addressed in 
this subpart--
    (a) An evaluation factor or subfactor for the participation of SDB 
concerns in performance of the contract; and
    (b) An incentive subcontracting program for SDB concerns.

[63 FR 36123, July 1, 1998, as amended at 65 FR 46057, July 26, 2000]



Sec. 19.1202  Evaluation factor or subfactor.



Sec. 19.1202-1  General.

    The extent of participation of SDB concerns in performance of the 
contract, in the NAICS Industry Subsector as determined by the 
Department of Commerce, and to the extent authorized by law, shall be 
evaluated consistent with this section. Participation in performance of 
the contract includes joint ventures, teaming arrangements, and 
subcontracts. Credit under the evaluation factor or subfactor is not 
available to SDB concerns that receive a price evaluation adjustment 
under Subpart 19.11. If an SDB concern waives the price evaluation 
adjustment at Subpart 19.11, participation in performance of that 
contract includes the work expected to be performed by the SDB concern 
at the prime contract level.

[63 FR 36123, July 1, 1998, as amended at 65 FR 46057, July 26, 2000]



Sec. 19.1202-2  Applicability.

    (a) Except as provided in paragraph (b) of this subsection, the 
extent of participation of SDB concerns in performance of the contract 
in the authorized NAICS Industry Subsector shall be evaluated in 
competitive, negotiated acquisitions expected to exceed $650,000 ($1.5 
million for construction).
    (b) The extent of participation of SDB concerns in performance of 
the contract in the authorized NAICS Industry Subsector (see paragraph 
(a) of this subsection) shall not be evaluated in--
    (1) Small business set-asides (see subpart 19.5), HUBZone set-asides 
(see subpart 19.13), service-disabled veteran-owned small business set-
asides (see subpart 19.14), economically disadvantaged women-owned small 
business set-asides, and set-asides for women-owned small business 
concerns eligible under the Women-Owned Small Business Program (see 
subpart 19.15).
    (2) 8(a) acquisitions (see Subpart 19.8);
    (3) Negotiated acquisitions where the lowest price technically 
acceptable source selection process is used (see 15.101-2); or
    (4) Contract actions that will be performed entirely outside of the 
United States and its outlying areas.

[63 FR 36123, July 1, 1998, as amended at 63 FR 70272, Dec. 18, 1998; 65 
FR 46057, July 26, 2000; 68 FR 28082, May 22, 2003; 69 FR 25278, May 5, 
2004; 71 FR 57367, Sept. 28, 2006; 75 FR 53133, Aug. 30, 2010; 76 FR 
18311, Apr. 1, 2011]



Sec. 19.1202-3  Considerations in developing an evaluation factor or 
          subfactor.

    In developing an SDB participation evaluation factor or subfactor 
for the solicitation, agencies may consider--
    (a) The extent to which SDB concerns are specifically identified;
    (b) The extent of commitment to use SDB concerns (for example, 
enforceable commitments are to be weighted more heavily than non-
enforceable ones);
    (c) The complexity and variety of the work SDB concerns are to 
perform;
    (d) The realism of the proposal;
    (e) Past performance of offerors in complying with subcontracting 
plan goals for SDB concerns and monetary targets for SDB participation; 
and
    (f) The extent of participation of SDB concerns in terms of the 
value of the total acquisition.

[63 FR 36123, July 1, 1998, as amended at 64 FR 36224, July 2, 1999]



Sec. 19.1202-4  Procedures.

    (a) The solicitation shall describe the SDB participation evaluation 
factor or subfactor. The solicitation shall require offerors to provide, 
with their offers, targets, expressed as dollars and percentages of 
total contract value, in each of the applicable, authorized NAICS 
Industry Subsector, and a total target for SDB participation by the 
contractor, including joint venture partners, and team members, and a

[[Page 459]]

total target for SDB participation by subcontractors. The solicitation 
shall require an SDB offeror that waives the SDB price evaluation 
adjustment in the clause at 52.219-23, Notice of Price Evaluation 
Adjustment for Small Disadvantaged Business Concerns, to provide with 
its offer a target for the work that it intends to perform as the prime 
contractor. The solicitation shall state that any targets will be 
incorporated into and become part of any resulting contract. Contractors 
with SDB participation targets shall be required to report SDB 
participation.
    (b) When an evaluation includes an SDB participation evaluation 
factor or subfactor that considers the extent to which SDB concerns are 
specifically identified, the SDB concerns considered in the evaluation 
shall be listed in the contract, and the contractor shall be required to 
notify the contracting officer of any substitutions of firms that are 
not SDB concerns.

[63 FR 36123, July 1, 1998, as amended at 65 FR 46057, July 26, 2000]



Sec. 19.1203  Incentive subcontracting with small disadvantaged business 
          concerns.

    The contracting officer may encourage increased subcontracting 
opportunities in the NAICS Industry Subsector as determined by the 
Department of Commerce for SDB concerns in negotiated acquisitions by 
providing monetary incentives (see the clause at 52.219-26, Small 
Disadvantaged Business Participation Program Incentive Subcontracting, 
and 19.1204(c)). Monetary incentives shall be based on actual 
achievement as compared to proposed monetary targets for SDB 
subcontracting. The incentive subcontracting program is separate and 
distinct from the establishment, monitoring, and enforcement of SDB 
subcontracting goals in a subcontracting plan.

[63 FR 36123, July 1, 1998, as amended at 65 FR 46057, July 26, 2000]



Sec. 19.1204  Solicitation provisions and contract clauses.

    (a) The contracting officer may insert a provision substantially the 
same as the provision at 52.219-24, Small Disadvantaged Business 
Participation Program Targets, in solicitations that consider the extent 
of participation of SDB concerns in performance of the contract. The 
contracting officer may vary the terms of this provision consistent with 
the policies in 19.1202-4.
    (b) The contracting officer shall insert the clause at 52.219-25, 
Small Disadvantaged Business Participation Program--Disadvantaged Status 
and Reporting, in solicitations and contracts that consider the extent 
of participation of SDB concerns in performance of the contract.
    (c) The contracting officer may, when contracting by negotiation, 
insert in solicitations and contracts containing the clause at 52.219-
25, Small Disadvantaged Business Participation Program--Disadvantaged 
Status and Reporting, a clause substantially the same as the clause at 
52.219-26, Small Disadvantaged Business Participation Program--Incentive 
Subcontracting, when authorized (see 19.1203). The contracting officer 
may include an award fee provision in lieu of the incentive; in such 
cases, however, the contracting officer shall not use the clause at 
52.219-26.

Subpart 19.13_Historically Underutilized Business Zone (HUBZone) Program

    Authority: 41 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 U.S.C. 
2473(c).

    Source: 63 FR 70272, Dec. 18, 1998, unless otherwise noted.



Sec. 19.1301  General.

    (a) The Historically Underutilized Business Zone (HUBZone) Act of 
1997 (15 U.S.C. 631 note) created the HUBZone Program.
    (b) The purpose of the HUBZone Program is to provide Federal 
contracting assistance for qualified small business concerns located in 
historically underutilized business zones, in an effort to increase 
employment opportunities, investment, and economic development in those 
areas.

[48 FR 42240, Sept. 19, 1983, as amended at 75 FR 77730, Dec. 13, 2010]

[[Page 460]]



Sec. 19.1302  Applicability.

    The procedures in this subpart apply to all Federal agencies that 
employ one or more contracting officers.

[67 FR 13066, Mar. 20, 2002]



Sec. 19.1303  Status as a HUBZone small business concern.

    (a) Status as a HUBZone small business concern is determined by the 
Small Business Administration (SBA) in accordance with 13 CFR part 126.
    (b) If the SBA determines that a concern is a HUBZone small business 
concern, it will issue a certification to that effect and will add the 
concern to the List of Qualified HUBZone Small Business Concerns at 
http://dsbs.sba.gov/dsbs/search/dsp--searchhubzone.cfm. Only firms on 
the list are HUBZone small business concerns, eligible for HUBZone 
preferences. HUBZone preferences apply without regard to the place of 
performance. Information on HUBZone small business concerns can also be 
obtained at http://www.sba.gov/hubzone or by writing to the Director for 
the HUBZone Program (Director/HUB) at U.S. Small Business 
Administration, 409 3rd Street, SW., Washington, DC 20416 or at 
[email protected].
    (c) A joint venture may be considered a HUBZone small business 
concern if it meets the criteria in the explanation of affiliates (see 
19.101).
    (d) To be eligible for a HUBZone contract under this section, a 
HUBZone small business concern must be a HUBZone small business concern 
both at the time of its initial offer and at the time of contract award.
    (e) A HUBZone small business concern may submit an offer for 
supplies as a nonmanufacturer if it meets the requirements of the 
nonmanufacturer rule set forth at 13 CFR 121.406(b)(1) and if the small 
business manufacturer providing the end item is also a HUBZone small 
business concern.
    (1) There are no waivers to the nonmanufacturer rule for HUBZone 
contracts.
    (2) For HUBZone contracts at or below $25,000 in total value, a 
HUBZone small business concern may supply the end item of any 
manufacturer, including a large business, so long as the product 
acquired is manufactured or produced in the United States.

[63 FR 70272, Dec. 18, 1998, as amended at 64 FR 51832, Sept. 24, 1999; 
75 FR 77730, Dec. 13, 2010]



Sec. 19.1304  Exclusions.

    This subpart does not apply to--
    (a) Requirements that can be satisfied through award to--
    (1) Federal Prison Industries, Inc. (see subpart 8.6); or
    (2) Javits-Wagner-O'Day Act participating non-profit agencies for 
the blind or severely disabled (see subpart 8.7);
    (b) Orders under indefinite-delivery contracts (see subpart 16.5). 
(But see 16.505(b)(2)(i)(F) for discretionary set-asides of orders);
    (c) Orders against Federal Supply Schedules (see subpart 8.4). (But 
see 8.405-5 for discretionary set-asides of orders);
    (d) Requirements currently being performed by an 8(a) participant or 
requirements SBA has accepted for performance under the authority of the 
8(a) Program, unless SBA has consented to release the requirements from 
the 8(a) Program;
    (e) Requirements that do not exceed the micro-purchase threshold; or
    (f) Requirements for commissary or exchange resale items.

[63 FR 70272, Dec. 18, 1998, as amended at 76 FR 68035, Nov. 2, 2011]



Sec. 19.1305  HUBZone set-aside procedures.

    (a) The contracting officer--
    (1) Shall comply with 19.203 before deciding to set aside an 
acquisition under the HUBZone Program;
    (2) May set aside acquisitions exceeding the micro-purchase 
threshold for competition restricted to HUBZone small business concerns 
when the requirements of paragraph (b) of this section can be satisfied; 
and
    (3) Shall consider HUBZone set-asides before considering HUBZone 
sole source awards (see 19.1306) or small business set-asides (see 
subpart 19.5).
    (b) To set aside an acquisition for competition restricted to 
HUBZone small business concerns, the contracting officer must have a 
reasonable expectation that--

[[Page 461]]

    (1) Offers will be received from two or more HUBZone small business 
concerns; and
    (2) Award will be made at a fair market price.
    (c) If the contracting officer receives only one acceptable offer 
from a qualified HUBZone small business concern in response to a set 
aside, the contracting officer should make an award to that concern. If 
the contracting officer receives no acceptable offers from HUBZone small 
business concerns, the HUBZone set-aside shall be withdrawn and the 
requirement, if still valid, set aside for small business concerns, as 
appropriate (see 19.203).
    (d) The procedures at 19.202-1 and, except for acquisitions not 
exceeding the simplified acquisition threshold, at 19.402 apply to this 
section.
    (1) When the SBA intends to appeal a contracting officer's decision 
to reject a recommendation of the SBA procurement center representative 
(or, if a procurement center representative is not assigned, see 
19.402(a)) to set aside an acquisition for competition restricted to 
HUBZone small business concerns, the SBA procurement center 
representative shall notify the contracting officer, in writing, of its 
intent within 5 business days of receiving the contracting officer's 
notice of rejection.
    (2) Upon receipt of notice of SBA's intent to appeal, the 
contracting officer shall suspend action on the acquisition unless the 
head of the contracting activity makes a written determination that 
urgent and compelling circumstances, which significantly affect the 
interests of the Government, exist.
    (3) Within 15 business days of SBA's notification to the contracting 
officer, SBA must file its formal appeal with the head of the agency, or 
the appeal will be deemed withdrawn. The head of the agency shall reply 
to SBA within 15 business days of receiving the appeal. The decision of 
the head of the agency shall be final.

[63 FR 70272, Dec. 18, 1998, as amended at 71 FR 36927, June 28, 2006; 
75 FR 77730, Dec. 13, 2010; 76 FR 14568, Mar. 16, 2011; 77 FR 12932, 
Mar. 2, 2012]



Sec. 19.1306  HUBZone sole source awards.

    (a) A contracting officer shall consider a contract award to a 
HUBZone small business concern on a sole source basis (see 6.302-
5(b)(5)) before considering a small business set-aside (see 19.203 and 
subpart 19.5), provided none of the exclusions at 19.1304 apply; and--
    (1) The contracting officer does not have a reasonable expectation 
that offers would be received from two or more HUBZone small business 
concerns;
    (2) The anticipated price of the contract, including options, will 
not exceed--
    (i) $6.5 million for a requirement within the North American 
Industry Classification System (NAICS) codes for manufacturing; or
    (ii) $4 million for a requirement within all other NAICS codes;
    (3) The requirement is not currently being performed by an 8(a) 
participant under the provisions of subpart 19.8 or has been accepted as 
a requirement by SBA under subpart 19.8.
    (4) The acquisition is greater than the simplified acquisition 
threshold (see part 13);
    (5) The HUBZone small business concern has been determined to be a 
responsible contractor with respect to performance; and
    (6) Award can be made at a fair and reasonable price.
    (b) The SBA has the right to appeal the contracting officer's 
decision not to make a HUBZone sole source award.

[63 FR 70272, Dec. 18, 1998, as amended at 65 FR 46057, July 26, 2000; 
68 FR 4051, Jan. 27, 2003; 69 FR 8315, Feb. 23, 2004; 71 FR 57367, Sept. 
28, 2006; 75 FR 38688, July 2, 2010; 75 FR 53133, Aug. 30, 2010; 75 FR 
77731, Dec. 13, 2010; 76 FR 14568, Mar. 16, 2011; 77 FR 12932, Mar. 2, 
2012]



Sec. 19.1307  Price evaluation preference for HUBZone small business 
          concerns.

    (a) The price evaluation preference for HUBZone small business 
concerns shall be used in acquisitions conducted using full and open 
competition. The preference shall not be used--
    (1) Where price is not a selection factor so that a price evaluation 
preference would not be considered (e.g., Architect/Engineer 
acquisitions); or

[[Page 462]]

    2) Where all fair and reasonable offers are accepted (e.g., the 
award of multiple award schedule contracts).
    (b) The contracting officer shall give offers from HUBZone small 
business concerns a price evaluation preference by adding a factor of 10 
percent to all offers, except--
    (1) Offers from HUBZone small business concerns that have not waived 
the evaluation preference; or
    (2) Otherwise successful offers from small business concerns.
    (c) The factor of 10 percent shall be applied on a line item basis 
or to any group of items on which award may be made. Other evaluation 
factors, such as transportation costs or rent-free use of Government 
property, shall be added to the offer to establish the base offer before 
adding the factor of 10 percent.
    (d) A concern that is both a HUBZone small business concern and a 
small disadvantaged business concern shall receive the benefit of both 
the HUBZone small business price evaluation preference and the small 
disadvantaged business price evaluation adjustment (see subpart 19.11). 
Each applicable price evaluation preference or adjustment shall be 
calculated independently against an offeror's base offer. These 
individual preference and adjustment amounts shall both be added to the 
base offer to arrive at the total evaluated price for that offer.
    (e) When the two highest rated offerors are a HUBZone small business 
concern and a large business, and the evaluated offer of the HUBZone 
small business concern is equal to the evaluated offer of the large 
business after considering the price evaluation preference, the 
contracting officer shall award the contract to the HUBZone small 
business concern.

[63 FR 70272, Dec. 18, 1998, as amended at 64 FR 72419, Dec. 27, 1999; 
69 FR 1053, Jan. 7, 2004; 70 FR 33661, June 8, 2005; 72 FR 27384, May 
15, 2007; 75 FR 77731, Dec. 13, 2010]



Sec. 19.1308  Performance of work requirements (limitations on 
          subcontracting) for general construction or construction by 
          special trade contractors.

    (a) Before issuing a solicitation for general construction or 
construction by special trade contractors, the contracting officer shall 
determine if at least two HUBZone small business concerns can spend at 
least 50 percent of the cost of contract performance to be incurred for 
personnel on their own employees or subcontract employees of other 
HUBZone small business concerns.
    (b) The clause at 52.219-3, Notice of Hubzone Set-Aside or Sole 
Source Award, or 52.219-4, Notice of Price Evaluation Preference for 
HUBZone Small Business Concerns, shall be used, as applicable, with its 
Alternate I to waive the 50 percent requirement (see 19.1309) if at 
least two HUBZone small business concerns cannot meet the conditions of 
paragraph (a); but, the HUBZone prime contractor can still meet the 
following--
    (1) For general construction, at least 15 percent of the cost of the 
contract performance to be incurred for personnel using the concern's 
employees; or
    (2) For construction by special trade contractors, at least 25 
percent of the cost of contract performance to be incurred for personnel 
using the concern's employees.
    (c) See 13 CFR 125.6 for definitions of terms used in paragraph (a) 
of this section.

[75 FR 77731, Dec. 13, 2010, as amended at 76 FR 68035, Nov. 2, 2011]



Sec. 19.1309  Contract clauses.

    (a) The contracting officer shall insert the clause 52.219-3, Notice 
of HUBZone Set-Aside or Sole Source Award, in solicitations and 
contracts for acquisitions that are set aside, or reserved for, or 
awarded on a sole source basis to, HUBZone small business concerns under 
19.1305 or 19.1306. This includes multiple-award contracts when orders 
may be set aside for HUBZone small business concerns as described in 
8.405-5 and 16.505(b)(2)(i)(F).
    (1) The contracting officer shall use the clause with its Alternate 
I to waive the 50 percent requirement if the conditions at 19.1308(b) 
apply.
    (2) If a waiver is granted, the HUBZone small business prime 
contractor must still meet the performance of work requirements set 
forth in 13 CFR 125.6(c).

[[Page 463]]

    (b) The contracting officer shall insert the clause at FAR 52.219-4, 
Notice of Price Evaluation Preference for HUBZone Small Business 
Concerns, in solicitations and contracts for acquisitions conducted 
using full and open competition.
    (1) The contracting officer shall use the clause with its Alternate 
I to waive the 50 percent requirement if the conditions at 19.1308(b) 
apply.
    (2) If a waiver is granted, the HUBZone small business prime 
contractor must still meet the performance of work requirements set 
forth in 13 CFR 125.6(c).

[63 FR 70272, Dec. 18, 1998. Redesignated and amended at 75 FR 77731, 
Dec. 13, 2010; 76 FR 68035, Nov. 2, 2011]

Subpart 19.14_Service-Disabled Veteran-Owned Small Business Procurement 
                                 Program

    Source: 69 FR 25278, May 5, 2004, unless otherwise noted.



Sec. 19.1401  General.

    (a) The Veterans Benefit Act of 2003 (15 U.S.C. 657f) created the 
procurement program for small business concerns owned and controlled by 
service-disabled veterans (commonly referred to as the ``Service-
Disabled Veteran-owned Small Business (SDVOSB) Procurement Program'').
    (b) The purpose of the Service-Disabled Veteran-Owned Small Business 
Program is to provide Federal contracting assistance to service-disabled 
veteran-owned small business concerns.



Sec. 19.1402  Applicability.

    The procedures in this subpart apply to all Federal agencies that 
employ one or more contracting officers.



Sec. 19.1403  Status as a service-disabled veteran-owned small business 
          concern.

    (a) Status as a service-disabled veteran-owned small business 
concern is determined in accordance with 13 CFR parts 125.8 through 
125.13; also see 19.307.
    (b) At the time that a service-disabled veteran-owned small business 
concern submits its offer, it must represent to the contracting officer 
that it is a--
    (1) Service-disabled veteran-owned small business concern; and
    (2) Small business concern under the North American Industry 
Classification System (NAICS) code assigned to the procurement.
    (c) A joint venture may be considered a service-disabled veteran 
owned small business concern if--
    (1) At least one member of the joint venture is a service-disabled 
veteran-owned small business concern, and makes the representations in 
paragraph (b) of this section;
    (2) Each other concern is small under the size standard 
corresponding to the NAICS code assigned to the procurement;
    (3) The joint venture meets the requirements of paragraph 7 of the 
explanation of Affiliates in 19.101; and
    (4) The joint venture meets the requirements of 13 CFR 125.15(b).
    (d) Any service-disabled veteran-owned small business concern 
(nonmanufacturer) must meet the requirements in 19.102(f) to receive a 
benefit under this program.



Sec. 19.1404  Exclusions.

    This subpart does not apply to--
    (a) Requirements that can be satisfied through award to--
    (1) Federal Prison Industries, Inc. (see Subpart 8.6);
    (2) Javits-Wagner-O'Day Act participating non-profit agencies for 
the blind or severely disabled (see Subpart 8.7);
    (b) Orders under indefinite-delivery contracts (see subpart 16.5). 
(But see 16.505(b)(2)(i)(F) for discretionary set-asides of orders);
    (c) Orders against Federal Supply Schedules (see subpart 8.4). (But 
see 8.405-5 for discretionary set-asides of orders); or
    (d) Requirements currently being performed by an 8(a) participant or 
requirements SBA has accepted for performance under the authority of the 
8(a) Program, unless SBA has consented to release the requirements from 
the 8(a) Program.

[69 FR 25278, May 5, 2004, as amended at 70 FR 14955, Mar. 23, 2005; 76 
FR 68035, Nov. 2, 2011]

[[Page 464]]



Sec. 19.1405  Service-disabled veteran-owned small business set-aside 
          procedures.

    (a) The contracting officer--
    (1) Shall comply with 19.203 before deciding to set aside an 
acquisition under the SDVOSB Program;
    (2) May set-aside acquisitions exceeding the micro-purchase 
threshold for competition restricted to SDVOSB concerns when the 
requirements of paragraph (b) of this section can be satisfied; and
    (3) Shall consider SDVOSB set-asides before considering SDVOSB sole 
source awards (see 19.1406) or small business set-asides (see subpart 
19.5).
    (b) To set aside an acquisition for competition restricted to 
service-disabled veteran-owned small business concerns, the contracting 
officer must have a reasonable expectation that--
    (1) Offers will be received from two or more service-disabled 
veteran-owned small business concerns; and
    (2) Award will be made at a fair market price.
    (c) If the contracting officer receives only one acceptable offer 
from a service-disabled veteran-owned small business concern in response 
to a set-aside, the contracting officer should make an award to that 
concern. If the contracting officer receives no acceptable offers from 
service-disabled veteran-owned small business concerns, the service-
disabled veteran-owned set-aside shall be withdrawn and the requirement, 
if still valid, set aside for small business concerns, as appropriate 
(see 19.203).
    (d) The procedures at 19.202-1 and, except for acquisitions not 
exceeding the simplified acquisition threshold, at 19.402 apply to this 
section. When the SBA intends to appeal a contracting officer's decision 
to reject a recommendation of the SBA procurement center representative 
(or, if a procurement center representative is not assigned, see 
19.402(a)) to set aside an acquisition for competition restricted to 
service-disabled veteran-owned small business concerns, the SBA 
procurement center representative shall notify the contracting officer, 
in writing, of its intent within 5 working days of receiving the 
contracting officer's notice of rejection. Upon receipt of notice of 
SBA's intent to appeal, the contracting officer shall suspend action on 
the acquisition unless the head of the contracting activity makes a 
written determination that urgent and compelling circumstances, which 
significantly affect the interests of the Government, exist. Within 15 
working days of SBA's notification to the contracting officer, SBA shall 
file its formal appeal with the head of the contracting activity, or 
that agency may consider the appeal withdrawn. The head of the 
contracting activity shall reply to SBA within 15 working days of 
receiving the appeal. The decision of the head of the contracting 
activity shall be final.

[69 FR 25278, May 5, 2004, as amended at 71 FR 36927, June 28, 2006; 76 
FR 14568, Mar. 16, 2011; 77 FR 12932, Mar. 2, 2012]



Sec. 19.1406  Sole source awards to service-disabled veteran-owned small 
          business concerns.

    (a) A contracting officer shall consider a contract award to a 
SDVOSB concern on a sole source basis (see 6.302-5(b)(6)), before 
considering small business set-asides (see 19.203 and subpart 19.5) 
provided none of the exclusions of 19.1404 apply and--
    (1) The contracting officer does not have a reasonable expectation 
that offers would be received from two or more service-disabled veteran-
owned small business concerns;
    (2) The anticipated award price of the contract, including options, 
will not exceed--
    (i) $6 million for a requirement within the NAICS codes for 
manufacturing; or
    (ii) $3.5 million for a requirement within any other NAICS code;
    (3) The requirement is not currently being performed by an 8(a) 
participant under the provisions of subpart 19.8 or has been accepted as 
a requirement by SBA under subpart 19.8;
    (4) The service-disabled veteran-owned small business concern has 
been determined to be a responsible contractor with respect to 
performance; and
    (5) Award can be made at a fair and reasonable price.
    (b) The SBA has the right to appeal the contracting officer's 
decision not to make a service-disabled veteran-

[[Page 465]]

owned small business sole source award.

[69 FR 25278, May 5, 2004, as amended at 71 FR 57367, Sept. 28, 2006; 75 
FR 38688, July 2, 2010; 75 FR 53133, Aug. 30, 2010; 76 FR 14568, Mar. 
16, 2011; 77 FR 12933, Mar. 2, 2012]



Sec. 19.1407  Contract clauses.

    The contracting officer shall insert the clause 52.219-27, Notice of 
Service-Disabled Veteran-Owned Small Business Set-Aside, in 
solicitations and contracts for acquisitions that are set aside or 
reserved for, or awarded on a sole source basis to, service-disabled 
veteran-owned small business concerns under 19.1405 and 19.1406. This 
includes multiple-award contracts when orders may be set aside for 
service-disabled veteran-owned small business concerns as described in 
8.405-5 and 16.505(b)(2)(i)(F).

[76 FR 68035, Nov. 2, 2011]

         Subpart 19.15_Women-Owned Small Business (WOSB) Program

    Source: 76 FR 18311, Apr. 1, 2011, unless otherwise noted.



Sec. 19.1500  General.

    (a) Section 8(m) of the Small Business Act (15 U.S.C. 637(m)) 
created the Women-Owned Small Business (WOSB) Program.
    (b) The purpose of the WOSB Program is to ensure women-owned small 
business concerns have an equal opportunity to participate in Federal 
contracting and to assist agencies in achieving their women-owned small 
business participation goals (see 13 part CFR 127).
    (c) An economically disadvantaged women-owned small business 
(EDWOSB) concern or WOSB concern eligible under the WOSB Program is a 
subcategory of ``women-owned small business concern'' as defined in 
2.101.

[76 FR 18311, Apr. 1, 2011, as amended at 77 FR 12917, Mar. 2, 2012]



Sec. 19.1501  Definition.

    WOSB Program Repository means a secure, Web-based application that 
collects, stores, and disseminates documents to the contracting 
community and SBA, which verify the eligibility of a business concern 
for a contract to be awarded under the WOSB Program.



Sec. 19.1502  Applicability.

    The procedures in this subpart apply to all Federal agencies that 
employ one or more contracting officers.



Sec. 19.1503  Status.

    (a) Status as an EDWOSB concern or WOSB concern eligible under the 
WOSB Program is determined in accordance with 13 CFR part 127.
    (b) The contracting officer shall verify that the offeror--
    (1) Is registered in the System for Award Management (SAM);
    (2) Is self-certified as an EDWOSB or WOSB concern in SAM; and
    (3) Has submitted documents verifying its eligibility at the time of 
initial offer to the WOSB Program Repository. The contract shall not be 
awarded until all required documents are received.
    (c)(1) An EDWOSB concern or WOSB concern eligible under the WOSB 
Program that has been certified by a SBA approved third party certifier, 
(which includes SBA certification under the 8(a) Program), must provide 
the following eligibility requirement documents--
    (i) The third-party certification;
    (ii) SBA's WOSB Program Certification form (SBA Form 2413 for WOSB 
concerns eligible under the WOSB Program and SBA Form 2414 for EDWOSB 
concerns); and
    (iii) The joint venture agreement, if applicable.
    (2) An EDWOSB concern or WOSB concern eligible under the WOSB 
Program that has not been certified by an SBA approved third party 
certifier or by SBA under the 8(a) Program, must provide the following 
documents:
    (i) The U.S. birth certificate, naturalization documentation, or 
unexpired U.S. passport for each woman owner.
    (ii) The joint venture agreement, if applicable.
    (iii) For limited liability companies, Articles of organization 
(also referred to as certificate of organization or articles of 
formation) and any amendments, and the operating agreement and any 
amendments.

[[Page 466]]

    (iv) For corporations, articles of incorporation and any amendments, 
by-laws and any amendments, all issued stock certificates, including the 
front and back copies, signed in accord with the by-laws, stock ledger, 
and voting agreements, if any.
    (v) For partnerships, the partnership agreement and any amendments.
    (vi) For sole proprietorships, corporations, limited liability 
companies and partnerships if applicable, the assumed/fictitious name 
certificate(s).
    (vii) SBA's WOSB Program Certification form (SBA Form 2413 for WOSB 
concerns eligible under the WOSB Program and SBA Form 2414 for EDWOSB 
concerns).
    (viii) For EDWOSB concerns, in addition to the above, the SBA Form 
413, Personal Financial Statement, available to the public at http://
www.sba.gov/tools/Forms/index.html, for each woman claiming economic 
disadvantage.
    (d)(1) A contracting officer may accept a concern's self-
certification as accurate for a specific procurement reserved for award 
under this subpart if--
    (i) The apparent successful WOSB eligible under the WOSB Program or 
EDWOSB offeror provided the required documents;
    (ii) There has been no protest or other credible information that 
calls into question the concern's eligibility as an EDWOSB concern or 
WOSB concern eligible under the WOSB Program; and
    (iii) There has been no decision issued by SBA as a result of a 
current eligibility examination finding the concern did not qualify as 
an EDWOSB concern or WOSB concern eligible under the WOSB Program at the 
time it submitted its initial offer.
    (2) The contracting officer shall file a status protest in 
accordance with 19.308 if--
    (i) There is information that questions the eligibility of a 
concern; or
    (ii) The concern fails to provide all of the required documents to 
verify its eligibility.
    (e) If there is a decision issued by SBA as a result of a current 
eligibility examination finding that the concern did not qualify as an 
EDWOSB concern or WOSB concern eligible under the WOSB Program, the 
contracting officer may terminate the contract, and shall not exercise 
any option nor award further task or delivery orders. The contracting 
officer shall not count or include the award toward the small business 
accomplishments for an EDWOSB concern or WOSB concern eligible under the 
WOSB Program and must update FPDS from the date of award.
    (f) A joint venture may be considered an EDWOSB concern or WOSB 
concern eligible under the WOSB Program if it meets the requirements of 
13 CFR 127.506.
    (g) An EDWOSB concern or WOSB concern eligible under the WOSB 
Program that is a non-manufacturer, as defined in 13 CFR 121.406(b), may 
submit an offer on a requirement set aside for an EDWOSB concern or a 
WOSB concern eligible under the WOSB Program with a NAICS code for 
supplies, if it meets the requirements under the non-manufacturer rule 
set forth in that regulation.

[77 FR 12917, Mar. 2, 2012, as amended at 78 FR 37679, June 21, 2013]



Sec. 19.1504  Exclusions.

    This subpart does not apply to--
    (a) Requirements that an 8(a) concern is currently performing under 
the 8(a) Program or that SBA has accepted for performance under the 
authority of the 8(a) Program, unless SBA has consented to release the 
requirements from the 8(a) Program;
    (b) Requirements that can be satisfied through award to--
    (1) Federal Prison Industries, Inc. (see subpart 8.6); or
    (2) Javits-Wagner-O'Day Act participating non-profit agencies for 
the blind or severely disabled (see subpart 8.7);
    (c) Orders under indefinite-delivery contracts (see subpart 16.5). 
(But see 16.505(b)(2)(i)(F) for discretionary set-asides of orders); or
    (d) Orders against Federal Supply Schedules (see subpart 8.4). (But 
see 8.405-5 for discretionary set-asides of orders.)

[76 FR 18311, Apr. 1, 2011, as amended at 76 FR 68036, Nov. 2, 2011]



Sec. 19.1505  Set-aside procedures.

    (a) The contracting officer--

[[Page 467]]

    (1) Shall comply with 19.203 before deciding to set aside an 
acquisition under the WOSB Program.
    (2) May set aside acquisitions exceeding the micro-purchase 
threshold for competition restricted to EDWOSB concerns or WOSB concerns 
eligible under the WOSB Program in those NAICS codes in which SBA has 
determined that WOSB concerns eligible under the WOSB program are 
underrepresented or substantially underrepresented in Federal 
procurement, as specified on SBA's Web site at http://www.sba.gov/WOSB.
    (b) For requirements in NAICS codes designated by SBA as 
underrepresented, a contracting officer may restrict competition to 
EDWOSB concerns if the contracting officer has a reasonable expectation 
based on market research that--
    (1) Two or more EDWOSB concerns will submit offers for the contract; 
and
    (2) Contract award will be made at a fair and reasonable price.
    (c) A contracting officer may restrict competition to WOSB concerns 
eligible under the WOSB Program (including EDWOSB concerns), for 
requirements in NAICS codes designated by SBA as substantially 
underrepresented if there is a reasonable expectation based on market 
research that--
    (1) Two or more WOSB concerns eligible under the WOSB Program 
(including EDWOSB concerns), will submit offers; and
    (2) Contract award may be made at a fair and reasonable price.
    (d) The contracting officer may make an award, if only one 
acceptable offer is received from a qualified EDWOSB concern or WOSB 
concern eligible under the WOSB Program.
    (e) The contracting officer must check whether the apparently 
successful offeror filed all the required eligibility documents, and 
file a status protest if any documents are missing. See 19.1503(d)(2).
    (f) If no acceptable offers are received from an EDWOSB concern or 
WOSB concern eligible under the WOSB Program, the set-aside shall be 
withdrawn and the requirement, if still valid, must be considered for 
set aside in accordance with 19.203 and subpart 19.5.
    (g) If the contracting officer rejects a recommendation by SBA's 
Procurement Center Representative--
    (1) The contracting officer shall notify the procurement center 
representative as soon as practicable;
    (2) SBA shall notify the contracting officer of its intent to appeal 
the contracting officer's decision no later than five business days 
after receiving notice of the contracting officer's decision;
    (3) The contracting officer shall suspend further action regarding 
the procurement until the head of the agency issues a written decision 
on the appeal, unless the head of the agency makes a written 
determination that urgent and compelling circumstances which 
significantly affect the interests of the United States compel award of 
the contract;
    (4) Within 15 business days of SBA's notification to the head of the 
contracting activity, SBA shall file a formal appeal to the head of the 
agency, or the appeal will be determined withdrawn; and
    (5) The head of the agency, or designee, shall specify in writing 
the reasons for a denial of an appeal brought under this section.

[76 FR 18311, Apr. 1, 2011, as amended at 77 FR 12917, Mar. 2, 2012; 78 
FR 37694, June 21, 2013]



Sec. 19.1506  Contract clauses.

    (a) The contracting officer shall insert the clause 52.219-29, 
Notice of Set-Aside for Economically Disadvantaged Women-owned Small 
Business Concerns, in solicitations and contracts for acquisitions that 
are set aside or reserved for economically disadvantaged women-owned 
small business (EDWOSB) concerns under 19.1505(b). This includes 
multiple-award contracts when orders may be set aside for EDWOSB 
concerns as described in 8.405-5 and 16.505(b)(2)(i)(F).
    (b) The contracting officer shall insert the clause 52.219-30, 
Notice of Set-Aside for Women-Owned Small Business Concerns Eligible 
Under the Women-Owned Small Business Program, in solicitations and 
contracts for acquisitions that are set aside or reserved for women-
owned small business (WOSB) concerns under 19.1505(c). This

[[Page 468]]

includes multiple-award contracts when orders may be set aside for WOSB 
concerns eligible under the WOSB program as described in 8.405-5 and 
16.505(b)(2)(i)(F).

[76 FR 18311, Apr. 1, 2011, as amended at 76 FR 68036, Nov. 2, 2011]

                         PARTS 20	21 [RESERVED]

      PART 22_APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

Sec.

Sec. 22.000 Scope of part.

Sec. 22.001 Definitions.

                    Subpart 22.1_Basic Labor Policies


Sec. 22.101 Labor relations.

Sec. 22.101-1 General.

Sec. 22.101-2 Contract pricing and administration.

Sec. 22.101-3 Reporting labor disputes.

Sec. 22.101-4 Removal of items from contractors' facilities affected by 
          work stoppages.

Sec. 22.102 Federal and State labor requirements.

Sec. 22.102-1 Policy.

Sec. 22.102-2 Administration.

Sec. 22.103 Overtime.

Sec. 22.103-1 Definition.

Sec. 22.103-2 Policy.

Sec. 22.103-3 Procedures.

Sec. 22.103-4 Approvals.

Sec. 22.103-5 Contract clauses.

                       Subpart 22.2_Convict Labor


Sec. 22.201 General.

Sec. 22.202 Contract clause.

        Subpart 22.3_Contract Work Hours and Safety Standards Act


Sec. 22.300 Scope of subpart.

Sec. 22.301 Statutory requirement.

Sec. 22.302 Liquidated damages and overtime pay.

Sec. 22.303 Administration and enforcement.

Sec. 22.304 Variations, tolerances, and exemptions.

Sec. 22.305 Contract clause.

    Subpart 22.4_Labor Standards for Contracts Involving Construction


Sec. 22.400 Scope of subpart.

Sec. 22.401 Definitions.

Sec. 22.402 Applicability.

Sec. 22.403 Statutory and regulatory requirements.

Sec. 22.403-1 Davis-Bacon Act.

Sec. 22.403-2 Copeland Act.

Sec. 22.403-3 Contract Work Hours and Safety Standards Act.

Sec. 22.403-4 Department of Labor regulations.

Sec. 22.404 Davis-Bacon Act wage determinations.

Sec. 22.404-1 Types of wage determinations.

Sec. 22.404-2 General requirements.

Sec. 22.404-3 Procedures for requesting wage determinations.

Sec. 22.404-4 Solicitations issued without wage determinations for the 
          primary site of the work.

Sec. 22.404-5 Expiration of project wage determinations.

Sec. 22.404-6 Modifications of wage determinations.

Sec. 22.404-7 Correction of wage determinations containing clerical 
          errors.

Sec. 22.404-8 Notification of improper wage determination before award.

Sec. 22.404-9 Award of contract without required wage determination.

Sec. 22.404-10 Posting wage determinations and notice.

Sec. 22.404-11 Wage determination appeals.

Sec. 22.404-12 Labor standards for contracts containing construction 
          requirements and option provisions that extend the term of the 
          contract.

Sec. 22.405 [Reserved]

Sec. 22.406 Administration and enforcement.

Sec. 22.406-1 Policy.

Sec. 22.406-2 Wages, fringe benefits, and overtime.

Sec. 22.406-3 Additional classifications.

Sec. 22.406-4 Apprentices and trainees.

Sec. 22.406-5 Subcontracts.

Sec. 22.406-6 Payrolls and statements.

Sec. 22.406-7 Compliance checking.

Sec. 22.406-8 Investigations.

Sec. 22.406-9 Withholding from or suspension of contract payments.

Sec. 22.406-10 Disposition of disputes concerning construction contract 
          labor standards enforcement.

Sec. 22.406-11 Contract terminations.

Sec. 22.406-12 Cooperation with the Department of Labor.

Sec. 22.406-13 Semiannual enforcement reports.

Sec. 22.407 Solicitation provision and contract clauses.

 Subpart 22.5_Use of Project Labor Agreements for Federal Construction 
                                Projects


Sec. 22.501 Scope of subpart.

Sec. 22.502 Definitions.

Sec. 22.503 Policy.

Sec. 22.504 General requirements for project labor agreements.

Sec. 22.505 Solicitation provision and contract clause.

             Subpart 22.6_Walsh-Healey Public Contracts Act


Sec. 22.601 [Reserved]

[[Page 469]]


Sec. 22.602 Statutory requirements.

Sec. 22.603 Applicability.

Sec. 22.604 Exemptions.

Sec. 22.604-1 Statutory exemptions.

Sec. 22.604-2 Regulatory exemptions.

Sec. 22.605 Rulings and interpretations of the Act.

Sec. 22.606-22.607 [Reserved]

Sec. 22.608 Procedures.

Sec. 22.609 [Reserved]

Sec. 22.610 Contract clause.

Subpart 22.7 [Reserved]

                Subpart 22.8_Equal Employment Opportunity


Sec. 22.800 Scope of subpart.

Sec. 22.801 Definitions.

Sec. 22.802 General.

Sec. 22.803 Responsibilities.

Sec. 22.804 Affirmative action programs.

Sec. 22.804-1 Nonconstruction.

Sec. 22.804-2 Construction.

Sec. 22.805 Procedures.

Sec. 22.806 Inquiries.

Sec. 22.807 Exemptions.

Sec. 22.808 Complaints.

Sec. 22.809 Enforcement.

Sec. 22.810 Solicitation provisions and contract clauses.

              Subpart 22.9_Nondiscrimination Because of Age


Sec. 22.901 Policy.

Sec. 22.902 Handling complaints.

         Subpart 22.10_Service Contract Act of 1965, as Amended


Sec. 22.1000 Scope of subpart.

Sec. 22.1001 Definitions.

Sec. 22.1002 Statutory requirements.

Sec. 22.1002-1 General.

Sec. 22.1002-2 Wage determinations based on prevailing rates.

Sec. 22.1002-3 Wage determinations based on collective bargaining 
          agreements.

Sec. 22.1002-4 Application of the Fair Labor Standards Act minimum wage.

Sec. 22.1003 Applicability.

Sec. 22.1003-1 General.

Sec. 22.1003-2 Geographical coverage of the Act.

Sec. 22.1003-3 Statutory exemptions.

Sec. 22.1003-4 Administrative limitations, variations, tolerances, and 
          exemptions.

Sec. 22.1003-5 Some examples of contracts covered.

Sec. 22.1003-6 Repair distinguished from remanufacturing of equipment.

Sec. 22.1003-7 Questions concerning applicability of the Act.

Sec. 22.1004 Department of Labor responsibilities and regulations.

Sec. 22.1005 [Reserved]

Sec. 22.1006 Solicitation provisions and contract clauses.

Sec. 22.1007 Requirement to obtain wage determinations.

Sec. 22.1008 Procedures for preparing and submitting Notice (SF 98/98a).

Sec. 22.1008-1 Preparation of Notice (SF 98/98a).

Sec. 22.1008-2 Section 4(c) successorship with incumbent contractor 
          collective bargaining agreement.

Sec. 22.1009 Place of performance unknown.

Sec. 22.1009-1 General.

Sec. 22.1009-2 Attempt to identify possible places of performance.

Sec. 22.1009-3 All possible places of performance identified.

Sec. 22.1009-4 All possible places of performance not identified.

Sec. 22.1010 Notification to interested parties under collective 
          bargaining agreements.

Sec. 22.1011 [Reserved]

Sec. 22.1012 Applicability of revisions to wage determinations.

Sec. 22.1012-1 Prevailing wage determinations.

Sec. 22.1012-2 Wage determinations based on collective bargaining 
          agreements.

Sec. 22.1012-4 Response to late submission of Notice--no collective 
          bargaining agreement.

Sec. 22.1012-5 Response to late submission of Notice--with collective 
          bargaining agreement.

Sec. 22.1013 Review of wage determination.

Sec. 22.1014 Delay over 60 days in bid opening or commencement of work.

Sec. 22.1015 Discovery of errors by the Department of Labor.

Sec. 22.1016 Statement of equivalent rates for Federal hires.

Sec. 22.1017 [Reserved]

Sec. 22.1018 Notification to contractors and employees.

Sec. 22.1019 Additional classes of service employees.

Sec. 22.1020 Seniority lists.

Sec. 22.1021 Requests for hearing.

Sec. 22.1022 Withholding of contract payments.

Sec. 22.1023 Termination for default.

Sec. 22.1024 Cooperation with the Department of Labor.

Sec. 22.1025 Ineligibility of violators.

Sec. 22.1026 Disputes concerning labor standards.

            Subpart 22.11_Professional Employee Compensation


Sec. 22.1101 Applicability.

Sec. 22.1102 Definition.

Sec. 22.1103 Policy, procedures, and solicitation provision.

    Subpart 22.12_Nondisplacement of Qualified Workers Under Service 
                                Contracts


Sec. 22.1200 Scope of subpart.

Sec. 22.1201 Definitions.

Sec. 22.1202 Policy.

Sec. 22.1203 Applicability.

Sec. 22.1203-1 General.

[[Page 470]]


Sec. 22.1203-2 Exemptions.

Sec. 22.1203-3 Waiver.

Sec. 22.1203-4 Method of job offer.

Sec. 22.1203-5 Exceptions.

Sec. 22.1203-6 Reduced staffing.

Sec. 22.1204 Certified service employee lists.

Sec. 22.1205 Notification to contractors and service employees.

Sec. 22.1206 Remedies and sanctions for violations of this subpart.

Sec. 22.1207 Contract clause.

              Subpart 22.13_Equal Opportunity for Veterans


Sec. 22.1300 Scope of subpart.

Sec. 22.1301 Definitions.

Sec. 22.1302 Policy.

Sec. 22.1303 Applicability.

Sec. 22.1304 Procedures.

Sec. 22.1305 Waivers.

Sec. 22.1306 Department of Labor notices and reports.

Sec. 22.1307 Collective bargaining agreements.

Sec. 22.1308 Complaint procedures.

Sec. 22.1309 Actions because of noncompliance.

Sec. 22.1310 Solicitation provision and contract clauses.

          Subpart 22.14_Employment of Workers with Disabilities


Sec. 22.1400 Scope of subpart.

Sec. 22.1401 Policy.

Sec. 22.1402 Applicability.

Sec. 22.1403 Waivers.

Sec. 22.1404 Department of Labor notices.

Sec. 22.1405 Collective bargaining agreements.

Sec. 22.1406 Complaint procedures.

Sec. 22.1407 Actions because of noncompliance.

Sec. 22.1408 Contract clause.

Subpart 22.15_Prohibition of Acquisition of Products Produced by Forced 
                        or Indentured Child Labor


Sec. 22.1500 Scope.

Sec. 22.1501 Definitions.

Sec. 22.1502 Policy.

Sec. 22.1503 Procedures for acquiring end products on the List of 
          Products Requiring Contractor Certification as to Forced or 
          Indentured Child Labor.

Sec. 22.1504 Violations and remedies.

Sec. 22.1505 Solicitation provision and contract clause.

 Subpart 22.16_Notification of Employee Rights Under the National Labor 
                              Relations Act


Sec. 22.1600 Scope of subpart.

Sec. 22.1601 Definitions.

Sec. 22.1602 Policy.

Sec. 22.1603 Exceptions.

Sec. 22.1604 Compliance evaluation and complaint investigations and 
          sanctions for violations.

Sec. 22.1605 Contract clause.

             Subpart 22.17_Combating Trafficking in Persons


Sec. 22.1700 Scope of subpart.

Sec. 22.1701 Applicability.

Sec. 22.1702 Definitions.

Sec. 22.1703 Policy.

Sec. 22.1704 Violations and remedies.

Sec. 22.1705 Contract clause.

            Subpart 22.18_Employment Eligibility Verification


Sec. 22.1800 Scope.

Sec. 22.1801 Definitions.

Sec. 22.1802 Policy.

Sec. 22.1803 Contract clause.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 
20113.

    Source: 48 FR 42258, Sept. 19, 1983, unless otherwise noted.



Sec. 22.000  Scope of part.

    This part--
    (a) Deals with general policies regarding contractor labor relations 
as they pertain to the acquisition process;
    (b) Prescribes contracting policy and procedures for implementing 
pertinent labor laws; and
    (c) Prescribes contract clauses with respect to each pertinent labor 
law.



Sec. 22.001  Definitions.

    Administrator or Administrator, Wage and Hour Division, as used in 
this part, means the Administrator, Wage and Hour Division, Employment 
Standards Administration, U.S. Department of Labor, Washington, DC 20210 
or an authorized representative.
    e98 means the Department of Labor's approved electronic application 
(http://www.wdol.gov), whereby a contracting officer submits pertinent 
information to the Department of Labor and requests a Service Contract 
Act wage determination directly from the Wage and Hour Division.
    Service contract means any Government contract, or subcontract 
thereunder, the principal purpose of which is to furnish services in the 
United States through the use of service employees, except as exempted 
by the Service Contract Act (41 U.S.C. chapter 67; see

[[Page 471]]

22.1003-3 and 22.1003-4). See 22.1003-5 and 29 CFR 4.130 for a partial 
list of services covered by the Act.
    Service employee means any person engaged in the performance of a 
service contract other than any person employed in a bona fide 
executive, administrative, or professional capacity, as those terms are 
defined in 29 CFR part 541. The term ``service employee'' includes all 
such persons regardless of any contractual relationship that may be 
alleged to exist between a contractor or subcontractor and such persons.
    Wage Determinations OnLine (WDOL) means the Government Internet Web 
site for both Davis-Bacon Act and Service Contract Act wage 
determinations available at http://www.wdol.gov.

[53 FR 4935, Feb. 18, 1988, as amended at 71 FR 36931, June 28, 2006; 77 
FR 75775, Dec. 21, 2012]

                    Subpart 22.1_Basic Labor Policies



Sec. 22.101  Labor relations.



Sec. 22.101-1  General.

    (a) Agencies shall maintain sound relations with industry and labor 
to ensure (1) prompt receipt of information involving labor relations 
that may adversely affect the Government acquisition process and (2) 
that the Government obtains needed supplies and services without delay. 
All matters regarding labor relations shall be handled in accordance 
with agency procedures.
    (b)(1) Agencies shall remain impartial concerning any dispute 
between labor and contractor management and not undertake the 
conciliation, mediation, or arbitration of a labor dispute. To the 
extent practicable, agencies should ensure that the parties to the 
dispute use all available methods for resolving the dispute, including 
the services of the National Labor Relations Board, Federal Mediation 
and Conciliation Service, the National Mediation Board and other 
appropriate Federal, State, local, or private agencies.
    (2) For use of project labor agreements, see subpart 22.5.
    (c) Agencies should, when practicable, exchange information 
concerning labor matters with other affected agencies to ensure a 
uniform Government approach concerning a particular plant or labor-
management dispute.
    (d) Agencies should take other actions concerning labor relations 
problems to the extent consistent with their acquisition 
responsibilities. For example, agencies should--
    (1) Notify the agency responsible for conciliation, mediation, 
arbitration, or other related action of the existence of any labor 
dispute affecting or threatening to affect agency acquisition programs;
    (2) Furnish to the parties to a dispute factual information 
pertinent to the dispute's potential or actual adverse impact on these 
programs, to the extent consistent with security regulations; and
    (3) Seek a voluntary agreement between management and labor, 
notwithstanding the continuance of the dispute, to permit uninterrupted 
acquisition of supplies and services. This shall only be done, however, 
if the attempt to obtain voluntary agreement does not involve the agency 
in the merits of the dispute and only after consultation with the agency 
responsible for conciliation, mediation, arbitration, or other related 
action.
    (e) The head of the contracting activity may designate programs or 
requirements for which it is necessary that contractors be required to 
notify the Government of actual or potential labor disputes that are 
delaying or threaten to delay the timely contract performance (see 
22.103-5(a)).

[48 FR 42258, Sept. 19, 1983, as amended at 27415, May 16, 2001; 75 FR 
19177, Apr. 13, 2010]



Sec. 22.101-2  Contract pricing and administration.

    (a) Contractor labor policies and compensation practices, whether or 
not included in labor-management agreements, are not acceptable bases 
for allowing costs in cost-reimbursement contracts or for recognition of 
costs in pricing fixed-price contracts if they result in unreasonable 
costs to the Government. For a discussion of allowable costs resulting 
from labor-management agreements, see 31.205-6(b).
    (b) Labor disputes may cause work stoppages that delay the 
performance

[[Page 472]]

of Government contracts. Contracting officers shall impress upon 
contractors that each contractor shall be held accountable for 
reasonably avoidable delays. Standard contract clauses dealing with 
default, excusable delays, etc., do not relieve contractors or 
subcontractors from the responsibility for delays that are within the 
contractors' or their subcontractors' control. A delay caused by a 
strike that the contractor or subcontractor could not reasonably prevent 
can be excused; however, it cannot be excused beyond the point at which 
a reasonably diligent contractor or subcontractor could have acted to 
end the strike by actions such as--
    (1) Filing a charge with the National Labor Relations Board to 
permit the Board to seek injunctive relief in court.
    (2) Using other available Government procedures.
    (3) Using private boards or organizations to settle disputes.
    (c) Strikes normally result in changing patterns of cost incurrence 
and therefore may have an impact on the allowability of costs for cost-
reimbursement contracts or for recognition of costs in pricing fixed-
price contracts. Certain costs may increase because of strikes; e.g., 
guard services and attorney's fees. Other costs incurred during a strike 
may not fluctuate (e.g., fixed costs such as rent and depreciation), but 
because of reduced production, their proportion of the unit cost of 
items produced increases. All costs incurred during strikes shall be 
carefully examined to ensure recognition of only those costs necessary 
for performing the contract in accordance with the Government's 
essential interest.
    (d) If during a labor dispute, the inspectors' safety is not 
endangered, the normal functions of inspection at the plant of a 
Government contractor shall be continued without regard to the existence 
of a labor dispute, strike, or picket line.

[48 FR 42258, Sept. 19, 1983, as amended at 68 FR 43866, July 24, 2003]



Sec. 22.101-3  Reporting labor disputes.

    The office administering the contract shall report, in accordance 
with agency procedures, any potential or actual labor disputes that may 
interfere with performing any contracts under its cognizance. If a 
contract contains the clause at 52.222-1, Notice to the Government of 
Labor Disputes, the contractor also must report any actual or potential 
dispute that may delay contract performance.



Sec. 22.101-4  Removal of items from contractors' facilities affected by 
          work stoppages.

    (a) Items shall be removed from contractors' facilities affected by 
work stoppages in accordance with agency procedures. Agency procedures 
should allow for the following:
    (1) Determine whether removal of items is in the Government's 
interest. Normally the determining factor is the critical needs of an 
agency program.
    (2) Attempt to arrange with the contractor and the union 
representative involved their approval of the shipment of urgently 
required items.
    (3) Obtain appropriate approvals from within the agency.
    (4) Determine who will remove the items from the plant(s) involved.
    (b) Avoid the use or appearance of force and prevent incidents that 
might detrimentally affect labor-management relations.
    (c) When two or more agencies' requirements are or may become 
involved in the removal of items, the contract administration office 
shall ensure that the necessary coordination is accomplished.



Sec. 22.102  Federal and State labor requirements.



Sec. 22.102-1  Policy.

    Agencies shall cooperate, and encourage contractors to cooperate 
with Federal and State agencies responsible for enforcing labor 
requirements such as--
    (a) Safety;
    (b) Health and sanitation;
    (c) Maximum hours and minimum wages;
    (d) Equal employment opportunity;
    (e) Child and convict labor;
    (f) Age discrimination;
    (g) Disabled and Vietnam veteran employment;
    (h) Employment of the handicapped; and

[[Page 473]]

    (i) Eligibility for employment under United States immigration laws.

[48 FR 42258, Sept. 19, 1983, as amended at 56 FR 55374, Oct. 25, 1991; 
73 FR 67703, Nov. 14, 2008]



Sec. 22.102-2  Administration.

    (a) Agencies shall cooperate with, and encourage contractors to use 
to the fullest extent practicable, the United States Employment Service 
(USES) and its affiliated local State Employment Service offices in 
meeting contractors' labor requirements. These requirements may be to 
staff new or expanding plant facilities, including requirements for 
workers in all occupations and skills from local labor market areas or 
through the Federal-State employment clearance system.
    (b) Local State employment offices are operated throughout the 
United States, Puerto Rico, Guam, and the U.S. Virgin Islands. In 
addition to providing recruitment assistance to contractors, cooperation 
with the local State Employment Service offices will further the 
national program of maintaining continuous assessment of manpower 
requirements and resources on a national and local basis.
    (c) The U.S. Department of Labor is responsible for the 
administration and enforcement of the Occupational Safety and Health 
Act. The Department of Labor's Wage and Hour Division is responsible for 
administration and enforcement of numerous wage and hour statutes 
including Davis-Bacon and Related Acts, McNamara-O'Hara Service Contract 
Act, Walsh-Healey Public Contracts Act, Copeland Act, and Contract Work 
Hours and Safety Standards Act. Contracting officers should contact the 
Wage and Hour Division's regional offices when required by the subparts 
relating to these statutes unless otherwise specified. Addresses for 
these offices may be found at 29 CFR 1, Appendix B.

[48 FR 42258, Sept. 19, 1983, as amended at 56 FR 55374, Oct. 25, 1991; 
68 FR 28082, May 22, 2003; 71 FR 36931, June 28, 2006]



Sec. 22.103  Overtime.



Sec. 22.103-1  Definition.

    Normal workweek, as used in this subpart, means, generally, a 
workweek of 40 hours. Outside the United States and its outlying areas, 
a workweek longer than 40 hours is considered normal if--
    (1) The workweek does not exceed the norm for the area, as 
determined by local custom, tradition, or law; and
    (2) The hours worked in excess of 40 in the workweek are not 
compensated at a premium rate of pay.

[48 FR 42258, Sept. 19, 1983 as amended at 51 FR 12293, Apr. 9, 1986; 66 
FR 2130, Jan. 10, 2001; 68 FR 28082, May 22, 2003]



Sec. 22.103-2  Policy.

    Contractors shall perform all contracts, so far as practicable, 
without using overtime, particularly as a regular employment practice, 
except when lower overall costs to the Government will result or when it 
is necessary to meet urgent program needs. Any approved overtime, extra-
pay shifts, and multishifts should be scheduled to achieve these 
objectives.



Sec. 22.103-3  Procedures.

    (a) Solicitations normally shall not specify delivery or performance 
schedules that may require overtime at Government expense.
    (b) In negotiating contracts, contracting officers should, 
consistent with the Government's needs, attempt to (1) ascertain the 
extent that offers are based on the payment of overtime and shift 
premiums and (2) negotiate contract prices or estimated costs without 
these premiums or obtain the requirement from other sources.
    (c) When it becomes apparent during negotiations of applicable 
contracts (see 22.103-5(b)) that overtime will be required in contract 
performance, the contracting officer shall secure from the contractor a 
request for all overtime to be used during the life of the contract, to 
the extent that the overtime can be estimated with reasonable certainty. 
The contractor's request shall contain the information required by 
paragraph (b) of the clause at 52.222-2, Payment for Overtime Premiums.



Sec. 22.103-4  Approvals.

    (a) The contracting officer shall review the contractor's request 
for overtime. Approval of the use of overtime

[[Page 474]]

may be granted by an agency approving official after determining in 
writing that overtime is necessary to--
    (1) Meet essential delivery or performance schedules;
    (2) Make up for delays beyond the control and without the fault or 
negligence of the contractor; or
    (3) Eliminate foreseeable extended production bottlenecks that 
cannot be eliminated in any other way.
    (b) Approval by the designated official of use and total dollar 
amount of overtime is required before inclusion of an amount in 
paragraph (a) of the clause at 52.222-2, Payment for Overtime Premiums.
    (c) Contracting officer approval of payment of overtime premiums is 
required for time-and-materials and labor-hour contracts (see paragraph 
(a)(8) of the clause at 52.232-7, Payments Under Time-and-Materials and 
Labor-Hour Contracts).
    (d) No approvals are required for paying overtime premiums under 
other types of contracts.
    (e) Approvals by the agency approving official (see 22.103-4(a)) may 
be for an individual contract, project, program, plant, division, or 
company, as practical.
    (f) During contract performance, contractor requests for overtime 
exceeding the amount authorized by paragraph (a) of the clause at 
52.222-2, Payment for Overtime Premiums, shall be submitted as stated in 
paragraph (b) of the clause to the office administering the contract. 
That office will review the request and if it approves, send the request 
to the contracting officer. If the contracting officer determines that 
the requested overtime should be approved in whole or in part, the 
contracting officer shall request the approval of the agency's 
designated approving official and modify paragraph (a) of the clause to 
reflect any approval.
    (g) Overtime premiums at Government expense should not be approved 
when the contractor is already obligated, without the right to 
additional compensation, to meet the required delivery date.
    (h) When the use of overtime is authorized under a contract, the 
office administering the contract and the auditor should periodically 
review the use of overtime to ensure that it is allowable in accordance 
with the criteria in part 31. Only overtime premiums for work in those 
departments, sections, etc., of the contractor's plant that have been 
individually evaluated and the necessity for overtime confirmed shall be 
considered for approval.
    (i) Approvals for using overtime shall ordinarily be prospective, 
but, if justified by emergency circumstances, approvals may be 
retroactive.

[48 FR 42258, Sept. 19, 1983, as amended at 71 FR 57367, Sept. 28, 2006; 
72 FR 6882, Feb. 13, 2007]



Sec. 22.103-5  Contract clauses.

    (a) The contracting officer shall insert the clause 52.222-1, Notice 
to the Government of Labor Disputes, in solicitations and contracts that 
involve programs or requirements that have been designated under 22.101-
1(e).
    (b) The contracting officer shall include the clause at 52.222-2, 
Payment for Overtime Premiums, in solicitations and contracts when a 
cost-reimbursement contract is contemplated and the contract amount is 
expected to exceed the simplified acquisition threshold; unless (a) a 
cost-reimbursement contract for operation of vessels is contemplated, or 
(b) a cost-plus-incentive-fee contract that will provide a swing from 
the target fee of at least plus or minus 3 percent and a contractor's 
share of at least 10 percent is contemplated.

[48 FR 42258, Sept. 19, 1983, as amended at 71 FR 57367, Sept. 28, 2006]

                       Subpart 22.2_Convict Labor



Sec. 22.201  General.

    (a) Executive Order 11755, December 29, 1973, as amended by 
Executive Order 12608, September 9, 1987, and Executive Order 12943, 
December 13, 1994, states: ``The development of the occupational and 
educational skills of prison inmates is essential to their 
rehabilitation and to their ability to make an effective return to free 
society. Meaningful employment serves to develop those skills. It is 
also true, however, that care must be exercised to avoid either the 
exploitation of convict labor or any unfair competition between convict

[[Page 475]]

labor and free labor in the production of goods and services.'' The 
Executive order does not prohibit the contractor, in performing the 
contract, from employing--
    (1) Persons on parole or probation;
    (2) Persons who have been pardoned or who have served their terms;
    (3) Federal prisoners; or
    (4) Nonfederal prisoners authorized to work at paid employment in 
the community under the laws of a jurisdiction listed in the Executive 
order if--
    (i) The worker is paid or is in an approved work training program on 
a voluntary basis;
    (ii) Representatives of local union central bodies or similar labor 
union organizations have been consulted;
    (iii) Paid employment will not--
    (A) Result in the displacement of employed workers;
    (B) Be applied in skills, crafts, or trades in which there is a 
surplus of available gainful labor in the locality; or
    (C) Impair existing contracts for services;
    (iv) The rates of pay and other conditions of employment will not be 
less than those for work of a similar nature in the locality where the 
work is being performed; and
    (v) The Attorney General of the United States has certified that the 
work-release laws or regulations of the jurisdiction involved are in 
conformity with the requirements of Executive Order 11755, as amended.
    (b) Department of Justice regulations authorize the Director of the 
Bureau of Justice Assistance to exercise the power and authority vested 
in the Attorney General by the Executive order to certify and to revoke 
the certification of work-release laws or regulations (see 28 CFR 0.94-
1(b)).

[61 FR 31644, June 20, 1996]



Sec. 22.202  Contract clause.

    Insert the clause at 52.222-3, Convict Labor, in solicitations and 
contracts above the micro-purchase threshold, when the contract will be 
performed in the United States, Puerto Rico, the Northern Mariana 
Islands, American Samoa, Guam, or the U.S. Virgin Islands; unless--
    (a) The contract will be subject to the Walsh-Healey Public 
Contracts Act (see subpart 22.6), which contains a separate prohibition 
against the employment of convict labor;
    (b) The supplies or services are to be purchased from Federal Prison 
Industries, Inc. (see subpart 8.6); or
    (c) The acquisition involves the purchase, from any State prison, of 
finished supplies that may be secured in the open market or from 
existing stocks, as distinguished from supplies requiring special 
fabrication.

[48 FR 42258, Sept. 19, 1983, as amended at 60 FR 34758, July 3, 1995; 
61 FR 31644, June 20, 1996; 68 FR 28082, May 22, 2003]

        Subpart 22.3_Contract Work Hours and Safety Standards Act



Sec. 22.300  Scope of subpart.

    This subpart prescribes policies and procedures for applying the 
requirements of the Contract Work Hours and Safety Standards Act (40 
U.S.C. 3701 et seq.) (the Act) to contracts that may require or involve 
laborers or mechanics. In this subpart, the term laborers or mechanics 
includes apprentices, trainees, helpers, watchmen, guards, firefighters, 
fireguards, and workmen who perform services in connection with dredging 
or rock excavation in rivers or harbors, but does not include any 
employee employed as a seaman.

[51 FR 12293, Apr. 9, 1986, as amended at 70 FR 57454, Sept. 30, 2005]



Sec. 22.301  Statutory requirement.

    The Act requires that certain contracts contain a clause specifying 
that no laborer or mechanic doing any part of the work contemplated by 
the contract shall be required or permitted to work more than 40 hours 
in any workweek unless paid for all such overtime hours at not less than 
1\1/2\ times the basic rate of pay.

[48 FR 42258, Sept. 19, 1983 as amended at 51 FR 12293, Apr. 9, 1986]



Sec. 22.302  Liquidated damages and overtime pay.

    (a) When an overtime computation discloses underpayments, the 
responsible contractor or subcontractor must pay the affected employee 
any unpaid

[[Page 476]]

wages and pay liquidated damages to the Government. The contracting 
officer must assess liquidated damages at the rate of $10 per affected 
employee for each calendar day on which the employer required or 
permitted the employee to work in excess of the standard workweek of 40 
hours without paying overtime wages required by the Act.
    (b) If the contractor or subcontractor fails or refuses to comply 
with overtime pay requirements of the Act and the funds withheld by 
Federal agencies for labor standards violations do not cover the unpaid 
wages due laborers and mechanics and the liquidated damages due the 
Government, make payments in the following order--
    (1) Pay laborers and mechanics the wages they are owed (or prorate 
available funds if they do not cover the entire amount owed); and
    (2) Pay liquidated damages.
    (c) If the head of an agency finds that the administratively 
determined liquidated damages due under paragraph (a) of this section 
are incorrect, or that the contractor or subcontractor inadvertently 
violated the Act despite the exercise of due care, the agency head may--
    (1) Reduce the amount of liquidated damages assessed for liquidated 
damages of $500 or less;
    (2) Release the contractor or subcontractor from the liability for 
liquidated damages of $500 or less; or
    (3) Recommend that the Secretary of Labor reduce or waive liquidated 
damages over $500.
    (d) After the contracting officer determines the liquidated damages 
and the contractor makes appropriate payments, disburse any remaining 
assessments in accordance with agency procedures.

[65 FR 46065, July 26, 2000]



Sec. 22.303  Administration and enforcement.

    The procedures and reports required for construction contracts in 
subpart 22.4 also apply to investigations of alleged violations of the 
Act on other than construction contracts.



Sec. 22.304  Variations, tolerances, and exemptions.

    (a) The Secretary of Labor under 40 U.S.C. 3706, upon the 
Secretary's initiative or at the request of any Federal agency, may 
provide reasonable limitations and allow variations, tolerances, and 
exemptions to and from any or all provisions of the Act (see 29 CFR 
5.15).
    (b) The Secretary of Labor may make variations, tolerances, and 
exemptions from the regulatory requirements of applicable parts of 29 
CFR when the Secretary finds that such action is necessary and proper in 
the public interest or to prevent injustice and undue hardship (see 29 
CFR 5.14).

[51 FR 12293, Apr. 9, 1986, as amended at 70 FR 57454, Sept. 30, 2005]



Sec. 22.305  Contract clause.

    Insert the clause at 52.222-4, Contract Work Hours and Safety 
Standards Act--Overtime Compensation, in solicitations and contracts 
(including, for this purpose, basic ordering agreements) when the 
contract may require or involve the employment of laborers or mechanics. 
However, do not include the clause in solicitations and contracts--
    (a) Valued at or below $150,000;
    (b) For commercial items;
    (c) For transportation or the transmission of intelligence;
    (d) To be performed outside the United States, Puerto Rico, American 
Samoa, Guam, the U.S. Virgin Islands, Johnston Island, Wake Island, and 
Outer Continental Shelf lands as defined in the Outer Continental Shelf 
Lands Act (43 U.S.C. 1331) (29 CFR 5.15);
    (e) For work to be done solely in accordance with the Walsh-Healey 
Public Contracts Act (see subpart 22.6);
    (f) For supplies that include incidental services that do not 
require substantial employment of laborers or mechanics; or
    (g) Exempt under regulations of the Secretary of Labor (29 CFR 
5.15).

[68 FR 28082, May 22, 2003, as amended at 71 FR 57367, Sept. 28, 2006, 
75 FR 53133, Aug. 30, 2010]

[[Page 477]]

    Subpart 22.4_Labor Standards for Contracts Involving Construction

    Source: 53 FR 4935, Feb. 18, 1988, unless otherwise noted.



Sec. 22.400  Scope of subpart.

    This subpart implements the statutes which prescribe labor standards 
requirements for contracts in excess of $2,000 for construction, 
alteration, or repair, including painting and decorating, of public 
buildings and public works. (See definition of Construction, alteration, 
or repair in section 22.401.) Labor relations requirements prescribed in 
other subparts of part 22 may also apply.

[53 FR 4935, Feb. 18, 1988; 65 FR 46074, July 26, 2000]



Sec. 22.401  Definitions.

    As used in this subpart--
    Apprentice means a person--
    (1) Employed and individually registered in a bona fide 
apprenticeship program registered with the U.S. Department of Labor, 
Employment and Training Administration, Office of Apprenticeship 
Training, Employer, and Labor Services (OATELS), or with a State 
Apprenticeship Agency recognized by OATELS; or
    (2) Who is in the first 90 days of probationary employment as an 
apprentice in an apprenticeship program, and is not individually 
registered in the program, but who has been certified by the OATELS or a 
State Apprenticeship Agency (where appropriate) to be eligible for 
probationary employment as an apprentice.
    Construction, alteration, or repair means all types of work done by 
laborers and mechanics employed by the construction contractor or 
construction subcontractor on a particular building or work at the site 
thereof, including without limitations--
    (1) Altering, remodeling, installation (if appropriate) on the site 
of the work of items fabricated off-site;
    (2) Painting and decorating;
    (3) Manufacturing or furnishing of materials, articles, supplies, or 
equipment on the site of the building or work;
    (4) Transportation of materials and supplies between the site of the 
work within the meaning of paragraphs (1)(i) and (ii) of the ``site of 
the work'' definition of this section, and a facility which is dedicated 
to the construction of the building or work and is deemed part of the 
site of the work within the meaning of paragraph (2) of the ``site of 
work'' definition of this section; and
    (5) Transportation of portions of the building or work between a 
secondary site where a significant portion of the building or work is 
constructed, which is part of the ``site of the work'' definition in 
paragraph (1)(ii) of this section, and the physical place or places 
where the building or work will remain (paragraph (1)(i) in the ``site 
of the work'' definition of this section).
    Laborers or mechanics--(1) Means--
    (i) Workers, utilized by a contractor or subcontractor at any tier, 
whose duties are manual or physical in nature (including those workers 
who use tools or who are performing the work of a trade), as 
distinguished from mental or managerial;
    (ii) Apprentices, trainees, helpers, and, in the case of contracts 
subject to the Contract Work Hours and Safety Standards Act, watchmen 
and guards;
    (iii) Working foremen who devote more than 20 percent of their time 
during a workweek performing duties of a laborer or mechanic, and who do 
not meet the criteria of 29 CFR part 541, for the time so spent; and
    (iv) Every person performing the duties of a laborer or mechanic, 
regardless of any contractual relationship alleged to exist between the 
contractor and those individuals; and
    (2) Does not include workers whose duties are primarily executive, 
supervisory (except as provided in paragraph (1)(iii) of this 
definition), administrative, or clerical, rather than manual. Persons 
employed in a bona fide executive, administrative, or professional 
capacity as defined in 29 CFR part 541 are not deemed to be laborers or 
mechanics.
    Public building or public work means building or work, the 
construction, prosecution, completion, or repair of which, as defined in 
this section, is carried on directly by authority of, or with funds of, 
a Federal agency to

[[Page 478]]

serve the interest of the general public regardless of whether title 
thereof is in a Federal agency.
    Site of the work--(1) Means--
    (i) The primary site of the work. The physical place or places where 
the construction called for in the contract will remain when work on it 
is completed; and
    (ii) The secondary site of the work, if any. Any other site where a 
significant portion of the building or work is constructed, provided 
that such site is--
    (A) Located in the United States; and
    (B) Established specifically for the performance of the contract or 
project;
    (2) Except as provided in paragraph (3) of this definition, includes 
fabrication plants, mobile factories, batch plants, borrow pits, job 
headquarters, tool yards, etc., provided--
    (i) They are dedicated exclusively, or nearly so, to performance of 
the contract or project; and
    (ii) They are adjacent or virtually adjacent to the ``primary site 
of the work'' as defined in paragraphs (1)(i) of ``the secondary site of 
the work'' as defined in paragraph (1)(ii) of this definition;
    (3) Does not include permanent home offices, branch plant 
establishments, fabrication plants, or tool yards of a contractor or 
subcontractor whose locations and continuance in operation are 
determined wholly without regard to a particular Federal contract or 
project. In addition, fabrication plants, batch plants, borrow pits, job 
headquarters, yards, etc., of a commercial or material supplier which 
are established by a supplier of materials for the project before 
opening of bids and not on the project site, are not included in the 
``site of the work.'' Such permanent, previously established facilities 
are not a part of the ``site of the work'', even if the operations for a 
period of time may be dedicated exclusively, or nearly so, to the 
performance of a contract.
    Trainee means a person registered and receiving on-the-job training 
in a construction occupation under a program which has been approved in 
advance by the U.S. Department of Labor, Employment and Training 
Administration, Office of Apprenticeship Training, Employer, and Labor 
Services (OATELS), as meeting its standards for on-the-job training 
programs and which has been so certified by that Administration.
    Wages means the basic hourly rate of pay; any contribution 
irrevocably made by a contractor or subcontractor to a trustee or to a 
third person pursuant to a bona fide fringe benefit fund, plan, or 
program; and the rate of costs to the contractor or subcontractor which 
may be reasonably anticipated in providing bona fide fringe benefits to 
laborers and mechanics pursuant to an enforceable commitment to carry 
out a financially responsible plan or program, which was communicated in 
writing to the laborers and mechanics affected. The fringe benefits 
enumerated in the Davis-Bacon Act include medical or hospital care, 
pensions on retirement or death, compensation for injuries or illness 
resulting from occupational activity, or insurance to provide any of the 
foregoing; unemployment benefits; life insurance, disability insurance, 
sickness insurance, or accident insurance; vacation or holiday pay; 
defraying costs of apprenticeship or other similar programs; or other 
bona fide fringe benefits. Fringe benefits do not include benefits 
required by other Federal, State, or local law.

[53 FR 4935, Feb. 18, 1988, as amended at 57 FR 44263, Sept. 24, 1992; 
59 FR 67038, Dec. 28, 1994; 66 FR 2130, Jan. 10, 2001; 70 FR 33665, June 
8, 2005; 72 FR 65872, Nov. 23, 2007]



Sec. 22.402  Applicability.

    (a) Contracts for construction work. (1) The requirements of this 
subpart apply--
    (i) Only if the construction work is, or reasonably can be foreseen 
to be, performed at a particular site so that wage rates can be 
determined for the locality, and only to construction work that is 
performed by laborers and mechanics at the site of the work;
    (ii) To dismantling, demolition, or removal of improvements if a 
part of the construction contract, or if construction at that site is 
anticipated by another contract as provided in subpart 37.3;
    (iii) To the manufacture or fabrication of construction materials 
and components conducted in connection with the construction and on the 
site

[[Page 479]]

of the work by the contractor or a subcontractor under a contract 
otherwise subject to this subpart; and
    (iv) To painting of public buildings or public works, whether 
performed in connection with the original construction or as alteration 
or repair of an existing structure.
    (2) The requirements of this subpart do not apply to--
    (i) The manufacturing of components or materials off the site of the 
work or their subsequent delivery to the site by the commercial supplier 
or materialman;
    (ii) Contracts requiring construction work that is so closely 
related to research, experiment, and development that it cannot be 
performed separately, or that is itself the subject of research, 
experiment, or development (see paragraph (b) of this section for 
applicability of this subpart to research and development contracts or 
portions thereof involving construction, alteration, or repair of a 
public building or public work);
    (iii) Employees of railroads operating under collective bargaining 
agreements that are subject to the Railway Labor Act; or
    (iv) Employees who work at contractors' or subcontractors' permanent 
home offices, fabrication shops, or tool yards not located at the site 
of the work. However, if the employees go to the site of the work and 
perform construction activities there, the requirements of this subpart 
are applicable for the actual time so spent, not including travel unless 
the employees transport materials or supplies to or from the site of the 
work.
    (b) Nonconstruction contracts involving some construction work. (1) 
The requirements of this subpart apply to construction work to be 
performed as part of nonconstruction contracts (supply, service, 
research and development, etc.) if--
    (i) The construction work is to be performed on a public building or 
public work;
    (ii) The contract contains specific requirements for a substantial 
amount of construction work exceeding the monetary threshold for 
application of the Davis Bacon Act (the word substantial relates to the 
type and quantity of construction work to be performed and not merely to 
the total value of construction work as compared to the total value of 
the contract); and
    (iii) The construction work is physically or functionally separate 
from, and is capable of being performed on a segregated basis from, the 
other work required by the contract.
    (2) The requirements of this subpart do not apply if--
    (i) The construction work is incidental to the furnishing of 
supplies, equipment, or services (for example, the requirements do not 
apply to simple installation or alteration at a public building or 
public work that is incidental to furnishing supplies or equipment under 
a supply contract; however, if a substantial and segregable amount of 
construction, alteration, or repair is required, such as for 
installation of heavy generators or large refrigerator systems or for 
plant modification or rearrangement, the requirements of this subpart 
apply); or
    (ii) The construction work is so merged with nonconstruction work or 
so fragmented in terms of the locations or time spans in which it is to 
be performed, that it is not capable of being segregated as a separate 
contractual requirement.



Sec. 22.403  Statutory and regulatory requirements.



Sec. 22.403-1  Davis-Bacon Act.

    The Davis-Bacon Act (40 U.S.C. 3141 et seq.) provides that contracts 
in excess of $2,000 to which the United States or the District of 
Columbia is a party for construction, alteration, or repair (including 
painting and decorating) of public buildings or public works within the 
United States, shall contain a clause (see 52.222-6) that no laborer or 
mechanic employed directly upon the site of the work shall receive less 
than the prevailing wage rates as determined by the Secretary of Labor.

[53 FR 4935, Feb. 18, 1988, as amended at 70 FR 57454, Sept. 30, 2005]



Sec. 22.403-2  Copeland Act.

    The Copeland (Anti-Kickback) Act (18 U.S.C. 874 and 40 U.S.C. 3145) 
makes it unlawful to induce, by force, intimidation, threat of procuring 
dismissal

[[Page 480]]

from employment, or otherwise, any person employed in the construction 
or repair of public buildings or public works, financed in whole or in 
part by the United States, to give up any part of the compensation to 
which that person is entitled under a contract of employment. The 
Copeland Act also requires each contractor and subcontractor to furnish 
weekly a statement of compliance with respect to the wages paid each 
employee during the preceding week. Contracts subject to the Copeland 
Act shall contain a clause (see 52.222-10) requiring contractors and 
subcontractors to comply with the regulations issued by the Secretary of 
Labor under the Copeland Act.

[53 FR 4935, Feb. 18, 1988, as amended at 70 FR 57454, Sept. 30, 2005]



Sec. 22.403-3  Contract Work Hours and Safety Standards Act.

    The Contract Work Hours and Safety Standards Act (40 U.S.C. 3701 et 
seq.) requires that certain contracts (see 22.305) contain a clause (see 
52.222-4) specifying that no laborer or mechanic doing any part of the 
work contemplated by the contract shall be required or permitted to work 
more than 40 hours in any workweek unless paid for all additional hours 
at not less than 1\1/2\ times the basic rate of pay (see 22.301).

[53 FR 4935, Feb. 18, 1988, as amended at 70 FR 57454, Sept. 30, 2005]



Sec. 22.403-4  Department of Labor regulations.

    (a) Under the statutes referred to in this 22.403 and Reorganization 
Plan No. 14 of 1950 (3 CFR 1949-53 Comp., p. 1007), the Secretary of 
Labor has issued regulations in Title 29, Subtitle A, Code of Federal 
Regulations, prescribing standards and procedures to be observed by the 
Department of Labor and the Federal contracting agencies. Those 
standards and procedures applicable to contracts involving construction 
are implemented in this subpart. The Department of Labor regulations 
include--
    (b) The Department of Labor regulations include--
    (1) Part 1, relating to Davis-Bacon Act minimum wage rates;
    (2) Part 3, relating to the Copeland (Anti-Kickback) Act and 
requirements for submission of weekly statements of compliance and the 
preservation and inspection of weekly payroll records;
    (3) Part 5, relating to enforcement of the Davis-Bacon Act, Contract 
Work Hours and Safety Standards Act, and Copeland (Anti-Kickback) Act;
    (4) Part 6, relating to rules of practice for appealing the findings 
of the Administrator, Wage and Hour Division, in enforcement cases under 
the Davis-Bacon Act, Contract Work Hours and Safety Standards Act, 
Copeland (Anti-Kickback) Act, and Service Contract Act, and by which 
Administrative Law Judge hearings are held; and
    (5) Part 7, relating to rules of practice by which contractors and 
other interested parties may appeal to the Department of Labor 
Administrative Review Board, decisions issued by the Administrator, Wage 
and Hour Division, or administrative law judges under the Davis-Bacon 
Act, Contract Work Hours and Safety Standards Act, or Copeland (Anti-
Kickback) Act.
    (c) Refer all questions relating to the application and 
interpretation of wage determinations (including the classifications 
therein) and the interpretation of the Department of Labor regulations 
in this subsection to the Administrator, Wage and Hour Division.

[53 FR 4935, Feb. 18, 1988, as amended at 66 FR 2141, Jan. 10, 2001; 66 
FR 53480, Oct. 22, 2001]



Sec. 22.404  Davis-Bacon Act wage determinations.

    The Department of Labor is responsible for issuing wage 
determinations reflecting prevailing wages, including fringe benefits. 
The wage determinations apply only to those laborers and mechanics 
employed by a contractor upon the site of the work including drivers who 
transport to or from the site materials and equipment used in the course 
of contract operations. Determinations are issued for different types of 
construction, such as building, heavy, highway, and residential 
(referred to as rate schedules), and apply only to the types of 
construction designated in the determination.

[[Page 481]]



Sec. 22.404-1  Types of wage determinations.

    (a) General wage determinations. (1) A general wage determination 
contains prevailing wage rates for the types of construction designated 
in the determination, and is used in contracts performed within a 
specified geographical area. General wage determinations contain no 
expiration date and remain valid until modified, superseded, or canceled 
by the Department of Labor. Once incorporated in a contract, a general 
wage determination normally remains effective for the life of the 
contract, unless the contracting officer exercises an option to extend 
the term of the contract (see 22.404-12). These determinations shall be 
used whenever possible. They are issued at the discretion of the 
Department of Labor either upon receipt of an agency request or on the 
Department of Labor's own initiative.
    (2) General wage determinations are published on the WDOL website. 
General wage determinations are effective on the publication date of the 
wage determination or upon receipt of the wage determination by the 
contracting agency, whichever occurs first. ``Publication'' within the 
meaning of this section shall occur on the first date the wage 
determination is published on the WDOL. Archived Davis-Bacon Act general 
wage determinations that are no longer current may be accessed in the 
``Archived DB WD'' database on WDOL for information purposes only. 
Contracting officers may not use an archived wage determination in a 
contract action without obtaining prior approval of the Department of 
Labor. To obtain prior approval, contact the Department of Labor, Wage 
and Hour Division, using http://www.wdol.gov, or contact the procurement 
agency labor advisor listed on http://www.wdol.gov.
    (b) Project wage determinations. A project wage determination is 
issued at the specific request of a contracting agency. It is used only 
when no general wage determination applies, and is effective for 180 
calendar days from the date of the determination. However, if a 
determination expires before contract award, it may be possible to 
obtain an extension to the 180-day life of the determination (see 
22.404-5(b)(2)). Once incorporated in a contract, a project wage 
determination normally remains effective for the life of the contract, 
unless the contracting officer exercises an option to extend the term of 
the contract (see 22.404-12).

[53 FR 4935, Feb. 18, 1988, as amended at 66 FR 53480, Oct. 22, 2001; 71 
FR 36932, June 28, 2006; 77 FR 204, Jan. 3, 2012]



Sec. 22.404-2  General requirements.

    (a) The contracting officer must incorporate only the appropriate 
wage determinations in solicitations and contracts and must designate 
the work to which each determination or part thereof applies. The 
contracting officer must not include project wage determinations in 
contracts or options other than those for which they are issued. When 
exercising an option to extend the term of a contract, the contracting 
officer must select the most current wage determination(s) from the same 
schedule(s) as the wage determination(s) incorporated into the contract.
    (b) If the wage determination is a general wage determination or a 
project wage determination containing more than one rate schedule, the 
contracting officer shall either include only the rate schedules that 
apply to the particular types of construction (building, heavy, highway, 
etc.) or include the entire wage determination and clearly indicate the 
parts of the work to which each rate schedule shall be applied. 
Inclusion by reference is not permitted.
    (c) The Wage and Hour Division has issued the following general 
guidelines for use in selecting the proper schedule(s) of wage rates:
    (1) Building construction is generally the construction of sheltered 
enclosures with walk-in access, for housing persons, machinery, 
equipment, or supplies. It typically includes all construction of such 
structures, installation of utilities and equipment (both above and 
below grade level), as well as incidental grading, utilities and paving, 
unless there is an established area practice to the contrary.
    (2) Residential construction is generally the construction, 
alteration, or repair of single family houses or apartment buildings of 
no more than four (4)

[[Page 482]]

stories in height, and typically includes incidental items such as site 
work, parking areas, utilities, streets and sidewalks, unless there is 
an established area practice to the contrary.
    (3) Highway construction is generally the construction, alteration, 
or repair of roads, streets, highways, runways, taxiways, alleys, 
parking areas, and other similar projects that are not incidental to 
building, residential, or heavy construction.
    (4) Heavy construction includes those projects that are not properly 
classified as either building, residential, or highway, and is of a 
catch-all nature. Such heavy projects may sometimes be distinguished on 
the basis of their individual characteristics, and separate schedules 
issued (e.g., dredging, water and sewer line, dams, flood control, 
etc.).
    (5) When the nature of a project is not clear, it is necessary to 
look at additional factors, with primary consideration given to locally 
established area practices. If there is any doubt as to the proper 
application of wage rate schedules to the type or types of construction 
involved, guidance shall be sought before the opening of bids, or 
receipt of best and final offers, from the Administrator, Wage and Hour 
Division. Further examples are contained in Department of Labor All 
Agency Memoranda Numbers 130 and 131.

[53 FR 4935, Feb. 18, 1988, as amended at 66 FR 53480, Oct. 22, 2001]



Sec. 22.404-3  Procedures for requesting wage determinations.

    (a) General wage determinations. If there is a general wage 
determination on the WDOL website applicable to the project, the agency 
may use it without notifying the Department of Labor. When necessary, a 
request for a general wage determination may be made by submitting 
Standard Form (SF) 308, Request for Determination and Response to 
Request (see 53.301-308), to the Administrator, Wage and Hour Division, 
Attention: Branch of Construction Contract Wage Determinations, 200 
Constitution Avenue, NW, Washington, DC 20210.
    (b) Project wage determinations. If a general wage determination is 
not available on WDOL, a contracting agency shall submit requests for 
project wage determinations on SF 308 to the Department of Labor. The 
requests shall include the following information:
    (1) The location, including the county (or other civil subdivision) 
and State in which the proposed project is located.
    (2) The name of the project and a sufficiently detailed description 
of the work to indicate the types of construction involved (e.g., 
building, heavy, highway, residential, or other type).
    (3) Any available pertinent wage payment information, unless wage 
patterns in the area are clearly established.
    (4) The estimated cost of each project.
    (5) All the classifications of laborers and mechanics likely to be 
employed.
    (c) Time for submission of requests. (1) The time required by the 
Department of Labor for processing requests for project wage 
determinations varies according to the facts and circumstances in each 
case. An agency should expect the processing to take at least 30 days. 
Accordingly, agencies should submit requests for project wage 
determinations for the primary site of the work to the Department of 
Labor at least 45 days (60 days if possible) before issuing the 
solicitation or exercising an option to extend the term of a contract.
    (2) Agencies should promptly submit to the Department of Labor an 
offeror's request for a project wage determination for a secondary site 
of the work.
    (d) Review of wage determinations. Immediately upon receipt, the 
contracting agency shall examine the wage determination and inform the 
Department of Labor of any changes necessary or appropriate to correct 
errors. Private parties requesting changes should be advised to submit 
their requests to the Department of Labor.

[53 FR 4935, Feb. 18, 1988, as amended at 66 FR 53480, Oct. 22, 2001; 70 
FR 33666, June 8, 2005; 71 FR 36932, June 28, 2006]

[[Page 483]]



Sec. 22.404-4  Solicitations issued without wage determinations for the 
          primary site of the work.

    (a) If a solicitation is issued before the wage determination for 
the primary site of the work is obtained, a notice shall be included in 
the solicitation that the schedule of minimum wage rates to be paid 
under the contract will be issued as an amendment to the solicitation.
    (b) In sealed bidding, bids may not be opened until a reasonable 
time after the wage determination for the primary site of the work has 
been furnished to all bidders.
    (c) In negotiated acquisitions, the contracting officer may open 
proposals and conduct negotiations before obtaining the wage 
determination for the primary site of the work. However, the contracting 
officer shall incorporate the wage determination for the primary site of 
the work into the solicitation before submission of best and final 
offers.

[53 FR 4935, Feb. 18, 1988, as amended at 70 FR 33666, June 8, 2005]



Sec. 22.404-5  Expiration of project wage determinations.

    (a) The contracting officer shall make every effort to ensure that 
contract award is made before expiration of the project wage 
determination included in the solicitation.
    (b) The following procedure applies when contracting by sealed 
bidding:
    (1) If a project wage determination for the primary site of the work 
expires before bid opening, or if it appears before bid opening that a 
project wage determination may expire before award, the contracting 
officer shall request a new determination early enough to ensure its 
receipt before bid opening. If necessary, the contracting officer shall 
postpone the bid opening date to allow a reasonable time to obtain the 
determination, amend the solicitation to incorporate the new 
determination, and permit bidders to amend their bids. If the new 
determination does not change the wage rates and would not warrant 
amended bids, the contracting officer shall amend the solicitation to 
include the number and date of the new determination.
    (2) If a project wage determination for the primary site of the work 
expires after bid opening but before award, the contracting officer 
shall request an extension of the project wage determination expiration 
date from the Administrator, Wage and Hour Division. The request for 
extension shall be supported by a written finding, which shall include a 
brief statement of factual support, that the extension is necessary and 
proper in the public interest to prevent injustice or undue hardship or 
to avoid serious impairment of the conduct of Government business. If 
necessary, the contracting officer shall delay award to permit either 
receipt of the extension or receipt and processing of a new 
determination. If the request is granted, the contracting officer shall 
award the contract and modify it to apply the extended expiration date 
to the already incorporated project wage determination. (See 
43.103(b)(1).) If the request is denied, the Administrator will proceed 
to issue a new project wage determination. Upon receipt, the contracting 
officer shall process the new determination as follows:
    (i) If the new determination for the primary site of the work 
changes any wage rates for classifications to be used in the contract, 
the contracting officer may cancel the solicitation only in accordance 
with 14.404-1. Otherwise the contracting officer shall award the 
contract and incorporate the new determination to be effective on the 
date of contract award. The contracting officer shall equitably adjust 
the contract price for any increased or decreased cost of performance 
resulting from any changed wage rates.
    (ii) If the new determination for the primary site of the work does 
not change any wage rates, the contracting officer shall award the 
contract and modify it to include the number and date of the new 
determination. (See 43.103(b)(1).)
    (c) The following procedure applies when contracting by negotiation:
    (1) If a project wage determination will or does expire before 
contract award, the contracting officer shall request a new wage 
determination from the Department of Labor. If necessary, the 
contracting officer shall delay

[[Page 484]]

award while the new determination is obtained and processed.
    (2) The contracting officer need not delay opening and reviewing 
proposals or discussing them with the offerors while a new determination 
for the primary site of the work is being obtained. The contracting 
officer shall request offerors to extend the period for acceptance of 
any proposal if that period expires or may expire before receipt and 
full processing of the new determination.
    (3) If the new determination for the primary site of the work 
changes any wage rates, the contracting officer shall amend the 
solicitation to incorporate the new determination, and furnish the wage 
rate information to all prospective offerors that were sent a 
solicitation if the closing date for receipt of proposals has not yet 
occurred, or to all offerors that have not been eliminated from the 
competition if the closing date has passed. All offerors to whom wage 
rate information has been furnished shall be given reasonable 
opportunity to amend their proposals.
    (4) If the new determination for the primary site of the work does 
not change any wage rates, the contracting officer shall amend the 
solicitation to include the number and date of the new determination and 
award the contract.

[53 FR 4935, Feb. 18, 1988, as amended at 70 FR 33666, June 8, 2005; 74 
FR 11828, Mar. 19, 2009]



Sec. 22.404-6  Modifications of wage determinations.

    (a) General. (1) The Department of Labor may modify a wage 
determination to make it current by specifying only the items being 
changed or by reissuing the entire determination with changes 
incorporated.
    (2) All project wage determination modifications expire on the same 
day as the original determination. The need to include a modification of 
a project wage determination for the primary site of the work in a 
solicitation is determined by the time of receipt of the modification by 
the contracting agency. Therefore, the contracting agency must annotate 
the modification of the project wage determination with the date and 
time immediately upon receipt.
    (3) The need for inclusion of the modification of a general wage 
determination for the primary site of the work in a solicitation is 
determined by the date the modified wage determination is published on 
the WDOL, or by the date the agency receives actual written notice of 
the modification from the Department of Labor, whichever occurs first. 
(Note the distinction between receipt by the agency (modification is 
effective) and receipt by the contracting officer, which may occur 
later.) During the course of the solicitation, the contracting officer 
shall monitor the WDOL website to determine whether the applicable wage 
determination has been revised. Revisions published on the WDOL website 
or otherwise communicated to the contracting officer within the 
timeframes prescribed at 22.404-6(b) and (c) are applicable and must be 
included in the resulting contract. Monitoring can be accomplished by 
use of the WDOL website's ``Alert Service''.
    (b) The following applies when contracting by sealed bidding:
    (1) A written action modifying a wage determination shall be 
effective if:
    (i) It is received by the contracting agency, or is published on the 
WDOL, 10 or more calendar days before the date of bid opening; or
    (ii) It is received by the contracting agency, or is published on 
the WDOL, less than 10 calendar days before the date of bid opening, 
unless the contracting officer finds that there is not reasonable time 
available before bid opening to notify the prospective bidders. (If the 
contracting officer finds that there is not reasonable time to notify 
bidders, a written report of the finding shall be placed in the contract 
file and shall be made available to the Department of Labor upon 
request.)
    (2) All written actions modifying wage determinations received by 
the contracting agency after bid opening, or modifications to general 
wage determinations published on the WDOL after bid opening, shall not 
be effective and shall not be included in the solicitation (but see 
paragraph (b)(6) of this subsection).
    (3) If an effective modification of the wage determination for the 
primary

[[Page 485]]

site of the work is received by the contracting officer before bid 
opening, the contracting officer shall postpone the bid opening, if 
necessary, to allow a reasonable time to amend the solicitation to 
incorporate the modification and permit bidders to amend their bids. If 
the modification does not change the wage rates and would not warrant 
amended bids, the contracting officer shall amend the solicitation to 
include the number and date of the modification.
    (4) If an effective modification of the wage determination for the 
primary site of the work is received by the contracting officer after 
bid opening, but before award, the contracting officer shall follow the 
procedures in 22.404-5(b)(2)(i) or (ii).
    (5) If an effective modification is received by the contracting 
officer after award, the contracting officer shall modify the contract 
to incorporate the wage modification retroactive to the date of award 
and equitably adjust the contract price for any increased or decreased 
cost of performance resulting from any changed wage rates. If the 
modification does not change any wage rates and would not warrant 
contract price adjustment, the contracting officer shall modify the 
contract to include the number and date of the modification.
    (6) If an award is not made within 90 days after bid opening, any 
modification to a general wage determination which is published on the 
WDOL before award, shall be effective for any resultant contract unless 
an extension of the 90-day period is obtained from the Administrator, 
Wage and Hour Division. An agency head may request such an extension 
from the Administrator. The request must be supported by a written 
finding, which shall include a brief statement of factual support, that 
the extension is necessary and proper in the public interest to prevent 
injustice, undue hardship, or to avoid serious impairment in the conduct 
of Government business. The contracting officer shall follow the 
procedures in 22.404-5(b)(2).
    (c) The following applies when contracting by negotiation:
    (1) All written actions modifying wage determinations received by 
the contracting agency before contract award, or modifications to 
general wage determinations published on the WDOL before award, shall be 
effective.
    (2) If an effective wage modification is received by the contracting 
officer before award, the contracting officer shall follow the 
procedures in 22.404-5(c)(3) or (4).
    (3) If an effective wage modification is received by the contracting 
officer after award, the contracting officer shall follow the procedures 
in 22.404-6(b)(5).
    (d) The following applies when modifying a contract to exercise an 
option to extend the term of a contract:
    (1) A modified wage determination is effective if--
    (i) The contracting agency receives a written action from the 
Department of Labor prior to exercise of the option, or within 45 days 
after submission of a wage determination request (22.404-3(c)), 
whichever is later; or
    (ii) The Department of Labor publishes the modification to a general 
wage determination on the WDOL before exercise of the option.
    (2) If the contracting officer receives an effective modified wage 
determination either before or after execution of the contract 
modification to exercise the option, the contracting officer must modify 
the contract to incorporate the modified wage determination, and any 
changed wage rates, effective as of the date that the option to extend 
was effective.

[53 FR 4935, Feb. 18, 1988, as amended at 66 FR 53480, Oct. 22, 2001; 70 
FR 33666, June 8, 2005; 71 FR 36932, June 28, 2006]



Sec. 22.404-7  Correction of wage determinations containing clerical 
          errors.

    Upon the Department of Labor's own initiative or at the request of 
the contracting agency, the Administrator, Wage and Hour Division, may 
correct any wage determination found to contain clerical errors. Such 
corrections will be effective immediately, and will apply to any 
solicitation or active contract. Before contract award, the contracting 
officer must follow the procedures in 22.404-5(b)(1) or (2)(i) or (ii) 
in sealed bidding, and the procedures in 22.404-5(c)(3) or (4) in 
negotiations.

[[Page 486]]

After contract award, the contracting officer must follow the procedures 
at 22.404-6(b)(5), except that for contract modifications to exercise an 
option to extend the term of the contract, the contracting officer must 
follow the procedures at 22.404-6(d)(2).

[66 FR 53480, Oct. 22, 2001]



Sec. 22.404-8  Notification of improper wage determination before award.

    (a) The following written notifications by the Department of Labor 
shall be effective immediately without regard to 22.404-6 if received by 
the contracting officer prior to award:
    (1) A solicitation includes the wrong wage determination or the 
wrong rate schedule; or
    (2) A wage determination is withdrawn by the Administrative Review 
Board.
    (b) In sealed bidding, the contracting officer shall proceed in 
accordance with the following:
    (1) If the notification of an improper wage determination for the 
primary site of the work reaches the contracting officer before bid 
opening, the contracting officer shall postpone the bid opening date, if 
necessary, to allow a reasonable time to (i) obtain the appropriate 
determination if a new wage determination is required, (ii) amend the 
solicitation to incorporate the determination (or rate schedule), and 
(iii) permit bidders to amend their bids. If the appropriate wage 
determination does not change any wage rates and would not warrant 
amended bids, the contracting officer shall amend the solicitation to 
include the number and date of the new determination.
    (2) If the notification of an improper wage determination for the 
primary site of the work reaches the contracting officer after bid 
opening but before award, the contracting officer shall delay awarding 
the contract, if necessary, and if required, obtain the appropriate wage 
determination. The appropriate wage determination shall be processed in 
accordance with 22.404-5(b)(2)(i) or (ii).
    (c) In negotiated acquisitions, the contracting officer shall delay 
award, if necessary, and process the notification of an improper wage 
determination for the primary site of the work in the manner prescribed 
for a new wage determination at 22.404-5(c)(3).

[53 FR 4935, Feb. 18, 1988, as amended at 70 FR 33667, June 8, 2005]



Sec. 22.404-9  Award of contract without required wage determination.

    (a) If a contract is awarded without the required wage determination 
(i.e., incorporating no determination, containing a clearly inapplicable 
general wage determination, or containing a project determination which 
is inapplicable because of an inaccurate description of the project or 
its location), the contracting officer shall initiate action to 
incorporate the required determination in the contract immediately upon 
discovery of the error. If a required wage determination (valid 
determination in effect on the date of award) is not available, the 
contracting officer shall expeditiously request a wage determination 
from the Department of Labor, including a statement explaining the 
crcumstances and giving the date of the contract award.
    (b) The contracting officer shall--
    (1) Modify the contract to incorporate the required wage 
determination (retroactive to the date of award), and equitably adjust 
the contract price if appropriate; or
    (2) Terminate the contract.



Sec. 22.404-10  Posting wage determinations and notice.

    The contractor must keep a copy of the applicable wage determination 
(and any approved additional classifications) posted at the site of the 
work in a prominent place where the workers can easily see it. The 
contracting officer shall furnish to the contractor, Department of Labor 
Form WH-1321, Notice to Employees Working on Federal and Federally 
Financed Construction Projects, for posting with the wage rates. The 
name, address, and telephone number of the Government officer 
responsible for the administration of the contract shall be indicated in 
the poster to inform workers to whom they may submit complaints or raise 
questions concerning labor standards.

[53 FR 4935, Feb. 18, 1988, as amended at 66 FR 53481, Oct. 22, 2001]

[[Page 487]]



Sec. 22.404-11  Wage determination appeals.

    The Secretary of Labor has established an Administrative Review 
Board which decides appeals of final decisions made by the Department of 
Labor concerning Davis-Bacon Act wage determinations. A contracting 
agency or other interested party may file a petition for review under 
the procedures in 29 CFR Part 7 if reconsideration by the Administrator 
has been sought pursuant to 29 CFR 1.8 and denied.

[53 FR 4935, Feb. 18, 1988, as amended at 66 FR 53481, Oct. 22, 2001]



Sec. 22.404-12  Labor standards for contracts containing construction 
          requirements and option provisions that extend the term of the 
          contract.

    (a) Each time the contracting officer exercises an option to extend 
the term of a contract for construction, or a contract that includes 
substantial and segregable construction work, the contracting officer 
must modify the contract to incorporate the most current wage 
determination.
    (b) If a contract with an option to extend the term of the contract 
has indefinite-delivery or indefinite-quantity construction 
requirements, the contracting officer must incorporate the wage 
determination incorporated into the contract at the exercise of the 
option into task orders issued during that option period. The wage 
determination will be effective for the complete period of performance 
of those task orders without further revision.
    (c) The contracting officer must include in fixed-price contracts a 
clause that specifies one of the following methods, suitable to the 
interest of the Government, to provide an allowance for any increases or 
decreases in labor costs that result from the inclusion of the current 
wage determination at the exercise of an option to extend the term of 
the contract:
    (1) The contracting officer may provide the offerors the opportunity 
to bid or propose separate prices for each option period. The 
contracting officer must not further adjust the contract price as a 
result of the incorporation of a new or revised wage determination at 
the exercise of each option to extend the term of the contract. 
Generally, this method is used in construction-only contracts (with 
options to extend the term) that are not expected to exceed a total of 3 
years.
    (2) The contracting officer may include in the contract a separately 
specified pricing method that permits an adjustment to the contract 
price or contract labor unit price at the exercise of each option to 
extend the term of the contract. At the time of option exercise, the 
contracting officer must incorporate a new wage determination into the 
contract, and must apply the specific pricing method to calculate the 
contract price adjustment. An example of a contract pricing method that 
the contracting officer might separately specify is incorporation in the 
solicitation and resulting contract of the pricing data from an annually 
published unit pricing book (e.g., the U.S. Army Computer-Aided Cost 
Estimating System or similar commercial product), which is multiplied in 
the contract by a factor proposed by the contractor (e.g., .95 or 1.1). 
At option exercise, the contracting officer incorporates the pricing 
data from the latest annual edition of the unit pricing book, multiplied 
by the factor agreed to in the basic contract. The contracting officer 
must not further adjust the contract price as a result of the 
incorporation of the new or revised wage determination.
    (3) The contracting officer may provide for a contract price 
adjustment based solely on a percentage rate determined by the 
contracting officer using a published economic indicator incorporated 
into the solicitation and resulting contract. At the exercise of each 
option to extend the term of the contract, the contracting officer will 
apply the percentage rate, based on the economic indicator, to the 
portion of the contract price or contract unit price designated in the 
contract clause as labor costs subject to the provisions of the Davis-
Bacon Act. The contracting officer must insert 50 percent as the 
estimated portion of the contract price that is labor unless the 
contracting officer determines, prior to issuance of the solicitation, 
that a different percentage is more appropriate for a particular 
contract or requirement. This percentage adjustment to

[[Page 488]]

the designated labor costs must be the only adjustment made to cover 
increases in wages and/or benefits resulting from the incorporation of a 
new or revised wage determination at the exercise of the option.
    (4) The contracting officer may provide a computation method to 
adjust the contract price to reflect the contractor's actual increase or 
decrease in wages and fringe benefits (combined) to the extent that the 
increase is made to comply with, or the decrease is voluntarily made by 
the contractor as a result of incorporation of, a new or revised wage 
determination at the exercise of the option to extend the term of the 
contract. Generally, this method is appropriate for use only if contract 
requirements are predominately services subject to the Service Contract 
Act and the construction requirements are substantial and segregable. 
The methods used to adjust the contract price for the service 
requirements and the construction requirements would be similar.

[66 FR 53481, Oct. 22, 2001, as amended at 72 FR 63089, Nov. 7, 2007]



Sec. 22.405  [Reserved]



Sec. 22.406  Administration and enforcement.



Sec. 22.406-1  Policy.

    (a) General. Contracting agencies are responsible for ensuring the 
full and impartial enforcement of labor standards in the administration 
of construction contracts. Contracting agencies shall maintain an 
effective program that shall include--
    (1) Ensuring that contractors and subcontractors are informed, 
before commencement of work, of their obligations under the labor 
standards clauses of the contract;
    (2) Adequate payroll reviews, on-site inspections, and employee 
interviews to determine compliance by the contractor and subcontractors, 
and prompt initiation of corrective action when required;
    (3) Prompt investigation and disposition of complaints; and
    (4) Prompt submission of all reports required by this subpart.
    (b) Preconstruction letters and conferences. Before construction 
begins, the contracting officer shall inform the contractor of the labor 
standards clauses and wage determination requirements of the contract 
and of the contractor's and any subcontractor's responsibilities under 
the contract. Unless it is clear that the contractor is fully aware of 
the requirements, the contracting officer shall issue an explanatory 
letter and/or arrange a conference with the contractor promptly after 
award of the contract.



Sec. 22.406-2  Wages, fringe benefits, and overtime.

    (a) In computing wages paid to a laborer or mechanic, the contractor 
may include only the following items:
    (1) Amounts paid in cash to the laborer or mechanic, or deducted 
from payments under the conditions set forth in 29 CFR 3.5.
    (2) Contributions (except those required by Federal, State, or local 
law) the contractor makes irrevocably to a trustee or a third party 
under any bona fide plan or program to provide for medical or hospital 
care, pensions, compensation for injuries or illness resulting from 
occupational activity, unemployment benefits, life insurance, disability 
and sickness insurance, accident insurance, or any other bona fide 
fringe benefit.
    (3) Other contributions or anticipated costs for bona fide fringe 
benefits to the extent expressly approved by the Secretary of Labor.
    (b)(1) The contractor may satisfy the obligation under the clause at 
52.222-6, Davis-Bacon Act, by providing wages consisting of any 
combination of contributions or costs as specified in paragraph (a) of 
this subsection, if the total cost of the combination is not less than 
the total of the basic hourly rate and fringe benefits payments 
prescribed in the wage determination for the classification of laborer 
or mechanic concerned.
    (2) Wages provided by the contractor and fringe benefits payments 
required by the wage determination may include items that are not stated 
as exact cash amounts. In these cases, the hourly cash equivalent of the 
cost of

[[Page 489]]

these items shall be determined by dividing the employer's contributions 
or costs by the employee's hours worked during the period covered by the 
costs or contributions. For example, if a contractor pays a monthly 
health insurance premium of $112 for a particular employee who worked 
125 hours during the month, the hourly cash equivalent is determined by 
dividing $112 by 125 hours, which equals $0.90 per hour. Similarly, the 
calculation of hourly cash equivalent for nine paid holidays per year 
for an employee with an hourly rate of pay of $5.00 is determined by 
multiplying $5.00 by 72 (9 days at 8 hours each), and dividing the 
result of $360 by the number of hours worked by the employee during the 
year. If the interested parties (contractor, contracting officer, and 
employees or their representative) cannot agree on the cash equivalent, 
the contracting officer shall submit the question for final 
determination to the Department of Labor as prescribed by agency 
procedures. The information submitted shall include--
    (i) A comparison of the payments, contributions, or costs in the 
wage determination with those made or proposed as equivalents by the 
contractor; and
    (ii) The comments and recommendations of the contracting officer.
    (c) In computing required overtime payments, (i.e., 1\1/2\ times the 
basic hourly rate of pay) the contractor shall use the basic hourly rate 
of pay in the wage determination, or the basic hourly rate actually paid 
by the contractor, if higher. The basic rate of pay includes employee 
contributions to fringe benefits, but excludes the contractor's 
contributions, costs, or payment of cash equivalents for fringe 
benefits. Overtime shall not be computed on a rate lower than the basic 
hourly rate in the wage determination.



Sec. 22.406-3  Additional classifications.

    (a) If any laborer or mechanic is to be employed in a classification 
that is not listed in the wage determination applicable to the contract, 
the contracting officer, pursuant to the clause at 52.222-6, Davis-Bacon 
Act, shall require that the contractor submit to the contracting 
officer, Standard Form (SF) 1444, Request for Authorization of 
Additional Classification and Rate, which, along with other pertinent 
data, contains the proposed additional classification and minimum wage 
rate including any fringe benefits payments.
    (b) Upon receipt of SF 1444 from the contractor, the contracting 
officer shall review the request to determine whether it meets the 
following criteria:
    (1) The classification is appropriate and the work to be performed 
by the classification is not performed by any classification contained 
in the applicable wage determination.
    (2) The classification is utilized in the area by the construction 
industry.
    (3) The proposed wage rate, including any fringe benefits, bears a 
reasonable relationship to the wage rates in the wage determination in 
the contract.
    (c)(1) If the criteria in paragraph (b) of this section are met and 
the contractor and the laborers or mechanics to be employed in the 
additional classification (if known) or their representatives agree to 
the proposed additional classification, and the contracting officer 
approves, the contracting officer shall submit a report (including a 
copy of SF 1444) of that action to the Administrator, Wage and Hour 
Division, for approval, modification, or disapproval of the additional 
classification and wage rate (including any amount designated for fringe 
benefits); or
    (2) If the contractor, the laborers or mechanics to be employed in 
the classification or their representatives, and the contracting officer 
do not agree on the proposed additional classification, or if the 
criteria are not met, the contracting officer shall submit a report 
(including a copy of SF 1444) giving the views of all interested parties 
and the contracting officer's recommendation to the Administrator, Wage 
and Hour Division, for determination of appropriate classification and 
wage rate.
    (d)(1) Within 30 days of receipt of the report, the Administrator, 
Wage and Hour Division, will complete action and so advise the 
contracting officer, or will notify the contracting officer that 
additional time is necessary.
    (2) Upon receipt of the Department of Labor's action, the 
contracting officer shall forward a copy of the action to

[[Page 490]]

the contractor, directing that the classification and wage rate be 
posted in accordance with paragraph (a) of the clause at 52.222-6 and 
that workers in the affected classification receive no less than the 
minimum rate indicated from the first day on which work under the 
contract was performed in the classification.
    (e) In each option to extend the term of the contract, if any 
laborer or mechanic is to be employed during the option in a 
classification that is not listed (or no longer listed) on the wage 
determination incorporated in that option, the contracting officer must 
require that the contractor submit a request for conformance using the 
procedures noted in paragraphs (a) through (d) of this section.

[53 FR 4935, Feb. 18, 1988, as amended at 57 FR 44263, Sept. 24, 1992; 
59 FR 67038, Dec. 28, 1994; 66 FR 53481, Oct. 22, 2001]



Sec. 22.406-4  Apprentices and trainees.

    (a) The contracting officer shall review the contractor's employment 
and payment records of apprentices and trainees made available pursuant 
to the clause at 52.222-8, Payrolls and Basic Records, to ensure that 
the contractor has complied with the clause at 52.222-9, Apprentices and 
Trainees.
    (b) If a contractor has classified employees as apprentices or 
trainees without complying with the requirements of the clause at 
52.222-9, the contracting officer shall reject the classification and 
require the contractor to pay the affected employees at the rates 
applicable to the classification of the work actually performed.



Sec. 22.406-5  Subcontracts.

    In accordance with the requirements of the clause at 52.222-11, 
Subcontracts (Labor Standards), the contractor and subcontractors at any 
tier are required to submit a fully executed SF 1413, Statement and 
Acknowledgment, upon award of each subcontract.



Sec. 22.406-6  Payrolls and statements.

    (a) Submission. In accordance with the clause at 52.222-8, Payrolls 
and Basic Records, the contractor must submit or cause to be submitted, 
within 7 calendar days after the regular payment date of the payroll 
week covered, for the contractor and each subcontractor, (1) copies of 
weekly payrolls applicable to the contract, and (2) weekly payroll 
statements of compliance. The contractor may use the Department of Labor 
Form WH-347, Payroll (For Contractor's Optional Use), or a similar form 
that provides the same data and identical representation.
    (b) Withholding for nonsubmission. If the contractor fails to submit 
copies of its or its subcontractors' payrolls promptly, the contracting 
officer shall, from any payment due to the contractor, withhold approval 
of an amount that the contracting officer considers necessary to protect 
the interest of the Government and the employees of the contractor or 
any subcontractor.
    (c) Examination. (1) The contracting officer shall examine the 
payrolls and payroll statements to ensure compliance with the contract 
and any statutory or regulatory requirements. Particular attention 
should be given to--
    (i) The correctness of classifications and rates;
    (ii) Fringe benefits payments;
    (iii) Hours worked;
    (iv) Deductions; and
    (v) Disproportionate employment ratios of laborers, apprentices, or 
trainees, to journeymen.
    (2) Fringe benefits payments, contributions made, or costs incurred 
on other than a weekly basis shall be considered as a part of weekly 
payments to the extent they are creditable to the particular weekly 
period involved and are otherwise acceptable.
    (d) Preservation. The contracting agency shall retain payrolls and 
statements of compliance for 3 years after completion of the contract 
and make them available when requested by the Department of Labor at any 
time during that period. Submitted payrolls shall not be returned to a 
contractor or subcontractor for any reasons, but copies thereof may be 
furnished to the contractor or subcontractor who submitted them, or to a 
higher tier contractor or subcontractor.
    (e) Disclosure of payroll records. Contractor payroll records in the 
Government's possession must be carefully protected from any public 
disclosure

[[Page 491]]

which is not required by law, since payroll records may contain 
information in which the contractor's employees have a privacy interest, 
as well as information in which the contractor may have a proprietary 
interest that the Government may be obliged to protect. Questions 
concerning release of this information may involve the Freedom of 
Information Act (FOIA).



Sec. 22.406-7  Compliance checking.

    (a) General. The contracting officer shall make checks and 
investigations on all contracts covered by this subpart as may be 
necessary to ensure compliance with the labor standards requirement of 
the contract.
    (b) Regular compliance checks. Regular compliance checking includes 
the following activities:
    (1) Employee interviews to determine correctness of classifications, 
rates of pay, fringe benefits payments, and hours worked. (See Standard 
Form 1445.)
    (2) On-site inspections to check type of work performed, number and 
classification of workers, and fulfillment of posting requirements.
    (3) Payroll reviews to ensure that payrolls of prime contractors and 
subcontractors have been submitted on time and are complete and in 
compliance with contract requirements.
    (4) Comparison of the information in this paragraph (b) with 
available data, including daily inspector's report and daily logs of 
construction, to ensure consistency.
    (c) Special compliance checks. Situations that may require special 
compliance checks include--
    (1) Inconsistencies, errors, or omissions detected during regular 
compliance checks; or
    (2) Receipt of a complaint alleging violations. If the complaint is 
not specific enough, the complainant shall be so advised and invited to 
submit additional information.



Sec. 22.406-8  Investigations.

    Conduct labor standards investigations when available information 
indicates such action is warranted. In addition, the Department of Labor 
may conduct an investigation on its own initiative or may request a 
contracting agency to do so.
    (a) Contracting agency responsibilities. Conduct an investigation 
when a compliance check indicates that substantial or willful violations 
may have occurred or violations have not been corrected.
    (1) The investigation must--
    (i) Include all aspects of the contractor's compliance with contract 
labor standards requirements;
    (ii) Not be limited to specific areas raised in a complaint or 
uncovered during compliance checks; and
    (iii) Use personnel familiar with labor laws and their application 
to contracts.
    (2) Do not disclose contractor employees' oral or written statements 
taken during an investigation or the employee's identity to anyone other 
than an authorized Government official without that employee's prior 
signed consent.
    (3) Send a written request to the Administrator, Wage and Hour 
Division, to obtain--
    (i) Investigation and enforcement instructions; or
    (ii) Available pertinent Department of Labor files.
    (4) Obtain permission from the Department of Labor before disclosing 
material obtained from Labor Department files, other than computations 
of back wages and liquidated damages and summaries of back wages due, to 
anyone other than Government contract administrators.
    (b) Investigation report. The contracting officer must review the 
investigation report on receipt and make preliminary findings. The 
contracting officer normally must not base adverse findings solely on 
employee statements that the employee does not wish to have disclosed. 
However, if the investigation establishes a pattern of possible 
violations that are based on employees' statements that are not 
authorized for disclosure, the pattern itself may support a finding of 
noncompliance.
    (c) Contractor notification. After completing the review, the 
contracting officer must--
    (1) Provide the contractor any written preliminary findings and 
proposed

[[Page 492]]

corrective actions, and notice that the contractor has the right to 
request that the basis for the findings be made available and to submit 
written rebuttal information.
    (2) Upon request, provide the contractor with rationale for the 
findings. However, under no circumstances will the contracting officer 
permit the contractor to examine the investigation report. Also, the 
contracting officer must not disclose the identity of any employee who 
filed a complaint or who was interviewed, without the prior consent of 
the employee.
    (3)(i) The contractor may rebut the findings in writing within 60 
days after it receives a copy of the preliminary findings. The rebuttal 
becomes part of the official investigation record. If the contractor 
submits a rebuttal, evaluate the preliminary findings and notify the 
contractor of the final findings.
    (ii) If the contracting officer does not receive a timely rebuttal, 
the contracting officer must consider the preliminary findings final.
    (4) If appropriate, request the contractor to make restitution for 
underpaid wages and assess liquidated damages. If the request includes 
liquidated damages, the request must state that the contractor has 60 
days to request relief from such assessment.
    (d) Contracting officer's report. After taking the actions 
prescribed in paragraphs (b) and (c) of this subsection--
    (1) The contracting officer must prepare and forward a report of any 
violations, including findings and supporting evidence, to the agency 
head. Standard Form 1446, Labor Standards Investigation Summary Sheet, 
is the first page of the report; and
    (2) The agency head must process the report as follows:
    (i) The contracting officer must send a detailed enforcement report 
to the Administrator, Wage and Hour Division, within 60 days after 
completion of the investigation, if--
    (A) A contractor or subcontractor underpaid by $1,000 or more;
    (B) The contracting officer believes that the violations are 
aggravated or willful (or there is reason to believe that the contractor 
has disregarded its obligations to employees and subcontractors under 
the Davis-Bacon Act);
    (C) The contractor or subcontractor has not made restitution; or
    (D) Future compliance has not been assured.
    (ii) If the Department of Labor expressly requested the 
investigation and none of the conditions in paragraph (d)(2)(i) of this 
subsection exist, submit a summary report to the Administrator, Wage and 
Hour Division. The report must include--
    (A) A summary of any violations;
    (B) The amount of restitution paid;
    (C) The number of workers who received restitution;
    (D) The amount of liquidated damages assessed under the Contract 
Work Hours and Safety Standards Act;
    (E) Corrective measures taken; and
    (F) Any information that may be necessary to review any 
recommendations for an appropriate adjustment in liquidated damages.
    (iii) If none of the conditions in paragraphs (d)(2)(i) or (ii) of 
this subsection are present, close the case and retain the report in the 
appropriate contract file.
    (iv) If substantial evidence is found that violations are willful 
and in violation of a criminal statute, (generally 18 U.S.C. 874 or 
1001), forward the report (supplemented if necessary) to the Attorney 
General of the United States for prosecution if the facts warrant. 
Notify the Administrator, Wage and Hour Division, when the report is 
forwarded for the Attorney General's consideration.
    (e) Department of Labor investigations. The Department of Labor will 
furnish the contracting officer an enforcement report detailing 
violations found and any corrective action taken by the contractor, in 
investigations that disclose--
    (1) Underpayments totaling $1,000 or more;
    (2) Aggravated or willful violations (or, when the contracting 
officer believes that the contractor has disregarded its obligations to 
employees and subcontractors under the Davis-Bacon Act); or
    (3) Potential assessment of liquidated damages under the Contract 
Work Hours and Safety Standards Act.

[[Page 493]]

    (f) Other investigations. The Department of Labor will provide a 
letter summarizing the findings of the investigation to the contracting 
officer for all investigations that are not described in paragraph (e) 
of this subsection.

[65 FR 46065, July 26, 2000]



Sec. 22.406-9  Withholding from or suspension of contract payments.

    (a) Withholding from contract payments. If the contracting officer 
believes a violation exists (see 22.406-8), or upon request of the 
Department of Labor, the contracting officer must withhold from payments 
due the contractor an amount equal to the estimated wage underpayment 
and estimated liquidated damages due the United States under the 
Contract Work Hours and Safety Standards Act. (See 22.302.)
    (1) If the contracting officer believes a violation exists or upon 
request of the Department of Labor, the contracting officer must 
withhold funds from any current Federal contract or Federally assisted 
contract with the same prime contractor that is subject to either Davis-
Bacon Act or Contract Work Hours and Safety Standards Act requirements.
    (2) If a subsequent investigation confirms violations, the 
contracting officer must adjust the withholding as necessary. However, 
if the Department of Labor requested the withholding, the contracting 
officer must not reduce or release the withholding without written 
approval of the Department of Labor.
    (3) Use withheld funds as provided in paragraph (c) of this 
subsection to satisfy assessed liquidated damages, and unless the 
contractor makes restitution, validated wage underpayments.
    (b) Suspension of contract payments. If a contractor or 
subcontractor fails or refuses to comply with the labor standards 
clauses of the Davis-Bacon Act and related statutes, the agency, upon 
its own action or upon the written request of the Department of Labor, 
must suspend any further payment, advance, or guarantee of funds until 
the violations cease or until the agency has withheld sufficient funds 
to compensate employees for back wages, and to cover any liquidated 
damages due.
    (c) Disposition of contract payments withheld or suspended--(1) 
Forwarding wage underpayments to the Comptroller General. Upon final 
administrative determination, if the contractor or subcontractor has not 
made restitution, the contracting officer must forward to the 
appropriate disbursing office Standard Form (SF) 1093, Schedule of 
Withholdings Under the Davis-Bacon Act (40 U.S.C. 276(a)) and/or 
Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333). Attach 
to the SF 1093 a list of the name, social security number, and last 
known address of each affected employee; the amount due each employee; 
employee claims if feasible; and a brief rationale for restitution. 
Also, the contracting officer must indicate if restitution was not made 
because the employee could not be located. The Government may assist 
underpaid employees in preparation of their claims. The disbursing 
office must submit the SF 1093 with attached additional data and the 
funds withheld (by check) to the Comptroller General (Claims Section).
    (2) Returning of withheld funds to contractor. When funds withheld 
exceed the amount required to satisfy validated wage underpayments and 
assessed liquidated damages, return the funds to the contractor.
    (3) Limitation on forwarding or returning funds. If the Department 
of Labor requested the withholding or if the findings are disputed (see 
22.406-10(e)), the contracting officer must not forward the funds to the 
Comptroller General, or return them to the contractor without approval 
by the Department of Labor.
    (4) Liquidated damages. Upon final administrative determination, the 
contracting officer must dispose of funds withheld or collected for 
liquidated damages in accordance with agency procedures.

[65 FR 46066, July 26, 2000, as amended at 70 FR 33667, June 8, 2005]



Sec. 22.406-10  Disposition of disputes concerning construction contract 
          labor standards enforcement.

    (a) The areas of possible differences of opinion between contracting 
officers

[[Page 494]]

and contractors in construction contract labor standards enforcement 
include--
    (1) Misclassification of workers;
    (2) Hours of work;
    (3) Wage rates and payment;
    (4) Payment of overtime;
    (5) Withholding practices; and
    (6) The applicability of the labor standards requirements under 
varying circumstances.
    (b) Generally, these differences are settled administratively at the 
project level by the contracting agency. If necessary, these differences 
may be settled with assistance from the Department of Labor.
    (c) When requesting the contractor to take corrective action in 
labor violation cases, the contracting officer shall inform the 
contractor of the following:
    (1) Disputes concerning the labor standards requirements of the 
contract are handled under the contract clause at 52.222-14, Disputes 
Concerning Labor Standards, and not under the clause at 52.233-1, 
Disputes.
    (2) The contractor may appeal the contracting officer's findings or 
part thereof by furnishing the contracting officer a complete statement 
of the reasons for the disagreement with the findings.
    (d) The contracting officer shall promptly transmit the contracting 
officer's findings and the contractor's statement to the Administrator, 
Wage and Hour Division.
    (e) The Administrator, Wage and Hour Division, will respond directly 
to the contractor or subcontractor, with a copy to the contracting 
agency. The contractor or subcontractor may appeal the Administrator's 
findings in accordance with the procedures outlined in Labor Department 
Regulations (29 CFR 5.11). Hearings before administrative law judges are 
conducted in accordance with 29 CFR part 6, and hearings before the 
Labor Department Administrative Review Board are conducted in accordance 
with 29 CFR part 7.
    (f) The Administrator, Wage and Hour Division, may institute 
debarment proceedings against the contractor or subcontractor if the 
Administrator finds reasonable cause to believe that the contractor or 
subcontractor has committed willful or aggravated violations of the 
Contract Work Hours and Safety Standards Act or the Copeland (Anti-
Kickback) Act, or any of the applicable statutes listed in 29 CFR 5.1 
other than the Davis-Bacon Act, or has committed violations of the 
Davis-Bacon Act that constitute a disregard of its obligations to 
employees or subcontractors under section 3(a) of that Act.

[53 FR 4935, Feb. 18, 1988, as amended at 66 FR 53481, Oct. 22, 2001]



Sec. 22.406-11  Contract terminations.

    If a contract or subcontract is terminated for violation of the 
labor standards clauses, the contracting agency shall submit a report to 
the Administrator, Wage and Hour Division, and the Comptroller General. 
The report shall include--
    (a) The number of the terminated contract;
    (b) The name and address of the terminated contractor or 
subcontractor;
    (c) The name and address of the contractor or subcontractor, if any, 
who is to complete the work;
    (d) The amount and number of the replacement contract, if any; and
    (e) A description of the work.



Sec. 22.406-12  Cooperation with the Department of Labor.

    (a) The contracting agency shall cooperate with representatives of 
the Department of Labor in the inspection of records, interviews with 
workers, and all other aspects of investigations undertaken by the 
Department of Labor. When requested, the contracting agency shall 
furnish to the Secretary of Labor any available information on 
contractors, subcontractors, current and previous contracts, and the 
nature of the contract work.
    (b) If a Department of Labor representative undertakes an 
investigation at a construction project, the contracting officer shall 
inquire into the scope of the investigation, and request to be notified 
immediately of any violations discovered under the Davis-Bacon Act, the 
Contract Work Hours and Safety Standards Act, or the Copeland (Anti-
Kickback) Act.

[[Page 495]]



Sec. 22.406-13  Semiannual enforcement reports.

    A semiannual report on compliance with and enforcement of the 
construction labor standards requirements of the Davis-Bacon Act and 
Contract Work Hours and Safety Standards Act is required from each 
contracting agency. The reporting periods are October 1 through March 31 
and April 1 through September 30. The reports shall only contain 
information as to the enforcement actions of the contracting agency and 
shall be prepared as prescribed in Department of Labor memoranda and 
submitted to the Department of Labor within 30 days after the end of the 
reporting period. This report has been assigned interagency report 
control number 1482-DOL-SA.



Sec. 22.407  Solicitation provision and contract clauses.

    (a) Insert the following clauses in solicitations and contracts in 
excess of $2,000 for construction within the United States:
    (1) 52.222-6, Davis-Bacon Act.
    (2) 52.222-7, Withholding of Funds.
    (3) 52.222-8, Payrolls and Basic Records.
    (4) 52.222-9, Apprentices and Trainees.
    (5) 52.222-10, Compliance with Copeland Act Requirements.
    (6) 52.222-11, Subcontracts (Labor Standards).
    (7) 52.222-12, Contract Termination--Debarment.
    (8) 52.222-13, Compliance with Davis-Bacon and Related Act 
Regulations.
    (9) 52.222-14, Disputes Concerning Labor Standards.
    (10) 52.222-15, Certification of Eligibility.
    (b) Insert the clause at 52.222-16, Approval of Wage Rates, in 
solicitations and contracts in excess of $2,000 for cost-reimbursement 
construction to be performed within the United States, except for 
contracts with a State or political subdivision thereof.
    (c) A contract that is not primarily for construction may contain a 
requirement for some construction work to be performed in the United 
States. If under 22.402(b) the requirements of this subpart apply to the 
construction work, insert in such solicitations and contracts the 
applicable construction labor standards clauses required in this section 
and identify the item or items of construction work to which the clauses 
apply.
    (d) [Reserved]
    (e) Insert the clause at 52.222-30, Davis-Bacon Act--Price 
Adjustment (None or Separately Specified Pricing Method), in 
solicitations and contracts if the contract is expected to be--
    (1) A fixed-price contract subject to the Davis-Bacon Act that will 
contain option provisions by which the contracting officer may extend 
the term of the contract, and the contracting officer determines the 
most appropriate contract price adjustment method is the method at 
22.404-12(c)(1) or (2); or
    (2) A cost-reimbursable type contract subject to the Davis-Bacon Act 
that will contain option provisions by which the contracting officer may 
extend the term of the contract.
    (f) Insert the clause at 52.222-31, Davis-Bacon Act--Price 
Adjustment (Percentage Method), in solicitations and contracts if the 
contract is expected to be a fixed-price contract subject to the Davis-
Bacon Act that will contain option provisions by which the contracting 
officer may extend the term of the contract, and the contracting officer 
determines the most appropriate contract price adjustment method is the 
method at 22.404-12(c)(3).
    (g) Insert the clause at 52.222-32, Davis-Bacon Act--Price 
Adjustment (Actual Method), in solicitations and contracts if the 
contract is expected to be a fixed-price contract subject to the Davis-
Bacon Act that will contain option provisions by which the contracting 
officer may extend the term of the contract, and the contracting officer 
determines the most appropriate method to establish contract price is 
the method at 22.404-12(c)(4).
    (h) Insert the provision at 52.222-5, Davis Bacon Act--Secondary 
Site of the Work, in solicitations in excess of $2,000 for construction 
within the United States.

[53 FR 4935, Feb. 18, 1988, as amended at 66 FR 53481, Oct. 22, 2001; 70 
FR 33667, June 8, 2005; 72 FR 27384, May 15, 2007]

[[Page 496]]

 Subpart 22.5_Use of Project Labor Agreements for Federal Construction 
                                Projects

    Source: 75 FR 19178, Apr. 13, 2010, unless otherwise noted.



Sec. 22.501  Scope of subpart.

    This subpart prescribes policies and procedures to implement 
Executive Order 13502, February 6, 2009.



Sec. 22.502  Definitions.

    As used in this subpart--
    Construction means construction, rehabilitation, alteration, 
conversion, extension, repair, or improvement of buildings, highways, or 
other real property.
    Labor organization means a labor organization as defined in 29 
U.S.C. 152(5).
    Large-scale construction project means a construction project where 
the total cost to the Federal Government is $25 million or more.
    Project labor agreement means a pre-hire collective bargaining 
agreement with one or more labor organizations that establishes the 
terms and conditions of employment for a specific construction project 
and is an agreement described in 29 U.S.C. 158(f).



Sec. 22.503  Policy.

    (a) Project labor agreements are a tool that agencies may use to 
promote economy and efficiency in Federal procurement. Pursuant to 
Executive Order 13502, agencies are encouraged to consider requiring the 
use of project labor agreements in connection with large-scale 
construction projects.
    (b) An agency may, if appropriate, require that every contractor and 
subcontractor engaged in construction on the project agree, for that 
project, to negotiate or become a party to a project labor agreement 
with one or more labor organizations if the agency decides that the use 
of project labor agreements will--
    (1) Advance the Federal Government's interest in achieving economy 
and efficiency in Federal procurement, producing labor-management 
stability, and ensuring compliance with laws and regulations governing 
safety and health, equal employment opportunity, labor and employment 
standards, and other matters; and
    (2) Be consistent with law.
    (c) Agencies may also consider the following factors in deciding 
whether the use of a project labor agreement is appropriate for the 
construction project:
    (1) The project will require multiple construction contractors and/
or subcontractors employing workers in multiple crafts or trades.
    (2) There is a shortage of skilled labor in the region in which the 
construction project will be sited.
    (3) Completion of the project will require an extended period of 
time.
    (4) Project labor agreements have been used on comparable projects 
undertaken by Federal, State, municipal, or private entities in the 
geographic area of the project.
    (5) A project labor agreement will promote the agency's long term 
program interests, such as facilitating the training of a skilled 
workforce to meet the agency's future construction needs.
    (6) Any other factors that the agency decides are appropriate.



Sec. 22.504  General requirements for project labor agreements.

    (a) General. Project labor agreements established under this subpart 
shall fully conform to all statutes, regulations, and Executive orders.
    (b) Requirements. The project labor agreement shall--
    (1) Bind all contractors and subcontractors engaged in construction 
on the construction project to comply with the project labor agreement;
    (2) Allow all contractors and subcontractors to compete for 
contracts and subcontracts without regard to whether they are otherwise 
parties to collective bargaining agreements;
    (3) Contain guarantees against strikes, lockouts, and similar job 
disruptions;
    (4) Set forth effective, prompt, and mutually binding procedures for 
resolving labor disputes arising during the term of the project labor 
agreement;
    (5) Provide other mechanisms for labor-management cooperation on 
matters of mutual interest and concern, including productivity, quality 
of work, safety, and health; and

[[Page 497]]

    (6) Include any additional requirements as the agency deems 
necessary to satisfy its needs.
    (c) Terms and conditions. As appropriate to advance economy and 
efficiency in the procurement, an agency may specify the terms and 
conditions of the project labor agreement in the solicitation and 
require the successful offeror to become a party to a project labor 
agreement containing these terms and conditions as a condition of 
receiving a contract award. An agency may seek the views of, confer 
with, and exchange information with prospective bidders and union 
representatives as part of the agency's effort to identify appropriate 
terms and conditions of a project labor agreement for a particular 
construction project and facilitate agreement on those terms and 
conditions.



Sec. 22.505  Solicitation provision and contract clause.

    For acquisition of large-scale construction projects, if the agency 
decides pursuant to this subpart that a project labor agreement will be 
required, the contracting officer shall--
    (a) Insert the provision at 52.222-33, Notice of Requirement for 
Project Labor Agreement, in all solicitations associated with the 
construction project.
    (1) Use the provision with its Alternate I if the agency decides to 
require the submission of a project labor agreement from only the 
apparent successful offeror, prior to contract award.
    (2) Use the provision with its Alternate II if an agency allows 
submission of a project labor agreement after contract award.
    (b)(1) Insert the clause at 52.222-34, Project Labor Agreement, in 
all solicitations and contracts associated with the construction 
project.
    (2) Use the clause with its Alternate I if an agency allows 
submission of the project labor agreement after contract award.

             Subpart 22.6_Walsh-Healey Public Contracts Act



Sec. 22.601  [Reserved]



Sec. 22.602  Statutory requirements.

    Except for the exemptions at 22.604, all contracts subject to the 
Walsh-Healey Public Contracts Act (the Act) (41 U.S.C. 35-45) and 
entered into by any executive department, independent establishment, or 
other agency or instrumentality of the United States, or by the District 
of Columbia, or by any corporation (all the stock of which is 
beneficially owned by the United States) for the manufacture or 
furnishing of materials, supplies, articles, and equipment (referred to 
in this subpart as supplies) in any amount exceeding $15,000, shall 
include or incorporate by reference the stipulations required by the Act 
pertaining to such matters as minimum wages, maximum hours, child labor, 
convict labor, and safe and sanitary working conditions.

[61 FR 67410, Dec. 20, 1996, as amended at 75 FR 53133, Aug. 30, 2010]



Sec. 22.603  Applicability.

    The requirements in 22.602 apply to contracts (including for this 
purpose, indefinite-delivery contracts, basic ordering agreements, and 
blanket purchase agreements) and subcontracts under Section 8(a) of the 
Small Business Act, for the manufacture or furnishing of supplies that--
    (a) Will be performed in the United States, Puerto Rico, or the U.S. 
Virgin Islands;
    (b) Exceed or may exceed $15,000; and
    (c) Are not exempt under 22.604.

[68 FR 28082, May 22, 2003, as amended at 75 FR 53133, Aug. 30, 2010]



Sec. 22.604  Exemptions.



Sec. 22.604-1  Statutory exemptions.

    Contracts for acquisition of the following supplies are exempt from 
the Act:
    (a) Any item in those situations where the contracting officer is 
authorized by the express language of a statute to purchase ``in the 
open market'' generally (such as commercial items,

[[Page 498]]

see part 12); or where a specific purchase is made under the conditions 
described in 6.302-2 in circumstances where immediate delivery is 
required by the public exigency.
    (b) Perishables, including dairy, livestock, and nursery products.
    (c) Agricultural or farm products processed for first sale by the 
original producers.
    (d) Agricultural commodities or the products thereof purchased under 
contract by the Secretary of Agriculture.

[48 FR 42258, Sept. 19, 1983, as amended at 53 FR 4944, Feb. 18, 1988; 
60 FR 48248, Sept. 18, 1995]



Sec. 22.604-2  Regulatory exemptions.

    (a) Contracts for the following acquisitions are fully exempt from 
the Act (see 41 CFR 50-201.603):
    (1) Public utility services.
    (2) Supplies manufactured outside the United States, Puerto Rico, 
and the U.S. Virgin Islands.
    (3) Purchases against the account of a defaulting contractor where 
the stipulations of the Act were not included in the defaulted contract.
    (4) Newspapers, magazines, or periodicals, contracted for with sales 
agents or publisher representatives, which are to be delivered by the 
publishers thereof.
    (b)(1) Upon the request of the agency head, the Secretary of Labor 
may exempt specific contracts or classes of contracts from the inclusion 
or application of one or more of the Act's stipulations; provided, that 
the request includes a finding by the agency head stating the reasons 
why the conduct of Government business will be seriously impaired unless 
the exemption is granted.
    (2) Those requests for exemption that relate solely to safety and 
health standards shall be transmitted to the Assistant Secretary for 
Occupational Safety and Health, U.S. Department of Labor, Washington, DC 
202l0. All other requests shall be transmitted to the Administrator of 
the Wage and Hour Division, U.S. Department of Labor, Washington, DC 
202l0.

[48 FR 42258, Sept. 19, 1983, as amended at 61 FR 67410, Dec. 20, 1996; 
68 FR 28082, May 22, 2003]



Sec. 22.605  Rulings and interpretations of the Act.

    (a) As authorized by the Act, the Secretary of Labor has issued 
rulings and interpretations concerning the administration of the Act 
(see 41 CFR 50-206). The substance of certain rulings and 
interpretations is as follows:
    (1) If a contract for $15,000 or less is subsequently modified to 
exceed $15,000, the contract becomes subject to the Act for work 
performed after the date of the modification.
    (2) If a contract for more than $15,000 is subsequently modified by 
mutual agreement to $15,000 or less, the contract is not subject to the 
Act for work performed after the date of the modification.
    (3) If a contract awarded to a prime contractor contains a provision 
whereby the prime contractor is made an agent of the Government, the 
prime contractor is required to include the stipulations of the Act in 
contracts in excess of $15,000 awarded for and on behalf of the 
Government for supplies that are to be used in the construction and 
equipment of Government facilities.
    (4) If a contract subject to the Act is awarded to a contractor 
operating Government-owned facilities, the stipulations of the Act 
affect the employees of that contractor the same as employees of 
contractors operating privately owned facilities.
    (5) Indefinite-delivery contracts, including basic ordering 
agreements and blanket purchase agreements, are subject to the Act 
unless it can be determined in advance that the aggregate amount of all 
orders estimated to be placed thereunder for 1 year after the effective 
date of the agreement will not exceed $15,000. A determination shall be 
made annually thereafter if the contract or agreement is extended, and 
the contract or agreement modified if necessary.
    (b) [Reserved]

[48 FR 42258, Sept. 19, 1983, as amended at 75 FR 53133, Aug. 30, 2010]

[[Page 499]]



Sec. 22.606-22.607  [Reserved]



Sec. 22.608  Procedures.

    (a) Award. When a contract subject to the Act is awarded, the 
contracting officer, in accordance with regulations or instructions 
issued by the Secretary of Labor and individual agency procedures, shall 
furnish to the contractor DOL publication WH-1313, Notice to Employees 
Working on Government Contracts.
    (b) Breach of stipulation. In the event of a violation of a 
stipulation required under the Act, the contracting officer shall, in 
accordance with agency procedures, notify the appropriate regional 
office of the DOL, Wage and Hour Division (see 29 CFR part 1, Appendix 
B), and furnish any information available.

[61 FR 67411, Dec. 20, 1996, as amended at 71 FR 36932, June 28, 2006]



Sec. 22.609  [Reserved]



Sec. 22.610  Contract clause.

    The contracting officer shall insert the clause at 52.222-20, Walsh-
Healey Public Contracts Act, in solicitations and contracts covered by 
the Act (see 22.603, 22.604, and 22.605).

[61 FR 67411, Dec. 20, 1996]

Subpart 22.7 [Reserved]

                Subpart 22.8_Equal Employment Opportunity



Sec. 22.800  Scope of subpart.

    This subpart prescribes policies and procedures pertaining to 
nondiscrimination in employment by contractors and subcontractors.

[48 FR 42258, Sept. 19, 1983, as amended at 63 FR 70283, Dec. 18, 1998]



Sec. 22.801  Definitions.

    As used in this subpart--
    Affirmative action program means a contractor's program that 
complies with Department of Labor regulations to ensure equal 
opportunity in employment to minorities and women.
    Compliance evaluation means any one or combination of actions that 
the Office of Federal Contract Compliance Programs (OFCCP) may take to 
examine a Federal contractor's compliance with one or more of the 
requirements of E.O. 11246.
    Contractor includes the terms ``prime contractor'' and 
``subcontractor.''
    Deputy Assistant Secretary means the Deputy Assistant Secretary for 
Federal Contract Compliance, U.S. Department of Labor, or a designee.
    Equal Opportunity clause means the clause at 52.222-26, Equal 
Opportunity, as prescribed in 22.810(e).
    E.O. 11246 means Parts II and IV of Executive Order 11246, September 
24, 1965 (30 FR 12319), and any Executive order amending or superseding 
this order (see 22.802). This term specifically includes the Equal 
Opportunity clause at 52.222-26, and the rules, regulations, and orders 
issued pursuant to E.O. 11246 by the Secretary of Labor or a designee.
    Prime contractor means any person who holds, or has held, a 
Government contract subject to E.O. 11246.
    Recruiting and training agency means any person who refers workers 
to any contractor or provides or supervises apprenticeship or training 
for employment by any contractor.
    Site of construction means the general physical location of any 
building, highway, or other change or improvement to real property that 
is undergoing construction, rehabilitation, alteration, conversion, 
extension, demolition, or repair; and any temporary location or facility 
at which a contractor or other participating party meets a demand or 
performs a function relating to a Government contract or subcontract.
    Subcontract means any agreement or arrangement between a contractor 
and any person (in which the parties do not stand in the relationship of 
an employer and an employee)--
    (1) For the purchase, sale, or use of personal property or 
nonpersonal services that, in whole or in part, are necessary to the 
performance of any one or more contracts; or
    (2) Under which any portion of the contractor's obligation under any 
one or more contracts is performed, undertaken, or assumed.
    Subcontractor means any person who holds, or has held, a subcontract 
subject to E.O. 11246. The term first-tier

[[Page 500]]

subcontractor means a subcontractor holding a subcontract with a prime 
contractor.
    United States means the 50 States, the District of Columbia, Puerto 
Rico, the Northern Mariana Islands, American Samoa, Guam, the U.S. 
Virgin Islands, and Wake Island.

[63 FR 70283, Dec. 18, 1998, as amended at 68 FR 28082, May 22, 2003]



Sec. 22.802  General.

    (a) Executive Order 11246, as amended, sets forth the Equal 
Opportunity clause and requires that all agencies (1) include this 
clause in all nonexempt contracts and subcontracts (see 22.807), and (2) 
act to ensure compliance with the clause and the regulations of the 
Secretary of Labor to promote the full realization of equal employment 
opportunity for all persons, regardless of race, color, religion, sex, 
or national origin.
    (b) No contract or modification involving new acquisition shall be 
entered into, and no subcontract shall be approved by a contracting 
officer, with a person who has been found ineligible by the Deputy 
Assistant Secretary for reasons of noncompliance with the requirements 
of E.O. 11246.
    (c) No contracting officer or contractor shall contract for supplies 
or services in a manner so as to avoid applicability of the requirements 
of E.O. 11246.
    (d) Contractor disputes related to compliance with its obligation 
shall be handled according to the rules, regulations, and relevant 
orders of the Secretary of Labor (see 41 CFR 60-1.1).

[48 FR 42258, Sept. 19, 1983, as amended at 63 FR 70283, 70285, Dec. 18, 
1998]



Sec. 22.803  Responsibilities.

    (a) The Secretary of Labor is responsible for the--
    (1) Administration and enforcement of prescribed parts of E.O. 
11246; and
    (2) Adoption of rules and regulations and the issuance of orders 
necessary to achieve the purposes of E.O. 11246.
    (b) The Secretary of Labor has delegated authority and assigned 
responsibility to the Deputy Assistant Secretary for carrying out the 
responsibilities assigned to the Secretary by E.O. 11246, except for the 
issuance of rules and regulations of a general nature.
    (c) The head of each agency is responsible for ensuring that the 
requirements of this subpart are carried out within the agency, and for 
cooperating with and assisting the OFCCP in fulfilling its 
responsibilities.
    (d) In the event the applicability of E.O. 11246 and implementing 
regulations is questioned, the contracting officer shall forward the 
matter to the Deputy Assistant Secretary, through agency channels, for 
resolution.

[48 FR 42258, Sept. 19, 1983, as amended at 63 FR 70283, 70285, Dec. 18, 
1998]



Sec. 22.804  Affirmative action programs.



Sec. 22.804-1  Nonconstruction.

    Except as provided in 22.807, each nonconstruction prime contractor 
and each subcontractor with 50 or more employees and either a contract 
or subcontract of $50,000 or more, or Government bills of lading that in 
any 12-month period total, or can reasonably be expected to total, 
$50,000 or more, is required to develop a written affirmative action 
program for each of its establishments. Each contractor and 
subcontractor shall develop its written affirmative action programs 
within 120 days from the commencement of its first such Government 
contract, subcontract, or Government bill of lading.

[63 FR 70284, Dec. 18, 1998]



Sec. 22.804-2  Construction.

    (a) Construction contractors that hold a nonexempt (see 22.807) 
Government construction contract are required to meet (1) the contract 
terms and conditions citing affirmative action requirements applicable 
to covered geographical areas or projects and (2) applicable 
requirements of 41 CFR 60-1 and 60-4.
    (b) Each agency shall maintain a listing of covered geographical 
areas that are subject to affirmative action requirements that specify 
goals for minorities and women in covered construction trades. 
Information concerning, and additions to, this listing

[[Page 501]]

will be provided to the principally affected contracting officers in 
accordance with agency procedures. Any contracting officer contemplating 
a construction project in excess of $10,000 within a geographic area not 
known to be covered by specific affirmative action goals shall request 
instructions on the most current information from the OFCCP regional 
office, or as otherwise specified in agency regulations, before issuing 
the solicitation.
    (c) Contracting officers shall give written notice to the OFCCP 
regional office within 10 working days of award of a construction 
contract subject to these affirmative action requirements. The 
notification shall include the name, address, and telephone number of 
the contractor; employer identification number; dollar amount of the 
contract; estimated starting and completion dates of the contract; the 
contract number; and the geographical area in which the contract is to 
be performed. When requested by the OFCCP regional office, the 
contracting officer shall arrange a conference among contractor, 
contracting activity, and compliance personnel to discuss the 
contractor's compliance responsibilities.

[48 FR 42258, Sept. 19, 1983, as amended at 63 FR 70284, Dec. 18, 1998]



Sec. 22.805  Procedures.

    (a) Preaward clearances for contracts and subcontracts of $10 
million or more (excluding construction). (1) Except as provided in 
paragraphs (a)(4) and (a)(8) of this section, if the estimated amount of 
the contract or subcontract is $10 million or more, the contracting 
officer shall request clearance from the appropriate OFCCP regional 
office before--
    (i) Award of any contract, including any indefinite delivery 
contract or letter contract; or
    (ii) Modification of an existing contract for new effort that would 
constitute a contract award.
    (2) Preaward clearance for each proposed contract and for each 
proposed first-tier subcontract of $10 million or more shall be 
requested by the contracting officer directly from the OFCCP regional 
office(s). Verbal requests shall be confirmed by letter or facsimile 
transmission.
    (3) When the contract work is to be performed outside the United 
States with employees recruited within the United States, the 
contracting officer shall send the request for a preaward clearance to 
the OFCCP regional office serving the area where the proposed 
contractor's corporate home or branch office is located in the United 
States, or the corporate location where personnel recruiting is handled, 
if different from the contractor's corporate home or branch office. If 
the proposed contractor has no corporate office or location within the 
United States, the preaward clearance request action should be based on 
the location of the recruiting and training agency in the United States.
    (4) The contracting officer does not need to request a preaward 
clearance if--
    (i) The specific proposed contractor is listed in OFCCP's National 
Preaward Registry via the Internet at http://www.dol-esa.gov/preaward/;
    (ii) The projected award date is within 24 months of the proposed 
contractor's Notice of Compliance completion date in the Registry; and
    (iii) The contracting officer documents the Registry review in the 
contract file.
    (5) The contracting officer shall include the following information 
in the preaward clearance request:
    (i) Name, address, and telephone number of the prospective 
contractor and of any corporate affiliate at which work is to be 
performed.
    (ii) Name, address, and telephone number of each proposed first-tier 
subcontractor with a proposed subcontract estimated at $10 million or 
more.
    (iii) Anticipated date of award.
    (iv) Information as to whether the contractor and first-tier 
subcontractors have previously held any Government contracts or 
subcontracts.
    (v) Place or places of performance of the prime contract and first-
tier subcontracts estimated at $10 million or more, if known.
    (vi) The estimated dollar amount of the contract and each first-tier 
subcontract, if known.
    (6) The contracting officer shall allow as much time as feasible 
before award for the conduct of necessary

[[Page 502]]

compliance evaluation by OFCCP. As soon as the apparently successful 
offeror can be determined, the contracting officer shall process a 
preaward clearance request in accordance with agency procedures, 
assuring, if possible, that the preaward clearance request is submitted 
to the OFCCP regional office at least 30 days before the proposed award 
date.
    (7) Within 15 days of the clearance request, OFCCP will inform the 
awarding agency of its intention to conduct a preaward compliance 
evaluation. If OFCCP does not inform the awarding agency within that 
period of its intention to conduct a preaward compliance evaluation, 
clearance shall be presumed and the awarding agency is authorized to 
proceed with the award. If OFCCP informs the awarding agency of its 
intention to conduct a preaward compliance evaluation, OFCCP shall be 
allowed an additional 20 days after the date that it so informs the 
awarding agency to provide its conclusions. If OFCCP does not provide 
the awarding agency with its conclusions within that period, clearance 
shall be presumed and the awarding agency is authorized to proceed with 
the award.
    (8) If the procedures specified in paragraphs (a)(6) and (a)(7) of 
this section would delay award of an urgent and critical contract beyond 
the time necessary to make award or beyond the time specified in the 
offer or extension thereof, the contracting officer shall immediately 
inform the OFCCP regional office of the expiration date of the offer or 
the required date of award and request clearance be provided before that 
date. If the OFCCP regional office advises that a preaward evaluation 
cannot be completed by the required date, the contracting officer shall 
submit written justification for the award to the head of the 
contracting activity, who, after informing the OFCCP regional office, 
may then approve the award without the preaward clearance. If an award 
is made under this authority, the contracting officer shall immediately 
request a postaward evaluation from the OFCCP regional office.
    (9) If, under the provisions of paragraph (a)(8) of this section, a 
postaward evaluation determines the contractor to be in noncompliance 
with E.O. 11246, the Deputy Assistant Secretary may authorize the use of 
the enforcement procedures at 22.809 against the noncomplying 
contractor.
    (b) Furnishing posters. The contracting officer shall furnish to the 
contractor appropriate quantities of the poster entitled Equal 
Employment Opportunity Is The Law. These shall be obtained in accordance 
with agency procedures.

[48 FR 42258, Sept. 19, 1983, as amended at 63 FR 70284, Dec. 18, 1998]



Sec. 22.806  Inquiries.

    (a) An inquiry from a contractor regarding status of its compliance 
with E.O. 11246, or rights of appeal to any of the actions in 22.809, 
shall be referred to the OFCCP regional office.
    (b) Labor union inquiries regarding the revision of a collective 
bargaining agreement in order to comply with E.O. 11246 shall be 
referred to the Deputy Assistant Secretary.

[63 FR 70284, Dec. 18, 1998]



Sec. 22.807  Exemptions.

    (a) Under the following exemptions, all or part of the requirements 
of E.O. 11246 may be excluded from a contract subject to E.O. 11246:
    (1) National security. The agency head may determine that a contract 
is essential to the national security and that the award of the contract 
without complying with one or more of the requirements of this subpart 
is necessary to the national security. Upon making such a determination, 
the agency shall notify the Deputy Assistant Secretary in writing within 
30 days.
    (2) Specific contracts. The Deputy Assistant Secretary may exempt an 
agency from requiring the inclusion of one or more of the requirements 
of E.O. 11246 in any contract if the Deputy Assistant Secretary deems 
that special circumstances in the national interest so require. Groups 
or categories of contracts of the same type may also be exempted if the 
Deputy Assistant Secretary finds it impracticable to act upon each 
request individually or if group exemptions will contribute to 
convenience in the administration of E.O. 11246.

[[Page 503]]

    (b) The following exemptions apply even though a contract or 
subcontract contains the Equal Opportunity clause:
    (1) Transactions of $10,000 or less. The Equal Opportunity clause is 
required to be included in prime contracts and subcontracts by 
22.802(a). Individual prime contracts or subcontracts of $10,000 or less 
are exempt from application of the Equal Opportunity clause, unless the 
aggregate value of all prime contracts or subcontracts awarded to a 
contractor in any 12-month period exceeds, or can reasonably be expected 
to exceed, $10,000. (Note: Government bills of lading, regardless of 
amount, are not exempt.)
    (2) Work outside the United States. Contracts are exempt from the 
requirements of E.O. 11246 for work performed outside the United States 
by employees who were not recruited within the United States.
    (3) Contracts with State or local governments. The requirements of 
E.O. 11246 in any contract with a State or local government (or any 
agency, instrumentality, or subdivision thereof) shall not be applicable 
to any agency, instrumentality, or subdivision of such government that 
does not participate in work on or under the contract.
    (4) Work on or near Indian reservations. It shall not be a violation 
of E.O. 11246 for a contractor to extend a publicly announced preference 
in employment to Indians living on or near an Indian reservation in 
connection with employment opportunities on or near an Indian 
reservation. This applies to that area where a person seeking employment 
could reasonably be expected to commute to and from in the course of a 
work day. Contractors extending such a preference shall not, however, 
discriminate among Indians on the basis of religion, sex, or tribal 
affiliation, and the use of such preference shall not excuse a 
contractor from complying with E.O. 11246, rules and regulations of the 
Secretary of Labor, and applicable clauses in the contract.
    (5) Facilities not connected with contracts. The Deputy Assistant 
Secretary may exempt from the requirements of E.O. 11246 any of a 
contractor's facilities that the Deputy Assistant Secretary finds to be 
in all respects separate and distinct from activities of the contractor 
related to performing the contract, provided, that the Deputy Assistant 
Secretary also finds that the exemption will not interfere with, or 
impede the effectiveness of, E.O. 11246.
    (6) Indefinite-quantity contracts. With respect to indefinite-
quantity contracts and subcontracts, the Equal Opportunity clause 
applies unless the contracting officer has reason to believe that the 
amount to be ordered in any year under the contract will not exceed 
$10,000. The applicability of the Equal Opportunity clause shall be 
determined by the contracting officer at the time of award for the first 
year, and annually thereafter for succeeding years, if any. 
Notwithstanding the above, the Equal Opportunity clause shall be applied 
to the contract whenever the amount of a single order exceeds $10,000. 
Once the Equal Opportunity clause is determined to be applicable, the 
contract shall continue to be subject to such clause for its duration 
regardless of the amounts ordered, or reasonably expected to be ordered, 
in any year.
    (7) Contracts with religious entities. Pursuant to E.O. 13279, 
Section 202 of E.O. 11246, shall not apply to a Government contractor or 
subcontractor that is a religious corporation, association, educational 
institution, or society, with respect to the employment of individuals 
of a particular religion to perform work connected with the carrying on 
by such corporation, association, educational institution, or society of 
its activities. Such contractors and subcontractors are not exempted or 
excused from complying with the other requirements contained in the 
order.
    (c) To request an exemption under paragraph (a)(2) or (b)(5) of this 
section, the contracting officer shall submit, under agency procedures, 
a detailed justification for omitting all, or part of, the requirements 
of E.O. 11246. Requests for exemptions under paragraph (a)(2) or (b)(5) 
of this section shall be submitted to the Deputy Assistant Secretary for 
approval.
    (d) The Deputy Assistant Secretary may withdraw the exemption for a 
specific contract, or group of contracts, if the Deputy Assistant 
Secretary deems

[[Page 504]]

that such action is necessary and appropriate to achieve the purposes of 
E.O. 11246. Such withdrawal shall not apply--
    (1) To contracts awarded before the withdrawal; or
    (2) To any sealed bid contract (including restricted sealed 
bidding), unless the withdrawal is made more than 10 days before the bid 
opening date.

[48 FR 42258, Sept. 19, 1983, as amended at 52 FR 19803, May 27, 1987; 
63 FR 70284, 70285, Dec. 18, 1998; 72 FR 13588, Mar. 22, 2007]



Sec. 22.808  Complaints.

    Complaints received by the contracting officer alleging violation of 
the requirements of E.O. 11246 shall be referred immediately to the 
OFCCP regional office. The complainant shall be advised in writing of 
the referral. The contractor that is the subject of a complaint shall 
not be advised in any manner or for any reason of the complainant's 
name, the nature of the complaint, or the fact that the complaint was 
received.

[48 FR 42258, Sept. 19, 1983, as amended at 63 FR 70285, Dec. 18, 1998]



Sec. 22.809  Enforcement.

    Upon the written direction of the Deputy Assistant Secretary, one or 
more of the following actions, as well as administrative sanctions and 
penalties, may be exercised against contractors found to be in violation 
of E.O. 11246, the regulations of the Secretary of Labor, or the 
applicable contract clauses:
    (a) Publication of the names of the contractor or its unions.
    (b) Cancellation, termination, or suspension of the contractor's 
contracts or portion thereof.
    (c) Debarment from future Government contracts, or extensions or 
modifications of existing contracts, until the contractor has 
established and carried out personnel and employment policies in 
compliance with E.O. 11246 and the regulations of the Secretary of 
Labor.
    (d) Referral by the Deputy Assistant Secretary of any matter arising 
under E.O. 11246 to the Department of Justice or to the Equal Employment 
Opportunity Commission (EEOC) for the institution of appropriate civil 
or criminal proceedings.

[48 FR 42258, Sept. 19, 1983, as amended at 63 FR 70285, Dec. 18, 1998]



Sec. 22.810  Solicitation provisions and contract clauses.

    (a) When a contract is contemplated that will include the clause at 
52.222-26, Equal Opportunity, the contracting officer shall insert--
    (1) The clause at 52.222-21, Prohibition of Segregated Facilities, 
in the solicitation and contract; and
    (2) The provision at 52.222-22, Previous Contracts and Compliance 
Reports, in the solicitation.
    (b) The contracting officer shall insert the provision at 52.222-23, 
Notice of Requirement for Affirmative Action to Ensure Equal Employment 
Opportunity for Construction, in solicitations for construction when a 
contract is contemplated that will include the clause at 52.222-26, 
Equal Opportunity, and the amount of the contract is expected to be in 
excess of $10,000.
    (c) The contracting officer shall insert the provision at 52.222-24, 
Preaward On-Site Equal Opportunity Compliance Evaluation, in 
solicitations other than those for construction when a contract is 
contemplated that will include the clause at 52.222-26, Equal 
Opportunity, and the amount of the contract is expected be $10 million 
or more.
    (d) The contracting officer shall insert the provision at 52.222-25, 
Affirmative Action Compliance, in solicitations, other than those for 
construction, when a contract is contemplated that will include the 
clause at 52.222-26, Equal Opportunity.
    (e) The contracting officer shall insert the clause at 52.222-26, 
Equal Opportunity, in solicitations and contracts (see 22.802) unless 
the contract is exempt from all of the requirements of E.O. 11246 (see 
22.807(a)). If the contract is exempt from one or more, but not all, of 
the requirements of E.O. 11246, the contracting officer shall use the 
clause with its Alternate I.
    (f) The contracting officer shall insert the clause at 52.222-27, 
Affirmative Action Compliance Requirements for

[[Page 505]]

Construction, in solicitations and contracts for construction that will 
include the clause at 52.222-26, Equal Opportunity, when the amount of 
the contract is expected to be in excess of $10,000.
    (g) The contracting officer shall insert the clause at 52.222-29, 
Notification of Visa Denial, in contracts that will include the clause 
at 52.222-26, Equal Opportunity, if the contractor is required to 
perform in or on behalf of a foreign country.

[48 FR 42258, Sept. 19, 1983, as amended at 50 FR 23606, June 4, 1985; 
52 FR 19803, May 27, 1987; 63 FR 34060, June 22, 1998; 63 FR 70285, Dec. 
18, 1998]

              Subpart 22.9_Nondiscrimination Because of Age



Sec. 22.901  Policy.

    Executive Order 11141, February 12, 1964 (29 FR 2477), states that 
the Government policy is as follows:
    (a) Contractors and subcontractors shall not, in connection with 
employment, advancement, or discharge of employees, or the terms, 
conditions, or privileges of their employment, discriminate against 
persons because of their age except upon the basis of a bona fide 
occupational qualification, retirement plan, or statutory requirement.
    (b) Contractors and subcontractors, or persons acting on their 
behalf, shall not specify in solicitations or advertisements for 
employees to work on Government contracts, a maximum age limit for 
employment unless the specified maximum age limit is based upon a bona 
fide occupational qualification, retirement plan, or statutory 
requirement.
    (c) Agencies will bring this policy to the attention of contractors. 
The use of contract clauses is not required.



Sec. 22.902  Handling complaints.

    Agencies shall bring complaints regarding a contractor's compliance 
with this policy to that contractor's attention (in writing, if 
appropriate), stating the policy, indicating that the contractor's 
compliance has been questioned, and requesting that the contractor take 
any appropriate steps that may be necessary to comply.

         Subpart 22.10_Service Contract Act of 1965, as Amended

    Source: 54 FR 19816, May 8, 1989, unless otherwise noted.



Sec. 22.1000  Scope of subpart.

    This subpart prescribes policies and procedures implementing the 
provisions of the Service Contract Act of 1965, as amended (41 U.S.C. 
351, et seq.), the applicable provisions of the Fair Labor Standards Act 
of 1938, as amended (29 U.S.C. 201, et seq.), and related Secretary of 
Labor regulations and instructions (29 CFR parts 4, 6, 8, and 1925).



Sec. 22.1001  Definitions.

    As used in this subpart--
    Act or Service Contract Act means the Service Contract Act of 1965.
    Agency labor advisor means an individual responsible for advising 
contracting agency officials on Federal contract labor matters.
    Contractor includes a subcontractor at any tier whose subcontract is 
subject to the provisions of the Act.
    Multiple year contracts means contracts having a term of more than 1 
year regardless of fiscal year funding. The term includes multi-year 
contracts (see 17.103).
    United States means the 50 States, the District of Columbia, Puerto 
Rico, the Northern Mariana Islands, American Samoa, Guam, the U.S. 
Virgin Islands, Johnston Island, Wake Island, and Outer Continental 
Shelf lands as defined in the Outer Continental Shelf Lands Act (43 
U.S.C. 1331, et seq.,) but does not include any other place subject to 
U.S. jurisdiction or any U.S. base or possession in a foreign country 
(29 CFR 4.112).
    Wage and Hour Division means the unit in the Employment Standards 
Administration of the Department of Labor to which is assigned functions 
of the Secretary of Labor under the Act.
    Wage determination means a determination of minimum wages or fringe 
benefits made under sections 2(a) or 4(c) of the Act (41 U.S.C. 351(a) 
or 353(c)) applicable to the employment in

[[Page 506]]

a given locality of one or more classes of service employees.

[54 FR 19816, May 8, 1989, as amended at 61 FR 39207, July 26, 1996; 66 
FR 2130, Jan. 10, 2001; 68 FR 28082, May 22, 2003; 71 FR 36932, June 28, 
2006; 77 FR 75776, Dec. 21, 2012]



Sec. 22.1002  Statutory requirements.



Sec. 22.1002-1  General.

    Service contracts over $2,500 shall contain mandatory provisions 
regarding minimum wages and fringe benefits, safe and sanitary working 
conditions, notification to employees of the minimum allowable 
compensation, and equivalent Federal employee classifications and wage 
rates. Under 41 U.S.C. 353(d), service contracts may not exceed 5 years.



Sec. 22.1002-2  Wage determinations based on prevailing rates.

    Contractors performing on service contracts in excess of $2,500 to 
which no predecessor contractor's collective bargaining agreement 
applies shall pay their employees at least the wages and fringe benefits 
found by the Department of Labor to prevail in the locality or, in the 
absence of a wage determination, the minimum wage set forth in the Fair 
Labor Standards Act.



Sec. 22.1002-3  Wage determinations based on collective bargaining 
          agreements.

    (a) Successor contractors performing on contracts in excess of 
$2,500 for substantially the same services performed in the same 
locality must pay wages and fringe benefits (including accrued wages and 
benefits and prospective increases) at least equal to those contained in 
any bona fide collective bargaining agreement entered into under the 
predecessor contract. This requirement is self-executing and is not 
contingent upon incorporating a wage determination or the wage and 
fringe benefit terms of the predecessor contractor's collective 
bargaining agreement in the successor contract. This requirement will 
not apply if the Secretary of Labor determines (1) after a hearing, that 
the wages and fringe benefits are substantially at variance with those 
which prevail for services of a similar character in the locality or (2) 
that the wages and fringe benefits are not the result of arm's length 
negotiations.
    (b) Paragraphs in this Subpart 22.10 which deal with this statutory 
requirement and the Department of Labor's implementing regulations are 
22.1010, concerning notification to contractors and bargaining 
representatives of procurement dates; 22.1012-2, explaining when a 
collective bargaining agreement will not apply due to late receipt by 
the contracting officer; and 22.1013 and 22.1021, explaining when the 
application of a collective bargaining agreement can be challenged due 
to a variance with prevailing rates or lack of arm's length bargaining.

[54 FR 19816, May 8, 1989, as amended at 59 FR 67039, Dec. 28, 1994; 71 
FR 36932, June 28, 2006]



Sec. 22.1002-4  Application of the Fair Labor Standards Act minimum 
          wage.

    No contractor or subcontractor holding a service contract for any 
dollar amount shall pay any of its employees working on the contract 
less than the minimum wage specified in section 6(a)(1) of the Fair 
Labor Standards Act (29 U.S.C. 206).



Sec. 22.1003  Applicability.



Sec. 22.1003-1  General.

    This subpart 22.10 applies to all Government contracts, the 
principal purpose of which is to furnish services in the United States 
through the use of service employees, except as exempted in 22.1003-3 
and 22.1003-4 of this section, or any subcontract at any tier 
thereunder. This subpart does not apply to individual contract 
requirements for services in contracts not having as their principal 
purpose the furnishing of services. The nomenclature, type, or 
particular form of contract used by contracting agencies is not 
determinative of coverage.



Sec. 22.1003-2  Geographical coverage of the Act.

    The Act applies to service contracts performed in the United States 
(see 22.1001). The Act does not apply to contracts performed outside the 
United States.

[[Page 507]]



Sec. 22.1003-3  Statutory exemptions.

    The Act does not apply to--
    (a) Any contract for construction, alteration, or repair of public 
buildings or public works, including painting and decorating;
    (b) Any work required to be done in accordance with the provisions 
of the Walsh-Healey Public Contracts Act (41 U.S.C. 35-45);
    (c) Any contract for transporting freight or personnel by vessel, 
aircraft, bus, truck, express, railroad, or oil or gas pipeline where 
published tariff rates are in effect;
    (d) Any contract for furnishing services by radio, telephone, 
telegraph, or cable companies subject to the Communications Act of 1934;
    (e) Any contract for public utility services;
    (f) Any employment contract providing for direct services to a 
Federal agency by an individual or individuals; or
    (g) Any contract for operating postal contract stations for the U.S. 
Postal Service.



Sec. 22.1003-4  Administrative limitations, variations, tolerances, and 
          exemptions.

    (a) The Secretary of Labor may provide reasonable limitations and 
may make rules and regulations allowing reasonable variations, 
tolerances, and exemptions to and from any or all provisions of the Act 
other than section 10 (41 U.S.C. 358). These will be made only in 
special circumstances where it has been determined that the limitation, 
variation, tolerance, or exemption is necessary and proper in the public 
interest or to avoid the serious impairment of Government business, and 
is in accord with the remedial purpose of the Act to protect prevailing 
labor standards (41 U.S.C. 353(b)). See 29 CFR 4.123 for a listing of 
administrative exemptions, tolerances, and variations. Requests for 
limitations, variances, tolerances, and exemptions from the Act shall be 
submitted in writing through contracting channels and the agency labor 
advisor to the Wage and Hour Administrator.
    (b) In addition to the statutory exemptions cited in 22.1003-3 of 
this subsection, the Secretary of Labor has exempted the following types 
of contracts from all provisions of the Act:
    (1) Contracts entered into by the United States with common carriers 
for the carriage of mail by rail, air (except air star routes), bus, and 
ocean vessel, where such carriage is performed on regularly scheduled 
runs of the trains, airplanes, buses, and vessels over regularly 
established routes and accounts for an insubstantial portion of the 
revenue therefrom.
    (2) Any contract entered into by the U.S. Postal Service with an 
individual owner-operator for mail service if it is not contemplated at 
the time the contract is made that the owner-operator will hire any 
service employee to perform the services under the contract except for 
short periods of vacation time or for unexpected contingencies or 
emergency situations such as illness, or accident.
    (3) Contracts for the carriage of freight or personnel if such 
carriage is subject to rates covered by section 10721 of the Interstate 
Commerce Act.
    (c) Contracts for maintenance, calibration or repair of certain 
equipment--(1) Exemption. The Secretary of Labor has exempted from the 
Act contracts and subcontracts in which the primary purpose is to 
furnish maintenance, calibration, or repair of the following types of 
equipment, if the conditions at paragraph (c)(2) of this subsection are 
met:
    (i) Automated data processing equipment and office information/word 
processing systems.
    (ii) Scientific equipment and medical apparatus or equipment if the 
application of micro-electronic circuitry or other technology of at 
least similar sophistication is an essential element (for example, 
Federal Supply Classification (FSC) Group 65, Class 6515, ``Medical 
Diagnostic Equipment;'' Class 6525, ``X-Ray Equipment;'' FSC Group 66, 
Class 6630, ``Chemical Analysis Instruments;'' and Class 6665, 
``Geographical and Astronomical Instruments,'' are largely composed of 
the types of equipment exempted in this paragraph).
    (iii) Office/business machines not otherwise exempt pursuant to 
paragraph (c)(1)(i) of this subsection, if such services are performed 
by the manufacturer or supplier of the equipment.

[[Page 508]]

    (2) Conditions. The exemption at paragraph (c)(1) of this subsection 
applies if all the following conditions are met for a contract (or a 
subcontract):
    (i) The items of equipment to be serviced under the contract are 
used regularly for other than Government purposes and are sold or traded 
by the contractor in substantial quantities to the general public in the 
course of normal business operations.
    (ii) The services will be furnished at prices which are, or are 
based on, established catalog or market prices for the maintenance, 
calibration, or repair of such equipment. As defined at 29 CFR 
4.123(e)(1)(ii)(B)--
    (A) An established catalog price is a price included in a catalog 
price list, schedule, or other form that is regularly maintained by the 
manufacturer or the contractor, is either published or otherwise 
available for inspection by customers, and states prices at which sales 
currently, or were last, made to a significant number of buyers 
constituting the general public.
    (B) An established market price is a current price, established in 
the usual course of trade between buyers and sellers free to bargain, 
which can be substantiated from sources independent of the manufacturer 
or contractor.
    (iii) The contractor will use the same compensation (wage and fringe 
benefits) plan for all service employees performing work under the 
contract as the contractor uses for these employees and equivalent 
employees servicing the same equipment of commercial customers.
    (iv) The apparent successful offeror certifies to the conditions in 
paragraph (c)(2)(i) through (iii) of this subsection. (See 22.1006(e).)
    (3) Affirmative determination and contract award. (i) For source 
selections where the contracting officer has established a competitive 
range, if the contracting officer determines that one or more of the 
conditions in paragraphs 22.1003-4 (c)(2)(i) through (iii) of an 
offeror's certification will not be met, the contracting officer shall 
identify the deficiency to the offeror before receipt of the final 
proposal revisions. Unless the offeror provides a revised offer 
acknowledging applicability of the Service Contract Act or demonstrating 
to the satisfaction of the contracting officer an ability to meet all 
required conditions for exemption, the offer will not be further 
considered for award.
    (ii) The contracting officer shall determine in writing the 
applicability of this exemption to the contract before contract award. 
If the apparent successful offeror will meet all conditions in paragraph 
(c)(2) of this subsection, the contracting officer shall make an 
affirmative determination and award the contract without the otherwise 
applicable Service Contract Act clause(s).
    (iii) If the apparent successful offeror does not certify to the 
conditions in paragraph (c)(2)(i) through (iii) of this subsection, the 
contracting officer shall incorporate in the contract the Service 
Contract Act clause (see 22.1006(a)) and, if the contract will exceed 
$2,500, the appropriate Department of Labor wage determination (see 
22.1007).
    (4) Department of Labor determination. (i) If the Department of 
Labor determines after award of the contract that any condition for 
exemption in paragraph (c)(2) of this subsection has not been met, the 
exemption shall be deemed inapplicable, and the contract shall become 
subject to the Service Contract Act, effective as of the date of the 
Department of Labor determination. In such case, the procedures at 29 
CFR 4.123(e)(1)(iv) and 29 CFR 4.5(c) shall be followed.
    (ii) If the Department of Labor determines that any conditions in 
paragraph (c)(2) of this subsection have not been met with respect to a 
subcontract, the exemption shall be deemed inapplicable. The contractor 
may be responsible for ensuring that the subcontractor complies with the 
Act, effective as of the date of the subcontract award.
    (d) Contracts for certain services--(1) Exemption. Except as 
provided in paragraph (d)(5) of this subsection, the Secretary of Labor 
has exempted from the Act contracts and subcontracts in which the 
primary purpose is to provide the following services, if the conditions 
in paragraph (d)(2) of this subsection are met:

[[Page 509]]

    (i) Automobile or other vehicle (e.g., aircraft) maintenance 
services (other than contracts or subcontracts to operate a Government 
motor pool or similar facility).
    (ii) Financial services involving the issuance and servicing of 
cards (including credit cards, debit cards, purchase cards, smart cards, 
and similar card services).
    (iii) Hotel/motel services for conferences, including lodging and/or 
meals, that are part of the contract or subcontract for the conference 
(which must not include ongoing contracts for lodging on an as needed or 
continuing basis).
    (iv) Maintenance, calibration, repair, and/or installation (where 
the installation is not subject to the Davis-Bacon Act, as provided in 
29 CFR 4.116(c)(2)) services for all types of equipment where the 
services are obtained from the manufacturer or supplier of the equipment 
under a contract awarded on a sole source basis.
    (v) Transportation by common carrier of persons by air, motor 
vehicle, rail, or marine vessel on regularly scheduled routes or via 
standard commercial services (not including charter services).
    (vi) Real estate services, including real property appraisal 
services, related to housing Federal agencies or disposing of real 
property owned by the Government.
    (vii) Relocation services, including services of real estate brokers 
and appraisers to assist Federal employees or military personnel in 
buying and selling homes (which shall not include actual moving or 
storage of household goods and related services).
    (2) Conditions. The exemption for the services in paragraph (d)(1) 
of this subsection applies if all the following conditions are met for a 
contract (or for a subcontract):
    (i)(A) Except for services identified in paragraph (d)(1)(iv) of 
this subsection, the contractor will be selected for award based on 
other factors in addition to price or cost, with the combination of 
other factors at least as important as price or cost; or
    (B) The contract will be awarded on a sole source basis.
    (ii) The services under the contract are offered and sold regularly 
to non-Governmental customers, and are provided by the contractor (or 
subcontractor in the case of an exempt subcontract) to the general 
public in substantial quantities in the course of normal business 
operations.
    (iii) The contract services are furnished at prices that are, or are 
based on, established catalog or market prices. As defined at 29 CFR 
4.123(e)(2)(ii)(C)--
    (A) An established catalog price is a price included in a catalog, 
price list, schedule, or other form that is regularly maintained by the 
contractor, is either published or otherwise available for inspection by 
customers, and states prices at which sales are currently, or were last, 
made to a significant number of buyers constituting the general public; 
and
    (B) An established market price is a current price, established in 
the usual course of trade between buyers and sellers free to bargain, 
which can be substantiated from sources independent of the manufacturer 
or contractor.
    (iv) Each service employee who will perform the services under the 
contract will spend only a small portion of his or her time (a monthly 
average of less than 20 percent of the available hours on an annualized 
basis, or less than 20 percent of available hours during the contract 
period if the contract period is less than a month) servicing the 
Government contract.
    (v) The contractor will use the same compensation (wage and fringe 
benefits) plan for all service employees performing work under the 
contract as the contractor uses for these employees and equivalent 
employees servicing commercial customers.
    (vi) The contracting officer (or contractor with respect to a 
subcontract) determines in advance before issuing the solicitation, 
based on the nature of the contract requirements and knowledge of the 
practices of likely offerors, that all or nearly all offerors will meet 
the conditions in paragraph (d)(2)(ii) through (v) of this subsection. 
If the services are currently being performed under contract, the 
contracting officer

[[Page 510]]

(or contractor with respect to a subcontract) shall consider the 
practices of the existing contractor in making a determination regarding 
the conditions in paragraphs (d)(2)(ii) through (v) of this subsection.
    (vii)(A) The apparent successful offeror certifies that the 
conditions in paragraphs (d)(2)(ii) through (v) will be met; and
    (B) For other than sole source awards, the contracting officer 
determines that the same certification is obtained from substantially 
all other offerors that are--
    (1) In the competitive range, if discussions are to be conducted 
(see FAR 15.306)(c)); or
    (2) Considered responsive, if award is to be made without 
discussions (see FAR 15.306(a)).
    (3) Contract award or resolicitation. (i) If the apparent successful 
offeror does not certify to the conditions, the contracting officer 
shall insert in the contract the applicable Service Contract Act 
clause(s) (see 22.1006) and, if the contract will exceed $2,500, the 
appropriate Department of Labor wage determination (see 22.1007).
    (ii) The contracting officer shall award the contract without the 
otherwise applicable Service Contract Act clause(s) if--
    (A) The apparent successful offeror certifies to the conditions in 
paragraphs (d)(2)(ii) through (v) of this subsection;
    (B) The contracting officer determines that the same certification 
is obtained from substantially all other offerors that are--
    (1) In the competitive range, if discussions are to be conducted 
(see FAR 15.306); or
    (2) Considered responsive, if award is to be made without 
discussions (see FAR 15.306(a)); and
    (C) The contracting officer has no reason to doubt the 
certification.
    (iii) If the conditions in paragraph (d)(3)(ii) of this subsection 
are not met, then the contracting officer shall resolicit, amending the 
solicitation by removing the exemption provision from the solicitation 
as prescribed at 22.1006(e)(3). The contract will include the applicable 
Service Contract Act clause(s) as prescribed at 22.1006 and, if the 
contract will exceed $2,500, the appropriate Department of Labor wage 
determination (see 22.1007).
    (4) Department of Labor determination. (i) If the Department of 
Labor determines after award of the contract that any conditions for 
exemption at paragraph (d)(2) of this subsection have not been met, the 
exemption shall be deemed inapplicable, and the contract shall become 
subject to the Service Contract Act. In such case, the procedures at 29 
CFR 4.123(e)(2)(iii) and 29 CFR 4.5(c) shall be followed.
    (ii) If the Department of Labor determines that any conditions in 
paragraph (d)(2) of this subsection have not been met with respect to a 
subcontract, the exemption shall be deemed inapplicable. The contractor 
may be responsible for ensuring that the subcontractor complies with the 
Act, effective as of the date of the subcontract award.
    (5) Exceptions. The exemption at paragraph (d)(1) of this subsection 
does not apply to solicitations and contracts (subcontracts)--
    (i) Awarded under the Javits-Wagner-O'Day Act, 41 U.S.C. 47 (see 
Subpart 8.7).
    (ii) For the operation of a Government facility, or part of a 
Government facility (but may be applicable to subcontracts for 
services); or
    (iii) Subject to Section 4(c) of the Service Contract Act (see 
22.1002-3).

[54 FR 19816, May 8, 1989, as amended at 61 FR 39198, July 26, 1996; 71 
FR 36933, June 28, 2006; 72 FR 63078, Nov. 7, 2007; 74 FR 2729, Jan. 15, 
2009]



Sec. 22.1003-5  Some examples of contracts covered.

    The following examples, while not definitive or exclusive, 
illustrate some of the types of services that have been found to be 
covered by the Act (see 29 CFR 4.130 for additional examples):
    (a) Motor pool operation, parking, taxicab, and ambulance services.
    (b) Packing, crating, and storage.
    (c) Custodial, janitorial, housekeeping, and guard services.
    (d) Food service and lodging.
    (e) Laundry, dry-cleaning, linen-supply, and clothing alteration and 
repair services.
    (f) Snow, trash, and garbage removal.

[[Page 511]]

    (g) Aerial spraying and aerial reconnaissance for fire detection.
    (h) Some support services at installations, including grounds 
maintenance and landscaping.
    (i) Certain specialized services requiring specific skills, such as 
drafting, illustrating, graphic arts, stenographic reporting, or 
mortuary services.
    (j) Electronic equipment maintenance and operation and engineering 
support services.
    (k) Maintenance and repair of all types of equipment, for example, 
aircraft, engines, electrical motors, vehicles, and electronic, office 
and related business and construction equipment. (But see 22.1003-
4(c)(1) and (d)(1)(iv).)
    (l) Operation, maintenance, or logistics support of a Federal 
facility.
    (m) Data collection, processing and analysis services.

[48 FR 42258, Sept. 19, 1983, as amended at 56 FR 67136, Dec. 27, 1991; 
72 FR 63080, Nov. 7, 2007; 74 FR 2729, Jan. 15, 2009]



Sec. 22.1003-6  Repair distinguished from remanufacturing of equipment.

    (a) Contracts principally for remanufacturing of equipment which is 
so extensive as to be equivalent to manufacturing are subject to the 
Walsh-Healey Public Contracts Act, rather than to the Service Contract 
Act. Remanufacturing shall be deemed to be manufacturing when the 
criteria in either subparagraphs (a)(1) or (a)(2) of this subsection are 
met.
    (1) Major overhaul of an item, piece of equipment, or materiel which 
is degraded or inoperable, and under which all of the following 
conditions exist:
    (i) The item or equipment is required to be completely or 
substantially torn down into individual component parts.
    (ii) Substantially all of the parts are reworked, rehabilitated, 
altered and/or replaced.
    (iii) The parts are reassembled so as to furnish a totally rebuilt 
item or piece of equipment.
    (iv) Manufacturing processes similar to those which were used in the 
manufacturing of the item or piece of equipment are utilized.
    (v) The disassembled components, if usable (except for situations 
where the number of items or pieces of equipment involved are too few to 
make it practicable) are commingled with existing inventory and, as 
such, lose their identification with respect to a particular piece of 
equipment.
    (vi) The items or equipment overhauled are restored to original life 
expectancy, or nearly so.
    (vii) Such work is performed in a facility owned or operated by the 
contractor.
    (2) Major modification of an item, piece of equipment, or material 
which is wholly or partially obsolete, and under which all of the 
following conditions exist:
    (i) The item or equipment is required to be completely or 
substantially torn down.
    (ii) Outmoded parts are replaced.
    (iii) The item or equipment is rebuilt or reassembled.
    (iv) The contract work results in the furnishing of a substantially 
modified item in a usable and serviceable condition.
    (v) The work is performed in a facility owned or operated by the 
contractor.
    (b) Remanufacturing does not include the repair of damaged or broken 
equipment which does not require a complete teardown, overhaul, and 
rebuild as described in subparagraphs (a)(1) and (a)(2) of this 
subsection, or the periodic and routine maintenance, preservation, care, 
adjustment, upkeep, or servicing of equipment to keep it in usable, 
serviceable, working order. Such contracts typically are billed on an 
hourly rate (labor plus materials and parts) basis. Any contract 
principally for this type of work is subject to the Service Contract 
Act. Examples of such work include the following:
    (1) Repair of an automobile, truck, or other vehicle, construction 
equipment, tractor, crane, aerospace, air conditioning and refrigeration 
equipment, electric motors, and ground powered industrial or vehicular 
equipment.
    (2) Repair of typewriters and other office equipment (but see 
22.1003-4(c)(1) and (d)(1)(iv)).
    (3) Repair of appliances, radios, television sets, calculators, and 
other electronic equipment.
    (4) Inspecting, testing, calibration, painting, packaging, 
lubrication, tune-up, or replacement of internal parts of

[[Page 512]]

equipment listed in subparagraphs (b)(1), (b)(2), and (b)(3) of this 
subsection.
    (5) Reupholstering, reconditioning, repair, and refinishing of 
furniture.

[48 FR 42258, Sept. 19, 1983, as amended at 72 FR 63080, Nov. 7, 2007; 
74 FR 2729, Jan. 15, 2009]



Sec. 22.1003-7  Questions concerning applicability of the Act.

    If the contracting officer questions the applicability of the Act to 
an acquisition, the contracting officer shall request the advice of the 
agency labor advisor. Unresolved questions shall be submitted in a 
timely manner to the Administrator, Wage and Hour Division, for 
determination.



Sec. 22.1004  Department of Labor responsibilities and regulations.

    Under the Act, the Secretary of Labor is authorized and directed to 
enforce the provisions of the Act, make rules and regulations, issue 
orders, hold hearings, make decisions, and take other appropriate 
action. The Department of Labor has issued implementing regulations on 
such matters as--
    (a) Service contract labor standards provisions and procedures (29 
CFR part 4, subpart A);
    (b) Wage determination procedures (29 CFR part 4, subparts A and B);
    (c) Application of the Act (rulings and interpretations) (29 CFR 
part 4, subpart C);
    (d) Compensation standards (29 CFR part 4, subpart D);
    (e) Enforcement (29 CFR part 4, subpart E);
    (f) Safe and sanitary working conditions (29 CFR part 1925);
    (g) Rules of practice for administrative proceedings enforcing 
service contract labor standards (29 CFR part 6); and
    (h) Practice before the Administrative Review Board (29 CFR part 8).

[54 FR 19816, May 8, 1989, as amended at 71 FR 36933, June 28, 2006; 72 
FR 63080, Nov. 7, 2007]



Sec. 22.1005  [Reserved]



Sec. 22.1006  Solicitation provisions and contract clauses.

    (a)(1) The contracting officer shall insert the clause at 52.222-41, 
Service Contract Act of 1965, in solicitations and contracts (except as 
provided in paragraph (a)(2) of this section) if the contract is subject 
to the Act and is--
    (i) Over $2,500; or
    (ii) For an indefinite dollar amount and the contracting officer 
does not know in advance that the contract amount will be $2,500 or 
less.
    (2) The contracting officer shall not insert the clause at 52.222-41 
(or any of the associated Service Contract Act clauses as prescribed in 
this section for possible use when 52.222-41 applies) in the resultant 
contract if--
    (i) The solicitation includes the provision at--
    (A) 52.222-48, Exemption from Application of the Service Contract 
Act to Contracts for Maintenance, Calibration, or Repair of Certain 
Equipment--Certification;
    (B) 52.222-52, Exemption from Application of the Service Contract 
Act to Contracts for Certain Services--Certification; or
    (C) Either of the comparable certifications is checked as applicable 
in the provision at 52.204-8(c)(2)(iii) or (iv) or 52.212-3(k); and
    (ii) The contracting officer has made the determination, in 
accordance with paragraphs (c)(3) or (d)(3) of subsection 22.1003-4, 
that the Service Contract Act does not apply to the contract. (In such 
case, insert the clause at 52.222-51, Exemption from Application of the 
Service Contract Act to Contracts for Maintenance, Calibration, or 
Repair of Certain Equipment--Requirements, or 52.222-53, Exemption from 
Application of the Service Contract Act to Contracts for Certain 
Services--Requirements, in the contract, in accordance with the 
prescription at paragraph (e)(2)(ii) or (e)(4)(ii) of this subsection).
    (b) The contracting officer shall insert the clause at 52.222-42, 
Statement of Equivalent Rates for Federal Hires, in solicitations and 
contracts if the contract amount is expected to be over $2,500 and the 
Act is applicable. (See 22.1016.)

[[Page 513]]

    (c)(1) The contracting officer shall insert the clause at 52.222-43, 
Fair Labor Standards Act and Service Contract Act--Price Adjustment 
(Multiple Year and Option Contracts), or another clause which 
accomplishes the same purpose, in solicitations and contracts if the 
contract is expected to be a fixed-price, time-and-materials, or labor-
hour service contract containing the clause at 52.222-41, Service 
Contract Act of 1965, and is a multiple year contract or is a contract 
with options to renew which exceeds the simplified acquisition 
threshold. The clause may be used in contracts that do not exceed the 
simplified acquisition threshold. The clause at 52.222-43, Fair Labor 
Standards Act and Service Contract Act--Price Adjustment (Multiple Year 
and Option Contracts), applies to both contracts subject to area 
prevailing wage determinations and contracts subject to the incumbent 
contractor's collective bargaining agreement in effect during this 
contract's preceding contract period (see 22.1002-2 and 22.1002-3). 
Contracting officers shall ensure that contract prices or contract unit 
price labor rates are adjusted only to the extent that a contractor's 
increases or decreases in applicable wages and fringe benefits are made 
to comply with the requirements set forth in the clauses at 52.222-43 
(subparagraphs (d) (1), (2) and (3)), or 52.222-44 (subparagraphs (b) 
(1) and (2)). (For example, the prior year wage determination required a 
minimum wage rate of $4.00 per hour. The contractor actually paid $4.10. 
The new wage determination increases the minimum rate to $4.50. The 
contractor increases the rate actually paid to $4.75 per hour. The 
allowable price adjustment is $.40 per hour.)
    (2) The contracting officer shall insert the clause at 52.222-44, 
Fair Labor Standards Act and Service Contract Act--Price Adjustment, in 
solicitations and contracts if the contract is expected to be a fixed-
price, time-and-materials, or labor-hour service contract containing the 
clause at 52.222-41, Service Contract Act of 1965, exceeds the 
simplified acquisition threshold, and is not a multiple year contract or 
is not a contract with options to renew. The clause may be used in 
contracts that do not exceed the simplified acquisition threshold. The 
clause at 52.222-44, Fair Labor Standards Act and Service Contract Act--
Price Adjustment, applies to both contracts subject to area prevailing 
wage determinations and contracts subject to contractor collective 
bargaining agreements (see 22.1002-2 and 22.1002-3).
    (3) The clauses prescribed in paragraph 22.1006(c)(1) cover 
situations in which revised minimum wage rates are applied to contracts 
by operation of law, or by revision of a wage determination in 
connection with (i) exercise of a contract option or (ii) extension of a 
multiple year contract into a new program year. If a clause prescribed 
in 16.203-4(d) is used, it must not conflict with, or duplicate payment 
under, the clauses prescribed in this paragraph 22.1006(c).
    (d) [Reserved]
    (e)(1) The contracting officer shall insert the provision at 52.222-
48, Exemption from Application of the Service Contract Act to Contracts 
for Maintenance, Calibration, or Repair of Certain Equipment--
Certification, in solicitations that--
    (i) Include the clause at 52.222-41, Service Contract Act of 1965; 
and
    (ii) The contract may be exempt from the Service Contract Act in 
accordance with 22.1003-4(c).
    (2) The contracting officer shall insert the clause at 52.222-51, 
Exemption from Application of the Service Contract Act to Contracts for 
Maintenance, Calibration, or Repair of Certain Equipment--Requirements--
    (i) In solicitations that include the provision at 52.222-48, or the 
comparable provision is checked as applicable in the clause at 52.204-
8(c)(2)(iii) or 52.212-3(k)(1); and
    (ii) In resulting contracts in which the contracting officer has 
determined, in accordance with 22.1003-4(c)(3), that the Service 
Contract Act does not apply.
    (3)(i) Except as provided in paragraph (e)(3)(ii) of this section, 
the contracting officer shall insert the provision at 52.222-52, 
Exemption from Application of the Service Contract Act to Contracts for 
Certain Services--Certification, in solicitations that--
    (A) Include the clause at 52.222-41, Service Contract Act of 1965; 
and

[[Page 514]]

    (B) The contract may be exempt from the Service Contract Act in 
accordance with 22.1003-4(d).
    (ii) When resoliciting in accordance with 22.1003-4(d)(3)(iii), 
amend the solicitation by removing the provision at 52.222-52 from the 
solicitation.
    (4) The contracting officer shall insert the clause at 52.222-53, 
Exemption from Application of the Service Contract Act to Contracts for 
Certain Services--Requirements--
    (i) In solicitations that include the provision at 52.222-52, or the 
comparable provision is checked as applicable in 52.204-8(c)(2)(iv) or 
52.212-3(k)(2); and
    (ii) In resulting contracts in which the contracting officer has 
determined, in accordance with 22.1003-4(d)(3), that the Service 
Contract Act does not apply.
    (f) The contracting officer shall insert the clause at 52.222-49, 
Service Contract Act--Place of Performance Unknown, if using the 
procedures prescribed in 22.1009-4.

[54 FR 19816, May 8, 1989, as amended at 60 FR 34758, July 3, 1995; 61 
FR 41470, Aug. 8, 1996; 71 FR 36933, June 28, 2006; 71 FR 67779, Nov. 
22, 2006; 72 FR 63080, Nov. 7, 2007; 74 FR 2729, Jan. 15, 2009; 74 FR 
40461, Aug. 11, 2009; 75 FR 82568, Dec. 30, 2010]



Sec. 22.1007  Requirement to obtain wage determinations.

    The contracting officer shall obtain wage determinations for the 
following service contracts:
    (a) Each new solicitation and contract in excess of $2,500.
    (b) Each contract modification which brings the contract above 
$2,500 and--
    (1) Extends the existing contract pursuant to an option clause or 
otherwise; or
    (2) Changes the scope of the contract whereby labor requirements are 
affected significantly.
    (c) Each multiple year contract in excess of $2,500 upon--
    (1) Annual anniversary date if the contract is subject to annual 
appropriations; or
    (2) Biennial anniversary date if the contract is not subject to 
annual appropriations and its proposed term exceeds 2 years--unless 
otherwise advised by the Wage and Hour Division.

[54 FR 19816, May 8, 1989, as amended at 71 FR 36933, June 28, 2006]



Sec. 22.1008  Procedures for obtaining wage determinations.

[71 FR 36933, June 28, 2006]



Sec. 22.1008-1  Obtaining wage determinations.

    (a) Contracting officers may obtain most prevailing wage 
determinations using the WDOL website. Contracting officers may also use 
the Department of Labor's e98 electronic process, located on the WDOL 
website, to request a wage determination directly from the Department of 
Labor. If the WDOL database does not contain the applicable prevailing 
wage determination for a contract action, the contracting officer must 
use the e98 process to request a wage determination from the Department 
of Labor.
    (b) In using the e98 process to obtain prevailing wage 
determinations, contracting officers shall provide as complete and 
accurate information on the e98 as possible. Contracting officers shall 
ensure that the email address submitted on an e98 request is accurate.
    (c) The contracting officer must anticipate the amount of time 
required to gather the information necessary to obtain a wage 
determination, including sufficient time, if necessary, to contact the 
Department of Labor to request wage determinations that are not 
available through use of the WDOL.
    (d) Although the WDOL website provides assistance to the contracting 
agency to select the correct wage determination, the contracting agency 
remains responsible for the wage determination selected. If the 
contracting agency has used the e98 process, the Department of Labor 
will respond to the contracting agency based on the information provided 
on the e98. The contracting agency may rely upon the Department of Labor 
response as the correct wage determination for the contract.
    (e) To obtain the applicable wage determination for each contract 
action, the contracting officer shall determine

[[Page 515]]

the following information concerning the service employees expected to 
be employed by the contractor and any subcontractors in performing the 
contract:
    (1) Determine the classes of service employees to be utilized in 
performance of the contract using the Wage and Hour Division's Service 
Contract Act Directory of Occupations (Directory). The Directory can be 
found on WDOL's Library Page, and is for sale by the Superintendent of 
Documents, U.S. Government Printing Office.
    (2) Determine the locality where the services will be performed (see 
22.1009).
    (3) Determine whether Section 4(c) of the Act applies (see 22.1008-
2, 22.1010 and 22.1012-2).
    (4) Determine the wage rate that would be paid each class if 
employed by the agency and subject to the wage provisions of 5 U.S.C. 
5341 and/or 5332 (see 22.1016).
    (f) If the contracting officer has questions regarding the 
procedures for obtaining a wage determination, or questions regarding 
the selection of a wage determination, the contracting officer should 
request assistance from the agency labor advisor.

[71 FR 36933, June 28, 2006]



Sec. 22.1008-2  Section 4(c) successorship with incumbent contractor 
          collective bargaining agreement.

    (a) Early in the acquisition cycle, the contracting officer shall 
determine whether section 4(c) of the Act affects the new acquisition. 
The contracting officer shall determine whether there is a predecessor 
contract covered by the Act and, if so, whether the incumbent prime 
contractor or its subcontractors and any of their employees have a 
collective bargaining agreement.
    (b) Section 4(c) of the Act provides that a successor contractor 
must pay wages and fringe benefits (including accrued wages and benefits 
and prospective increases) to service employees at least equal to those 
agreed upon by a predecessor contractor under the following conditions:
    (1) The services to be furnished under the proposed contract will be 
substantially the same as services being furnished by an incumbent 
contractor whose contract the proposed contract will succeed.
    (2) The services will be performed in the same locality.
    (3) The incumbent prime contractor or subcontractor is furnishing 
such services through the use of service employees whose wages and 
fringe benefits are the subject of one or more collective bargaining 
agreements.
    (c) The application of section 4(c) of the Act is subject to the 
following limitations:
    (1) Section 4(c) of the Act will not apply if the incumbent 
contractor enters into a collective bargaining agreement for the first 
time and the agreement does not become effective until after the 
expiration of the incumbent's contract.
    (2) If the incumbent contractor enters into a new or revised 
collective bargaining agreement during the period of the incumbent's 
performance on the current contract, the terms of the new or revised 
agreement shall not be effective for the purposes of section 4(c) of the 
Act under the following conditions:
    (i)(A) In sealed bidding, the contracting agency receives notice of 
the terms of the collective bargaining agreement less than 10 days 
before bid opening and finds that there is not reasonable time still 
available to notify bidders (see 22.1012-2(a)); or
    (B) For contractual actions other than sealed bidding, the 
contracting agency receives notice of the terms of the collective 
bargaining agreement after award, provided that the start of performance 
is within 30 days of award (see 22.1012-2(b)); and
    (ii) The contracting officer has given both the incumbent contractor 
and its employees' collective bargaining agent timely written 
notification of the applicable acquisition dates (see 22.1010).
    (d)(1) If section 4(c) of the Act applies, the contracting officer 
shall obtain a copy of any collective bargaining agreement between an 
incumbent contractor or subcontractor and its employees. Obtaining a 
copy of an incumbent contractor's collective bargaining agreement may 
involve coordination with the administrative contracting officer 
responsible for administering the predecessor contract.

[[Page 516]]

(Paragraph (m) of the clause at 52.222-41, Service Contract Act of 1965, 
as amended, requires the incumbent prime contractor to furnish the 
contracting officer a copy of each collective bargaining agreement.)
    (2) If the contracting officer has timely received the collective 
bargaining agreement, the contracting officer may use the WDOL website 
to prepare a wage determination referencing the agreement and 
incorporate that wage determination, attached to a complete copy of the 
collective bargaining agreement, into the successor contract action. In 
using the WDOL process, it is not necessary to submit a copy of the 
collective bargaining agreement to the Department of Labor unless 
requested to do so.
    (3) The contracting officer may also use the e98 process on WDOL to 
request that the Department of Labor prepare the cover wage 
determination. The Department of Labor's response to the e98 may include 
a request for the contracting officer to submit a complete copy of the 
collective bargaining agreement. Any questions regarding the 
applicability of the Act to a collective bargaining agreement should be 
directed to the agency labor advisor.
    (e)(1) Section 4(c) of the Act will not apply if the Secretary of 
Labor determines (i) after a hearing, that the wages and fringe benefits 
in the predecessor contractor's collective bargaining agreement are 
substantially at variance with those which prevail for services of a 
similar character in the locality, or (ii) that the wages and fringe 
benefits in the predecessor contractor's collective bargaining agreement 
are not the result of arm's length negotiations (see 22.1013 and 
22.1021). The Department of Labor (DOL) has concluded that contingent 
collective bargaining agreement provisions that attempt to limit a 
contractor's obligations by means such as requiring issuance of a wage 
determination by the DOL, requiring inclusion of the wage determination 
in the contract, or requiring the Government to adequately reimburse the 
contractor, generally reflect a lack of arm's length negotiations.
    (2) If the contracting officer's review (see 22.1013) indicates that 
monetary provisions of the collective bargaining agreement may be 
substantially at variance or may not have been reached as a result of 
arm's length bargaining, the contracting officer shall immediately 
contact the agency labor advisor to consider if further action is 
warranted.
    (f) If the services are being furnished at more than one location 
and the collectively bargained wage rates and fringe benefits are 
different at different locations or do not apply to one or more 
locations, the contracting officer shall identify the locations to which 
the agreements apply.
    (g) If the collective bargaining agreement does not apply to all 
service employees under the contract, the contracting officer shall 
access WDOL to obtain the prevailing wage determination for those 
service employee classifications that are not covered by the collective 
bargaining agreement. The contracting officer shall separately list in 
the solicitation and contract the service employee classifications--(1) 
subject to the collective bargaining agreement and (2) not subject to 
any collective bargaining agreement.

[54 FR 19816, May 8, 1989, as amended at 59 FR 67040, Dec. 28, 1994. 
Redesignated and amended at 71 FR 36933, June 28, 2006; 73 FR 63081, 
Nov. 7, 2007]



Sec. 22.1009  Place of performance unknown.



Sec. 22.1009-1  General.

    If the place of performance is unknown, the contracting officer may 
use the procedures in this section. The contracting officer should first 
attempt to identify the specific places or geographical areas where the 
services might be performed (see 22.1009-2) and then may follow the 
procedures either in 22.1009-3 or in 22.1009-4.



Sec. 22.1009-2  Attempt to identify possible places of performance.

    The contracting officer should attempt to identify the specific 
places or geographical areas where the services might be performed. The 
following may indicate possible places of performance:
    (a) Locations of previous contractors and their competitors.

[[Page 517]]

    (b) Databases available via the Internet for lists of prospective 
offerors and contractors.
    (c) Responses to a presolicitation notice (see 5.204).

[48 FR 42258, Sept. 19, 1983, as amended at 68 FR 43856, July 24, 2003]



Sec. 22.1009-3  All possible places of performance identified.

    (a) If the contracting officer can identify all the possible places 
or areas of performance (even though the actual place of performance 
will not be known until the successful offeror is chosen), the 
contracting officer shall obtain a wage determination for each locality 
where services may be performed (see 22.1008).
    (b) If the contracting officer subsequently learns of any potential 
offerors in previously unidentified places before the closing date for 
submission of offers, the contracting officer shall--
    (1) Obtain wage determinations for the additional places of 
performance and amend the solicitation to include all wage 
determinations. If necessary, the contracting officer shall extend the 
time for submission of final offers; and
    (2) Follow the procedures in 22.1009-4.

[71 FR 36934, June 28, 2006]



Sec. 22.1009-4  All possible places of performance not identified.

    If the contracting officer believes that there may be offerors 
interested in performing in unidentified places or areas, the 
contracting officer may use the following procedures:
    (a) Include the following information in the synopsis and 
solicitation:
    (1) That the place of performance is unknown.
    (2) The possible places or areas of performance that the contracting 
officer has already identified.
    (3) That the contracting officer will obtain wage determinations for 
additional possible places of performance if asked to do so in writing.
    (4) The time and date by which offerors must notify the contracting 
officer of additional places of performance.
    (b) Include the information required by paragraphs (a)(2) and (a)(4) 
of this section in the clause at 52.222-49, Service Contract Act-Place 
of Performance Unknown (see 22.1006(f)). The closing date for receipt of 
offerors' requests for wage determinations for additional possible 
places of performance should allow reasonable time for potential 
offerors to review the solicitation and determine their interest in 
competing. Generally, 10 to 15 days from the date of issuance of the 
solicitation may be considered a reasonable period of time.
    (c) The procedures in 14.304 shall apply to late receipt of 
offerors' requests for wage determinations for additional places of 
performance. However, late receipt of an offeror's request for a wage 
determination for additional places of performance does not preclude the 
offeror's competing for the proposed acquisition.
    (d) If the contracting officer receives any timely requests for wage 
determinations for additional places of performance the contracting 
officer shall--
    (1) Obtain wage determinations for the additional places of 
performance; and
    (2) Amend the solicitation to include all wage determinations and, 
if necessary, extend the time for submission of final offers.
    (e) If the successful offeror did not make a timely request for a 
wage determination and will perform in a place of performance for which 
the contracting officer therefore did not request a wage determination, 
the contracting officer shall--
    (1) Award the contract;
    (2) Obtain a wage determination; and
    (3) Incorporate the wage determination in the contract, retroactive 
to the date of contract award and with no adjustment in contract price, 
pursuant to the clause at 52.222-49, Service Contract--Place of 
Performance Unknown.

[71 FR 36934, June 28, 2006]



Sec. 22.1010  Notification to interested parties under collective 
          bargaining agreements.

    (a) The contracting officer should determine whether the incumbent 
prime contractor's or its subcontractors' service employees performing 
on the current contract are represented by a collective bargaining 
agent. If there is

[[Page 518]]

a collective bargaining agent, the contracting officer shall give both 
the incumbent contractor and its employees' collective bargaining agent 
written notification of--
    (1) The forthcoming successor contract and the applicable 
acquisition dates (issuance of solicitation, opening of bids, 
commencement of negotiations, award of contract, or start of 
performance, as the case may be); or
    (2) The forthcoming contract modification and applicable acquisition 
dates (exercise of option, extension of contract, change in scope, or 
start of performance, as the case may be); or
    (3) The forthcoming multiple year contract anniversary date (annual 
anniversary date or biennial date, as the case may be).
    (b) This written notification must be given at least 30 days in 
advance of the earliest applicable acquisition date or the applicable 
annual or biennial anniversary date in order for the time-of-receipt 
limitations in 22.1012-2 (a) and (b) to apply. The contracting officer 
shall retain a copy of the notification in the contract file.

[54 FR 19816, May 8, 1989, as amended at 71 FR 36934, June 28, 2006]



Sec. 22.1011  [Reserved]



Sec. 22.1012  Applicability of revisions to wage determinations.

[71 FR 36934, June 28, 2006]



Sec. 22.1012-1  Prevailing wage determinations.

    (a)(1) The Wage and Hour Administrator may issue revisions to 
prevailing wage determinations periodically. The need for inclusion of a 
revised prevailing wage determination in a solicitation, contract or 
contract modification (see 22.1007) is determined by the date of receipt 
of the revised prevailing wage determination by the contracting agency. 
(Note the distinction between receipt by the agency and receipt by the 
contracting officer which may occur later.)
    (i) For purposes of using WDOL, the time of receipt by the 
contracting agency shall be the first day of publication of the revised 
prevailing wage determination on the website.
    (ii) For purposes of using the e98 process, the time of receipt by 
the contracting agency shall be the date the agency receives actual 
notice of a new or revised prevailing wage determination from the 
Department of Labor as an e98 response.
    (2) In selecting a prevailing wage determination from the WDOL 
website for use in a solicitation or other contract action, the 
contracting officer shall monitor the WDOL website to determine whether 
the applicable wage determination has been revised. Revisions published 
on the WDOL website or otherwise communicated to the contracting officer 
within the timeframes prescribed at 22.1012-1(b) and (c) are effective 
and must be included in the resulting contract. Monitoring can be 
accomplished by use of the WDOL website's ``Alert Service''.
    (b) The following shall apply when contracting by sealed bidding: a 
revised prevailing wage determination shall not be effective if it is 
received by the contracting agency less than 10 days before the opening 
of bids, and the contracting officer finds that there is not reasonable 
time to incorporate the revision in the solicitation.
    (c) For contractual actions other than sealed bidding, a revised 
prevailing wage determination received by the contracting agency after 
award of a new contract or a modification as specified in 22.1007(b) 
shall not be effective provided that the start of performance is within 
30 days of the award or the specified modification. If the contract does 
not specify a start of performance date which is within 30 days of the 
award or the specified modification, and if contract performance does 
not commence within 30 days of the award or the specified modification, 
any revision received by the contracting agency not less than 10 days 
before commencement of the work shall be effective.
    (d) If the contracting officer has submitted an e98 to the 
Department of Labor requesting a prevailing wage determination and has 
not received a response within 10 days, the contracting officer shall 
contact the Wage and Hour Division by telephone to determine when the 
wage determination can

[[Page 519]]

be expected. (The telephone number is provided on the e98 website.)

[71 FR 36934, June 28, 2006]



Sec. 22.1012-2  Wage determinations based on collective bargaining 
          agreements.

    (a) In sealed bidding, a new or changed collective bargaining 
agreement shall not be effective under section 4(c) of the Act if the 
contracting agency has received notice of the terms of the new or 
changed collective bargaining agreement less than 10 days before bid 
opening and the contracting officer determines that there is not 
reasonable time to incorporate the new or changed terms of the 
collective bargaining agreement in the solicitation.
    (b) For contractual actions other than sealed bidding, a new or 
changed collective bargaining agreement shall not be effective under 
section 4(c) of the Act if notice of the terms of the new or changed 
collective bargaining agreement is received by the contracting agency 
after award of a successor contract or a modification as specified in 
22.1007(b), provided that the contract start of performance is within 30 
days of the award of the contract or of the specified modification. If 
the contract does not specify a start of performance date which is 
within 30 days of the award of the contract or of the specified 
modification, or if contract performance does not commence within 30 
days of the award of the contract or of the specified modification, any 
notice of the terms of a new or changed collective bargaining agreement 
received by the agency not less than 10 days before commencement of the 
work shall be effective for purposes of the successor contract under 
section 4(c) of the Act.
    (c) The limitations in paragraphs (a) and (b) of this subsection 
shall apply only if timely notification required in 22.1010 has been 
given.
    (d) If the contracting officer has submitted an e98 to Department of 
Labor requesting a wage determination based on a collective bargaining 
agreement and has not received a response from the Department of Labor 
within 10 days, the contracting officer shall contact the Wage and Hour 
Division by telephone to determine when the wage determination can be 
expected. (The telephone number is provided on the e98 website.) If the 
Department of Labor is unable to provide the wage determination by the 
latest date needed to maintain the acquisition schedule, the contracting 
officer shall incorporate the collective bargaining agreement itself in 
a solicitation or other contract action (e.g., exercise of option) and 
include a wage determination referencing that collective bargaining 
agreement created by use of the WDOL website (see 22.1008-2(d)(2)).

[71 FR 36935, June 28, 2006]



Sec. 22.1013  Review of wage determination.

    (a) Based on incumbent collective bargaining agreement. (1) If 
wages, fringe benefits, or periodic increases provided for in a 
collective bargaining agreement vary substantially from those prevailing 
for similar services in the locality, the contracting officer shall 
immediately contact the agency labor advisor to consider instituting the 
procedures in 22.1021.
    (2) If the contracting officer believes that an incumbent or 
predecessor contractor's agreement was not the result of arm's length 
negotiations, the contracting officer shall contact the agency labor 
advisor to determine appropriate action.
    (b) Based on other than incumbent collective bargaining agreement. 
Upon receiving a wage determination not predicated upon a collective 
bargaining agreement, the contracting officer shall ascertain--
    (1) If the wage determination does not conform with wages and fringe 
benefits prevailing for similar services in the locality; or
    (2) If the wage determination contains significant errors or 
omissions. If either subparagraph (b)(1) or (b)(2) of this section is 
evident, the contracting officer shall contact the agency labor advisor 
to determine appropriate action.



Sec. 22.1014  Delay over 60 days in bid opening or commencement of work.

    If a wage determination was obtained through the e98 process, and 
bid opening, or commencement of work under a negotiated contract has 
been delayed, for whatever reason, more than 60 days

[[Page 520]]

from the date indicated on the previously submitted e98, the contracting 
officer shall submit a new e98. Any revision of a wage determination 
received by the contracting agency as a result of that communication 
shall supersede the earlier response as the wage determination 
applicable to the particular acquisition subject to the time frames in 
22.1012-1(b) and (c).

[71 FR 36935, June 28, 2006]



Sec. 22.1015  Discovery of errors by the Department of Labor.

    If the Department of Labor discovers and determines, whether before 
or after a contract award, that a contracting officer made an erroneous 
determination that the Service Contract Act did not apply to a 
particular acquisition or failed to include an appropriate wage 
determination in a covered contract, the contracting officer, within 30 
days of notification by the Department of Labor, shall include in the 
contract the clause at 52.222-41 and any applicable wage determination 
issued by the Administrator. If the contract is subject to section 10 of 
the Act (41 U.S.C. 358), the Administrator may require retroactive 
application of that wage determination. The contracting officer shall 
equitably adjust the contract price to reflect any changed cost of 
performance resulting from incorporating a wage determination or 
revision.



Sec. 22.1016  Statement of equivalent rates for Federal hires.

    (a) The statement required under the clause at 52.222-42, Statement 
of Equivalent Rates for Federal Hires, (see 22.1006(b)) shall set forth 
those wage rates and fringe benefits that would be paid by the 
contracting activity to the various classes of service employees 
expected to be utilized under the contract if 5 U.S.C. 5332 (General 
Schedule--white collar) and/or 5 U.S.C. 5341 (Wage Board--blue collar) 
were applicable.
    (b) Procedures for computation of these rates are as follows:
    (1) Wages paid blue collar employees shall be the basic hourly rate 
for each class. The rate shall be Wage Board pay schedule step two for 
nonsupervisory service employees and step three for supervisory service 
employees.
    (2) Wages paid white collar employees shall be an hourly rate for 
each class. The rate shall be obtained by dividing the general pay 
schedule step one biweekly rate by 80.
    (3) Local civilian personnel offices can assist in determining and 
providing grade and salary data.



Sec. 22.1017  [Reserved]



Sec. 22.1018  Notification to contractors and employees.

    The contracting officer shall take the following steps to ensure 
that service employees are notified of minimum wages and fringe 
benefits.
    (a) As soon as possible after contract award, inform the contractor 
of the labor standards requirements of the contract relating to the Act 
and of the contractor's responsibilities under these requirements, 
unless it is clear that the contractor is fully informed.
    (b) At the time of award, furnish the contractor Department of Labor 
Publication WH-1313, Notice to Employees Working on Government 
Contracts, for posting at a prominent and accessible place at the 
worksite before contract performance begins. The publication advises 
employees of the compensation (wages and fringe benefits) required to be 
paid or furnished under the Act and satisfies the notice requirements in 
paragraph (g) of the clause at 52.222-41, Service Contract Act of 1965.
    (c) Attach any applicable wage determination to Publication WH-1313.

[54 FR 19816, May 8, 1989, as amended at 72 FR 63081, Nov. 7, 2007]



Sec. 22.1019  Additional classes of service employees.

    (a) If the contracting officer is aware that contract performance 
involves classes of service employees not included in the wage 
determination, the contracting officer shall require the contractor to 
classify the unlisted classes so as to provide a reasonable relationship 
(i.e., appropriate level of skill comparison) between the unlisted 
classifications and the classifications listed in the determination (see 
paragraph (c) of the clause at 52.222-41, Service Contract Act of 1965). 
The contractor shall initiate the conforming procedure before unlisted 
classes of

[[Page 521]]

employees perform contract work. The contractor shall submit Standard 
Form (SF) 1444, Request For Authorization of Additional Classification 
and Rate. The contracting officer shall review the proposed 
classification and rate and promptly submit the completed SF 1444 (which 
must include information regarding the agreement or disagreement of the 
employees' representative or the employees themselves together with the 
agency recommendation) and all other pertinent information to the Wage 
and Hour Division. Within 30 days of receipt of the request, the Wage 
and Hour Division will (1) approve, modify, or disapprove the request 
when the parties are in agreement or (2) render a final determination in 
the event of disagreement among the parties. If the Wage and Hour 
Division will require more than 30 days to take action, it will notify 
the contracting officer within 30 days of receipt of the request that 
additional time is necessary.
    (b) Some wage determinations will list a series of classes within a 
job classification family, for example, Computer Operators, level I, II, 
and III, or Electronic Technicians, level I, II, and III, or Clerk 
Typist, level I and II. Generally, level I is the lowest level. It is 
the entry level, and establishment of a lower level through conformance 
is not permissible. Further, trainee classifications may not be 
conformed. Helpers in skilled maintenance trades (for example, 
electricians, machinists, and automobile mechanics) whose duties 
constitute, in fact, separate and distinct jobs may also be used if 
listed on the wage determination, but may not be conformed. Conformance 
may not be used to artificially split or subdivide classifications 
listed in the wage determination. However, conforming procedures may be 
used if the work which an employee performs under the contract is not 
within the scope of any classification listed on the wage determination, 
regardless of job title. (See 29 CFR 4.152.)
    (c) Subminimum rates for apprentices, student learners, and 
handicapped workers are permissible in accordance with paragraph (q) of 
the clause at 52.222-41, Service Contract Act of 1965.

[54 FR 19816, May 8, 1989, as amended at 72 FR 63081, Nov. 7, 2007]



Sec. 22.1020  Seniority lists.

    If a contract is performed at a Federal facility where employees may 
be hired/retained by a succeeding contractor, the incumbent prime 
contractor is required to furnish a certified list of all service 
employees on the contractor's or subcontractor's payroll during the last 
month of the contract, together with anniversary dates of employment, to 
the contracting officer no later than 10 days before contract 
completion. (See paragraph (n) of the clause at 52.222-41, Service 
Contract Act of 1965.) At the commencement of the succeeding contract, 
the contracting officer shall provide a copy of the list to the 
successor contractor for determining employee eligibility for vacation 
or other fringe benefits which are based upon length of service, 
including service with predecessor contractors if such benefit is 
required by an applicable wage determination.

[54 FR 19816, May 8, 1989, as amended at 72 FR 63081, Nov. 7, 2007]



Sec. 22.1021  Requests for hearing.

    (a) A contracting agency or other interested party may request a 
hearing on an issue presented in 22.1013(a). To obtain a hearing for the 
contracting agency, the contracting officer shall submit a written 
request through appropriate channels (ordinarily the agency labor 
advisor) to: Administrator, Wage and Hour Division, Employment Standards 
Administration, U.S. Department of Labor, Washington, DC 20210.
    (b) A request for a substantial variance hearing shall include 
sufficient data to show that the rates at issue vary substantially from 
those prevailing for similar services in the locality. The request shall 
also include--
    (1) The number of the wage determinations at issue;
    (2) The name of the contracting agency whose contract is involved;
    (3) A brief description of the services to be performed under the 
contract;

[[Page 522]]

    (4) The status of the procurement and any estimated procurement 
dates, such as bid opening, contract award, and commencement date of the 
contract or its follow-up option period;
    (5) A statement of the applicant's case, setting forth in detail the 
reasons why the applicant believes that a substantial variance exists 
with respect to some or all of the wages and/or fringe benefits;
    (6) Names and addresses (to the extent known) of interested parties; 
and
    (7) Any other data required by the Administrator.
    (c) A request for an arm's length hearing shall include--
    (1) A statement of the applicant's case setting forth in detail the 
reasons why the applicant believes that the wages and fringe benefits 
contained in the collective bargaining agreement were not reached as a 
result of arm's length negotiations;
    (2) A statement regarding the status of the procurement and any 
estimated procurement dates, such as bid opening, contract award, and 
commencement date of the contract or its follow-up option period; and
    (3) Names and addresses (to the extent known) of interested parties.
    (d) Unless the Administrator determines that extraordinary 
circumstances exist, the Administrator will not consider requests for a 
hearing unless received as follows:
    (1) For sealed bid contracts, more than 10 days before the award of 
the contract; or
    (2) For negotiated contracts and for contracts with provisions 
exceeding the initial term by option, before the commencement date of 
the contract or the follow-up option period.

[59 FR 67041, Dec. 28, 1994]



Sec. 22.1022  Withholding of contract payments.

    Any violations of the clause at 52.222-41, Service Contract Act of 
1965, as amended, renders the responsible contractor liable for the 
amount of any deductions, rebates, refunds, or underpayments (which 
includes nonpayment) of compensation due employees performing the 
contract. The contracting officer may withhold--or, upon written request 
of the Department of Labor from a level no lower than that of Deputy 
Regional Administrator, Wage and Hour Division, Employment Standards 
Administration, Department of Labor, shall withhold--the amount needed 
to pay such underpaid employees from accrued payments due the contractor 
on the contract, or on any other prime contract (whether subject to the 
Service Contract Act or not) with the contractor. The agency shall place 
the amount withheld in a deposit fund. Such withheld funds shall be 
transferred to the Department of Labor for disbursement to the underpaid 
employees on order of the Secretary (or authorized representatives), an 
Administrative Law Judge, or the Administrative Review Board. In 
addition, the Department of Labor has given blanket approval to forward 
withheld funds pending completion of an investigation or other 
administrative proceeding when disposition of withheld funds remains the 
final action necessary to close out a contract.

[54 FR 19816, May 8, 1989, as amended at 61 FR 39198, July 26, 1996; 72 
FR 63081, Nov. 7, 2007]



Sec. 22.1023  Termination for default.

    As provided by the Act, any contractor failure to comply with the 
requirements of the contract clauses related to the Act may be grounds 
for termination for default (see paragraph (k) of the clause at 52.222-
41, Service Contract Act of 1965).

[54 FR 19816, May 8, 1989, as amended at 72 FR 63081, Nov. 7, 2007]



Sec. 22.1024  Cooperation with the Department of Labor.

    The contracting officer shall cooperate with Department of Labor 
representatives in the examination of records, interviews with service 
employees, and all other aspects of investigations undertaken by the 
Department. When asked, agencies shall furnish the Wage and Hour 
Administrator or a designee, any available information on contractors, 
subcontractors, their contracts, and the nature of the contract 
services. The contracting officer shall promptly refer, in writing to 
the appropriate regional office of the Department, apparent violations 
and

[[Page 523]]

complaints received. Employee complaints shall not be disclosed to the 
employer.



Sec. 22.1025  Ineligibility of violators.

    A list of persons or firms found to be in violation of the Act is 
contained in the System for Award Management Exclusions (see 9.404). No 
Government contract may be awarded to any violator so listed because of 
a violation of the Act, or to any firm, corporation, partnership, or 
association in which the violator has a substantial interest, without 
the approval of the Secretary of Labor. This prohibition against award 
to an ineligible contractor applies to both prime and subcontracts.

[54 FR 19816, May 8, 1989, as amended at 60 FR 33066, June 26, 1995; 69 
FR 76349, Dec. 20, 2004; 78 FR 37679, June 21, 2013]



Sec. 22.1026  Disputes concerning labor standards.

    Disputes concerning labor standards requirements of the contract are 
handled under paragraph (t) of the contract clause at 52.222-41, Service 
Contract Act of 1965, and not under the clause at 52.233-1, Disputes.

[54 FR 19816, May 8, 1989, as amended at 61 FR 39198, July 26, 1996; 72 
FR 63081, Nov. 7, 2007]

            Subpart 22.11_Professional Employee Compensation



Sec. 22.1101  Applicability.

    The Service Contract Act of 1965 was enacted to ensure that 
Government contractors compensate their blue-collar service workers and 
some white-collar service workers fairly, but it does not cover bona 
fide executive, administrative, or professional employees.

[48 FR 42258, Sept. 19, 1983, as amended at 51 FR 2665, Jan. 17, 1986; 
57 FR 60582, Dec. 21, 1992; 65 FR 36014, June 6, 2000]



Sec. 22.1102  Definition.

    Professional employee, as used in this subpart, means any person 
meeting the definition of employee employed in a bona fide . . . 
professional capacity given in 29 CFR part 541. The term embraces 
members of those professions having a recognized status based upon 
acquiring professional knowledge through prolonged study. Examples of 
these professions include accountancy, actuarial computation, 
architecture, dentistry, engineering, law, medicine, nursing, pharmacy, 
the sciences (such as biology, chemistry, and physics), and teaching. To 
be a professional employee, a person must not only be a professional but 
must be involved essentially in discharging professional duties.

[48 FR 42258, Sept. 19, 1983, as amended at 66 FR 2130, Jan. 10, 2001]



Sec. 22.1103  Policy, procedures, and solicitation provision.

    All professional employees shall be compensated fairly and properly. 
Accordingly, the contracting officer shall insert the provision at 
52.222-46, Evaluation of Compensation for Professional Employees, in 
solicitations for negotiated contracts when the contract amount is 
expected to exceed $650,000 and services are to be provided which will 
require meaningful numbers of professional employees. This provision 
requires that offerors submit for evaluation a total compensation plan 
setting forth proposed salaries and fringe benefits for professional 
employees working on the contract. Supporting information will include 
data, such as recognized national and regional compensation surveys and 
studies of professional, public and private organizations, used in 
establishing the total compensation structure. Plans indicating 
unrealistically low professional employee compensation may be assessed 
adversely as one of the factors considered in making an award.

[77 FR 75776, Dec. 21, 2012]

    Subpart 22.12_Nondisplacement of Qualified Workers Under Service 
                                Contracts

    Source: 77 FR 75776, Dec. 21, 2012, unless otherwise noted.



Sec. 22.1200  Scope of subpart.

    This subpart prescribes policies and procedures for implementing 
Executive Order 13495 of January 30, 2009, Nondisplacement of Qualified 
Workers Under Service Contracts, and related

[[Page 524]]

Secretary of Labor regulations and instructions (see 29 CFR part 9).



Sec. 22.1201  Definitions.

    As used in this subpart--
    United States means the 50 States, the District of Columbia, Puerto 
Rico, the Northern Mariana Islands, American Samoa, Guam, the U.S. 
Virgin Islands, Johnston Island, Wake Island, and outer Continental 
Shelf as defined in the Outer Continental Shelf Lands Act (43 U.S.C. 
1331, et seq.), but does not include any other place subject to United 
States jurisdiction or any United States base or possession in a foreign 
country (see 29 CFR 4.112).



Sec. 22.1202  Policy.

    (a) When a service contract succeeds a contract for performance of 
the same or similar services, as defined at 29 CFR 9.2, at the same 
location, the successor contractor and its subcontractors are required 
to offer those service employees that are employed under the predecessor 
contract, and whose employment will be terminated as a result of the 
award of the successor contract, a right of first refusal of employment 
under the contract in positions for which they are qualified. Executive 
Order 13495 generally prohibits employment openings under the successor 
contract until such right of first refusal has been provided, when 
consistent with applicable law.
    (b) Nothing in Executive Order 13495 shall be construed to permit a 
contractor or subcontractor to fail to comply with any provision of any 
other Executive order or law. For example, the requirements of the 
HUBZone Program (see subpart 19.13), Executive Order 11246 (Equal 
Employment Opportunity), and the Vietnam Era Veterans' Readjustment 
Assistance Act of 1974 may, in certain circumstances, conflict with the 
requirements of Executive Order 13495. All applicable laws and Executive 
orders must be satisfied in tandem with, and if necessary prior to, the 
requirements of Executive Order 13495 and this subpart.



Sec. 22.1203  Applicability.



Sec. 22.1203-1  General.

    This subpart applies to service contracts that succeed contracts for 
the same or similar services (29 CFR 9.2) at the same location.



Sec. 22.1203-2  Exemptions.

    (a) This subpart does not apply to--
    (1) Contracts and subcontracts under the simplified acquisition 
threshold;
    (2) Contracts or subcontracts awarded pursuant to 41 U.S.C. chapter 
85, Committee for Purchase from People Who Are Blind or Severely 
Disabled;
    (3) Guard, elevator operator, messenger, or custodial services 
provided to the Government under contracts or subcontracts with 
sheltered workshops employing the ``severely handicapped'' as described 
in 40 U.S.C. 593;
    (4) Agreements for vending facilities entered into pursuant to the 
preference regulations issued under the Randolph Sheppard Act, 20 U.S.C. 
107; or
    (5) Service employees who were hired to work under a Federal service 
contract and one or more nonfederal service contracts as part of a 
single job, provided that the service employees were not deployed in a 
manner that was designed to avoid the purposes of this subpart.
    (b) The exemptions in paragraphs (a)(2) through (a)(4) of this 
subsection apply when either the predecessor or successor contract has 
been awarded for services produced or provided by the ``severely 
handicapped.''



Sec. 22.1203-3  Waiver.

    (a) The senior procurement executive of the procuring agency may 
waive some or all of the provisions of this subpart after determining in 
writing that the application of this subpart would not serve the 
purposes of Executive Order 13495 or would impair the ability of the 
Federal Government to procure services on an economical and efficient 
basis. Such waivers may be made for a contract, subcontract, or purchase 
order, or with respect to a class of contracts, subcontracts, or 
purchase orders. See 29 CFR 9.4(d)(4) for regulatory provisions 
addressing circumstances in which a waiver could

[[Page 525]]

or would not be appropriate. The waiver must be reflected in a written 
analysis as described in 29 CFR 9.4(d)(4)(i) and must be completed by 
the contract solicitation date, or the waiver is inoperative. The senior 
procurement executive shall not redelegate this waiver authority.
    (b)(1) When an agency exercises its waiver authority with respect to 
any contract, subcontract, or purchase order, the contracting officer 
shall direct the contractor to notify affected workers and their 
collective bargaining representative in writing, no later than five 
business days after the solicitation issuance date, of the agency's 
determination. The notice shall include facts supporting the 
determination. The contracting officer's failure to direct that the 
contractor provide the notice as provided in this subparagraph shall 
render the waiver decision inoperative, and the contracting officer 
shall include the clause at 52.222-17 in the solicitation.
    (2) Where a contracting agency waives application to a class of 
contracts, subcontracts, or purchase orders, the contracting officer 
shall, with respect to each individual solicitation, direct the 
contractor to notify incumbent workers and their collective bargaining 
representatives in writing, no later than five business days after each 
solicitation issuance date, of the agency's determination. The notice 
shall include facts supporting the determination. The contracting 
officer's failure to direct that the contractor provide the notice 
provided in this subparagraph shall render the waiver decision 
inoperative, and the contracting officer shall include the clause at 
52.222-17 in the solicitation.
    (3) In addition, the agency shall notify the Department of Labor of 
its waiver decision and provide the Department of Labor with a copy of 
its written analysis no later than five business days after the 
solicitation issuance date (see 29 CFR 9.4(d)(2)). Failure to comply 
with this notification requirement shall render the waiver decision 
inoperative, and the contracting officer shall include the clause at 
52.222-17 in the solicitation. The waiver decision and related written 
analysis shall be sent to the following address: U.S. Department of 
Labor, Wage and Hour Division, Branch of Government Contracts 
Enforcement, 200 Constitution Avenue, Room S-3006, Washington, DC 20210, 
or email to: [email protected].



Sec. 22.1203-4  Method of job offer.

    A job offer made by a successor contractor must be a bona fide 
express offer of employment on the contract. Each bona fide express 
offer made to a qualified service employee on the predecessor contract 
must have a stated time limit of not less than 10 days for an employee 
response. Prior to the expiration of the 10-day period, the contractor 
is prohibited from offering employment on the contract to any other 
person, subject to the exceptions at 22.1203-5. Any question concerning 
an employee's qualifications shall be decided based upon the 
individual's education and employment history, with particular emphasis 
on the employee's experience on the predecessor contract, and a 
contractor may utilize employment screening processes only when such 
processes are provided for by the contracting agency, are conditions of 
the service contract, and are consistent with the Executive Order. An 
offer of employment will be presumed to be bona fide even if it is not 
for a position similar to the one the employee previously held, but is 
one for which the employee is qualified, and even if it is subject to 
different employment terms and conditions, including changes to pay or 
benefits. (See 29 CFR 9.12(b) for regulatory provisions addressing 
circumstances in which a bona fide offer of employment can occur.)



Sec. 22.1203-5  Exceptions.

    (a) A successor contractor or its subcontractors are not required to 
offer employment to any service employee of the predecessor contractor 
who--
    (1) Will be retained by the predecessor contractor.
    (2) The successor contractor or any of its subcontractors reasonably 
believes, based on the particular service employee's past performance, 
has failed to perform suitably on the job. (See 29 CFR 9.12(c)(4) for 
regulatory provisions addressing circumstances in which this

[[Page 526]]

exception would or would not be appropriate.)
    (b) A successor contractor or its subcontractors may employ under 
the contract any of its current service employees who (1) have worked 
for the successor contractor or its subcontractors for at least three 
months immediately preceding the commencement of the successor contract, 
and (2) would otherwise face lay-off or discharge.
    (c) The successor contractor bears the responsibility of 
demonstrating the appropriateness of claiming any of the preceding 
exceptions and the exemption listed at 22.1203-2(a)(5) involving 
nonfederal work.



Sec. 22.1203-6  Reduced staffing.

    A successor contractor and its subcontractors may employ fewer 
service employees than the predecessor contractor employed in connection 
with performance of the work. Thus, the successor contractor need not 
offer employment on the contract to all service employees on the 
predecessor contract, but must offer employment only to the number of 
eligible service employees the successor contractor believes necessary 
to meet its anticipated staffing pattern. Where a successor contractor 
does not initially offer employment to all the predecessor contract 
service employees, the obligation to offer employment shall continue for 
90 days after the successor contractor's first date of performance on 
the contract. (See 29 CFR 9.12(d) for regulatory provisions addressing 
circumstances in which reduced staffing can occur.)



Sec. 22.1204  Certified service employee lists.

    (a) Not less than 30 days before completion of the contract, the 
predecessor contractor is required to furnish to the contracting officer 
a certified list of the names of all service employees working under the 
contract and its subcontracts at the time the list is submitted. The 
certified list must also contain anniversary dates of employment of each 
service employee under the contract and subcontracts for services. The 
information on this list is the same as that on the seniority list 
required by paragraph (n) of the clause at 52.222-41, Service Contract 
Act of 1965. If there are no changes to the workforce before the 
predecessor contract is completed, then the predecessor contractor is 
not required to submit a revised list 10 days prior to completion of 
performance and the requirements of 52.222-41(n) are met. When there are 
changes to the workforce after submission of the 30-day list, the 
predecessor contractor shall submit a revised certified list not less 
than 10 days prior to performance completion.
    (b) Immediately upon receipt of the certified service employee list 
but not before contract award, the contracting officer shall provide the 
certified service employee list to the successor contractor, and, if 
requested, to employees of the predecessor contractor or subcontractors 
or their authorized representatives.



Sec. 22.1205  Notification to contractors and service employees.

    (a) The contracting officer shall direct that the predecessor 
contractor provides written notice to service employees of their 
possible right to an offer of employment with the successor contractor. 
The written notice shall be--
    (1) Posted in a conspicuous place at the worksite; or
    (2) Delivered to the service employees individually. If such 
delivery is via email, the notification must result in an electronic 
delivery receipt or some other reliable confirmation that the intended 
recipient received the notice.
    (b) Contracting officers may advise contractors to provide the 
notice in Appendix B to 29 CFR chapter 9. Where a significant portion of 
the predecessor contractor's workforce is not fluent in English, the 
contractor shall provide the notice in English and the language(s) with 
which service employees are more familiar. English and Spanish versions 
of the notice are available on the Department of Labor Web site at 
http://www.dol.gov/whd/govcontracts.



Sec. 22.1206  Remedies and sanctions for violations of this subpart.

    (a) The Secretary of Labor has the authority to issue orders 
prescribing appropriate remedies, including, but not limited to, 
requiring the successor

[[Page 527]]

contractor to offer employment, in positions for which the employees are 
qualified, to service employees from the predecessor contract and 
payment of wages lost. (See 29 CFR 9.24(a)).
    (b) After an investigation (see 29 CFR 9.23) and a determination by 
the Administrator, Wage and Hour Division, Department of Labor, that 
lost wages or other monetary relief is due, the Administrator may direct 
that so much of the accrued payments due on either the contract or any 
other contract between the contractor and the Government shall be 
withheld as are necessary to pay the monies due. Upon the final order of 
the Secretary of Labor that such monies are due, the Administrator may 
direct that such withheld funds be transferred to the Department of 
Labor for disbursement. (See 29 CFR 9.24(c)).
    (c) If the contracting officer or the Administrator, Wage and Hour 
Division, Department of Labor, finds that the predecessor contractor has 
failed to provide the list required by 22.1204, the contracting officer 
may, in his or her discretion, or on request by the Administrator, 
suspend contract payment until such time as the contractor provides the 
list to the contracting officer.
    (d) The Secretary of Labor may also suspend or debar a contractor or 
subcontractor for a period of up to three years for violations of 29 CFR 
part 9.



Sec. 22.1207  Contract clause.

    The contracting officer shall insert the clause at 52.222-17, 
Nondisplacement of Qualified Workers, in solicitations and contracts for 
(1) service contracts, as defined at 22.001, (2) that succeed contracts 
for performance of the same or similar work at the same location and (3) 
that are not exempted by 22.1203-2 or waived in accordance with 22.1203-
3.

              Subpart 22.13_Equal Opportunity for Veterans

    Source: 66 FR 53488, Oct. 22, 2001, unless otherwise noted.



Sec. 22.1300  Scope of subpart.

    This subpart prescribes policies and procedures for implementing the 
following:
    (a) The Vietnam Era Veterans' Readjustment Assistance Act of 1972 
(38 U.S.C. 4211 and 4212) (the Act).
    (b) The Veterans Employment Opportunities Act of 1998, Public Law 
105-339.
    (c) The Jobs for Veterans Act, Public Law 107-288.
    (d) Executive Order 11701, January 24, 1973 (3 CFR, 1971-1975 Comp., 
p. 752).
    (e) The regulations of the Secretary of Labor (41 CFR part 60-250, 
part 61-250, part 60-300, and part 61-300).

[75 FR 60251, Sept. 29, 2010]



Sec. 22.1301  Definitions.

    As used in this subpart--
    Armed Forces service medal veteran means any veteran who, while 
serving on active duty in the U.S. military, ground, naval, or air 
service, participated in a United States military operation for which an 
Armed Forces service medal was awarded pursuant to Executive Order 12985 
(61 FR 1209).
    Disabled veteran means--
    (1) A veteran of the U.S. military, ground, naval, or air service, 
who is entitled to compensation (or who, but for the receipt of military 
retired pay, would be entitled to compensation) under laws administered 
by the Secretary of Veterans Affairs; or
    (2) A person who was discharged or released from active duty because 
of a service-connected disability.
    Executive and senior management means--
    (1) Any employee--
    (i) Compensated on a salary basis at a rate of not less than $455 
per week (or $380 per week, if employed in American Samoa by employers 
other than the Federal Government), exclusive of board, lodging, or 
other facilities;
    (ii) Whose primary duty consists of the management of the enterprise 
in which the individual is employed or of a customarily recognized 
department or subdivision thereof;
    (iii) Who customarily and regularly directs the work of two or more 
other employees; and
    (iv) Who has the authority to hire or fire other employees or whose 
suggestions and recommendations as to the hiring or firing and as to the 
advancement and promotion or any other change of status of other 
employees will be given particular weight; or

[[Page 528]]

    (2) Any employee who owns at least a bona fide 20-percent equity 
interest in the enterprise in which the employee is employed, regardless 
of whether the business is a corporate or other type of organization, 
and who is actively engaged in its management.
    Other protected veteran means a veteran who served on active duty in 
the U.S. military, ground, naval, or air service, during a war or in a 
campaign or expedition for which a campaign badge has been authorized 
under the laws administered by the Department of Defense.
    Qualified disabled veteran means a disabled veteran who has the 
ability to perform the essential functions of the employment positions 
with or without reasonable accommodation.
    Recently separated veteran means any veteran during the three-year 
period beginning on the date of such veteran's discharge or release from 
active duty in the U.S. military, ground, naval, or air service.
    United States, means the 50 States, the District of Columbia, Puerto 
Rico, the Northern Mariana Islands, American Samoa, Guam, the U.S. 
Virgin Islands, and Wake Island.

[75 FR 60251, Sept. 29, 2010, as amended at 76 FR 39234, July 5, 2011]



Sec. 22.1302  Policy.

    (a) Contractors and subcontractors, when entering into contracts or 
subcontracts subject to the Act, must--
    (1) List all employment openings, with the appropriate employment 
service delivery system where the opening occurs, except for--
    (i) Executive and senior management positions;
    (ii) Positions to be filled from within the contractor's 
organization; and
    (iii) Positions lasting three days or less.
    (2) Take affirmative action to employ, advance in employment, and 
otherwise treat qualified individuals, including qualified disabled 
veterans, without discrimination based upon their status as a disabled 
veteran, recently separated veteran, other protected veteran, and Armed 
Forces service medal veteran, in all employment practices.
    (b) Except for contracts for commercial items or contracts that do 
not exceed the simplified acquisition threshold, contracting officers 
must not obligate or expend funds appropriated for the agency for a 
fiscal year to enter into a contract for the procurement of personal 
property and nonpersonal services (including construction) with a 
contractor that has not submitted the required annual form VETS-100, 
Federal Contractor Veterans' Employment Report (VETS-100 Report and/or 
VETS-100A Report), with respect to the preceding fiscal year if the 
contractor was subject to the reporting requirements of 38 U.S.C. 
4212(d) for that fiscal year.

[75 FR 60251, Sept. 29, 2010]



Sec. 22.1303  Applicability.

    (a) The Act applies to all contracts and subcontracts for personal 
property and nonpersonal services (including construction) of $100,000 
or more except as waived by the Secretary of Labor.
    (b) The requirements of the clause at 52.222-35, Equal Opportunity 
for Veterans, in any contract with a State or local government (or any 
agency, instrumentality, or subdivision) do not apply to any agency, 
instrumentality, or subdivision of that government that does not 
participate in work on or under the contract.
    (c) The Act requires submission of the VETS-100A Report in all cases 
where the contractor or subcontractor has received an award of $100,000 
or more, except for awards to State and local governments, and foreign 
organizations where the workers are recruited outside of the United 
States.

[66 FR 53488, Oct. 22, 2001, as amended at 71 FR 57368, Sept. 28, 2006; 
75 FR 60251, Sept. 29, 2010]



Sec. 22.1304  Procedures.

    To verify if a proposed contractor is current with its submission of 
the VETS-100 and/or the VETS-100A Report, the contracting officer may--
    (a) Query the Department of Labor's VETS-100 Database via the 
Internet at https://webapps.dol.gov/vets100. Contracting officer 
organization, name, e-mail, telephone, and password information are 
required on the Contracting

[[Page 529]]

Officer Registration page to register for system use.
    (b) Contact the VETS-100 Reporting Systems via e-mail at 
[email protected] for confirmation, if the proposed contractor 
represents that it has submitted the VETS-100 Report and is not listed 
in the database.

[66 FR 53488, Oct. 22, 2001, as amended at 71 FR 67779, Nov. 22, 2006; 
75 FR 60251, Sept. 29, 2010; 77 FR 204, Jan. 3, 2012]



Sec. 22.1305  Waivers.

    (a) The Director, Office of Federal Contract Compliance Programs, 
Department of Labor, may waive any or all of the terms of the clause at 
52.222-35, Equal Opportunity for Veterans, for--
    (1) Any contract if a waiver is in the national interest; or
    (2) Groups or categories of contracts if a waiver is in the national 
interest and it is--
    (i) Impracticable to act on each request individually; and
    (ii) Determined that the waiver will substantially contribute to 
convenience in administering the Act.
    (b) The head of the agency may waive any requirement in this subpart 
when it is determined that the contract is essential to the national 
security, and that its award without complying with such requirements is 
necessary to the national security. Upon making such a determination, 
the head of the agency must notify the Deputy Assistant Secretary of 
Labor in writing within 30 days.
    (c) The contracting officer must submit requests for waivers in 
accordance with agency procedures.
    (d) The Deputy Assistant Secretary of Labor may withdraw an approved 
waiver for a specific contract or group of contracts to be awarded, when 
in the Deputy's judgment such action is necessary to achieve the 
purposes of the Act. The withdrawal does not apply to awarded contracts. 
For procurements entered into by sealed bidding, such withdrawal does 
not apply unless the withdrawal is made more than 10 calendar days 
before the date set for the opening of bids.

[66 FR 53488, Oct. 22, 2001, as amended at 75 FR 60251, Sept. 29, 2010]



Sec. 22.1306  Department of Labor notices and reports.

    (a) The contracting officer must furnish to the contractor 
appropriate notices for posting when they are prescribed by the Deputy 
Assistant Secretary of Labor (see http://www.dol.gov/ofccp/regs/
compliance/posters/ofccpost.htm.
    (b) The Act requires contractors and subcontractors to submit a 
report at least annually to the Secretary of Labor regarding employment 
of disabled veterans, recently separated veterans, other protected 
veterans, and Armed Forces service medal veterans, unless all of the 
terms of the clause at 52.222-35, Equal Opportunity for Veterans, have 
been waived (see 22.1305). The contractor and subcontractor must use 
form VETS-100A, Federal Contractor Veterans' Employment Report, to 
submit the required reports (see https://webapps.dol.gov/vets100.

[75 FR 60251, Sept. 29, 2010, as amended at 77 FR 204, Jan. 3, 2012]



Sec. 22.1307  Collective bargaining agreements.

    If performance under the clause at 52.222-35, Equal Opportunity for 
Veterans, may necessitate a revision of a collective bargaining 
agreement, the contracting officer must advise the affected labor unions 
that the Department of Labor will give them appropriate opportunity to 
present their views. However, neither the contracting officer nor any 
representative of the contracting officer may discuss with the 
contractor or any labor representative any aspect of the collective 
bargaining agreement.

[66 FR 53488, Oct. 22, 2001, as amended at 75 FR 60251, Sept. 29, 2010]



Sec. 22.1308  Complaint procedures.

    Following agency procedures, the contracting office must forward any 
complaints received about the administration of the Act to the Veterans' 
Employment and Training Service of the Department of Labor, or to the 
Director, Office of Federal Contract Compliance Programs, 200 
Constitution Avenue, NW., Washington, DC 20210, or to any OFCCP 
regional, district, or area office or through the local Veterans'

[[Page 530]]

Employment Representative or designee, at the local State employment 
office. The Director, Office of Federal Contract Compliance Programs, is 
responsible for investigating complaints.

[75 FR 60251, Sept. 29, 2010]



Sec. 22.1309  Actions because of noncompliance.

    The contracting officer must take necessary action as soon as 
possible upon notification by the appropriate agency official to 
implement any sanctions imposed on a contractor by the Department of 
Labor for violations of the clause at 52.222-35, Equal Opportunity for 
Veterans. These sanctions (see 41 CFR 60-300.66) may include--
    (a) Withholding progress payments;
    (b) Termination or suspension of the contract; or
    (c) Debarment of the contractor.

[66 FR 53488, Oct. 22, 2001, as amended at 75 FR 60252, Sept. 29, 2010]



Sec. 22.1310  Solicitation provision and contract clauses.

    (a)(1) Insert the clause at 52.222-35, Equal Opportunity for 
Veterans, in solicitations and contracts if the expected value is 
$100,000 or more, except when--
    (i) Work is performed outside the United States by employees 
recruited outside the United States; or
    (ii) The Director, Office of Federal Contract Compliance Programs, 
has waived, in accordance with 22.1305(a) or the head of the agency has 
waived, in accordance with 22.1305(b) all of the terms of the clause.
    (2) If the Director, Office of Federal Contract Compliance Programs, 
or the head of the agency waives one or more (but not all) of the terms 
of the clause, use the basic clause with its Alternate I.
    (b) Insert the clause at 52.222-37, Employment Reports on Veterans, 
in solicitations and contracts containing the clause at 52.222-35, Equal 
Opportunity for Veterans.
    (c) Insert the provision at 52.222-38, Compliance with Veterans' 
Employment Reporting Requirements, in solicitations when it is 
anticipated the contract award will exceed the simplified acquisition 
threshold and the contract is not for acquisition of commercial items.

[66 FR 53488, Oct. 22, 2001, as amended at 71 FR 57368, Sept. 28, 2006; 
75 FR 60252, Sept. 29, 2010]

          Subpart 22.14_Employment of Workers with Disabilities



Sec. 22.1400  Scope of subpart.

    This subpart prescribes policies and procedures for implementing 
Section 503 of the Rehabilitation Act of l973, as amended (29 U.S.C. 
793) (the Act); Executive Order 11758, January 15, 1974; and the 
regulations of the Secretary of Labor (41 CFR part 60-741). In this 
subpart, the terms contract and contractor include subcontract and 
subcontractor.



Sec. 22.1401  Policy.

    Government contractors, when entering into contracts subject to the 
Act, are required to take affirmative action to employ, and advance in 
employment, qualified individuals with disabilities, without 
discrimination based on their physical or mental disability.

[63 FR 34074, June 22, 1998]



Sec. 22.1402  Applicability.

    (a) Section 503 of the Act applies to all Government contracts in 
excess of $15,000 for supplies and services (including construction) 
except as waived by the Secretary of Labor. The clause at 52.222-36, 
Affirmative Action for Workers with Disabilities, implements the Act.
    (b) The requirements of the clause at 52.222-36, Affirmative Action 
for Workers with Disabilities, in any contract with a State or local 
government (or any agency, instrumentality, or subdivision) shall not 
apply to any agency, instrumentality, or subdivision of that government 
that does not participate in work on or under the contract.

[63 FR 34074, June 22, 1998, as amended at 75 FR 53133, Aug. 30, 2010]



Sec. 22.1403  Waivers.

    (a) The agency head, with the concurrence of the Deputy Assistant 
Secretary for Federal Contract Compliance of the U.S. Department of 
Labor (Deputy Assistant Secretary), may

[[Page 531]]

waive any or all of the terms of the clause at 52.222-36, Affirmative 
Action for Workers with Disabilities, for--
    (1) Any contract if a waiver is deemed to be in the national 
interest; or
    (2) Groups or categories of contracts if a waiver is in the national 
interest and it is--
    (i) Impracticable to act on each request individually; and
    (ii) Determined that the waiver will substantially contribute to 
convenience in administering the Act.
    (b)(1) The head of a civilian agency, with the concurrence of the 
Deputy Assistant Secretary, or, (2) the Secretary of Defense, may waive 
any requirement in this subpart when it is determined that the contract 
is essential to the national security, and that its award without 
complying with such requirements is necessary to the national security. 
Upon making such a determination, the head of a civilian agency shall 
notify the Deputy Assistant Secretary in writing within 30 days.
    (c) The contracting officer shall submit requests for waivers in 
accordance with agency procedures.
    (d) A waiver granted for a particular class of contracts may be 
withdrawn for any contract within that class whenever considered 
necessary by the Deputy Assistant Secretary to achieve the purposes of 
the Act. The withdrawal shall not apply to contracts awarded before the 
withdrawal. The withdrawal shall not apply to solicitations under any 
means of formal sealed bidding unless it is made more than 10 days 
before the date set for bid opening.

[48 FR 42258, Sept. 19, 1983, as amended at 52 FR 19803, May 27, 1987; 
63 FR 34074, June 22, 1998]



Sec. 22.1404  Department of Labor notices.

    The contracting officer shall furnish to the contractor appropriate 
notices that state the contractor's obligations and the rights of 
individuals with disabilities. The contracting officer may obtain these 
notices from the Office of Federal Contract Compliance Programs (OFCCP) 
regional office.

[63 FR 34074, June 22, 1998]



Sec. 22.1405  Collective bargaining agreements.

    If performance under the clause at 52.222-36, Affirmative Action for 
Workers with Disabilities, may necessitate a revision of a collective 
bargaining agreement, the contracting officer shall advise the affected 
labor unions that the Department of Labor will give them appropriate 
opportunity to present their views. However, neither the contracting 
officer nor any representative of the contracting officer shall discuss 
with the contractor or any labor representative any aspect of the 
collective bargaining agreement.

[48 FR 42258, Sept. 19, 1983, as amended at 63 FR 34074, June 22, 1998]



Sec. 22.1406  Complaint procedures.

    Following agency procedures, the contracting office shall forward 
any complaints received about the administration of the Act to the 
Deputy Assistant Secretary for Federal Contract Compliance, 200 
Constitution Avenue, NW., Washington, DC 20210, or to any OFCCP regional 
or area office. The OFCCP shall institute investigation of each 
complaint and shall be responsible for developing a complete case 
record.

[48 FR 42258, Sept. 19, 1983, as amended at 63 FR 34074, June 22, 1998]



Sec. 22.1407  Actions because of noncompliance.

    The contracting officer shall take necessary action, as soon as 
possible upon notification by the appropriate agency official, to 
implement any sanctions imposed on a contractor by the Department of 
Labor for violations of the clause at 52.222-36, Affirmative Action for 
Workers with Disabilities. These sanctions (see 41 CFR 60-741.66) may 
include--
    (a) Withholding from payments otherwise due;
    (b) Termination or suspension of the contract; or
    (c) Debarment of the contractor.

[48 FR 42258, Sept. 19, 1983, as amended at 63 FR 34074, June 22, 1998]

[[Page 532]]



Sec. 22.1408  Contract clause.

    (a) Insert the clause at 52.222-36, Affirmative Action for Workers 
with Disabilities, in solicitations and contracts that exceed or are 
expected to exceed $15,000, except when--
    (1) Both the performance of the work and the recruitment of workers 
will occur outside the United States, Puerto Rico, the Northern Mariana 
Islands, American Samoa, Guam, the U.S. Virgin Islands, and Wake Island; 
or
    (2) The agency head has waived, in accordance with 22.1403(a) or 
22.1403(b) all the terms of the clause.
    (b) If the agency head waives one or more (but not all) of the terms 
of the clause in accordance with 22.1403(a) or 22.1403(b), use the basic 
clause with its Alternate I.

[48 FR 42258, Sept. 19, 1983, as amended at 63 FR 34074, June 22, 1998; 
68 FR 28082, May 22, 2003; 75 FR 53133, Aug. 30, 2010]

Subpart 22.15_Prohibition of Acquisition of Products Produced by Forced 
                        or Indentured Child Labor

    Source: 66 FR 5347, Jan. 18, 2001, unless otherwise noted.



Sec. 22.1500  Scope.

    This subpart applies to acquisitions of supplies that exceed the 
micro-purchase threshold.



Sec. 22.1501  Definitions.

    As used in this subpart--
    Forced or indentured child labor means all work or service--
    (1) Exacted from any person under the age of 18 under the menace of 
any penalty for its nonperformance and for which the worker does not 
offer himself voluntarily; or
    (2) Performed by any person under the age of 18 pursuant to a 
contract the enforcement of which can be accomplished by process or 
penalties.
    List of Products Requiring Contractor Certification as to Forced or 
Indentured Child Labor means the list published by the Department of 
Labor in accordance with Executive Order 13126 of June 12, 1999, 
Prohibition of Acquisition of Products Produced by Forced or Indentured 
Child Labor. The list identifies products, by their country of origin, 
that the Departments of Labor, Treasury, and State have a reasonable 
basis to believe might have been mined, produced, or manufactured by 
forced or indentured child labor.



Sec. 22.1502  Policy.

    Agencies must take appropriate action to enforce the laws 
prohibiting the manufacture or importation of products that have been 
mined, produced, or manufactured wholly or in part by forced or 
indentured child labor (19 U.S.C. 1307, 29 U.S.C. 201, et seq., and 41 
U.S.C. 35, et seq.). Agencies should make every effort to avoid 
acquiring such products.



Sec. 22.1503  Procedures for acquiring end products on the List of 
          Products Requiring Contractor Certification as to Forced or 
          Indentured Child Labor.

    (a) When issuing a solicitation for supplies expected to exceed the 
micro-purchase threshold, the contracting officer must check the List of 
Products Requiring Contractor Certification as to Forced or Indentured 
Child Labor (the List) (www.dol.gov/ilab/) (see 22.1505(a)). Appearance 
of a product on the List is not a bar to purchase of any such product 
mined, produced, or manufactured in the identified country, but rather 
is an alert that there is a reasonable basis to believe that such 
product may have been mined, produced, or manufactured by forced or 
indentured child labor.
    (b) The requirements of this subpart that result from the appearance 
of any end product on the List do not apply to a solicitation or 
contract if the identified country of origin on the List is--
    (1) Canada, and the anticipated value of the acquisition is $25,000 
or more (see Subpart 25.4);
    (2) Israel, and the anticipated value of the acquisition is $50,000 
or more (see 25.406);
    (3) Mexico, and the anticipated value of the acquisition is $77,494 
or more (see Subpart 25.4); or
    (4) Armenia, Aruba, Austria, Belgium, Bulgaria, Cyprus, Czech 
Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong Kong, 
Hungary, Iceland, Ireland, Italy,

[[Page 533]]

Japan, Korea, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, 
Netherlands, Norway, Poland, Portugal, Romania, Singapore, Slovak 
Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan, or the United 
Kingdom and the anticipated value of the acquisition is $202,000 or more 
(see 25.402(b)).
    (c) Except as provided in paragraph (b) of this section, before the 
contracting officer may make an award for an end product (regardless of 
country of origin) of a type identified by country of origin on the List 
the offeror must certify that--
    (1) It will not supply any end product on the List that was mined, 
produced, or manufactured in a country identified on the List for that 
product, as specified in the solicitation by the contracting officer in 
the Certification Regarding Knowledge of Child Labor for Listed End 
Products; or
    (2)(i) It has made a good faith effort to determine whether forced 
or indentured child labor was used to mine, produce, or manufacture any 
end product to be furnished under the contract that is on the List and 
was mined, produced, or manufactured in a country identified on the List 
for that product; and
    (ii) On the basis of those efforts, the offeror is unaware of any 
such use of child labor.
    (d) Absent any actual knowledge that the certification is false, the 
contracting officer must rely on the offerors' certifications in making 
award decisions.
    (e) Whenever a 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 paragraph (c) of this section, the contracting 
officer must refer the matter for investigation by the agency's 
Inspector General, the Attorney General, or the Secretary of the 
Treasury, whichever is determined appropriate in accordance with agency 
procedures, except to the extent that the end product is from the 
country listed in paragraph (b) of this section, under a contract 
exceeding the applicable threshold.
    (f) Proper certification will not prevent the head of an agency from 
imposing remedies in accordance with section 22.1504(a)(4) if it is 
later discovered that the contractor has furnished an end product or 
component that has in fact been mined, produced, or manufactured, wholly 
or in part, using forced or indentured child labor.

[66 FR 5347, Jan. 18, 2001, as amended at 66 FR 65371, Dec. 18, 2001; 67 
FR 56123, 56126, Aug. 30, 2002; 69 FR 1053, Jan. 7, 2004; 69 FR 34240, 
June 18, 2004;69 FR 77872, Dec. 28, 2004; 71 FR 865, Jan. 5, 2006; 72 FR 
46358, Aug. 17, 2007; 73 FR 10963, Feb. 28, 2008; 74 FR 40462, Aug. 11, 
2009; 75 FR 38690, July 2, 2010; 77 FR 12934, 12936, Mar. 2, 2012]



Sec. 22.1504  Violations and remedies.

    (a) Violations. The Government may impose remedies set forth in 
paragraph (b) of this section for the following violations (note that 
the violations in paragraphs (a)(3) and (a)(4) of this section go beyond 
violations of the requirements relating to certification of end 
products) (see 22.1503):
    (1) The contractor has submitted a false certification regarding 
knowledge of the use of forced or indentured child labor.
    (2) The contractor has failed to cooperate as required in accordance 
with the clause at 52.222-19, Child Labor Cooperation with Authorities 
and Remedies, with an investigation of the use of forced or indentured 
child labor by an Inspector General, the Attorney General, or the 
Secretary of the Treasury.
    (3) The contractor uses forced or indentured child labor in its 
mining, production, or manufacturing processes.
    (4) The contractor has furnished an end product or component mined, 
produced, or manufactured, wholly or in part, by forced or indentured 
child labor. Remedies in paragraphs (b)(2) and (b)(3) of this section 
are inappropriate unless the contractor knew of the violation.
    (b) Remedies. (1) The contracting officer may terminate the 
contract.
    (2) The suspending official may suspend the contractor in accordance 
with the procedures in subpart 9.4.

[[Page 534]]

    (3) The debarring official may debar the contractor for a period not 
to exceed 3 years in accordance with the procedures in subpart 9.4.



Sec. 22.1505  Solicitation provision and contract clause.

    (a) Except as provided in paragraph (b) of 22.1503, insert the 
provision at 52.222-18, Certification Regarding Knowledge of Child Labor 
for Listed End Products, in all solicitations that are expected to 
exceed the micro-purchase threshold and are for the acquisition of end 
products (regardless of country of origin) of a type identified by 
country of origin on the List of Products Requiring Contractor 
Certification as to Forced or Indentured Child Labor, except 
solicitations for commercial items that include the provision at 52.212-
3, Offeror Representations and Certifications--Commercial Items. The 
contracting officer must identify in paragraph (b) of the provision at 
52.222-18, Certification Regarding Knowledge of Child Labor for Listed 
End Products, or paragraph (i)(1) of the provision at 52.212-3, any 
applicable end products and countries of origin from the List. For 
solicitations estimated to equal or exceed $25,000, the contracting 
officer must exclude from the List in the solicitation end products from 
any countries identified at 22.1503(b), in accordance with the specified 
thresholds.
    (b) Insert the clause at 52.222-19, Child Labor--Cooperation with 
Authorities and Remedies, in all solicitations and contracts for the 
acquisition of supplies that are expected to exceed the micro-purchase 
threshold.

 Subpart 22.16_Notification of Employee Rights Under the National Labor 
                              Relations Act

    Source: 75 FR 77725, Dec. 13, 2010, unless otherwise noted.



Sec. 22.1600  Scope of subpart.

    This subpart prescribes policies and procedures to implement 
Executive Order 13496, dated January 30, 2009 (74 FR 6107, February 4, 
2009).



Sec. 22.1601  Definitions.

    As used in this subpart--
    Secretary means the Secretary of Labor, U.S. Department of Labor.
    United States means the 50 States, the District of Columbia, Puerto 
Rico, the Commonwealth of the Northern Mariana Islands, American Samoa, 
Guam, the U.S. Virgin Islands, and Wake Island.



Sec. 22.1602  Policy.

    (a) Executive Order 13496 requires contractors to post a notice 
informing employees of their rights under Federal labor laws.
    (b) The Secretary has determined that the notice must contain 
employee rights under the National Labor Relations Act (Act), 29 U.S.C. 
151 et seq. The Act encourages collective bargaining, and protects the 
exercise by employees of their freedom to associate, to self-organize, 
and to designate representatives of their own choosing for the purpose 
of negotiating the terms and conditions of their employment or other 
mutual aid or protection.



Sec. 22.1603  Exceptions.

    (a) The requirements of this subpart do not apply to--
    (1) Contracts under the simplified acquisition threshold;
    (2) Subcontracts of $10,000 or less; and
    (3) Contracts or subcontracts for work performed exclusively outside 
the United States.
    (b) Exemptions granted by the Secretary. (1) If the Secretary finds 
that the requirements of the Executive Order impair the ability of the 
Government to procure goods and services on an economical and efficient 
basis or if special circumstances require an exemption in order to serve 
the national interest, the Secretary may exempt a contracting department 
or agency, or groups of departments or agencies, from the requirements 
of any or all of the provisions of this Executive Order with respect to 
a particular contract or subcontract, or any class of contracts or 
subcontracts, including the requirement to include the clause at 52.222-
40, or parts of that clause, in contracts.

[[Page 535]]

    (2) Requests for exemptions may be submitted in accordance with 
Department of Labor regulations at 29 CFR 471.3.



Sec. 22.1604  Compliance evaluation and complaint investigations and 
          sanctions for violations.

    (a) The Secretary may conduct compliance evaluations or investigate 
complaints of any contractor or subcontractor to determine if any of the 
requirements of the clause at 52.222-40 have been violated.
    (b) Contracting departments and agencies shall cooperate with the 
Secretary and provide such information and assistance as the Secretary 
may require in the performance of the Secretary's functions.
    (c) If the Secretary determines that there has been a violation, the 
Secretary may take such actions as set forth in 29 CFR 471.14.
    (d) The Secretary may not terminate or suspend a contract or suspend 
or debar a contractor if the agency head has provided written 
objections, which must include a statement of reasons for the objection 
and a finding that the contractor's performance is essential to the 
agency's mission, and continues to object to the imposition of such 
sanctions and penalties. Procedures for enforcement by the Secretary are 
set out in 29 CFR 471.10 through 29 CFR 471.16.



Sec. 22.1605  Contract clause.

    (a) Insert the clause at 52.222-40, Notification of Employee Rights 
under the National Labor Relations Act, in all solicitations and 
contracts, including acquisitions for commercial items and commercially 
available off-the-shelf items, except acquisitions--
    (1) Under the simplified acquisition threshold. For indefinite-
quantity contracts, include the clause only if the value of orders in 
any calendar year of the contract is expected to exceed the simplified 
acquisition threshold;
    (2) For work performed exclusively outside the United States; or
    (3) Covered (in their entirety) by an exemption granted by the 
Secretary.
    (b) A contracting agency may modify the clause at 52.222-40, if 
necessary, to reflect an exemption granted by the Secretary (see 
22.1603(b)).

             Subpart 22.17_Combating Trafficking in Persons

    Source: 71 FR 20302, Apr. 19, 2006, unless otherwise noted.



Sec. 22.1700  Scope of subpart.

    This subpart prescribes policy for implementing 22 U.S.C. 7104.

[71 FR 20302, Apr. 19, 2006, as amended at 72 FR 46341, Aug. 17, 2007]



Sec. 22.1701  Applicability.

    This subpart applies to all acquisitions.

[71 FR 20302, Apr. 19, 2006, as amended at 72 FR 46341, Aug. 17, 2007]



Sec. 22.1702  Definitions.

    As used in this subpart--
    Coercion means--
    (1) Threats of serious harm to or physical restraint against any 
person;
    (2) Any scheme, plan, or pattern intended to cause a person to 
believe that failure to perform an act would result in serious harm to 
or physical restraint against any person; or
    (3) The abuse or threatened abuse of the legal process.
    Commercial sex act means any sex act on account of which anything of 
value is given to or received by any person.
    Debt bondage means the status or condition of a debtor arising from 
a pledge by the debtor of his or her personal services or of those of a 
person under his or her control as a security for debt, if the value of 
those services as reasonably assessed is not applied toward the 
liquidation of the debt or the length and nature of those services are 
not respectively limited and defined.
    Employee means an employee of the Contractor directly engaged in the 
performance of work under the contract who has other than a minimal 
impact or involvement in contract performance.
    Involuntary servitude includes a condition of servitude induced by 
means of--
    (1) Any scheme, plan, or pattern intended to cause a person to 
believe that, if the person did not enter into or

[[Page 536]]

continue in such conditions, that person or another person would suffer 
serious harm or physical restraint; or
    (2) The abuse or threatened abuse of the legal process.
    Forced labor means knowingly providing or obtaining the labor or 
services of a person--
    (1) By threats of serious harm to, or physical restraint against, 
that person or another person;
    (2) By means of any scheme, plan, or pattern intended to cause the 
person to believe that, if the person did not perform such labor or 
services, that person or another person would suffer serious harm or 
physical restraint; or
    (3) By means of the abuse or threatened abuse of law or the legal 
process.
    Severe forms of trafficking in persons means--
    (1) Sex trafficking in which a commercial sex act is induced by 
force, fraud, or coercion, or in which the person induced to perform 
such act has not attained 18 years of age; or
    (2) The recruitment, harboring, transportation, provision, or 
obtaining of a person for labor or services, through the use of force, 
fraud, or coercion for the purpose of subjection to involuntary 
servitude, peonage, debt bondage, or slavery.
    Sex trafficking means the recruitment, harboring, transportation, 
provision, or obtaining of a person for the purpose of a commercial sex 
act.

[71 FR 20302, Apr. 19, 2006, as amended at 72 FR 46341, Aug. 17, 2007; 
74 FR 2744, Jan. 15, 2009]



Sec. 22.1703  Policy.

    The United States Government has adopted a zero tolerance policy 
regarding trafficking in persons. Additional information about 
trafficking in persons may be found at the website for the Department of 
State's Office to Monitor and Combat Trafficking in Persons' at http://
www.state.gov/g/tip. Government contracts shall--
    (a) Prohibit contractors, contractor employees, subcontractors, and 
subcontractor employees from--
    (1) Engaging in severe forms of trafficking in persons during the 
period of performance of the contract;
    (2) Procuring commercial sex acts during the period of performance 
of the contract; or
    (3) Using forced labor in the performance of the contract;
    (b) Require contractors and subcontractors to notify employees of 
the prohibited activities described in paragraph (a) of this section and 
the actions that may be taken against them for violations; and
    (c) Impose suitable remedies, including termination, on contractors 
that fail to comply with the requirements of paragraphs (a) and (b) of 
this section.

[72 FR 46341, Aug. 17, 2007, as amended at 74 FR 2744, Jan. 15, 2009]



Sec. 22.1704  Violations and remedies.

    (a) Violations. The Government may impose the remedies set forth in 
paragraph (b) of this section if--
    (1) The contractor, contractor employee, subcontractor, or 
subcontractor employee engages in severe forms of trafficking in persons 
during the period of performance of the contract;
    (2) The contractor, contractor employee, subcontractor, or 
subcontractor employee procures a commercial sex act during the period 
of performance of the contract;
    (3) The contractor, contractor employee, subcontractor, or 
subcontractor employee uses forced labor in the performance of the 
contract; or
    (4) The contractor fails to comply with the requirements of the 
clause at 52.222-50, Combating Trafficking in Persons.
    (b) Remedies. After determining in writing that adequate evidence 
exists to suspect any of the violations at paragraph (a) of this 
section, the contracting officer may pursue any of the remedies 
specified in paragraph (e) of the clause at 52.222-50, Combating 
Trafficking in Persons. The contracting officer may take into 
consideration whether the contractor had a Trafficking in Persons 
awareness program at the time of the violation as a mitigating factor 
when determining the appropriate remedies. These remedies are in 
addition to any other remedies

[[Page 537]]

available to the United States Government.

[72 FR 46341, Aug. 17, 2007, as amended at 74 FR 2744, Jan. 15, 2009]



Sec. 22.1705  Contract clause.

    (a) Insert the clause at 52.222-50, Combating Trafficking in 
Persons, in all solicitations and contracts.
    (b) Use the basic clause with its Alternate I when the contract will 
be performed outside the United States (as defined at 25.003) and the 
contracting officer has been notified of specific U.S. directives or 
notices regarding combating trafficking in persons (such as general 
orders or military listings of ``off-limits'' local establishments) that 
apply to contractor employees at the contract place of performance.

[72 FR 46341, Aug. 17, 2007]

            Subpart 22.18_Employment Eligibility Verification

    Source: 73 FR 67703, Nov. 14, 2008, unless otherwise noted.



Sec. 22.1800  Scope.

    This subpart prescribes policies and procedures requiring 
contractors to utilize the Department of Homeland Security (DHS), United 
States Citizenship and Immigration Service's employment eligibility 
verification program (E-Verify) as the means for verifying employment 
eligibility of certain employees.



Sec. 22.1801  Definitions.

    As used in this subpart--
    Commercially available off-the-shelf (COTS) item--
    (1) Means any item of supply that is--
    (i) A commercial item (as defined in paragraph (1) of the definition 
at 2.101);
    (ii) Sold in substantial quantities in the commercial marketplace; 
and
    (iii) Offered to the Government, without modification, in the same 
form in which it is sold in the commercial marketplace; and
    (2) Does not include bulk cargo, as defined in 46 U.S.C. 40102(4), 
such as agricultural products and petroleum products. Per 46 CFR 525.1 
(c)(2), ``bulk cargo'' means cargo that is loaded and carried in bulk 
onboard ship without mark or count, in a loose unpackaged form, having 
homogenous characteristics. Bulk cargo loaded into intermodal equipment, 
except LASH or Seabee barges, is subject to mark and count and, 
therefore, ceases to be bulk cargo.
    Employee assigned to the contract means an employee who was hired 
after November 6, 1986 (after November 27, 2009, in the Commonwealth of 
the Northern Mariana Islands), who is directly performing work, in the 
United States, under a contract that is required to include the clause 
prescribed at 22.1803. An employee is not considered to be directly 
performing work under a contract if the employee--
    (1) Normally performs support work, such as indirect or overhead 
functions; and
    (2) Does not perform any substantial duties applicable to the 
contract.
    Subcontract means any contract, as defined in 2.101, entered into by 
a subcontractor to furnish supplies or services for performance of a 
prime contract or a subcontract. It includes but is not limited to 
purchase orders, and changes and modifications to purchase orders.
    Subcontractor means any supplier, distributor, vendor, or firm that 
furnishes supplies or services to or for a prime contractor or another 
subcontractor.
    United States, as defined in 8 U.S.C. 1101(a)(38), means the 50 
States, the District of Columbia, Puerto Rico, Guam, the Commonwealth of 
the Northern Mariana Islands and the U.S. Virgin Islands.

[73 FR 67703, Nov. 14, 2008, as amended at 77 FR 44066, July 26, 2012; 
78 FR 46795, Aug. 1, 2013]



Sec. 22.1802  Policy.

    (a) Statutes and Executive orders require employers to abide by the 
immigration laws of the United States and to employ in the United States 
only individuals who are eligible to work in the United States. The E-
Verify program provides an Internet-based means of verifying employment 
eligibility of workers employed in the United States, but is not a 
substitute for any other employment eligibility verification 
requirements.

[[Page 538]]

    (b) Contracting officers shall include in solicitations and 
contracts, as prescribed at 22.1803, requirements that Federal 
contractors must--
    (1) Enroll as Federal contractors in E-Verify;
    (2) Use E-Verify to verify employment eligibility of all new hires 
working in the United States, except that the contractor may choose to 
verify only new hires assigned to the contract if the contractor is--
    (i) An institution of higher education (as defined at 20 U.S.C. 
1001(a));
    (ii) A State or local government or the government of a Federally 
recognized Indian tribe; or
    (iii) A surety performing under a takeover agreement entered into 
with a Federal agency pursuant to a performance bond;
    (3) Use E-Verify to verify employment eligibility of all employees 
assigned to the contract; and
    (4) Include these requirements, as required by the clause at 52.222-
54, in subcontracts for--
    (i) Commercial or noncommercial services, except for commercial 
services that are part of the purchase of a COTS item (or an item that 
would be a COTS item, but for minor modifications), performed by the 
COTS provider, and are normally provided for that COTS item; and
    (ii) Construction.
    (c) Contractors may elect to verify employment eligibility of all 
existing employees working in the United States who were hired after 
November 6, 1986 (after November 27, 2009, in the Commonwealth of the 
Northern Mariana Islands), instead of just those employees assigned to 
the contract. The contractor is not required to verify employment 
eligibility of--
    (1) Employees who hold an active security clearance of confidential, 
secret, or top secret; or
    (2) Employees for whom background investigations have been completed 
and credentials issued pursuant to Homeland Security Presidential 
Directive (HSPD)-12.
    (d) In exceptional cases, the head of the contracting activity may 
waive the E-Verify requirement for a contract or subcontract or a class 
of contracts or subcontracts, either temporarily or for the period of 
performance. This waiver authority may not be delegated.
    (e) DHS and the Social Security Administration (SSA) may terminate a 
contractor's MOU and deny access to the E-Verify system in accordance 
with the terms of the MOU. If DHS or SSA terminates a contractor's MOU, 
the terminating agency must refer the contractor to a suspension or 
debarment official for possible suspension or debarment action. During 
the period between termination of the MOU and a decision by the 
suspension or debarment official whether to suspend or debar, the 
contractor is excused from its obligations under paragraph (b) of the 
clause at 52.222-54. If the contractor is suspended or debarred as a 
result of the MOU termination, the contractor is not eligible to 
participate in E-Verify during the period of its suspension or 
debarment. If the suspension or debarment official determines not to 
suspend or debar the contractor, then the contractor must reenroll in E-
Verify.

[73 FR 67703, Nov. 14, 2008, as amended at 77 FR 44066, July 26, 2012]



Sec. 22.1803  Contract clause.

    Insert the clause at 52.222-54, Employment Eligibility Verification, 
in all solicitations and contracts that exceed the simplified 
acquisition threshold, except those that--
    (a) Are only for work that will be performed outside the United 
States;
    (b) Are for a period of performance of less than 120 days; or
    (c) Are only for--
    (1) Commercially available off-the-shelf items;
    (2) Items that would be COTS items, but for minor modifications (as 
defined at paragraph (3)(ii) of the definition of ``commercial item'' at 
2.101);
    (3) Items that would be COTS items if they were not bulk cargo; or
    (4) Commercial services that are--
    (i) Part of the purchase of a COTS item (or an item that would be a 
COTS item, but for minor modifications);
    (ii) Performed by the COTS provider; and
    (iii) Are normally provided for that COTS item.

[[Page 539]]

   PART 23_ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY 
       TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

Sec.

Sec. 23.000 Scope.

Sec. 23.001 Definitions.

Sec. 23.002 Policy.

               Subpart 23.1_Sustainable Acquisition Policy


Sec. 23.101 Definition.

Sec. 23.102 Authorities.

Sec. 23.103 Sustainable acquisitions.

Sec. 23.104 Exceptions.

Sec. 23.105 Exemption authority.

      Subpart 23.2_Energy and Water Efficiency and Renewable Energy


Sec. 23.200 Scope.

Sec. 23.201 Authorities.

Sec. 23.202 Policy.

Sec. 23.203 Energy-efficient products.

Sec. 23.204 Procurement exemptions.

Sec. 23.205 Energy-savings performance contracts.

Sec. 23.206 Contract clause.

 Subpart 23.3_Hazardous Material Identification and Material Safety Data


Sec. 23.300 Scope of subpart.

Sec. 23.301 Definition.

Sec. 23.302 Policy.

Sec. 23.303 Contract clause.

      Subpart 23.4_Use of Recovered Materials and Biobased Products


Sec. 23.400 Scope of subpart.

Sec. 23.401 Definitions.

Sec. 23.402 Authorities.

Sec. 23.403 Policy.

Sec. 23.404 Agency affirmative procurement programs.

Sec. 23.405 Procedures.

Sec. 23.406 Solicitation provisions and contract clauses.

                    Subpart 23.5_Drug-Free Workplace


Sec. 23.500 Scope of subpart.

Sec. 23.501 Applicability.

Sec. 23.502 Authority.

Sec. 23.503 Definitions.

Sec. 23.504 Policy.

Sec. 23.505 Contract clause.

Sec. 23.506 Suspension of payments, termination of contract, and 
          debarment and suspension actions.

               Subpart 23.6_Notice of Radioactive Material


Sec. 23.601 Requirements.

Sec. 23.602 Contract clause.

  Subpart 23.7_Contracting for Environmentally Preferable Products and 
                                Services


Sec. 23.700 Scope.

Sec. 23.701 Definitions.

Sec. 23.702 Authorities.

Sec. 23.703 Policy.

Sec. 23.704 Electronic products environmental assessment tool.

Sec. 23.705 Contract clauses.

                 Subpart 23.8_Ozone-Depleting Substances


Sec. 23.800 Scope of subpart.

Sec. 23.801 Authorities.

Sec. 23.802 [Reserved]

Sec. 23.803 Policy.

Sec. 23.804 Contract clauses.

Subpart 23.9_Contractor Compliance With Environmental Management Systems


Sec. 23.900 Scope.

Sec. 23.901 Authority.

Sec. 23.902 Policy.

Sec. 23.903 Contract clause.

 Subpart 23.10_Federal Compliance With Right-To-Know Laws and Pollution 
                         Prevention Requirements


Sec. 23.1000 Scope.

Sec. 23.1001 Authorities.

Sec. 23.1002 Applicability.

Sec. 23.1003 Definitions.

Sec. 23.1004 Requirements.

Sec. 23.1005 Contract clause.

  Subpart 23.11_Encouraging Contractor Policies to Ban Text Messaging 
                              While Driving


Sec. 23.1101 Purpose.

Sec. 23.1102 Applicability.

Sec. 23.1103 Definitions.

Sec. 23.1104 Policy.

Sec. 23.1105 Contract clause.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 
2473(c).

    Source: 48 FR 42275, Sept. 19, 1983, unless otherwise noted.



Sec. 23.000  Scope.

    This part prescribes acquisition policies and procedures supporting 
the Government's program for ensuring a drug-free workplace, for 
protecting and

[[Page 540]]

improving the quality of the environment, and to foster markets for 
sustainable technologies, materials, products, and services, and 
encouraging the safe operation of vehicles by--
    (a) Reducing or preventing pollution;
    (b) Managing efficiently and reducing energy and water use in 
Government facilities;
    (c) Using renewable energy and renewable energy technologies;
    (d) Acquiring energy-efficient and water-efficient products and 
services, environmentally preferable (including EPEAT-registered, and 
non-toxic and less toxic) products, products containing recovered 
materials, non-ozone depleting products, and biobased products;
    (e) Requiring contractors to identify hazardous materials;
    (f) Encouraging contractors to adopt and enforce policies that ban 
text messaging while driving; and
    (g) Requiring contractors to comply with agency environmental 
management systems.

[76 FR 31398, May 31, 2011]



Sec. 23.001  Definitions.

    As used in this part--
    Environmental means environmental aspects of internal agency 
operations and activities, including those aspects related to energy and 
transportation functions.
    Greenhouse gases means carbon dioxide, methane, nitrous oxide, 
hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride.
    Toxic chemical means a chemical or chemical category listed in 40 
CFR 372.65.
    United States, except as used in subpart 23.10, means--
    (1) The fifty States;
    (2) The District of Columbia;
    (3) The commonwealths of Puerto Rico and the Northern Mariana 
Islands;
    (4) The territories of Guam, American Samoa, and the United States 
Virgin Islands; and
    (5) Associated territorial waters and airspace.

[76 FR 31399, May 31, 2011]



Sec. 23.002  Policy.

    Executive Order 13423 sections 3(e) and (f) require that contracts 
for contractor operation of a Government-owned or -leased facility and 
contracts for support services at a Government-owned or -operated 
facility include provisions that obligate the contractor to comply with 
the requirements of the order to the same extent as the agency would be 
required to comply if the agency operated or supported the facility. 
Compliance includes developing programs to promote and implement cost-
effective waste reduction.

[76 FR 31399, May 31, 2011]

               Subpart 23.1_Sustainable Acquisition Policy

    Source: 76 FR 31399, May 31, 2011, unless otherwise noted.



Sec. 23.101  Definition.

    As used in this subpart--
    Contract action means any oral or written action that results in the 
purchase, rent, or lease of supplies or equipment, services, or 
construction using appropriated dollars, including purchases below the 
micro-purchase threshold. Contract action does not include grants, 
cooperative agreements, other transactions, real property leases, 
requisitions from Federal stock, training authorizations, or other non-
FAR based transactions.



Sec. 23.102  Authorities.

    (a) Executive Order 13423 of January 24, 2007, Strengthening Federal 
Environmental, Energy, and Transportation Management.
    (b) Executive Order 13514 of October 5, 2009, Federal Leadership in 
Environmental, Energy, and Economic Performance.
    (c) All of the authorities specified in subparts 23.2, 23.4, 23.7, 
23.8, 23.9, and 23.10.



Sec. 23.103  Sustainable acquisitions.

    (a) Federal agencies shall advance sustainable acquisition by 
ensuring that 95 percent of new contract actions for the supply of 
products and for the

[[Page 541]]

acquisition of services (including construction) require that the 
products are--
    (1) Energy-efficient (ENERGY STAR [supreg] or Federal Energy 
Management Program (FEMP)-designated);
    (2) Water-efficient;
    (3) Biobased;
    (4) Environmentally preferable (e.g., EPEAT-registered, or non-toxic 
or less toxic alternatives);
    (5) Non-ozone depleting; or
    (6) Made with recovered materials.
    (b) The required products in the contract actions for services 
include products that are--
    (1) Delivered to the Government during performance;
    (2) Acquired by the contractor for use in performing services at a 
Federally-controlled facility; or
    (3) Furnished by the contractor for use by the Government.
    (c) The required products in the contract actions must meet agency 
performance requirements.
    (d) For purposes of meeting the 95 percent sustainable acquisition 
requirement, the term ``contract actions'' includes new contracts (and 
task and delivery orders placed against them) and new task and delivery 
orders on existing contracts.



Sec. 23.104  Exceptions.

    This subpart does not apply to the following acquisitions:
    (a) Contracts performed outside of the United States, unless the 
agency head determines that such application is in the interest of the 
United States.
    (b) Weapon systems.



Sec. 23.105  Exemption authority.

    (a) The head of an agency may exempt--
    (1) Intelligence activities of the United States, and related 
personnel, resources, and facilities, to the extent the Director of 
National Intelligence or agency head determines it necessary to protect 
intelligence sources and methods from unauthorized disclosure;
    (2) Law enforcement activities of that agency and related personnel, 
resources, and facilities, to the extent the head of an agency 
determines it necessary to protect undercover operations from 
unauthorized disclosure;
    (3) Law enforcement, protective, emergency response, or military 
tactical vehicle fleets of that agency; and
    (4) Agency activities and facilities in the interest of national 
security.
    (b) If the head of the agency issues an exemption under paragraph 
(a) of this section, the agency must notify the Chair of the Council on 
Environmental Quality in writing within 30 days of the issuance of the 
exemption.
    (c) The agency head may submit through the Chair of the Council on 
Environmental Quality a request for exemption of an agency activity 
other than those activities listed in paragraph (a) of this section and 
related personnel, resources, and facilities.

      Subpart 23.2_Energy and Water Efficiency and Renewable Energy

    Source: 66 FR 65352, Dec. 18, 2001, unless otherwise noted.



Sec. 23.200  Scope.

    (a) This subpart prescribes policies and procedures for--
    (1) Acquiring energy- and water-efficient products and services, and 
products that use renewable energy technology; and
    (2) Using an energy-savings performance contract to obtain energy-
efficient technologies at Government facilities without Government 
capital expense.
    (b) This subpart applies to acquisitions in the United States and 
its outlying areas. Agencies conducting acquisitions outside of these 
areas must use their best efforts to comply with this subpart.

[66 FR 65352, Dec. 18, 2001, as amended at 68 FR 28082, May 22, 2003]



Sec. 23.201  Authorities.

    (a) Energy Policy and Conservation Act (42 U.S.C. 6361(a)(1)) and 
Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6901, et 
seq.).
    (b) National Energy Conservation Policy Act (42 U.S.C. 8253, 8259b, 
8262g, and 8287).
    (c) Section 706 of Division D, Title VII of the Omnibus 
Appropriations Act, 2009 (Pub. L. 111-8).

[[Page 542]]

    (d) Title VI of the Clean Air Act, as amended (42 U.S.C. 7671, et 
seq.).
    (e) Executive Order 11912 of April 13, 1976, Delegations of 
Authority under the Energy Policy and Conservation Act.
    (f) Executive Order 13221 of July 31, 2001, Energy-Efficient Standby 
Power Devices.
    (g) Executive Order 13423 of January 24, 2007, Strengthening Federal 
Environmental, Energy, and Transportation Management.
    (h) Executive Order 13514 of October 5, 2009, Federal Leadership in 
Environmental, Energy, and Economic Performance.

[76 FR 31399, May 31, 2011]



Sec. 23.202  Policy.

    (a) Introduction. The Government's policy is to acquire supplies and 
services that promote a clean energy economy that increases our Nation's 
energy security, safeguards the health of our environment, and reduces 
greenhouse gas emissions from direct and indirect Federal activities. To 
implement this policy, Federal acquisitions will foster markets for 
sustainable technologies, products, and services. This policy extends to 
all acquisitions, including those below the simplified acquisition 
threshold and those at or below the micro-purchase threshold (including 
those made with a Government purchase card).
    (b) Water-efficient. In accordance with Executive Order 13514, dated 
October 5, 2009, Federal Leadership in Environmental, Energy, and 
Economic Performance, it is the policy and objective of the Government 
to use and manage water through water-efficient means by--
    (1) Reducing potable water consumption intensity to include low-flow 
fixtures and efficient cooling towers;
    (2) Reducing agency, industry, landscaping, and agricultural water 
consumption; and
    (3) Storm water management in accordance with section 438 of the 
Energy Independence and Security Act of 2007 (42 U.S.C. 17094) as 
implemented in http://www.epa.gov/nps/lid/section438.

[76 FR 31400, May 31, 2011]



Sec. 23.203  Energy-efficient products.

    (a) Unless exempt as provided at 23.204--
    (1) When acquiring energy-consuming products listed in the ENERGY 
STAR [supreg] Program or Federal Energy Management Program (FEMP)--
    (i) Agencies shall purchase ENERGY STAR [supreg] or FEMP-designated 
products; and
    (ii) For products that consume power in a standby mode and are 
listed on FEMP's Low Standby Power Devices product listing, agencies 
shall--
    (A) Purchase items which meet FEMP's standby power wattage 
recommendation or document the reason for not purchasing such items; or
    (B) If FEMP has listed a product without a corresponding wattage 
recommendation, purchase items which use no more than one watt in their 
standby power consuming mode. When it is impracticable to meet the one 
watt requirement, agencies shall purchase items with the lowest standby 
wattage practicable; and
    (2) When contracting for services or construction that will include 
the provision of energy-consuming products, agencies shall specify 
products that comply with the applicable requirements in paragraph 
(a)(1) of this section.
    (b) Information is available via the Internet about--
    (1) ENERGY STAR [supreg] at http://www.energystar.gov/products; and
    (2) FEMP at http://www1.eere.energy.gov/femp/procurement/eep--
requirements.html.

[72 FR 65872, Nov. 23, 2007]



Sec. 23.204  Procurement exemptions.

    An agency is not required to procure an ENERGY STAR [supreg] or 
FEMP-designated product if the head of the agency determines in writing 
that--
    (a) No ENERGY STAR [supreg] or FEMP-designated product is reasonably 
available that meets the functional requirements of the agency; or
    (b) No ENERGY STAR [supreg] or FEMP-designated product is cost 
effective over the life of the product taking energy cost savings into 
account.

[72 FR 65872, Nov. 23, 2007]

[[Page 543]]



Sec. 23.205  Energy-savings performance contracts.

    (a) Agencies should make maximum use of the authority provided in 
the National Energy Conservation Policy Act (42 U.S.C. 8287) to use an 
energy-savings performance contract (ESPC), when life-cycle cost-
effective, to reduce energy use and cost in the agency's facilities and 
operations.
    (b)(1) Under an ESPC, an agency can contract with an energy service 
company for a period not to exceed 25 years to improve energy efficiency 
in one or more agency facilities at no direct capital cost to the United 
States Treasury. The energy service company finances the capital costs 
of implementing energy conservation measures and receives, in return, a 
contractually determined share of the cost savings that result.
    (2) Except as provided in 10 CFR 436.34, ESPC's are subject to 
subpart 17.1.
    (c) To solicit and award an ESPC, the contracting officer--
    (1) Must use the procedures, selection method, and terms and 
conditions provided in 10 CFR part 436, subpart B; at http://
www1.eere.energy.gov/femp/financing/espcs--regulations.html; and
    (2) May use the ``Qualified List'' of energy service companies 
established by the Department of Energy and other agencies.

[66 FR 65352, Dec. 18, 2001. Redesignated at 72 FR 65872, Nov. 23, 2007; 
76 FR 31400, May 31, 2011; 77 FR 204, Jan. 3, 2012]



Sec. 23.206  Contract clause.

    Unless exempt pursuant to 23.204, insert the clause at 52.223-15, 
Energy Efficiency in Energy-Consuming Products, in solicitations and 
contracts when energy-consuming products listed in the ENERGY STAR 
[supreg] Program or FEMP will be--
    (a) Delivered;
    (b) Acquired by the contractor for use in performing services at a 
Federally-controlled facility;
    (c) Furnished by the contractor for use by the Government; or
    (d) Specified in the design of a building or work, or incorporated 
during its construction, renovation, or maintenance.

[72 FR 65872, Nov. 23, 2007]

 Subpart 23.3_Hazardous Material Identification and Material Safety Data



Sec. 23.300  Scope of subpart.

    This subpart prescribes policies and procedures for acquiring 
deliverable items, other than ammunition and explosives, that require 
the furnishing of data involving hazardous materials. Agencies may 
prescribe special procedures for ammunition and explosives.



Sec. 23.301  Definition.

    Hazardous material is defined in the latest version of Federal 
Standard No. 313 (Federal Standards are sold to the public and Federal 
agencies through: General Services Administration, Specifications Unit 
(3FBP-W), 7th & D Sts., SW., Washington, DC 20407.

[56 FR 55374, Oct. 25, 1991]



Sec. 23.302  Policy.

    (a) The Occupational Safety and Health Administration (OSHA) is 
responsible for issuing and administering regulations that require 
Government activities to apprise their employees of--
    (1) All hazards to which they may be exposed;
    (2) Relative symptoms and appropriate emergency treatment; and
    (3) Proper conditions and precautions for safe use and exposure.
    (b) To accomplish this objective, it is necessary to obtain certain 
information relative to the hazards which may be introduced into the 
workplace by the supplies being acquired. Accordingly, offerors and 
contractors are required to submit hazardous materials data whenever the 
supplies being acquired are identified as hazardous materials. The 
latest version of Federal Standard No. 313 (Material Safety Data Sheet, 
Preparation and Submission of) includes criteria for identification of 
hazardous materials.
    (c) Hazardous material data (Material Safety Data Sheets (MSDS's)) 
are required--

[[Page 544]]

    (1) As specified in the latest version of Federal Standard No. 313 
(including revisions adopted during the term of the contract);
    (2) For any other material designated by a Government technical 
representative as potentially hazardous and requiring safety controls.
    (d) MSDS's must be submitted--
    (1) By the apparent successful offeror prior to contract award if 
hazardous materials are expected to be used during contract performance.
    (2) For agencies other than the Department of Defense, again by the 
contractor with the supplies at the time of delivery.
    (e) The contracting officer shall provide a copy of all MSDS's 
received to the safety officer or other designated individual.

[48 FR 42275, Sept. 19, 1983, as amended at 56 FR 55374, Oct. 25, 1991; 
62 FR 236, Jan. 2, 1997]



Sec. 23.303  Contract clause.

    (a) The contracting officer shall insert the clause at 52.223-3, 
Hazardous Material Identification and Material Safety Data, in 
solicitations and contracts if the contract will require the delivery of 
hazardous materials as defined in 23.301.
    (b) If the contract is awarded by an agency other than the 
Department of Defense, the contracting officer shall use the clause at 
52.223-3 with its Alternate I.

[56 FR 55374, Oct. 25, 1991]

      Subpart 23.4_Use of Recovered Materials and Biobased Products

    Source: 72 FR 63043, Nov. 7, 2007, unless otherwise noted.



Sec. 23.400  Scope of subpart.

    (a) The procedures in this subpart apply to all agency acquisitions 
of an Environmental Protection Agency (EPA) or United States Department 
of Agriculture (USDA)-designated item, if--
    (1) The price of the designated item exceeds $10,000; or
    (2) The aggregate amount paid for designated items, or for 
functionally equivalent designated items, in the preceding fiscal year 
was $10,000 or more.
    (b) While micro-purchases are included in determining the aggregate 
amount paid under paragraph (a)(2) of this section, it is not 
recommended that an agency track micro-purchases when--
    (1) The agency anticipates the aggregate amount paid will exceed 
$10,000; or
    (2) The agency intends to establish or continue an affirmative 
procurement program in the following fiscal year.



Sec. 23.401  Definitions.

    As used in this subpart--
    (a) EPA-designated item means a product that is or can be made with 
recovered material--
    (1) That is listed by EPA in a procurement guideline (40 CFR part 
247); and
    (2) For which EPA has provided purchasing recommendations in a 
related Recovered Materials Advisory Notice (RMAN) (available at http://
www.epa.gov/epawaste/conserve/tools/cpg/index.htm).
    (b) USDA-designated item means a generic grouping of products that 
are or can be made with biobased materials--
    (1) That is listed by USDA in a procurement guideline (7 CFR part 
3201, subpart B); and
    (2) For which USDA has provided purchasing recommendations.

[72 FR 63043, Nov. 7, 2007, as amended at 73 FR 21790, Apr. 22, 2008; 77 
FR 204, Jan. 3, 2012; 77 FR 23367, Apr. 18, 2012]



Sec. 23.402  Authorities.

    (a) The Resource Conservation and Recovery Act of 1976 (RCRA), 42 
U.S.C. 6962.
    (b) The Farm Security and Rural Investment Act of 2002 (FSRIA), 7 
U.S.C. 8102.
    (c) Executive Order 13423 of January 24, 2007, Strengthening Federal 
Environmental, Energy, and Transportation Management.
    (d) The Energy Policy Act of 2005, Public Law 109-58.
    (e) Executive Order 13514 of October 5, 2009, Federal Leadership in 
Environmental, Energy, and Economic Performance.

[72 FR 63043, Nov. 7, 2007, as amended at 76 FR 31400, May 31, 2011]

[[Page 545]]



Sec. 23.403  Policy.

    Government policy on the use of products containing recovered 
materials and biobased products considers cost, availability of 
competition, and performance. Agencies shall purchase these products or 
require in the acquisition of services, the delivery, use, or furnishing 
(see 23.103(b)) of such products. Agency contracts should specify that 
these products are composed of the highest percent of recovered material 
or biobased content practicable, or at least meet, but may exceed, the 
minimum recovered materials or biobased content of an EPA- or USDA-
designated product. Agencies shall purchase these products to the 
maximum extent practicable without jeopardizing the intended use of the 
product while maintaining a satisfactory level of competition at a 
reasonable price. Such products shall meet the reasonable performance 
standards of the agency and be acquired competitively, in a cost-
effective manner. Except as provided at 23.404(b), virgin material shall 
not be required by the solicitation (see 11.302).

[76 FR 31400, May 31, 2011]



Sec. 23.404  Agency affirmative procurement programs.

    (a) An agency must establish an affirmative procurement program for 
EPA and USDA-designated items if the agency's purchases of designated 
items exceed the threshold set forth in 23.400.
    (1) Agencies have a period of 1 year to revise their procurement 
program(s) after the designation of any new item by EPA or USDA.
    (2) Technical or requirements personnel and procurement personnel 
are responsible for the preparation, implementation, and monitoring of 
affirmative procurement programs.
    (3) Agency affirmative procurement programs must include--
    (i) A recovered materials and biobased products preference program;
    (ii) An agency promotion program;
    (iii) For EPA-designated items only, a program for requiring 
reasonable estimates, certification, and verification of recovered 
material used in the performance of contracts. Both the recovered 
material content and biobased programs require preaward certification 
that the products meet EPA or USDA recommendations. A second 
certification is required at contract completion for recovered material 
content; and
    (iv) Annual review and monitoring of the effectiveness of the 
program.
    (b) Exemptions. (1) Agency affirmative procurement programs must 
require that 100 percent of purchases of EPA or USDA-designated items 
contain recovered material or biobased content, respectively, unless the 
item cannot be acquired--
    (i) Competitively within a reasonable time frame;
    (ii) Meeting reasonable performance standards; or
    (iii) At a reasonable price.
    (2) EPA and USDA may provide categorical exemptions for items that 
they designate, when procured for a specific purpose. For example, all 
USDA-designated items (see 7 CFR 3201.3(e)) are exempt from the 
preferred procurement requirement for the following:
    (i) Spacecraft system and launch support equipment.
    (ii) Military equipment, i.e., a product or system designed or 
procured for combat or combat-related missions.
    (c) Agency affirmative procurement programs must provide guidance 
for purchases of EPA-designated items at or below the micro-purchase 
threshold.
    (d) Agencies may use their own specifications or commercial product 
descriptions when procuring products containing recovered materials or 
biobased products. When using either, the contract should specify--
    (1) For products containing recovered materials, that the product is 
composed of the--
    (i) Highest percent of recovered materials practicable; or
    (ii) Minimum content standards in accordance with EPA's Recovered 
Materials Advisory Notices; and
    (2) For biobased products, that the product is composed of--
    (i) The highest percentage of biobased material practicable; or
    (ii) USDA's recommended minimum contents standards.
    (e) Agencies shall treat as eligible for the preference for biobased 
products,

[[Page 546]]

products from ``designated countries,'' as defined in 25.003, provided 
that those products--
    (1) Meet the criteria for the definition of biobased product, except 
that the products need not meet the requirement that renewable 
agricultural materials or forestry materials in such product must be 
domestic; and
    (2) Otherwise meet all requirements for participation in the 
preference program.

[72 FR 63043, Nov. 7, 2007, as amended at 77 FR 23367, Apr. 18, 2012]



Sec. 23.405  Procedures

    (a) Designated items and procurement guidelines--(1) Recovered 
Materials. Contracting officers should refer to EPA's list of EPA-
designated items (available via the Internet at http://www.epa.gov/cpg/
products.htm and to their agencies' affirmative procurement program when 
purchasing products that contain recovered material, or services that 
could include the use of products that contain recovered material.
    (2) Biobased products. Contracting officers should refer to USDA's 
list of USDA-designated items (available through the Internet at http://
www.biopreferred.gov) and to their agencies affirmative procurement 
program when purchasing supplies that contain biobased material or when 
purchasing services that could include supplies that contain biobased 
material.
    (3) When acquiring recovered material or biobased products, the 
contracting officer may request information or data on such products, 
including recycled or biobased content or related standards of the 
products (see 11.302(c)).
    (b) Procurement exemptions. (1) Once an item has been designated by 
either EPA or USDA, agencies shall purchase conforming products unless 
an exemption applies (see 23.404(b)).
    (2) When an exemption is used for an EPA-designated item or the 
procurement of a product containing recovered material does not meet or 
exceed the EPA recovered material content guidelines, the contracting 
officer shall place a written justification in the contract file.
    (c) Program priorities. When both the USDA-designated item and the 
EPA-designated item will be used for the same purposes, and both meet 
the agency's needs, the agency shall purchase the EPA-designated item.

[72 FR 63043, Nov. 7, 2007, as amended at 73 FR 21790, Apr. 22, 2008; 77 
FR 23367, Apr. 18, 2012]



Sec. 23.406  Solicitation provisions and contract clauses.

    (a) Insert the provision at 52.223-1, Biobased Product 
Certification, in solicitations that--
    (1) Require the delivery or specify the use of USDA-designated 
items; or
    (2) Include the clause at 52.223-2.
    (b) Insert the clause at 52.223-2, Affirmative Procurement of 
Biobased Products Under Service and Construction Contracts, in service 
or construction solicitations and contracts, unless the contract will 
not involve the use of USDA-designated items at http://
www.biopreferred.gov or 7 CFR part 3201.
    (c) Except for the acquisition of commercially available off-the-
shelf items, insert the provision at 52.223-4, Recovered Material 
Certification, in solicitations that--
    (1) Require the delivery or specify the use of EPA-designated items; 
or
    (2) Include the clause at 52.223-17, Affirmative Procurement of EPA-
designated Items in Service and Construction Contracts.
    (d) Except for the acquisition of commercially available off-the-
shelf items, insert the clause at 52.223-9, Estimate of Percentage of 
Recovered Material Content for EPA-designated Items, in solicitations 
and contracts exceeding $150,000 that are for, or specify the use of, 
EPA-designated items containing recovered materials. If technical 
personnel advise that estimates can be verified, use the clause with its 
Alternate I.
    (e) Insert the clause at 52.223-17, Affirmative Procurement of EPA-
designated Items in Service and Construction Contracts, in service or 
construction solicitations and contracts unless the contract will not 
involve the use of EPA-designated items.

[72 FR 63043, Nov. 7, 2007, as amended at 73 FR 21790, Apr. 22, 2008; 74 
FR 2721, Jan. 15, 2009; 75 FR 53134, Aug. 30, 2010; 77 FR 23367, Apr. 
18, 2012]

[[Page 547]]

                    Subpart 23.5_Drug-Free Workplace

    Source: 54 FR 4968, Jan. 31, 1989; 55 FR 21707, May 25, 1990, unless 
otherwise noted.



Sec. 23.500  Scope of subpart.

    This subpart implements the Drug Free Workplace Act of 1988 (Pub. L. 
100-690).



Sec. 23.501  Applicability.

    This subpart applies to contracts, including contracts with 8(a) 
contractors under FAR subpart 19.8 and modifications that require a 
justification and approval (see subpart 6.3), except contracts--
    (a) At or below the simplified acquisition threshold; however, the 
requirements of this subpart apply to all contracts of any value awarded 
to an individual;
    (b) For the acquisition of commercial items (see part 12);
    (c) Performed outside the United States and its outlying areas or 
any part of a contract performed outside the United States and its 
outlying areas;
    (d) By law enforcement agencies, if the head of the law enforcement 
agency or designee involved determines that application of this subpart 
would be inappropriate in connection with the law enforcement agency's 
undercover operations; or
    (e) Where application would be inconsistent with the international 
obligations of the United States or with the laws and regulations of a 
foreign country.

[54 FR 4968, Jan. 31, 1989, as amended at 55 FR 21707, May 25, 1990; 60 
FR 34758, July 3, 1995; 60 FR 48248, Sept. 18, 1995; 68 FR 28082, May 
22, 2003]



Sec. 23.502  Authority.

    Drug-Free Workplace Act of 1988 (Pub. L. 100-690).



Sec. 23.503  Definitions.

    As used in this subpart--
    Controlled substance means a controlled substance in schedules I 
through V of section 202 of the Controlled Substances Act (21 U.S.C. 
812), and as further defined in regulation at 21 CFR 1308.11-1308.15.
    Conviction means a finding of guilt (including a plea of nolo 
contendere) or imposition of sentence, or both, by any judicial body 
charged with the responsibility to determine violations of the Federal 
or State criminal drug statutes.
    Criminal drug statute means a Federal or non-Federal criminal 
statute involving the manufacture, distribution, dispensing, possession, 
or use of any controlled substance.
    Employee means an employee of a contractor directly engaged in the 
performance of work under a Government contract. Directly engaged is 
defined to include all direct cost employees and any other contract 
employee who has other than a minimal impact or involvement in contract 
performance.
    Individual means an offeror/contractor that has no more than one 
employee including the offeror/contractor.

[54 FR 4968, Jan. 31, 1989, as amended at 55 FR 21707, May 25, 1990; 66 
FR 2130, Jan. 10, 2001]



Sec. 23.504  Policy.

    (a) No offeror other than an individual shall be considered a 
responsible source (see 9.104-1(g) and 19.602-1(a)(2)(i)) for a contract 
that exceeds the simplified acquisition threshold, unless it agrees that 
it will provide a drug-free workplace by--
    (1) Publishing a statement notifying its employees that the unlawful 
manufacture, distribution, dispensing, possession, or use of a 
controlled substance is prohibited in the contractor's workplace, and 
specifying the actions that will be taken against employees for 
violations of such prohibition;
    (2) Establishing an ongoing drug-free awareness program to inform 
its employees about--
    (i) The dangers of drug abuse in the workplace;
    (ii) The contractor's policy of maintaining a drug-free workplace;
    (iii) Any available drug counseling, rehabilitation, and employee 
assistance programs; and
    (iv) The penalties that may be imposed upon employees for drug abuse 
violations occurring in the workplace;

[[Page 548]]

    (3) Providing all employees engaged in performance of the contract 
with a copy of the statement required by paragraph (a)(1) of this 
section;
    (4) Notifying all employees in writing in the statement required by 
subparagraph (a)(1) of this section, that as a condition of employment 
on a covered contract, the employee will--
    (i) Abide by the terms of the statement; and
    (ii) Notify the employer in writing of the employee's conviction 
under a criminal drug statute for a violation occurring in the workplace 
no later than 5 days after such conviction;
    (5) Notifying the contracting officer in writing within 10 days 
after receiving notice under subdivision (a)(4)(ii) of this section, 
from an employee or otherwise receiving actual notice of such 
conviction. The notice shall include the postion title of the employee;
    (6) Within 30 days after receiving notice under subparagraph (a)(4) 
of this section of a conviction, taking one of the following actions 
with respect to any employee who is convicted of a drug abuse violation 
occurring in the workplace:
    (i) Taking appropriate personnel action against such employee, up to 
and including termination; or
    (ii) Requiring such employee to satisfactorily participate in a drug 
abuse assistance or rehabilitation program approved for such purposes by 
a Federal, State, or local health, law enforcement, or other appropriate 
agency.
    (7) Making a good faith effort to maintain a drug-free workplace 
through implementation of subparagraphs (a)(1) through (a)(6) of this 
section.
    (b) No individual shall be awarded a contract of any dollar value 
unless that individual agrees not to engage in the unlawful manufacture, 
distribution, dispensing, possession, or use of a controlled substance 
while performing the contract.
    (c) For a contract of 30 days or more performance duration, the 
contractor shall comply with the provisions of paragraph (a) of this 
section within 30 days after contract award, unless the contracting 
officer agrees in writing that circumstances warrant a longer period of 
time to comply. Before granting such an extension, the contracting 
officer shall consider such factors as the number of contractor 
employees at the worksite, whether the contractor has or must develop a 
drug-free workplace program, and the number of contractor worksites. For 
contracts of less than 30 days performance duration, the contractor 
shall comply with the provisions of paragraph (a) of this section as 
soon as possible, but in any case, by a date prior to when performance 
is expected to be completed.

[54 FR 4968, Jan. 31, 1989, as amended at 55 FR 21707, May 25, 1990; 55 
FR 38517, Sept. 18, 1990; 60 FR 34758, July 3, 1995; 61 FR 69292, Dec. 
31, 1996]



Sec. 23.505  Contract clause.

    Except as provided in 23.501, insert the clause at 52.223-6, Drug-
Free Workplace, in solicitations and contracts.

[68 FR 28082, May 22, 2003]



Sec. 23.506  Suspension of payments, termination of contract, and 
          debarment and suspension actions.

    (a) After determining in writing that adequate evidence to suspect 
any of the causes at paragraph (d) of this section exists, the 
contracting officer may suspend contract payments in accordance with the 
procedures at 32.503-6(a)(1).
    (b) After determining in writing that any of the causes at paragraph 
(d) of this section exists, the contracting officer may terminate the 
contract for default.
    (c) Upon initiating action under paragraph (a) or (b) of this 
section, the contracting officer shall refer the case to the agency 
suspension and debarment official, in accordance with agency procedures, 
pursuant to subpart 9.4.
    (d) The specific causes for suspension of contract payments, 
termination of a contract for default, or suspension and debarment are--
    (1) The contractor has failed to comply with the requirements of the 
clause at 52.223-6, Drug-Free Workplace; or
    (2) The number of contractor employees convicted of violations of 
criminal drug statutes occurring in the workplace indicates that the 
contractor has failed to make a good faith effort to provide a drug-free 
workplace.

[[Page 549]]

    (e) A determination under this section to suspend contract payments, 
terminate a contract for default, or debar or suspend a contractor may 
be waived by the agency head for a particular contract, in accordance 
with agency procedures, only if such waiver is necessary to prevent a 
severe disruption of the agency operation to the detriment of the 
Federal Government or the general public (see subpart 9.4). The waiver 
authority of the agency head cannot be delegated.

[54 FR 4968, Jan. 31, 1989, as amended at 55 FR 21708, May 25, 1990; 61 
FR 69292, Dec. 31, 1996]

               Subpart 23.6_Notice of Radioactive Material

    Source: 56 FR 55374, Oct. 25, 1991, unless otherwise noted.



Sec. 23.601  Requirements.

    (a) The clause at 52.223-7, Notice of Radioactive Materials, 
requires the contractor to notify the contracting officer prior to 
delivery of radioactive material.
    (b) Upon receipt of the notice, the contracting officer shall notify 
receiving activities so that appropriate safeguards can be taken.
    (c) The clause permits the contracting officer to waive the 
notification if the contractor states that the notification on prior 
deliveries is still current. The contracting officer may waive the 
notice only after consultation with cognizant technical representatives.
    (d) The contracting officer is required to specify in the clause at 
52.223-7, the number of days in advance of delivery that the contractor 
will provide notification. The determination of the number of days 
should be done in coordination with the installation/facility radiation 
protection officer (RPO). The RPO is responsible for insuring the proper 
license, authorization or permit is obtained prior to receipt of the 
radioactive material.

[56 FR 55374, Oct. 25, 1991, as amended at 62 FR 236, Jan. 2, 1997]



Sec. 23.602  Contract clause.

    The contracting officer shall insert the clause at 52.223-7, Notice 
of Radioactive Materials, in solicitations and contracts for supplies 
which are, or which contain--(a) radioactive material requiring specific 
licensing under regulations issued pursuant to the Atomic Energy Act of 
1954; or (b) radioactive material not requiring specific licensing in 
which the specific activity is greater than 0.002 microcuries per gram 
or the activity per item equals or exceeds 0.01 microcuries. Such 
supplies include, but are not limited to, aircraft, ammunition, 
missiles, vehicles, electronic tubes, instrument panel gauges, compasses 
and identification markers.

  Subpart 23.7_Contracting for Environmentally Preferable Products and 
                                Services

    Source: 60 FR 28497, May 31, 1995, unless otherwise noted.



Sec. 23.700  Scope.

    This subpart prescribes policies for acquiring environmentally 
preferable products and services.

[66 FR 65353, Dec. 18, 2001]



Sec. 23.701  Definitions.

    As used in this subpart--
    Computer monitor means a video display unit used with a computer.
    Desktop computer means a computer designed for use on a desk or 
table.
    Notebook computer means a portable-style or laptop-style computer 
system.
    Personal computer product means a notebook computer, a desktop 
computer, or a computer monitor, and any peripheral equipment that is 
integral to the operation of such items. For example, the desktop 
computer together with the keyboard, the mouse, and the power cord would 
be a personal computer product. Printers, copiers, and fax machines are 
not included in peripheral equipment, as used in this definition.

[72 FR 73217, Dec. 26, 2007]

[[Page 550]]



Sec. 23.702  Authorities.

    (a) Resource Conservation and Recovery Act (RCRA) (42 U.S.C. 6901, 
et seq.).
    (b) National Energy Conservation Policy Act (42 U.S.C. 8262g).
    (c) Pollution Prevention Act of 1990 (42 U.S.C. 13101, et seq.).
    (d) Farm Security and Rural Investment Act of 2002 (FSRIA) (7 U.S.C. 
8102).
    (e) Executive Order 13221 of July 31, 2001, Energy Efficient Standby 
Power Devices.
    (f) Executive Order 13423 of January 24, 2007, Strengthening Federal 
Environmental, Energy, and Transportation Management.
    (g) Executive Order 13514 of October 5, 2009, Federal Leadership in 
Environmental, Energy, and Economic Performance.

[60 FR 28497, May 31, 1995, as amended at 65 FR 36020, June 6, 2000; 66 
FR 65353, Dec. 18, 2001; 68 FR 43869, July 24, 2003; 72 FR 63045, Nov. 
7, 2007; 72 FR 73217, Dec. 26, 2007; 76 FR 31400, May 31, 2011]



Sec. 23.703  Policy.

    Agencies must--
    (a) Implement cost-effective contracting preference programs 
promoting energy-efficiency, water conservation, and the acquisition of 
environmentally preferable products and services; and
    (b) Employ acquisition strategies that affirmatively implement the 
following environmental objectives:
    (1) Maximize the utilization of environmentally preferable products 
and services (based on EPA-issued guidance).
    (2) Promote energy-efficiency and water conservation.
    (3) Eliminate or reduce the generation of hazardous waste and the 
need for special material processing (including special handling, 
storage, treatment, and disposal).
    (4) Promote the use of nonhazardous and recovered materials.
    (5) Realize life-cycle cost savings.
    (6) Promote cost-effective waste reduction when creating plans, 
drawings, specifications, standards, and other product descriptions 
authorizing material substitutions, extensions of shelf-life, and 
process improvements.
    (7) Promote the use of biobased products.
    (8) Purchase only plastic ring carriers that are degradable (7 USC 
8102(c)(1), 40 CFR part 238).

[65 FR 36020, June 6, 2000, as amended at 66 FR 65353, Dec. 18, 2001; 72 
FR 63045, Nov. 7, 2007]



Sec. 23.704  Electronic products environmental assessment tool.

    (a) General. As required by E.O. 13423, agencies must ensure that 
they meet at least 95 percent of their annual acquisition requirement 
for electronic products with Electronic Product Environmental Assessment 
Tool (EPEAT)-registered electronic products, unless there is no EPEAT 
standard for such products. This policy applies to contracts performed 
in the United States, unless otherwise provided by agency procedures.
    (b) Personal computer products. Personal computer products is a 
category of EPEAT-registered electronic products.
    (1) The IEEE 1680 standard for personal computer products--
    (i) Was issued by the Institute of Electrical and Electronics 
Engineers on April 28, 2006;
    (ii) Is a voluntary consensus standard consistent with Section 12(d) 
of Pub. L. 104-113, the ``National Technology Transfer and Advancement 
Act of 1995'', (see 11.102(c));
    (iii) Meets EPA-issued guidance on environmentally preferable 
products and services; and
    (iv) Is described in more detail at http://www.epeat.net.
    (2) A list of EPEAT-registered products that meet the IEEE 1680 
standard can be found at http://www.epeat.net.
    (3) The IEEE 1680 standard sets forth required and optional 
criteria. EPEAT ``Bronze'' registered products must meet all required 
criteria. EPEAT ``Silver'' registered products meet all required 
criteria and 50 percent of the optional criteria. EPEAT ``Gold'' 
registered products meet all required criteria and 75 percent of the 
optional criteria. These are the levels discussed in clause 1.4 of the 
IEEE 1680 standard. The clause at 52.223-16, IEEE 1680

[[Page 551]]

Standard for the Environmental Assessment of Personal Computer Products, 
makes EPEAT Bronze registration the standard that contractors must meet. 
In accordance with guidance from the Office of the Federal Environmental 
Executive encouraging agencies to procure EPEAT Silver registered 
products, Alternate I of the clause makes EPEAT Silver registration the 
standard that contractors must meet. Agencies also may use EPEAT Silver 
or Gold registration in the evaluation of proposals.
    (c) The agency shall establish procedures for granting exceptions to 
the requirement in paragraph (a) of this section, with the goal that the 
dollar value of exceptions granted will not exceed 5 percent of the 
total dollar value of electronic products acquired by the agency, for 
which EPEAT-registered products are available. For example, agencies may 
grant an exception if the agency determines that no EPEAT-registered 
product meets agency requirements, or that the EPEAT-registered product 
will not be cost effective over the life of the product.

[72 FR 73217, Dec. 26, 2007. Redesignated at 76 FR 31400, May 31, 2011]



Sec. 23.705  Contract clauses.

    (a) Insert the clause at 52.223-10, Waste Reduction Program, in all 
solicitations and contracts for contractor operation of Government-owned 
or -leased facilities and all solicitations and contracts for support 
services at Government-owned or -operated facilities.
    (b)(1) Unless an exception has been approved in accordance with 
23.704(c), insert the clause at 52.223-16, IEEE 1680 Standard for the 
Environmental Assessment of Personal Computer Products, in all 
solicitations and contracts for--
    (i) Personal computer products;
    (ii) Services that require furnishing of personal computer products 
for use by the Government; or
    (iii) Contractor operation of Government-owned facilities.
    (2) Agencies may use the clause with its Alternate I when there are 
sufficient EPEAT Silver registered products available to meet agency 
needs.

[72 FR 73217, Dec. 26, 2007. Redesignated and amended at 76 FR 31400, 
May 31, 2011]

                 Subpart 23.8_Ozone-Depleting Substances

    Source: 60 FR 28500, May 31, 1995, unless otherwise noted.



Sec. 23.800  Scope of subpart.

    This subpart sets forth policies and procedures for the acquisition 
of items which contain, use, or are manufactured with ozone-depleting 
substances.

[60 FR 28500, May 31, 1995, as amended at 61 FR 31645, June 20, 1996]



Sec. 23.801  Authorities.

    (a) Title VI of the Clean Air Act (42 U.S.C. 7671, et seq.).
    (b) Section 706 of Division D, Title VII of the Omnibus 
Appropriations Act, 2009 (Pub. L. 111-8).
    (c) Executive Order 13423 of January 24, 2007, Strengthening Federal 
Environmental, Energy, and Transportation Management.
    (d) Executive Order 13514 of October 5, 2009, Federal Leadership in 
Environmental, Energy, and Economic Performance.
    (e) Environmental Protection Agency (EPA) regulations, Protection of 
Stratospheric Ozone (40 CFR Part 82).

[76 FR 31400, May 31, 2011]



Sec. 23.802  [Reserved]



Sec. 23.803  Policy.

    (a) It is the policy of the Federal Government that Federal 
agencies:
    (1) Implement cost-effective programs to minimize the procurement of 
materials and substances that contribute to the depletion of 
stratospheric ozone; and
    (2) Give preference to the procurement of alternative chemicals, 
products, and manufacturing processes that reduce overall risks to human 
health and the environment by lessening the depletion of ozone in the 
upper atmosphere.

[[Page 552]]

    (b) In preparing specifications and purchase descriptions, and in 
the acquisition of supplies and services, agencies shall:
    (1) Comply with the requirements of Title VI of the Clean Air Act, 
Section 706 of Division D, Title VII of Public Law 111-8, Executive 
Order 13423, Executive Order 13514, and 40 CFR 82.84(a)(2), (3), (4), 
and (5); and
    (2) Substitute safe alternatives to ozone-depleting substances, as 
identified under 42 U.S.C. 7671k, to the maximum extent practicable, as 
provided in 40 CFR 82.84(a)(1), except in the case of Class I substances 
being used for specified essential uses, as identified under 40 CFR 
82.4(r). EPA's Significant New Alternatives Policy (SNAP) program 
(available at http://www.epa.gov/ozone/snap) has a list of safe 
alternatives to ozone-depleting substances.

[60 FR 28500, May 31, 1995, as amended at 61 FR 31645, June 20, 1996; 68 
FR 43869, July 24, 2003; 76 FR 31400, May 31, 2011]



Sec. 23.804  Contract clauses.

    Except for contracts that will be performed outside the United 
States and its outlying areas, insert the clause at:
    (a) 52.223-11, Ozone-Depleting Substances, in solicitations and 
contracts for ozone-depleting substances or for supplies that may 
contain or be manufactured with ozone-depleting substances.
    (b) 52.223-12, Refrigeration Equipment and Air Conditioners, in 
solicitations and contracts for services when the contract includes the 
maintenance, repair, or disposal of any equipment or appliance using 
ozone-depleting substances as a refrigerant, such as air conditioners, 
including motor vehicles, refrigerators, chillers, or freezers.

[61 FR 31645, June 20, 1996, as amended at 68 FR 28083, May 22, 2003]

Subpart 23.9_Contractor Compliance With Environmental Management Systems

    Source: 76 FR 31400, May 31, 2011, unless otherwise noted.



Sec. 23.900  Scope.

    This subpart implements the environmental management systems 
requirements for contractors.



Sec. 23.901  Authority.

    (a) Executive Order 13423 of January 24, 2007, Strengthening Federal 
Environmental, Energy, and Transportation Management.
    (b) Executive Order 13514 of October 5, 2009, Federal Leadership in 
Environmental, Energy, and Economic Performance.



Sec. 23.902  Policy.

    (a) Agencies shall implement environmental management systems (EMS) 
at all appropriate organizational levels. Where contractor activities 
affect an agency's environmental management aspects, EMS requirements 
shall be included in contracts to ensure proper implementation and 
execution of EMS roles and responsibilities.
    (b) The contracting officer shall--
    (1) Specify the EMS directives with which the contractor must 
comply; and
    (2) Ensure contractor compliance to the same extent as the agency 
would be required to comply, if the agency operated the facilities or 
vehicles.



Sec. 23.903  Contract clause.

    The contracting officer shall insert the clause at 52.223-19, 
Compliance With Environmental Management Systems, in all solicitations 
and contracts for contractor operation of Government-owned or -leased 
facilities or vehicles, located in the United States. For facilities 
located outside the United States, the agency head may determine that 
use of the clause is in the best interest of the Government.

 Subpart 23.10_Federal Compliance With Right-To-Know Laws and Pollution 
                         Prevention Requirements

    Source: 68 FR 43869, July 24, 2003, unless otherwise noted.



Sec. 23.1000  Scope.

    This subpart prescribes policies and procedures for obtaining 
information needed for Government--

[[Page 553]]

    (a) Compliance with right-to-know laws and pollution prevention 
requirements;
    (b) Implementation of an environmental management system (EMS) at a 
Federal facility; and
    (c) Completion of facility compliance audits (FCAs) at a Federal 
facility.



Sec. 23.1001  Authorities.

    (a) Emergency Planning and Community Right-to-Know Act of 1986, 42 
U.S.C. 11001-11050 (EPCRA).
    (b) Pollution Prevention Act of 1990, 42 U.S.C. 13101-13109 (PPA).
    (c) Executive Order 13423 of January 24, 2007, Strengthening Federal 
Environmental, Energy, and Transportation Management.
    (d) Executive Order 13514 of October 5, 2009, Federal Leadership in 
Environmental, Energy, and Economic Performance.

[68 FR 43869, July 24, 2003, as amended at 76 FR 31401, May 31, 2011]



Sec. 23.1002  Applicability.

    The requirements of this subpart apply to facilities owned or 
operated by an agency in the customs territory of the United States.



Sec. 23.1003  Definitions.

    As used in this subpart--
    Federal agency means an executive agency (see 2.101).

[68 FR 43869, July 24, 2003, as amended at 76 FR 31401, May 31, 2011]



Sec. 23.1004  Requirements.

    (a) Federal facilities are required to comply with--
    (1) The emergency planning and toxic release reporting requirements 
in EPCRA and PPA; and
    (2) The toxic chemical, and hazardous substance release and use 
reduction goals of sections 2(e) and 3(a)(vi) of Executive Order 13423.
    (b) Pursuant to EPCRA, PPA, E.O. 13423, and any agency implementing 
procedures, every new contract that provides for performance on a 
Federal facility shall require the contractor to provide information 
necessary for the Federal agency to comply with the--
    (1) Requirements in paragraph (a) of this section; and
    (2) Requirements for EMSs and FCAs if the place of performance is at 
a Federal facility designated by the agency.

[76 FR 31401, May 31, 2011]



Sec. 23.1005  Contract clause.

    (a) Insert the clause at 52.223-5, Pollution Prevention and Right-
to-Know Information, in solicitations and contracts that provide for 
performance, in whole or in part, on a Federal facility.
    (b) Use the clause with its Alternate I if the contract provides for 
contractor--
    (1) Operation or maintenance of a Federal facility at which the 
agency has implemented or plans to implement an EMS; or
    (2) Activities and operations--
    (i) To be performed at a Government-operated Federal facility that 
has implemented or plans to implement an EMS; and
    (ii) That the agency has determined are covered within the EMS.
    (c) Use the clause with its Alternate II if--
    (1) The contract provides for contractor activities on a Federal 
facility; and
    (2) The agency has determined that the contractor activities should 
be included within the FCA or an environmental management system audit.

  Subpart 23.11_Encouraging Contractor Policies to Ban Text Messaging 
                              While Driving

    Source: 75 FR 60265, Sept. 29, 2010, unless otherwise noted.



Sec. 23.1101  Purpose.

    This subpart implements the requirements of the Executive Order 
(E.O.) 13513, dated October 1, 2009 (74 FR 51225, October 6, 2009), 
Federal Leadership on Reducing Text Messaging while Driving.



Sec. 23.1102  Applicability.

    This subpart applies to all solicitations and contracts.



Sec. 23.1103  Definitions.

    As used in this subpart--
    Driving--(1) Means operating a motor vehicle on an active roadway 
with the

[[Page 554]]

motor running, including while temporarily stationary because of 
traffic, a traffic light, stop sign, or otherwise.
    (2) Does not include operating a motor vehicle with or without the 
motor running when one has pulled over to the side of, or off, an active 
roadway and has halted in a location where one can safely remain 
stationary.
    Text messaging means reading from or entering data into any handheld 
or other electronic device, including for the purpose of short message 
service texting, e-mailing, instant messaging, obtaining navigational 
information, or engaging in any other form of electronic data retrieval 
or electronic data communication. The term does not include glancing at 
or listening to a navigational device that is secured in a commercially 
designed holder affixed to the vehicle, provided that the destination 
and route are programmed into the device either before driving or while 
stopped in a location off the roadway where it is safe and legal to 
park.



Sec. 23.1104  Policy.

    Agencies shall encourage contractors and subcontractors to adopt and 
enforce policies that ban text messaging while driving--
    (a) Company-owned or -rented vehicles or Government-owned vehicles; 
or
    (b) Privately-owned vehicles when on official Government business or 
when performing any work for or on behalf of the Government.



Sec. 23.1105  Contract clause.

    The contracting officer shall insert the clause at 52.223-18, 
Encouraging Contractor Policies to Ban Text Messaging While Driving, in 
all solicitations and contracts.

[76 FR 39241, July 5, 2011]

        PART 24_PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

Sec.

Sec. 24.000 Scope of part.

              Subpart 24.1_Protection of Individual Privacy


Sec. 24.101 Definitions.

Sec. 24.102 General.

Sec. 24.103 Procedures.

Sec. 24.104 Contract clauses.

                 Subpart 24.2_Freedom of Information Act


Sec. 24.201 Authority.

Sec. 24.202 Prohibitions.

Sec. 24.203 Policy.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 
2473(c).

    Source: 48 FR 42277, Sept. 19, 1983, unless otherwise noted.



Sec. 24.000  Scope of part.

    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 
No. A-130, December 12, 1985, to Government contracts and cites the 
Freedom of Information Act (5 U.S.C. 552, as amended.)

[48 FR 42277, Sept. 19, 1983, as amended at 55 FR 38517, Sept. 18, 1990]

              Subpart 24.1_Protection of Individual Privacy



Sec. 24.101  Definitions.

    As used in this subpart--
    Agency means any executive department, military department, 
Government corporation, Government controlled corporation, or other 
establishment in the executive branch of the Government (including the 
Executive Office of the President), or any independent regulatory 
agency.
    Individual means a citizen of the United States or an alien lawfully 
admitted for permanent residence.
    Maintain means maintain, collect, use, or disseminate.
    Operation of a system of records means performance of any of the 
activities associated with maintaining the system of records, including 
the collection, use, and dissemination of records.
    Record means any item, collection, or grouping of information about 
an individual that is maintained by an agency, including, but not 
limited to, education, financial transactions, medical history, and 
criminal or employment history, and that contains the individual's name, 
or the identifying number,

[[Page 555]]

symbol, or other identifying particular assigned to the individual, such 
as a fingerprint or voiceprint or a photograph.
    System of records on individuals 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.

[48 FR 42277, Sept. 19, 1983, as amended at 66 FR 2130, Jan. 10, 2001]



Sec. 24.102  General.

    (a) The Act requires that when an agency contracts for the design, 
development, or operation of a system of records on individuals on 
behalf of the agency to accomplish an agency function the agency must 
apply the requirements of the Act to the contractor and its employees 
working on the contract.
    (b) An agency officer or employee may be criminally liable for 
violations of the Act. When the contract provides for operation of a 
system of records on individuals, contractors and their employees are 
considered employees of the agency for purposes of the criminal 
penalties of the Act.
    (c) If a contract specifically provides for the design, development, 
or operation of a system of records on individuals on behalf of an 
agency to accomplish an agency function, the agency must apply the 
requirements of the Act to the contractor and its employees working on 
the contract. The system of records operated under the contract is 
deemed to be maintained by the agency and is subject to the Act.
    (d) Agencies, which within the limits of their authorities, fail to 
require that systems of records on individuals operated on their behalf 
under contracts be operated in conformance with the Act may be civilly 
liable to individuals injured as a consequence of any subsequent failure 
to maintain records in conformance with the Act.



Sec. 24.103  Procedures.

    (a) The contracting officer shall review requirements to determine 
whether the contract will involve the design, development, or operation 
of a system of records on individuals to accomplish an agency function.
    (b) If one or more of those tasks will be required, the contracting 
officer shall--
    (1) Ensure that the contract work statement specifically identifies 
the system of records on individuals and the design, development, or 
operation work to be performed; and
    (2) Make available, in accordance with agency procedures, agency 
rules and regulation implementing the Act.



Sec. 24.104  Contract clauses.

    When the design, development, or operation of a system of records on 
individuals is required to accomplish an agency function, the 
contracting officer shall insert the following clauses in solicitations 
and contracts:
    (a) The clause at 52.224-1, Privacy Act Notification.
    (b) The clause at 52.224-2, Privacy Act.

                 Subpart 24.2_Freedom of Information Act



Sec. 24.201  Authority.

    The Freedom of Information Act (5 U.S.C. 552, as amended) provides 
that information is to be made available to the public either by (a) 
publication in the Federal Register; (b) providing an opportunity to 
read and copy records at convenient locations; or (c) upon request, 
providing a copy of a reasonably described record.



Sec. 24.202  Prohibitions.

    (a) A proposal in the possession or control of the Government, 
submitted in response to a competitive solicitation, shall not be made 
available to any person under the Freedom of Information Act. This 
prohibition does not apply to a proposal, or any part of a proposal, 
that is set forth or incorporated by reference in a contract between the 
Government and the contractor that submitted the proposal. (See 10 
U.S.C. 2305(g) and 41 U.S.C. 253b(m).)
    (b) No agency shall disclose any information obtained pursuant to 
15.403-3(b) that is exempt from disclosure under the Freedom of 
Information Act.

[[Page 556]]

(See 10 U.S.C. 2306a(d)(2)(C) and 41 U.S.C. 254b(d)(2)(C).)
    (c) A dispute resolution communication that is between a neutral 
person and a party to alternative dispute resolution proceedings, and 
that may not be disclosed under 5 U.S.C. 574, is exempt from disclosure 
under the Freedom of Information Act (5 U.S.C. 552(b)(3)).

[62 FR 257, Jan. 2, 1997, as amended at 62 FR 51270, Sept. 30, 1997; 63 
FR 58594, Oct. 30, 1998; 68 FR 56689, Oct. 1, 2003]



Sec. 24.203  Policy.

    (a) The Act specifies, among other things, how agencies shall make 
their records available upon public request, imposes strict time 
standards for agency responses, and exempts certain records from public 
disclosure. Each agency's implementation of these requirements is 
located in its respective title of the Code of Federal Regulations and 
referenced in subpart 24.2 of its implementing acquisition regulations.
    (b) Contracting officers may receive requests for records that may 
be exempted from mandatory public disclosure. The exemptions most often 
applicable are those relating to classified information, to trade 
secrets and confidential commercial or financial information, to 
interagency or intra-agency memoranda, or to personal and medical 
information pertaining to an individual. Other exemptions include agency 
personnel practices, and law enforcement. Since these requests often 
involve complex issues requiring an in-depth knowledge of a large and 
increasing body of court rulings and policy guidance, contracting 
officers are cautioned to comply with the implementing regulations of 
their agency and to obtain necessary guidance from the agency officials 
having Freedom of Information Act responsibility. If additional 
assistance is needed, authorized agency officials may contact the 
Department of Justice, Office of Information and Privacy. A Freedom of 
Information Act guide and other resources are available at the 
Department of Justice website under FOIA reference materials: http://
www.usdoj.gov/oip.

[48 FR 42277, Sept. 19, 1983, as amended at 51 FR 31426, Sept. 3, 1986. 
Redesignated at 62 FR 257, Jan. 2, 1997; 74 FR 2733, Jan. 15, 2009]

                       PART 25_FOREIGN ACQUISITION

Sec.

Sec. 25.000 Scope of part.

Sec. 25.001 General.

Sec. 25.002 Applicability of subparts.

Sec. 25.003 Definitions.

                 Subpart 25.1_Buy American Act_Supplies


Sec. 25.100 Scope of subpart.

Sec. 25.101 General.

Sec. 25.102 Policy.

Sec. 25.103 Exceptions.

Sec. 25.104 Nonavailable articles.

Sec. 25.105 Determining reasonableness of cost.

          Subpart 25.2_Buy American Act_Construction Materials


Sec. 25.200 Scope of subpart.

Sec. 25.201 Policy.

Sec. 25.202 Exceptions.

Sec. 25.203 Preaward determinations.

Sec. 25.204 Evaluating offers of foreign construction material.

Sec. 25.205 Postaward determinations.

Sec. 25.206 Noncompliance.

       Subpart 25.3_Contracts Performed Outside the United States


Sec. 25.301 Contractor personnel in a designated operational area or 
          supporting a diplomatic or consular mission outside the United 
          States.

Sec. 25.301-1 Scope.

Sec. 25.301-2 Government support.

Sec. 25.301-3 Weapons.

Sec. 25.301-4 Contract clause.

Sec. 25.302 Contractors performing private security functions outside 
          the United States.

Sec. 25.302-1 Scope.

Sec. 25.302-2 Definitions.

Sec. 25.302-3 Applicability.

Sec. 25.302-4 Policy.

Sec. 25.302-5 Remedies.

Sec. 25.302-6 Contract clause.

                      Subpart 25.4_Trade Agreements


Sec. 25.400 Scope of subpart.

Sec. 25.401 Exceptions.

Sec. 25.402 General.

Sec. 25.403 Trade Agreements Act.

Sec. 25.404 Caribbean Basin Trade Initiative.

Sec. 25.405 Caribbean Basin Trade Initiative.

Sec. 25.406 Israeli Trade Act.

Sec. 25.407 Agreement on Trade in Civil Aircraft.

Sec. 25.408 Procedures.

[[Page 557]]

         Subpart 25.5_Evaluating Foreign Offers_Supply Contracts


Sec. 25.501 General.

Sec. 25.502 Application.

Sec. 25.503 Group offers.

Sec. 25.504 Evaluation examples.

Sec. 25.504-1 Buy American Act.

Sec. 25.504-2 Trade Agreements Act/Caribbean Basin Trade Initiative/
          FTAs.

Sec. 25.504-3 FTA/Israeli Trade Act.

Sec. 25.504-4 Group award basis.

  Subpart 25.6_American Recovery and Reinvestment Act_Buy American Act_
                         Construction Materials


Sec. 25.600 Scope of subpart.

Sec. 25.601 Definitions.

Sec. 25.602 Policy.

Sec. 25.602-1 Section 1605 of the Recovery Act.

Sec. 25.602-2 Buy American Act.

Sec. 25.603 Exceptions.

Sec. 25.604 Preaward determination concerning the inapplicability of 
          section 1605 of the Recovery Act or the Buy American Act.

Sec. 25.605 Evaluating offers of foreign construction material.

Sec. 25.606 Postaward determinations.

Sec. 25.607 Noncompliance.

                     Subpart 25.7_Prohibited Sources


Sec. 25.700 Scope of subpart.

Sec. 25.701 Restrictions administered by the Department of the Treasury 
          on acquisitions of supplies or services from prohibited 
          sources.

Sec. 25.702 Prohibition on contracting with entities that conduct 
          restricted business operations in Sudan.

Sec. 25.702-1 Definitions.

Sec. 25.702-2 Certification.

Sec. 25.702-3 Remedies.

Sec. 25.702-4 Waiver.

Sec. 25.703 Prohibition on contracting with entities that engage in 
          certain activities or transactions relating to Iran.

Sec. 25.703-1 Definitions.

Sec. 25.703-2 Iran Sanctions Act.

Sec. 25.703-3 Prohibition on contracting with entities that export 
          sensitive technology to Iran.

Sec. 25.703-4 Waiver.

      Subpart 25.8_Other International Agreements and Coordination


Sec. 25.801 General.

Sec. 25.802 Procedures.

                     Subpart 25.9_Customs and Duties


Sec. 25.900 Scope of subpart.

Sec. 25.901 Policy.

Sec. 25.902 Procedures.

Sec. 25.903 Exempted supplies.

        Subpart 25.10_Additional Foreign Acquisition Regulations


Sec. 25.1001 Waiver of right to examination of records.

Sec. 25.1002 Use of foreign currency.

       Subpart 25.11_Solicitation Provisions and Contract Clauses


Sec. 25.1101 Acquisition of supplies.

Sec. 25.1102 Acquisition of construction.

Sec. 25.1103 Other provisions and clauses.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 
20113).

    Source: 64 FR 72419, Dec. 27, 1999, unless otherwise noted.



Sec. 25.000  Scope of part.

    (a) This part provides policies and procedures for--
    (1) Acquisition of foreign supplies, services, and construction 
materials; and
    (2) Contracts performed outside the United States.
    (b) It implements the Buy American Act, trade agreements, and other 
laws and regulations.

[73 FR 10957, Feb. 28, 2008]



Sec. 25.001  General.

    (a) The Buy American Act--
    (1) Restricts the purchase of supplies, that are not domestic end 
products, for use within the United States. A foreign end product may be 
purchased if the contracting officer determines that the price of the 
lowest domestic offer is unreasonable or if another exception applies 
(see Subpart 25.1); and
    (2) Requires, with some exceptions, the use of only domestic 
construction materials in contracts for construction in the United 
States (see Subpart 25.2).
    (b) The restrictions in the Buy American Act are not applicable in 
acquisitions subject to certain trade agreements (see Subpart 25.4). In 
these acquisitions, end products and construction materials from certain 
countries receive nondiscriminatory treatment in evaluation with 
domestic offers. Generally, the dollar value of the acquisition 
determines which of the trade agreements applies. Exceptions to the 
applicability of the trade agreements are described in Subpart 25.4.
    (c) The test to determine the country of origin for an end product 
under the

[[Page 558]]

Buy American Act (see the various country ``end product'' definitions in 
25.003) is different from the test to determine the country of origin 
for an end product under the trade agreements, or the criteria for the 
representation on end products manufactured outside the United States 
(see 52.225-18).
    (1) The Buy American Act uses a two-part test to define a ``domestic 
end product'' or ``domestic construction material'' (manufactured in the 
United States and a formula based on cost of domestic components). The 
component test has been waived for acquisition of commercially available 
off-the-shelf items.
    (2) Under the trade agreements, the test to determine country of 
origin is ``substantial transformation'' (i.e., transforming an article 
into a new and different article of commerce, with a name, character, or 
use distinct from the original article).
    (3) For the representation at 52.225-18, the only criterion is 
whether the place of manufacture of an end product is in the United 
States or outside the United States, without regard to the origin of the 
components.
    (4) When using funds appropriated under the American Recovery and 
Reinvestment Act of 2009 (Pub. L. 111-5), the definition of ``domestic 
manufactured construction material'' requires manufacture in the United 
States but does not include a requirement with regard to the origin of 
the components. If the construction material consists wholly or 
predominantly of iron or steel, the iron or steel must be produced in 
the United States.

[64 FR 72419, Dec. 27, 1999, as amended at 67 FR 21535, Apr. 30, 2002; 
71 FR 20306, Apr. 19, 2006; 71 FR 57377, Sept. 28, 2006; 74 FR 14626, 
Mar. 31, 2009; 75 FR 38691, July 2, 2010; 75 FR 53165, Aug. 30, 2010; 78 
FR 37694, June 21, 2013]

25.002  Applicability of subparts.

    The following table shows the applicability of the subparts. Subpart 
25.5 provides comprehensive procedures for offer evaluation and 
examples.

----------------------------------------------------------------------------------------------------------------
                                                            Supplies for use    Construction        Services
                                                           ------------------------------------     performed
                                      Subpart                                                  -----------------
                                                             Inside  Outside   Inside  Outside   Inside  Outside
                                                              U.S.     U.S.     U.S.     U.S.     U.S.     U.S.
----------------------------------------------------------------------------------------------------------------
25.1..................  Buy American Act--Supplies........        X  .......  .......  .......  .......  .......
25.2..................  Buy American Act--Construction      .......  .......        X  .......  .......  .......
                         Materials.
25.3..................  Contracts Performed Outside the     .......        X  .......        X  .......        X
                         United States.
25.4..................  Trade Agreements..................        X        X        X        X        X        X
25.5..................  Evaluating Foreign Offers--Supply         X        X  .......  .......  .......  .......
                         Contracts.
25.6..................  American Recovery and Reinvestment  .......  .......        X  .......  .......  .......
                         Act--Buy American Act--
                         Construction Materials.
25.7..................  Prohibited Sources................        X        X        X        X        X        X
25.8..................  Other International Agreements and        X        X  .......        X  .......        X
                         Coordination.
25.9..................  Customs and Duties................        X  .......  .......  .......  .......  .......
25.10.................  Additional Foreign Acquisition            X        X        X        X        X        X
                         Regulations.
25.11.................  Solicitation Provisions and               X        X        X        X        X        X
                         Contract Clauses.
----------------------------------------------------------------------------------------------------------------


[64 FR 72419, Dec. 27, 1999, as amended at 67 FR 21535, Apr. 30, 2002; 
71 FR 20306, Apr. 19, 2006; 73 FR 10957, Feb. 28, 2008; 74 FR 14626, 
Mar. 31, 2009]



Sec. 25.003  Definitions.

    As used in this part--
    Caribbean Basin country means any of the following countries: 
Antigua and Barbuda, Aruba, Bahamas, Barbados, Belize, Bonaire, British 
Virgin Islands, Curacao, Dominica, Grenada, Guyana, Haiti, Jamaica, 
Montserrat, Saba, St. Kitts and Nevis, St. Lucia, St. Vincent and the 
Grenadines, Sint Eustatius, Sint Maarten, or Trinidad and Tobago.
    Caribbean Basin country end product--
    (1) Means an article that--
    (i)(A) Is wholly the growth, product, or manufacture of a Caribbean 
Basin country; or

[[Page 559]]

    (B) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in a 
Caribbean Basin country into a new and different article of commerce 
with a name, character, or use distinct from that of the article or 
articles from which it was transformed; and
    (ii) Is not excluded from duty-free treatment for Caribbean 
countries under 19 U.S.C. 2703(b).
    (A) For this reason, the following articles are not Caribbean Basin 
country end products:
    (1) Tuna, prepared or preserved in any manner in airtight 
containers.
    (2) Petroleum, or any product derived from petroleum.
    (3) Watches and watch parts (including cases, bracelets, and straps) 
of whatever type including, but not limited to, mechanical, quartz 
digital, or quartz analog, if such watches or watch parts contain any 
material that is the product of any country to which the Harmonized 
Tariff Schedule of the United States (HTSUS) column 2 rates of duty 
apply (i.e., Afghanistan, Cuba, Laos, North Korea, and Vietnam).
    (4) Certain of the following: textiles and apparel articles; 
footwear, handbags, luggage, flat goods, work gloves, and leather 
wearing apparel; or handloomed, handmade, and folklore articles.
    (B) Access to the HTSUS to determine duty-free status of articles of 
the types listed in paragraph (1)(ii)(A)(4) of this definition is 
available via the Internet at http://www.usitc.gov/tata/hts/. In 
particular, see the following:
    (1) General Note 3(c), Products Eligible for Special Tariff 
treatment.
    (2) General Note 17, Products of Countries Designated as Beneficiary 
Countries under the United States-Caribbean Basin Trade Partnership Act 
of 2000.
    (3) Section XXII, Chapter 98, Subchapter II, Articles Exported and 
Returned, Advanced or Improved Abroad, U.S. Note 7(b).
    (4) Section XXII, Chapter 98, Subchapter XX, Goods Eligible for 
Special Tariff Benefits under the United States-Caribbean Basin Trade 
Partnership Act; and
    (2) Refers to a product offered for purchase under a supply 
contract, but for purposes of calculating the value of the acquisition, 
includes services (except transportation services) incidental to the 
article, provided that the value of those incidental services does not 
exceed that of the article itself.
    Civil aircraft and related articles means--
    (1) All aircraft other than aircraft to be purchased for use by the 
Department of Defense or the U.S. Coast Guard;
    (2) The engines (and parts and components for incorporation into the 
engines) of these aircraft;
    (3) Any other parts, components, and subassemblies for incorporation 
into the aircraft; and
    (4) Any ground flight simulators, and parts and components of these 
simulators, for use with respect to the aircraft, whether to be used as 
original or replacement equipment in the manufacture, repair, 
maintenance, rebuilding, modification, or conversion of the aircraft and 
without regard to whether the aircraft or articles receive duty-free 
treatment under section 601(a)(2) of the Trade Agreements Act.
    Component means an article, material, or supply incorporated 
directly into an end product or construction material.
    Construction material means an article, material, or supply brought 
to the construction site by a contractor or subcontractor for 
incorporation into the building or work. The term also includes an item 
brought to the site preassembled from articles, materials, or supplies. 
However, emergency life safety systems, such as emergency lighting, fire 
alarm, and audio evacuation systems, that are discrete systems 
incorporated into a public building or work and that are produced as 
complete systems, are evaluated as a single and distinct construction 
material regardless of when or how the individual parts or components of 
those systems are delivered to the construction site. Materials 
purchased directly by the Government are supplies, not construction 
material.
    Cost of components means--

[[Page 560]]

    (1) For components purchased by the contractor, the acquisition 
cost, including transportation costs to the place of incorporation into 
the end product or construction material (whether or not such costs are 
paid to a domestic firm), and any applicable duty (whether or not a 
duty-free entry certificate is issued); or
    (2) For components manufactured by the contractor, all costs 
associated with the manufacture of the component, including 
transportation costs as described in paragraph (1) of this definition, 
plus allocable overhead costs, but excluding profit. Cost of components 
does not include any costs associated with the manufacture of the end 
product.
    Designated country means any of the following countries:
    (1) A World Trade Organization Government Procurement Agreement 
country (Armenia, Aruba, Austria, Belgium, Bulgaria, Canada, Cyprus, 
Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hong 
Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea (Republic 
of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, 
Norway, Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, 
Spain, Sweden, Switzerland, Taiwan (known in the World Trade 
Organization as ``the Separate Customs Territory of Taiwan, Penghu, 
Kinmen and Matsu'' (Chinese Taipei)) or United Kingdom);
    (2) A Free Trade Agreement country (Australia, Bahrain, Canada, 
Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, 
Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Oman, Panama, 
Peru, or Singapore);
    (3) A least developed country (Afghanistan, Angola, Bangladesh, 
Benin, Bhutan, Burkina Faso, Burundi, Cambodia, Central African 
Republic, Chad, Comoros, Democratic Republic of Congo, Djibouti, 
Equatorial Guinea, Eritrea, Ethiopia, Gambia, Guinea, Guinea-Bissau, 
Haiti, Kiribati, Laos, Lesotho, Liberia, Madagascar, Malawi, Mali, 
Mauritania, Mozambique, Nepal, Niger, Rwanda, Samoa, Sao Tome and 
Principe, Senegal, Sierra Leone, Solomon Islands, Somalia, South Sudan, 
Tanzania, Timor-Leste, Togo, Tuvalu, Uganda, Vanuatu, Yemen, or Zambia); 
or
    (4) A Caribbean Basin country (Antigua and Barbuda, Aruba, Bahamas, 
Barbados, Belize, Bonaire, British Virgin Islands, Curacao, Dominica, 
Grenada, Guyana, Haiti, Jamaica, Montserrat, Saba, St. Kitts and Nevis, 
St. Lucia, St. Vincent and the Grenadines, Sint Eustatius, Sint Maarten, 
or Trinidad and Tobago).
    Designated country end product means a WTO GPA country end product, 
an FTA country end product, a least developed country end product, or a 
Caribbean Basin country end product.
    Domestic construction material means--
    (1)(i) An unmanufactured construction material mined or produced in 
the United States;
    (ii) A construction material manufactured in the United States, if--
    (A) The cost of the components mined, produced, or manufactured in 
the United States exceeds 50 percent of the cost of all its components. 
Components of foreign origin of the same class or kind for which 
nonavailability determinations have been made are treated as domestic; 
or
    (B) The construction material is a COTS item;
    (2) Except that for use in subpart 25.6, see the definition in 
25.601.
    Domestic end product means--
    (1) An unmanufactured end product mined or produced in the United 
States;
    (2) An end product manufactured in the United States, if--
    (i) The cost of its components mined, produced, or manufactured in 
the United States exceeds 50 percent of the cost of all its components. 
Components of foreign origin of the same class or kind as those that the 
agency determines are not mined, produced, or manufactured in sufficient 
and reasonably available commercial quantities of a satisfactory quality 
are treated as domestic. Scrap generated, collected, and prepared for 
processing in the United States is considered domestic; or
    (ii) The end product is a COTS item.
    Domestic offer means an offer of a domestic end product. When the 
solicitation specifies that award will be made on a group of line items, 
a domestic

[[Page 561]]

offer means an offer where the proposed price of the domestic end 
products exceeds 50 percent of the total proposed price of the group.
    Eligible offer means an offer of an eligible product. When the 
solicitation specifies that award will be made on a group of line items, 
an eligible offer means a foreign offer where the combined proposed 
price of the eligible products and the domestic end products exceeds 50 
percent of the total proposed price of the group.
    Eligible product means a foreign end product, construction material, 
or service that, due to applicability of a trade agreement to a 
particular acquisition, is not subject to discriminatory treatment.
    End product means those articles, materials, and supplies to be 
acquired for public use.
    Foreign construction material means a construction material other 
than a domestic construction material.
    Foreign contractor means a contractor or subcontractor organized or 
existing under the laws of a country other than the United States.
    Foreign end product means an end product other than a domestic end 
product.
    Foreign offer means any offer other than a domestic offer.
    Free Trade Agreement country means Australia, Bahrain, Canada, 
Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, 
Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Oman, Panama, 
Peru, or Singapore.
    Free Trade Agreement country end product means an article that--
    (1) Is wholly the growth, product, or manufacture of a Free Trade 
Agreement (FTA) country; or
    (2) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in an 
FTA country into a new and different article of commerce with a name, 
character, or use distinct from that of the article or articles from 
which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product, includes services (except transportation 
services) incidental to the article, provided that the value of those 
incidental services does not exceed that of the article itself.
    Israeli end product means an article that--
    (1) Is wholly the growth, product, or manufacture of Israel; or
    (2) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in 
Israel into a new and different article of commerce with a name, 
character, or use distinct from that of the article or articles from 
which it was transformed.
    Least developed country means any of the following countries: 
Afghanistan, Angola, Bangladesh, Benin, Bhutan, Burkina Faso, Burundi, 
Cambodia, Central African Republic, Chad, Comoros, Democratic Republic 
of Congo, Djibouti, Equatorial Guinea, Eritrea, Ethiopia, Gambia, 
Guinea, Guinea-Bissau, Haiti, Kiribati, Laos, Lesotho, Liberia, 
Madagascar, Malawi, Mali, Mauritania, Mozambique, Nepal, Niger, Rwanda, 
Samoa, Sao Tome and Principe, Senegal, Sierra Leone, Solomon Islands, 
Somalia, South Sudan, Tanzania, Timor-Leste, Togo, Tuvalu, Uganda, 
Vanuatu, Yemen, or Zambia.
    Least developed country end product means an article that--
    (1) Is wholly the growth, product, or manufacture of a least 
developed country; or
    (2) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in a 
least developed country into a new and different article of commerce 
with a name, character, or use distinct from that of the article or 
articles from which it was transformed. The term refers to a product 
offered for purchase under a supply contract, but for purposes of 
calculating the value of the end product, includes services (except 
transportation services) incidental to the article, provided that the 
value of those incidental services does not exceed that of the article 
itself.
    Noneligible offer means an offer of a noneligible product.
    Noneligible product means a foreign end product that is not an 
eligible product.

[[Page 562]]

    United States means the 50 States, the District of Columbia, and 
outlying areas.
    U.S.-made end product means an article that is mined, produced, or 
manufactured in the United States or that is substantially transformed 
in the United States into a new and different article of commerce with a 
name, character, or use distinct from that of the article or articles 
from which it was transformed.
    World Trade Organization Government Procurement Agreement (WTO GPA) 
country means any of the following countries: Armenia, Aruba, Austria, 
Belgium, Bulgaria, Canada, Cyprus, Czech Republic, Denmark, Estonia, 
Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, 
Israel, Italy, Japan, Korea (Republic of), Latvia, Liechtenstein, 
Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, 
Romania, Singapore, Slovak Republic, Slovenia, Spain, Sweden, 
Switzerland, Taiwan, or United Kingdom.
    WTO GPA country end product means an article that--
    (1) Is wholly the growth, product, or manufacture of a WTO GPA 
country; or
    (2) In the case of an article that consists in whole or in part of 
materials from another country, has been substantially transformed in a 
WTO GPA country into a new and different article of commerce with a 
name, character, or use distinct from that of the article or articles 
from which it was transformed. The term refers to a product offered for 
purchase under a supply contract, but for purposes of calculating the 
value of the end product includes services (except transportation 
services) incidental to the article, provided that the value of those 
incidental services does not exceed that of the article itself.

[64 FR 72419, Dec. 27, 1999]

    Editorial Note: For Federal Register citations affecting 25.003, see 
the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and at www.fdsys.gov.

                 Subpart 25.1_Buy American Act_Supplies



Sec. 25.100  Scope of subpart.

    (a) This subpart implements--
    (1) The Buy American Act (41 U.S.C. 10a - 10d);
    (2) Executive Order 10582, December 17, 1954; and
    (3) Waiver of the component test of the Buy American Act for 
acquisitions of commercially available off-the-shelf (COTS) items in 
accordance with 41 U.S.C 431.
    (b) It applies to supplies acquired for use in the United States, 
including supplies acquired under contracts set aside for small business 
concerns, if--
    (1) The supply contract exceeds the micro-purchase threshold; or
    (2) The supply portion of a contract for services that involves the 
furnishing of supplies (e.g., lease) exceeds the micro-purchase 
threshold.

[74 2722, Jan. 15, 2009]



Sec. 25.101  General.

    (a) The Buy American Act restricts the purchase of supplies that are 
not domestic end products. For manufactured end products, the Buy 
American Act uses a two-part test to define a domestic end product.
    (1) The article must be manufactured in the United States; and
    (2) The cost of domestic components must exceed 50 percent of the 
cost of all the components. In accordance with 41 U.S.C. 431, this 
component test of the Buy American Act has been waived for acquisitions 
of COTS items (see 12.505(a)).
    (b) The Buy American Act applies to small business set-asides. A 
manufactured product of a small business concern is a U.S.-made end 
product, but is not a domestic end product unless it meets the component 
test in paragraph (a)(2) of this section.
    (c) Exceptions that allow the purchase of a foreign end product are 
listed at 25.103. The unreasonable cost exception is implemented through 
the use of an evaluation factor applied to low foreign offers that are 
not eligible offers. The evaluation factor is not used to provide a 
preference for one foreign offer over another. Evaluation

[[Page 563]]

procedures and examples are provided in Subpart 25.5.

[64 FR 72419, Dec. 27, 1999, as amended at 74 FR 2722, Jan. 15, 2009]



Sec. 25.102  Policy.

    Except as provided in 25.103, acquire only domestic end products for 
public use inside the United States.



Sec. 25.103  Exceptions.

    When one of the following exceptions applies, the contracting 
officer may acquire a foreign end product without regard to the 
restrictions of the Buy American Act:
    (a) Public interest. The head of the agency may make a determination 
that domestic preference would be inconsistent with the public interest. 
This exception applies when an agency has an agreement with a foreign 
government that provides a blanket exception to the Buy American Act.
    (b) Nonavailability. The Buy American Act does not apply with 
respect to articles, materials, or supplies if articles, materials, or 
supplies of the class or kind to be acquired, either as end items or 
components, are not mined, produced, or manufactured in the United 
States in sufficient and reasonably available commercial quantities and 
of a satisfactory quality.
    (1) Class determinations. (i) A nonavailability determination has 
been made for the articles listed in 25.104. This determination does not 
necessarily mean that there is no domestic source for the listed items, 
but that domestic sources can only meet 50 percent or less of total U.S. 
Government and nongovernment demand.
    (ii) Before acquisition of an article on the list, the procuring 
agency is responsible to conduct market research appropriate to the 
circumstances, including seeking of domestic sources. This applies to 
acquisition of an article as--
    (A) An end product; or
    (B) A significant component (valued at more than 50 percent of the 
value of all the components).
    (iii) The determination in paragraph (b)(1)(i) of this section does 
not apply if the contracting officer learns at any time before the time 
designated for receipt of bids in sealed bidding or final offers in 
negotiation that an article on the list is available domestically in 
sufficient and reasonably available commercial quantities of a 
satisfactory quality to meet the requirements of the solicitation. The 
contracting officer must--
    (A) Ensure that the appropriate Buy American Act provision and 
clause are included in the solicitation (see 25.1101(a), 25.1101(b), or 
25.1102);
    (B) Specify in the solicitation that the article is available 
domestically and that offerors and contractors may not treat foreign 
components of the same class or kind as domestic components; and
    (C) Submit a copy of supporting documentation to the appropriate 
council identified in 1.201-1, in accordance with agency procedures, for 
possible removal of the article from the list.
    (2) Individual determinations. (i) The head of the contracting 
activity may make a determination that an article, material, or supply 
is not mined, produced, or manufactured in the United States in 
sufficient and reasonably available commercial quantities of a 
satisfactory quality.
    (ii) If the contracting officer considers that the nonavailability 
of an article is likely to affect future acquisitions, the contracting 
officer may submit a copy of the determination and supporting 
documentation to the appropriate council identified in 1.201-1, in 
accordance with agency procedures, for possible addition to the list in 
25.104.
    (3) A written determination is not required if all of the following 
conditions are present:
    (i) The acquisition was conducted through use of full and open 
competition.
    (ii) The acquisition was synopsized in accordance with 5.201.
    (iii) No offer for a domestic end product was received.
    (c) Unreasonable cost. The contracting officer may determine that 
the cost of a domestic end product would be unreasonable, in accordance 
with 25.105 and Subpart 25.5.
    (d) Resale. The contracting officer may purchase foreign end 
products specifically for commissary resale.

[[Page 564]]

    (e) Information technology that is a commercial item. The 
restriction on purchasing foreign end products does not apply to the 
acquisition of information technology that is a commercial item, when 
using fiscal year 2004 or subsequent fiscal year funds (Section 535(a) 
of Division F, Title V, Consolidated Appropriations Act, 2004, and 
similar sections in subsequent appropriations acts).

[64 FR 72419, Dec. 27, 1999, as amended at 70 FR 11742, Mar. 9, 2005; 71 
FR 224, Jan. 3, 2006]



Sec. 25.104  Nonavailable articles.

    (a) The following articles have been determined to be nonavailable 
in accordance with 25.103(b)(1)(i):

Acetylene, black.
Agar, bulk.
Anise.
Antimony, as metal or oxide.
Asbestos, amosite, chrysotile, and crocidolite.
Bamboo shoots.
Bananas.
Bauxite.
Beef, corned, canned.
Beef extract.
Bephenium hydroxynapthoate.
Bismuth.
Books, trade, text, technical, or scientific; newspapers; pamphlets; 
magazines; periodicals; printed briefs and films; not printed in the 
United States and for which domestic editions are not available.
Brazil nuts, unroasted.
Cadmium, ores and flue dust.
Calcium cyanamide.
Capers.
Cashew nuts.
Castor beans and castor oil.
Chalk, English.
Chestnuts.
Chicle.
Chrome ore or chromite.
Cinchona bark.
Cobalt, in cathodes, rondelles, or other primary ore and metal forms.
Cocoa beans.
Coconut and coconut meat, unsweetened, in shredded, desiccated, or 
similarly prepared form.
Coffee, raw or green bean.
Colchicine alkaloid, raw.
Copra.
Cork, wood or bark and waste.
Cover glass, microscope slide.
Crane rail (85-pound per foot).
Cryolite, natural.
Dammar gum.
Diamonds, industrial, stones and abrasives.
Emetine, bulk.
Ergot, crude.
Erythrityl tetranitrate.
Fair linen, altar.
Fibers of the following types: abaca, abace, agave, coir, flax, jute, 
jute burlaps, palmyra, and sisal.
Goat hair canvas.
Goat and kidskins.
Grapefruit sections, canned.
Graphite, natural, crystalline, crucible grade.
Hand file sets (Swiss pattern).
Handsewing needles.
Hemp yarn.
Hog bristles for brushes.
Hyoscine, bulk.
Ipecac, root.
Iodine, crude.
Kaurigum.
Lac.
Leather, sheepskin, hair type.
Lavender oil.
Manganese.
Menthol, natural bulk.
Mica.
Microprocessor chips (brought onto a Government construction site as 
separate units for incorporation into building systems during 
construction or repair and alteration of real property).
Modacrylic fiber.
Nickel, primary, in ingots, pigs, shots, cathodes, or similar forms; 
nickel oxide and nickel salts.
Nitroguanidine (also known as picrite).
Nux vomica, crude.
Oiticica oil.
Olive oil.
Olives (green), pitted or unpitted, or stuffed, in bulk.
Opium, crude.
Oranges, mandarin, canned.
Petroleum, crude oil, unfinished oils, and finished products.
Pineapple, canned.
Pine needle oil.
Platinum and related group metals, refined, as sponge, powder, ingots, 
or cast bars.
Pyrethrum flowers.
Quartz crystals.
Quebracho.
Quinidine.
Quinine.
Rabbit fur felt.
Radium salts, source and special nuclear materials.
Rosettes.
Rubber, crude and latex.
Rutile.
Santonin, crude.
Secretin.
Shellac.
Silk, raw and unmanufactured.
Spare and replacement parts for equipment of foreign manufacture, and 
for which domestic parts are not available.
Spices and herbs, in bulk.

[[Page 565]]

Sugars, raw.
Swords and scabbards.
Talc, block, steatite.
Tantalum.
Tapioca flour and cassava.
Tartar, crude; tartaric acid and cream of tartar in bulk.
Tea in bulk.
Thread, metallic (gold).
Thyme oil.
Tin in bars, blocks, and pigs.
Triprolidine hydrochloride.
Tungsten.
Vanilla beans.
Venom, cobra.
Water chestnuts.
Wax, carnauba.
Wire glass.
Woods; logs, veneer, and lumber of the following species: Alaskan yellow 
cedar, angelique, balsa, ekki, greenheart, lignum vitae, mahogany, and 
teak.
Yarn, 50 Denier rayon.
Yeast, active dry and instant active dry.

    (b) This list will be published in the Federal Register for public 
comment no less frequently than once every five years. Unsolicited 
recommendations for deletions from this list may be submitted at any 
time and should provide sufficient data and rationale to permit 
evaluation (see 1.502).

[64 FR 72419, Dec. 27, 1999, as amended at 69 FR 34241, June 18, 2004; 
70 FR 11743, Mar. 9, 2005; 75 FR 34283, June 16, 2010]



Sec. 25.105  Determining reasonableness of cost.

    (a) The contracting officer--
    (1) Must use the evaluation factors in paragraph (b) of this section 
unless the head of the agency makes a written determination that the use 
of higher factors is more appropriate. If the determination applies to 
all agency acquisitions, the agency evaluation factors must be published 
in agency regulations; and
    (2) Must not apply evaluation factors to offers of eligible products 
if the acquisition is subject to a trade agreement under Subpart 25.4.
    (b) If there is a domestic offer that is not the low offer, and the 
restrictions of the Buy American Act apply to the low offer, the 
contracting officer must determine the reasonableness of the cost of the 
domestic offer by adding to the price of the low offer, inclusive of 
duty--
    (1) 6 percent, if the lowest domestic offer is from a large business 
concern; or
    (2) 12 percent, if the lowest domestic offer is from a small 
business concern. The contracting officer must use this factor, or 
another factor established in agency regulations, in small business set-
asides if the low offer is from a small business concern offering the 
product of a small business concern that is not a domestic end product 
(see Subpart 19.5).
    (c) The price of the domestic offer is reasonable if it does not 
exceed the evaluated price of the low offer after addition of the 
appropriate evaluation factor in accordance with paragraph (a) or (b) of 
this section. (See evaluation procedures at Subpart 25.5.)

          Subpart 25.2_Buy American Act_Construction Materials



Sec. 25.200  Scope of subpart.

    (a) This subpart implements--
    (1) The Buy American Act (41 U.S.C. 10a - 10d);
    (2) Executive Order 10582, December 17, 1954; and
    (3) Waiver of the component test of the Buy American Act for 
acquisitions of commercially available off-the-shelf (COTS) items in 
accordance with 41 U.S.C. 431.
    (b) It applies to contracts for the construction, alteration, or 
repair of any public building or public work in the United States.
    (c) When using funds appropriated or otherwise provided by the 
American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) (Recovery 
Act) for construction, see Subpart 25.6.

[74 FR 2722, Jan. 15, 2009, as amended at 74 FR 22810, May 14, 2009]



Sec. 25.201  Policy.

    Except as provided in 25.202, use only domestic construction 
materials in construction contracts performed in the United States.



Sec. 25.202  Exceptions.

    (a) When one of the following exceptions applies, the contracting 
officer may allow the contractor to acquire foreign construction 
materials without

[[Page 566]]

regard to the restrictions of the Buy American Act:
    (1) Impracticable or inconsistent with public interest. The head of 
the agency may determine that application of the restrictions of the Buy 
American Act to a particular construction material would be 
impracticable or would be inconsistent with the public interest. The 
public interest exception applies when an agency has an agreement with a 
foreign government that provides a blanket exception to the Buy American 
Act.
    (2) Nonavailability. The head of the contracting activity may 
determine that a particular construction material is not mined, 
produced, or manufactured in the United States in sufficient and 
reasonably available commercial quantities of a satisfactory quality. 
The determinations of nonavailability of the articles listed at 
25.104(a) and the procedures at 25.103(b)(1) also apply if any of those 
articles are acquired as construction materials.
    (3) Unreasonable cost. The contracting officer concludes that the 
cost of domestic construction material is unreasonable in accordance 
with 25.204.
    (4) Information technology that is a commercial item. The 
restriction on purchasing foreign construction material does not apply 
to the acquisition of information technology that is a commercial item, 
when using Fiscal Year 2004 or subsequent fiscal year funds (Section 
535(a) of Division F, Title V, Consolidated Appropriations Act, 2004, 
and similar sections in subsequent appropriations acts).
    (b) Determination and findings. When a determination is made for any 
of the reasons stated in this section that certain foreign construction 
materials may be used, the contracting officer must list the excepted 
materials in the contract. The agency must make the findings justifying 
the exception available for public inspection.
    (c) Acquisitions under trade agreements. For construction contracts 
with an estimated acquisition value of $7,777,000 or more, see Subpart 
25.4.

[64 FR 72419, Dec. 27, 1999, as amended at 65 FR 36026, June 6, 2000; 67 
FR 56123, Aug. 30, 2002; 69 FR 1053, Jan. 7, 2004; 70 FR 11743, Mar. 9, 
2005; 71 FR 865, Jan. 5, 2006; 73 FR 10963, Feb. 28, 2008; 75 FR 38690, 
July 2, 2010; 75 FR 60267, Sept. 29, 2010; 77 FR 12934, Mar. 2, 2012]



Sec. 25.203  Preaward determinations.

    (a) For any acquisition, an offeror may request from the contracting 
officer a determination concerning the inapplicability of the Buy 
American Act for specifically identified construction materials. The 
time for submitting the request is specified in the solicitation in 
paragraph (b) of either 52.225-10 or 52.225-12, whichever applies. The 
information and supporting data that must be included in the request are 
also specified in the solicitation in paragraphs (c) and (d) of either 
52.225-9 or 52.225-11, whichever applies.
    (b) Before award, the contracting officer must evaluate all requests 
based on the information provided and may supplement this information 
with other readily available information.



Sec. 25.204  Evaluating offers of foreign construction material.

    (a) Offerors proposing to use foreign construction material other 
than that listed by the Government in the applicable clause at 52.225-9, 
paragraph (b)(2), or 52.225-11, paragraph (b)(3), or covered by the WTO 
GPA or a Free Trade Agreement (paragraph (b)(2) of 52.225-11), must 
provide the information required by paragraphs (c) and (d) of the 
respective clauses.
    (b) Unless the head of the agency specifies a higher percentage, the 
contracting officer must add to the offered price 6 percent of the cost 
of any foreign construction material proposed for exception from the 
requirements of the Buy American Act based on the unreasonable cost of 
domestic construction materials. In the case of a tie, the contracting 
officer must give preference to an offer that does not include foreign 
construction material excepted at the request of the offeror on the 
basis of unreasonable cost.
    (c) Offerors also may submit alternate offers based on use of 
equivalent domestic construction material to

[[Page 567]]

avoid possible rejection of the entire offer if the Government 
determines that an exception permitting use of a particular foreign 
construction material does not apply.
    (d) If the contracting officer awards a contract to an offeror that 
proposed foreign construction material not listed in the applicable 
clause in the solicitation (paragraph (b)(2) of 52.225-9, or paragraph 
(b)(3) of 52.225-11), the contracting officer must add the excepted 
materials to the list in the contract clause.

[64 FR 72419, Dec. 27, 1999, as amended at 69 FR 1053, Jan. 7, 2004; 69 
FR 77873, Dec. 28, 2004]



Sec. 25.205  Postaward determinations.

    (a) If a contractor requests a determination regarding the 
inapplicability of the Buy American Act after contract award, the 
contractor must explain why it could not request the determination 
before contract award or why the need for such determination otherwise 
was not reasonably foreseeable. If the contracting officer concludes 
that the contractor should have made the request before contract award, 
the contracting officer may deny the request.
    (b) The contracting officer must base evaluation of any request for 
a determination regarding the inapplicability of the Buy American Act 
made after contract award on information required by paragraphs (c) and 
(d) of the applicable clause at 52.225-9 or 52.225-11 and/or other 
readily available information.
    (c) If a determination, under 25.202(a), is made after contract 
award that an exception to the Buy American Act applies, the contracting 
officer must negotiate adequate consideration and modify the contract to 
allow use of the foreign construction material. When the basis for the 
exception is the unreasonable price of a domestic construction material, 
adequate consideration is at least the differential established in 
25.202(a) or in accordance with agency procedures.



Sec. 25.206  Noncompliance.

    The contracting officer must--
    (a) Review allegations of Buy American Act violations;
    (b) Unless fraud is suspected, notify the contractor of the apparent 
unauthorized use of foreign construction material and request a reply, 
to include proposed corrective action; and
    (c) If the review reveals that a contractor or subcontractor has 
used foreign construction material without authorization, take 
appropriate action, including one or more of the following:
    (1) Process a determination concerning the inapplicability of the 
Buy American Act in accordance with 25.205.
    (2) Consider requiring the removal and replacement of the 
unauthorized foreign construction material.
    (3) If removal and replacement of foreign construction material 
incorporated in a building or work would be impracticable, cause undue 
delay, or otherwise be detrimental to the interests of the Government, 
the contracting officer may determine in writing that the foreign 
construction material need not be removed and replaced. A determination 
to retain foreign construction material does not constitute a 
determination that an exception to the Buy American Act applies, and 
this should be stated in the determination. Further, a determination to 
retain foreign construction material does not affect the Government's 
right to suspend or debar a contractor, subcontractor, or supplier for 
violation of the Buy American Act, or to exercise other contractual 
rights and remedies, such as reducing the contract price or terminating 
the contract for default.
    (4) If the noncompliance is sufficiently serious, consider 
exercising appropriate contractual remedies, such as terminating the 
contract for default. Also consider preparing and forwarding a report to 
the agency suspending or debarring official in accordance with Subpart 
9.4. If the noncompliance appears to be fraudulent, refer the matter to 
other appropriate agency officials, such as the officer responsible for 
criminal investigation.

       Subpart 25.3_Contracts Performed Outside the United States

    Source: 73 FR 10957, Feb. 28, 2008, unless otherwise noted.

[[Page 568]]



Sec. 25.301  Contractor personnel in a designated operational area or 
          supporting a diplomatic or consular mission outside the United 
          States.



Sec. 25.301-1  Scope.

    (a) This section applies to contracts requiring contractor personnel 
to perform outside the United States--
    (1) In a designated operational area during--
    (i) Contingency operations;
    (ii) Humanitarian or peacekeeping operations; or
    (iii) Other military operations or military exercises, when 
designated by the combatant commander; or
    (2) When supporting a diplomatic or consular mission--
    (i) That has been designated by the Department of State as a danger 
pay post (see http://aoprals.state.gov/Web920/danger--pay--all.asp); or
    (ii) That the contracting officer determines is a post at which 
application of the clause at FAR 52.225-19, Contractor Personnel in a 
Designated Operational Area or Supporting a Diplomatic or Consular 
Mission outside the United States, is appropriate.
    (b) Any of the types of operations listed in paragraph (a)(1) of 
this section may include stability operations such as--
    (1) Establishment or maintenance of a safe and secure environment; 
or
    (2) Provision of emergency infrastructure reconstruction, 
humanitarian relief, or essential governmental services (until feasible 
to transition to local government).
    (c) This section does not apply to personal services contracts (see 
FAR 37.104), unless specified otherwise in agency procedures.



Sec. 25.301-2  Government support.

    (a) Generally, contractors are responsible for providing their own 
logistical and security support, including logistical and security 
support for their employees. The agency shall provide logistical or 
security support only when the appropriate agency official, in 
accordance with agency guidance, determines that--
    (1) Such Government support is available and is needed to ensure 
continuation of essential contractor services; and
    (2) The contractor cannot obtain adequate support from other sources 
at a reasonable cost.
    (b) The contracting officer shall specify in the contract, and in 
the solicitation if possible, the exact support to be provided, and 
whether this support is provided on a reimbursable basis, citing the 
authority for the reimbursement.



Sec. 25.301-3  Weapons.

    The contracting officer shall follow agency procedures and the 
weapons policy established by the combatant commander or the chief of 
mission when authorizing contractor personnel to carry weapons (see 
paragraph (i) of the clause at 52.225-19, Contractor Personnel in a 
Designated Operational Area or Supporting a Diplomatic or Consular 
Mission outside the United States).



Sec. 25.301-4  Contract clause.

    Insert the clause at 52.225-19, Contractor Personnel in a Designated 
Operational Area or Supporting a Diplomatic or Consular Mission outside 
the United States, in solicitations and contracts, other than personal 
service contracts with individuals, that will require contractor 
personnel to perform outside the United States--
    (a) In a designated operational area during--
    (1) Contingency operations;
    (2) Humanitarian or peacekeeping operations; or
    (3) Other military operations or military exercises, when designated 
by the combatant commander; or
    (b) When supporting a diplomatic or consular mission--
    (1) That has been designated by the Department of State as a danger 
pay post (see http://aoprals.state.gov/Web920/danger--pay--all.asp); or
    (2) That the contracting officer determines is a post at which 
application of the clause FAR 52.225-19, Contractor Personnel in a 
Designated Operational Area or Supporting a Diplomatic or Consular 
Mission outside the United States, is appropriate.

[[Page 569]]



Sec. 25.302  Contractors performing private security functions outside 
          the United States.

[78 FR 37672, June 21, 2013]



Sec. 25.302-1  Scope.

    This section prescribes policy for implementing section 862 of the 
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2008 
(Pub. L. 110-181), as amended by section 853 of the NDAA for FY 2009 
(Pub. L. 110-417), and sections 831 and 832 of the NDAA for FY 2011 
(Pub. L. 111-383) (see 10 U.S.C. 2302 Note).

[78 FR 37672, June 21, 2013]



Sec. 25.302-2  Definitions.

    As used in this section--
    Area of combat operations means an area of operations designated as 
such by the Secretary of Defense when enhanced coordination of 
contractors performing private security functions working for Government 
agencies is required.
    Other significant military operations means activities, other than 
combat operations, as part of a contingency operation outside the United 
States that is carried out by United States Armed Forces in an 
uncontrolled or unpredictable high-threat environment where personnel 
performing security functions may be called upon to use deadly force 
(see 25.302-3(b)(2)).
    Private security functions means activities engaged in by a 
contractor, as follows--
    (1) Guarding of personnel, facilities, designated sites, or property 
of a Federal agency, the contractor or subcontractor, or a third party; 
or
    (2) Any other activity for which personnel are required to carry 
weapons in the performance of their duties in accordance with the terms 
of the contract.

[78 FR 37672, June 21, 2013]



Sec. 25.302-3  Applicability.

    (a) DoD: This section applies to acquisitions by Department of 
Defense components under a contract that requires performance--
    (1) During contingency operations outside the United States;
    (2) In an area of combat operations as designated by the Secretary 
of Defense; or
    (3) In an area of other significant military operations as 
designated by the Secretary of Defense, and only upon agreement of the 
Secretary of Defense and the Secretary of State.
    (b) Non-DoD agencies: This section applies to acquisitions by non-
DoD agencies under a contract that requires performance--
    (1) In an area of combat operations as designated by the Secretary 
of Defense; or
    (2) In an area of other significant military operations as 
designated by the Secretary of Defense, and only upon agreement of the 
Secretary of Defense and the Secretary of State.
    (c) These designations can be found

at http://www.acq.osd.mil/dpap/pacc/cc/

designated--areas--of--other--significant

--military--operations.html and http://

www.acq.osd.mil/dpap/pacc/cc/designated

--areas--of--combat--operations.html.
    (d) When the applicability requirements of this subsection are met, 
contractors and subcontractors must comply with 32 CFR part 159, whether 
the contract is for the performance of private security functions as a 
primary deliverable or the provision of private security functions is 
ancillary to the stated deliverables.
    (e) The requirements of section 25.302 shall not apply to--
    (1) Contracts entered into by elements of the intelligence community 
in support of intelligence activities; or
    (2) Temporary arrangements entered into on a non-DoD contract for 
the performance of private security functions by individual indigenous 
personnel not affiliated with a local or expatriate security company. 
These temporary arrangements must still comply with local law.

[78 FR 37672, June 21, 2013]



Sec. 25.302-4  Policy.

    (a) General. (1) The policy, responsibilities, procedures, 
accountability, training, equipping, and conduct of personnel performing 
private security functions in designated areas are addressed at 32 CFR 
part 159, entitled ``Private Security Contractors (PSCs)

[[Page 570]]

Operating in Contingency Operations, Combat Operations, or Other 
Significant Military Operations.'' Contractor responsibilities include 
ensuring that employees are aware of, and comply with, relevant orders, 
directives, and instructions; keeping appropriate personnel records; 
accounting for weapons; registering and identifying armored vehicles, 
helicopters, and other military vehicles; and reporting specified 
incidents in which personnel performing private security functions under 
a contract are involved.
    (2) In addition, contractors are required to cooperate with any 
Government-authorized investigation into incidents reported pursuant to 
paragraph (c)(3) of the clause at 52.225-26, Contractors Performing 
Private Security Functions Outside the United States, by providing 
access to employees performing private security functions and relevant 
information in the possession of the contractor regarding the incident 
concerned.
    (b) Implementing guidance. In accordance with 32 CFR part 159--
    (1) Geographic combatant commanders will provide DoD contractors 
performing private security functions with guidance and procedures for 
the operational environment in their area of responsibility; and
    (2) In a designated area of combat operations, or areas of other 
significant military operations, as designated by the Secretary of 
Defense and only upon agreement of the Secretary of Defense and the 
Secretary of State, the relevant Chief of Mission will provide 
implementing instructions for non-DoD contractors performing private 
security functions and their personnel consistent with the standards set 
forth by the geographic combatant commander. In accordance with 32 CFR 
159.4(c), the Chief of Mission has the option of instructing non-DoD 
contractors performing private security functions and their personnel to 
follow the guidance and procedures of the geographic combatant commander 
and/or a sub-unified commander or joint force commander where 
specifically authorized by the combatant commander to do so and notice 
of that authorization is provided to non-DoD agencies.

[78 FR 37672, June 21, 2013]



Sec. 25.302-5  Remedies.

    (a) In addition to other remedies available to the Government--
    (1) The contracting officer may direct the contractor, at its own 
expense, to remove and replace any contractor or subcontractor personnel 
performing private security functions who fail to comply with or violate 
applicable requirements. Such action may be taken at the Government's 
discretion without prejudice to its rights under any other contract 
provision, e.g., termination for default;
    (2) The contracting officer shall include the contractor's failure 
to comply with the requirements of this section in appropriate databases 
of past performance and consider any such failure in any responsibility 
determination or evaluation of past performance; and
    (3) In the case of award-fee contracts, the contracting officer 
shall consider a contractor's failure to comply with the requirements of 
this subsection in the evaluation of the contractor's performance during 
the relevant evaluation period, and may treat such failure as a basis 
for reducing or denying award fees for such period or for recovering all 
or part of award fees previously paid for such period.
    (b) If the performance failures are severe, prolonged, or repeated, 
the contracting officer shall refer the matter to the appropriate 
suspending and debarring official.

[78 FR 37672, June 21, 2013]



Sec. 25.302-6  Contract clause.

    (a) Use the clause at 52.225-26, Contractors Performing Private 
Security Functions Outside the United States, in the following 
solicitations and contracts:
    (1) A DoD contract for performance in an area of--
    (i) Contingency operations outside the United States;
    (ii) Combat operations, as designated by the Secretary of Defense; 
or
    (iii) Other significant military operations, as designated by the 
Secretary of Defense only upon agreement of the Secretary of Defense and 
the Secretary of State.

[[Page 571]]

    (2) A contract of a non-DoD agency for performance in an area of--
    (i) Combat operations, as designated by the Secretary of Defense; or
    (ii) Other significant military operations, as designated by the 
Secretary of Defense and only upon agreement of the Secretary of Defense 
and the Secretary of State.
    (b) The clause is not required to be used for--
    (1) Contracts entered into by elements of the intelligence community 
in support of intelligence activities; or
    (2) Temporary arrangements entered into by non-DoD contractors for 
the performance of private security functions by individual indigenous 
personnel not affiliated with a local or expatriate security company.

[78 FR 37672, June 21, 2013]

                      Subpart 25.4_Trade Agreements



Sec. 25.400  Scope of subpart.

    (a) This subpart provides policies and procedures applicable to 
acquisitions that are covered by--
    (1) The World Trade Organization Government Procurement Agreement 
(WTO GPA), as approved by Congress in the Uruguay Round Agreements Act 
(Pub. L. 103-465);
    (2) Free Trade Agreements (FTA), consisting of--
    (i) NAFTA (the North American Free Trade Agreement, as approved by 
Congress in the North American Free Trade Agreement Implementation Act 
of 1993 (Pub. L. 103-182) (19 U.S.C. 3301 note));
    (ii) Chile FTA (the United States-Chile Free Trade Agreement, as 
approved by Congress in the United States-Chile Free Trade Agreement 
Implementation Act (Pub. L. 108-77) (19 U.S.C. 3805 note));
    (iii) Singapore FTA (the United States-Singapore Free Trade 
Agreement, as approved by Congress in the United States-Singapore Free 
Trade Agreement Implementation Act (Pub. L. 108-78) (19 U.S.C. 3805 
note));
    (iv) Australia FTA (the United States-Australia Free Trade 
Agreement, as approved by Congress in the United States-Australia Free 
Trade Agreement Implementation Act (Pub. L. 108-286) (19 U.S.C. 3805 
note));
    (v) Morocco FTA (The United States--Morocco Free Trade Agreement, as 
approved by Congress in the United States--Morocco Free Trade Agreement 
Implementation Act (Pub. L. 108-302) (19 U.S.C. 3805 note));
    (vi) CAFTA-DR (The Dominican Republic-Central America-United States 
Free Trade Agreement, as approved by Congress in the Dominican Republic-
Central America-United States Free Trade Agreement Implementation Act 
(Pub. L. 109-53) (19 U.S.C. 4001 note));
    (vii) Bahrain FTA (the United States-Bahrain Free Trade Agreement, 
as approved by Congress in the United States-Bahrain Free Trade 
Agreement Implementation Act (Pub. L. 109-169) (19 U.S.C. 3805 note));
    (viii) Oman FTA (the United States-Oman Free Trade Agreement, as 
approved by Congress in the United States-Oman Free Trade Agreement 
Implementation Act (Pub. L. 109-283) (19 U.S.C. 3805 note));
    (ix) Peru FTA (the United States-Peru Trade Promotion Agreement, as 
approved by Congress in the United States-Peru Trade Promotion Agreement 
Implementation Act (Pub. L. 110-138) (19 U.S.C. 3805 note));
    (x) Korea FTA (the United States-Korea Free Trade Agreement 
Implementation Act (Pub. L. 112-41) (19 U.S.C 3805 note));
    (xi) Colombia FTA (the United States-Colombia Trade Promotion 
Agreement Implementation Act (Pub. L. 112-42) (19 U.S.C. 3805 note)); 
and
    (xii) Panama FTA (the United States-Panama Trade Promotion Agreement 
Implementation Act (Pub. L. 112-43) (19 U.S.C. 3805 note));
    (3) The least developed country designation made by the U.S. Trade 
Representative, pursuant to the Trade Agreements Act (19 U.S.C. 
2511(b)(4)), in acquisitions covered by the WTO GPA;
    (4) The Caribbean Basin Trade Initiative (CBTI) (determination of 
the U.S. Trade Representative that end products or construction material 
granted duty-free entry from countries designated as beneficiaries under 
the Caribbean Basin Economic Recovery Act

[[Page 572]]

(19 U.S.C. 2701, et seq.), with the exception of Panama, must be treated 
as eligible products in acquisitions covered by the WTO GPA);
    (5) The Israeli Trade Act (the U.S.-Israel Free Trade Area 
Agreement, as approved by Congress in the United States-Israel Free 
Trade Area Implementation Act of 1985 (19 U.S.C. 2112 note)); or
    (6) The Agreement on Trade in Civil Aircraft (U.S. Trade 
Representative waiver of the Buy American Act for signatories of the 
Agreement on Trade in Civil Aircraft, as implemented in the Trade 
Agreements Act of 1979 (19 U.S.C. 2513)).
    (b) For application of the trade agreements that are unique to 
individual agencies, see agency regulations.

[69 FR 77873, Dec. 28, 2004, as amended at 71 FR 219, 2006; 71 FR 20307, 
Apr. 19, 2006; 71 FR 36937, June 28, 2006; 71 FR 67777, Nov. 22, 2006; 
74 FR 28428, June 15, 2009; 77 FR 13954, Mar. 7, 2012; 77 FR 27549, May 
10, 2012; 77 FR 69724, Nov. 20, 2012]



Sec. 25.401  Exceptions.

    (a) This subpart does not apply to--
    (1) Acquisitions set aside for small businesses;
    (2) Acquisitions of arms, ammunition, or war materials, or purchases 
indispensable for national security or for national defense purposes;
    (3) Acquisitions of end products for resale;
    (4) Acquisitions from Federal Prison Industries, Inc., under Subpart 
8.6, and acquisitions under Subpart 8.7, Acquisition from Nonprofit 
Agencies Employing People Who Are Blind or Severely Disabled; and
    (5) Other acquisitions not using full and open competition, if 
authorized by Subpart 6.2 or 6.3, when the limitation of competition 
would preclude use of the procedures of this subpart; or sole source 
acquisitions justified in accordance with 13.501(a).
    (b) In the World Trade Organization Government Procurement Agreement 
(WTO GPA) and each FTA, there is a U.S. schedule that lists services 
that are excluded from that agreement in acquisitions by the United 
States. Acquisitions of the following services are excluded from 
coverage by the U.S. schedule of the WTO GPA or an FTA as indicated in 
this table:

----------------------------------------------------------------------------------------------------------------
                     The service (Federal                        Bahrain FTA,
                    Service Codes from the                     CAFTA-DR, Chile
                   Federal Procurement Data                     FTA, Columbia
                 System Product/Service Code    WTO GPA AND      FTA, NAFTA,     Singapore FTA    Australia and
                   Manual are indicated in       KOREA FTA        Oman FTA,                        Morocco FTA
                     parentheses for some                      Panama FTA, and
                          services.)                               Peru FTA
----------------------------------------------------------------------------------------------------------------
(1)              All services purchased in                 X                X                X                X
                  support of military
                  services overseas..
(2)              (i) Automatic data                        X                X   ...............  ...............
                  processing (ADP)
                  telecommunications and
                  transmission services
                  (D304), except enhanced
                  (i.e., value-added)
                  telecommunications
                  services..
                 (ii) ADP teleprocessing and               X                X   ...............  ...............
                  timesharing services
                  (D305), telecommunications
                  network management
                  services (D316), automated
                  news services, data
                  services or other
                  information services
                  (D317), and other ADP and
                  telecommunications
                  services (D399).
                 (iii) Basic                               *                *                X                X
                  telecommunications network
                  services (i.e., voice
                  telephone services, packet-
                  switched data transmission
                  services, circuit-switched
                  data transmission
                  services, telex services,
                  telegraph services,
                  facsimile services, and
                  private leased circuit
                  services, but not
                  information services, as
                  defined in 47 U.S.C.
                  153(20)).
(3)              Dredging...................               X                X                X                X
(4)              (i) Operation and                         X   ...............               X   ...............
                  management contracts of
                  certain Government or
                  privately owned facilities
                  used for Government
                  purposes, including
                  Federally Funded Research
                  and Development Centers.

[[Page 573]]

 
                 (ii) Operation of all                   * *                X              * *                X
                  Department of Defense,
                  Department of Energy, or
                  the National Aeronautics
                  and Space Administration
                  facilities; and all
                  Government-owned research
                  and development facilities
                  or Government-owned
                  environmental laboratories.
(5)              Research and development...               X                X                X                X
(6)              Transportation services                   X                X                X                X
                  (including launching
                  services, but not
                  including travel agent
                  services).
(7)              Utility services...........               X                X                X                X
(8)              Maintenance, repair,         ...............               X   ...............               X
                  modification, rebuilding
                  and installation of
                  equipment related to ships
                  (J019).
(9)              Nonnuclear ship repair       ...............               X   ...............              X
                  (J998).
----------------------------------------------------------------------------------------------------------------
*Note 1. Acquisitions of the services listed at (2)(iii) of this table are a subset of the excluded services at
  (2)(i) and (ii), and are therefore not covered under the WTO GPA.
**Note 2. Acquisitions of the services listed at (4)(ii) of this table are a subset of the excluded services at
  (4)(i), and are therefore not covered under the WTO GPA.


[69 FR 1054, Jan. 7, 2004, as amended at 69 FR 77874, Dec. 28, 2004; 70 
FR 18958, Apr. 11, 2005; 71 FR 219, Jan. 3, 2006; 71 FR 20307, Apr. 19, 
2006; 71 FR 36937, June 28, 2006; 71 FR 67777, Nov. 22, 2006; 74 FR 
28428, June 15, 2009; 77 FR 13954, Mar. 7, 2012; 77 FR 27550, May 10, 
2012; 77 FR 69724, Nov. 20, 2012; 78 FR 6189, Jan. 29, 2013]



Sec. 25.402  General.

    (a)(1) The Trade Agreements Act (19 U.S.C. 2501, et seq.) provides 
the authority for the President to waive the Buy American Act and other 
discriminatory provisions for eligible products from countries that have 
signed an international trade agreement with the United States, or that 
meet certain other criteria, such as being a least developed country. 
The President has delegated this waiver authority to the U.S. Trade 
Representative. In acquisitions covered by the WTO GPA, Free Trade 
Agreements, or the Israeli Trade Act, the USTR has waived the Buy 
American Act and other discriminatory provisions for eligible products. 
Offers of eligible products receive equal consideration with domestic 
offers.
    (2) The contracting officer shall determine the origin of services 
by the country in which the firm providing the services is established. 
See Subpart 25.5 for evaluation procedures for supply contracts covered 
by trade agreements.
    (b) The value of the acquisition is a determining factor in the 
applicability of trade agreements. Most of these dollar thresholds are 
subject to revision by the U.S. Trade Representative approximately every 
2 years. The various thresholds are summarized as follows:

----------------------------------------------------------------------------------------------------------------
                                                                      Supply          Service      Construction
                                                                     contract        contract        contract
                         Trade agreement                           (equal to or    (equal to or    (equal to or
                                                                    exceeding)      exceeding)      exceeding)
----------------------------------------------------------------------------------------------------------------
WTO GPA.........................................................        $202,000        $202,000      $7,777,000
FTAs:
    Australia FTA...............................................          77,494          77,494       7,777,000
    Bahrain FTA.................................................         202,000         202,000      10,074,262
    CAFTA-DR (Costa Rica, Dominican Republic, El Salvador,                77,494          77,494       7,777,000
     Guatemala, Honduras, and Nicaragua)........................
    Chile FTA...................................................          77,494          77,494       7,777,000
    Colombia FTA................................................          77,494          77,494       7,777,000
    Korea FTA...................................................         100,000         100,000       7,777,000
    Morocco FTA.................................................         202,000         202,000       7,777,000
NAFTA:
    --Canada....................................................          25,000          77,494      10,074,262
    --Mexico....................................................          77,494          77,494      10,074,262
    Oman FTA....................................................         202,000         202,000      10,074,262
    Panama FTA..................................................         202,000         202,000       7,777,000
    Peru FTA....................................................         202,000         202,000       7,777,000

[[Page 574]]

 
    Singapore FTA...............................................          77,494          77,494       7,777,000
Israeli Trade Act...............................................          50,000  ..............  ..............
----------------------------------------------------------------------------------------------------------------


[69 FR 77874, Dec. 28, 2004, as amended at 71 FR 219, Jan. 3, 2006; 71 
FR 865, Jan. 5, 2006; 71 FR 20307, Apr. 19, 2006; 71 FR 36937, June 28, 
2006; 71 FR 67777, Nov. 22, 2006; 72 FR 46358, Aug. 17, 2007; 73 FR 
10963, Feb. 28, 2008; 73 FR 16747, Mar. 28, 2008; 74 FR 28428, June 15, 
2009; 75 FR 38690, July 2, 2010; 77 FR 27550, May 10, 2012; 77 FR 69724, 
Nov. 20, 2012]



Sec. 25.403  World Trade Organization Government Procurement Agreement 
          and Free Trade Agreements.

    (a) Eligible products from WTO GPA and FTA countries are entitled to 
the nondiscriminatory treatment specified in 25.402(a)(1). The WTO GPA 
and FTAs specify procurement procedures designed to ensure fairness (see 
25.408).
    (b) Thresholds. (1) To determine whether the acquisition of products 
by lease, rental, or lease-purchase contract (including lease-to-
ownership, or lease-with-option-to purchase) is covered by the WTO GPA 
or an FTA, calculate the estimated acquisition value as follows:
    (i) If a fixed-term contract of 12 months or less is contemplated, 
use the total estimated value of the acquisition.
    (ii) If a fixed-term contract of more than 12 months is 
contemplated, use the total estimated value of the acquisition plus the 
estimated residual value of the leased equipment at the conclusion of 
the contemplated term of the contract.
    (iii) If an indefinite-term contract is contemplated, use the 
estimated monthly payment multiplied by the total number of months that 
ordering would be possible under the proposed contract, i.e., the 
initial ordering period plus any optional ordering periods.
    (iv) If there is any doubt as to the contemplated term of the 
contract, use the estimated monthly payment multiplied by 48.
    (2) The estimated value includes the value of all options.
    (3) If, in any 12-month period, recurring or multiple awards for the 
same type of product or products are anticipated, use the total 
estimated value of these projected awards to determine whether the WTO 
GPA or an FTA applies. Do not divide any acquisition with the intent of 
reducing the estimated value of the acquisition below the dollar 
threshold of the WTO GPA or an FTA.
    (c) Purchase restriction. (1) Under the Trade Agreements Act (19 
U.S.C. 2512), in acquisitions covered by the WTO GPA, acquire only U.S.-
made or designated country end products or U.S. or designated country 
services, unless offers for such end products or services are either not 
received or are insufficient to fulfill the requirements. This purchase 
restriction does not apply below the WTO GPA threshold for supplies and 
services, even if the acquisition is covered by an FTA.

[64 FR 72419, Dec. 27, 1999, as amended at 65 FR 36026, June 6, 2000; 67 
FR 21535, Apr. 30, 2002; 67 FR 56123, Aug. 30, 2002; 69 FR 1054, Jan. 7, 
2004; 69 FR 77875, Dec. 28, 2004]



Sec. 25.404  Least developed countries.

    For acquisitions covered by the WTO GPA, least developed country end 
products, construction material, and services must be treated as 
eligible products.

[69 FR 77875, Dec. 28, 2004]



Sec. 25.405  Caribbean Basin Trade Initiative.

    Under the Caribbean Basin Trade Initiative, the United States Trade 
Representative has determined that, for acquisitions covered by the WTO 
GPA, Caribbean Basin country end products, construction material, and 
services must be treated as eligible products. In accordance with 
Section 201 (a)(3) of the Dominican Republic--Central America--United 
States Free Trade Implementation Act (Pub. L. 109-53), when the CAFTA-DR 
agreement enters into force with respect to a country,

[[Page 575]]

that country is no longer designated as a beneficiary country for 
purposes of the Caribbean Basin Economic Recovery Act, and is therefore 
no longer included in the definition of ``Caribbean Basin country'' for 
purposes of the Caribbean Basin Trade Initiative.

[65 FR 24322, Apr. 25, 2000, as amended at 67 FR 6118, Feb. 8, 2002; 69 
FR 1055, Jan. 7, 2004; 69 FR 77875, Dec. 28, 2004; 71 FR 36937, June 28, 
2006]



Sec. 25.406  Israeli Trade Act.

    Acquisitions of supplies by most agencies are covered by the Israeli 
Trade Act, if the estimated value of the acquisition is $50,000 or more 
but does not exceed the WTO GPA threshold for supplies (see 25.402(b)). 
Agencies other than the Department of Defense, the Department of Energy, 
the Department of Transportation, the Bureau of Reclamation of the 
Department of the Interior, the Federal Housing Finance Board, and the 
Office of Thrift Supervision must evaluate offers of Israeli end 
products without regard to the restrictions of the Buy American Act. The 
Israeli Trade Act does not prohibit the purchase of other foreign end 
products. In accordance with Section 201 (a)(3) of the Dominican 
Republic--Central America--United States Free Trade Implementation Act 
(Pub. L. 109-53), when the CAFTA-DR agreement enters into force with 
respect to a country, that country is no longer designated as a 
beneficiary country for purposes of the Caribbean Basin Economic 
Recovery Act, and is therefore no longer included in the definition of 
``Caribbean Basin country'' for purposes of the Caribbean Basin Trade 
Initiative.

[64 FR 72419, Dec. 27, 1999, as amended at 67 FR 21535, Apr. 30, 2002; 
69 FR 1055, Jan. 7, 2004; 69 FR 77875, Dec. 28, 2004; 71 FR 36937, June 
28, 2006]



Sec. 25.407  Agreement on Trade in Civil Aircraft.

    Under the authority of Section 303 of the Trade Agreements Act, the 
U.S. Trade Representative has waived the Buy American Act for civil 
aircraft and related articles that meet the substantial transformation 
test of the Trade Agreements Act, from countries that are parties to the 
Agreement on Trade in Civil Aircraft. Those countries are Albania, 
Austria, Belgium, Bulgaria, Canada, Cyprus, Czech Republic, Denmark, 
Egypt, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, 
Ireland, Italy, Japan, Latvia, Lithuania, Luxembourg, Macao China, 
Malta, the Netherlands, Norway, Poland, Portugal, Romania, Slovakia, 
Slovenia, Spain, Sweden, Switzerland, Taiwan (Chinese Taipei), and the 
United Kingdom.

[77 FR 12936, Mar. 2, 2012]



Sec. 25.408  Procedures.

    (a) If the WTO GPA or an FTA applies (see 25.401), the contracting 
officer must--
    (1) Comply with the requirements of 5.203, Publicizing and response 
time;
    (2) Comply with the requirements of 5.207, Preparation and 
transmittal of synopses;
    (3) Not include technical requirements in solicitations solely to 
preclude the acquisition of eligible products;
    (4) Specify in solicitations that offerors must submit offers in the 
English language and in U.S. dollars (see 52.214-34, Submission of 
Offers in the English Language, and 52.214-35, Submission of Offers in 
U.S. Currency, or paragraph (c)(5) of 52.215-1, Instruction to 
Offerors--Competitive Acquisitions); and
    (5) Provide unsuccessful offerors from WTO GPA or FTA countries 
notice in accordance with 14.409-1 or 15.503.
    (b) See Subpart 25.5 for evaluation procedures and examples.

[64 FR 72419, Dec. 27, 1999, as amended at 68 FR 56679, Oct. 1, 2003; 69 
FR 1055, Jan. 7, 2004; 69 FR 77875, Dec. 28, 2004; 73 FR 10962, Feb. 28, 
2008]

         Subpart 25.5_Evaluating Foreign Offers_Supply Contracts



Sec. 25.501  General.

    The contracting officer--
    (a) Must apply the evaluation procedures of this subpart to each 
line item of an offer unless either the offer or the solicitation 
specifies evaluation on a group basis (see 25.503);

[[Page 576]]

    (b) May rely on the offeror's certification of end product origin 
when evaluating a foreign offer;
    (c) Must identify and reject offers of end products that are 
prohibited in accordance with Subpart 25.7; and
    (d) Must not use the Buy American Act evaluation factors prescribed 
in this subpart to provide a preference for one foreign offer over 
another foreign offer.

[64 FR 72419, Dec. 27, 1999, as amended at 67 FR 21535, Apr. 30, 2002; 
71 FR 20306, Apr. 19, 2006]



Sec. 25.502  Application.

    (a) Unless otherwise specified in agency regulations, perform the 
following steps in the order presented:
    (1) Eliminate all offers or offerors that are unacceptable for 
reasons other than price; e.g., nonresponsive, debarred or suspended, or 
a prohibited source (see Subpart 25.7).
    (2) Rank the remaining offers by price.
    (3) If the solicitation specifies award on the basis of factors in 
addition to cost or price, apply the evaluation factors as specified in 
this section and use the evaluated cost or price in determining the 
offer that represents the best value to the Government.
    (b) For acquisitions covered by the WTO GPA (see Subpart 25.4)--
    (1) Consider only offers of U.S.-made or designated country end 
products, unless no offers of such end products were received;
    (2) If the agency gives the same consideration given eligible offers 
to offers of U.S.-made end products that are not domestic end products, 
award on the low offer. Otherwise, evaluate in accordance with agency 
procedures; and
    (3) If there were no offers of U.S.-made or designated country end 
products, make a nonavailability determination (see 25.103(b)(2)) and 
award on the low offer (see 25.403(c)).
    (c) For acquisitions not covered by the WTO GPA, but subject to the 
Buy American Act (an FTA or the Israeli Trade Act also may apply), the 
following applies:
    (1) If the low offer is a domestic offer or an eligible offer under 
NAFTA or the Israeli Trade Act, award on that offer.
    (2) If the low offer is a noneligible offer and there were no 
domestic offers (see 25.103(b)(3)), award on the low offer.
    (3) If the low offer is a noneligible offer and there is an eligible 
offer that is lower than the lowest domestic offer, award on the low 
offer. The Buy American Act provides an evaluation preference only for 
domestic offers.
    (4) Otherwise, apply the appropriate evaluation factor provided in 
25.105 to the low offer.
    (i) If the evaluated price of the low offer remains less than the 
lowest domestic offer, award on the low offer.
    (ii) If the price of the lowest domestic offer is less than the 
evaluated price of the low offer, award on the lowest domestic offer.
    (d) Ties. (1) If application of an evaluation factor results in a 
tie between a domestic offer and a foreign offer, award on the domestic 
offer.
    (2) If no evaluation preference was applied (i.e., offers afforded 
nondiscriminatory treatment under the Buy American Act), resolve ties 
between domestic and foreign offers by a witnessed drawing of lots by an 
impartial individual.
    (3) Resolve ties between foreign offers from small business concerns 
(under the Buy American Act, a small business offering a manufactured 
article that does not meet the definition of ``domestic end product'' is 
a foreign offer) or foreign offers from a small business concern and a 
large business concern in accordance with 14.408-6(a).

[64 FR 72419, Dec. 27, 1999, as amended at 67 FR 21535, Apr. 30, 2002; 
69 FR 1055, Jan. 7, 2004; 69 FR 77875, Dec. 28, 2004; 71 FR 20306, Apr. 
19, 2006]



Sec. 25.503  Group offers.

    (a) If the solicitation or an offer specifies that award can be made 
only on a group of line items or on all line items contained in the 
solicitation or offer, reject the offer--
    (1) If any part of the award would consist of prohibited end 
products (see Subpart 25.7); or
    (2) If the acquisition is covered by the WTO GPA and any part of the 
offer consists of items restricted in accordance with 25.403(c).

[[Page 577]]

    (b) If an offer restricts award to a group of line items or to all 
line items contained in the offer, determine for each line item whether 
to apply an evaluation factor (see 25.504-4, Example 1).
    (1) First, evaluate offers that do not specify an award restriction 
on a line item basis in accordance with 25.502, determining a tentative 
award pattern by selecting for each line item the offer with the lowest 
evaluated price.
    (2) Evaluate an offer that specifies an award restriction against 
the offered prices of the tentative award pattern, applying the 
appropriate evaluation factor on a line item basis.
    (3) Compute the total evaluated price for the tentative award 
pattern and the offer that specified an award restriction.
    (4) Unless the total evaluated price of the offer that specified an 
award restriction is less than the total evaluated price of the 
tentative award pattern, award based on the tentative award pattern.
    (c) If the solicitation specifies that award will be made only on a 
group of line items or all line items contained in the solicitation, 
determine the category of end products on the basis of each line item, 
but determine whether to apply an evaluation factor on the basis of the 
group of items (see 25.504-4, Example 2).
    (1) If the proposed price of domestic end products exceeds 50 
percent of the total proposed price of the group, evaluate the entire 
group as a domestic offer. Evaluate all other groups as foreign offers.
    (2) For foreign offers, if the proposed price of domestic end 
products and eligible products exceeds 50 percent of the total proposed 
price of the group, evaluate the entire group as an eligible offer.
    (3) Apply the evaluation factor to the entire group in accordance 
with 25.502.

[64 FR 72419, Dec. 27, 1999, as amended at 69 FR 77875, Dec. 28, 2004; 
71 FR 20306, Apr. 19, 2006]



Sec. 25.504  Evaluation Examples.

    The following examples illustrate the application of the evaluation 
procedures in 25.502 and 25.503. The examples assume that the 
contracting officer has eliminated all offers that are unacceptable for 
reasons other than price or a trade agreement (see 25.502(a)(1)). The 
evaluation factor may change as provided in agency regulations.

[67 FR 21535, Apr. 30, 2002]



Sec. 25.504-1  Buy American Act.

    (a)(1) Example 1.

Offer A.............................     $12,000  Domestic end product,
                                                   small business.
Offer B.............................      11,700  Domestic end product,
                                                   small business.
Offer C.............................      10,000  U.S.-made end product
                                                   (not domestic), small
                                                   business.
 

    (2) Analysis: This acquisition is for end products for use in the 
United States and is set aside for small business concerns. The Buy 
American Act applies. Since the acquisition value is less than $25,000 
and the acquisition is set aside, none of the trade agreements apply. 
Perform the steps in 25.502(a). Offer C is evaluated as a foreign end 
product because it is the product of a small business, but is not a 
domestic end product (see 25.502(c)(4)). Since Offer B is a domestic 
offer, apply the 12 percent factor to Offer C (see 25.105(b)(2)). The 
resulting evaluated price of $11,200 remains lower than Offer B. The 
cost of Offer B is therefore unreasonable (see 25.105(c)). Award on 
Offer C at $10,000 (see 25.502(c)(4)(i)).
    (b)(1) Example 2.

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Offer A..........................      $11,000  Domestic end product,
                                                 small business
Offer B..........................      $10,700  Domestic end product,
                                                 small business
Offer C..........................      $10,200  U.S.-made end product
                                                 (not domestic), small
                                                 business
------------------------------------------------------------------------


[[Page 578]]

    (2) Analysis: This acquisition is for end products for use in the 
United States and is set aside for small business concerns. The Buy 
American Act applies. Perform the steps in 25.502(a). Offer C is 
evaluated as a foreign end product because it is the product of a small 
business but is not a domestic end product (see 25.502(c)(4)). After 
applying the 12 percent factor, the evaluated price of Offer C is 
$11,424. Award on Offer B at $10,700 (see 25.502(c)(4)(ii)).

[64 FR 72419, Dec. 27, 1999, as amended at 67 FR 21535, Apr. 30, 2002]



Sec. 25.504-2  WTO GPA/Caribbean Basin Trade Initiative/FTAs.

    Example 1.

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Offer A........................         304,000  U.S.-made end product
                                                  (not domestic).
Offer B........................         303,000  U.S.-made end product
                                                  (domestic), small
                                                  business.
Offer C........................         300,000  Eligible product.
Offer D........................         295,000  Noneligible product
                                                  (not U.S.-made).
------------------------------------------------------------------------

    Analysis: Eliminate Offer D because the acquisition is covered by 
the WTO GPA and there is an offer of a U.S.-made or an eligible product 
(see 25.502(b)(1)). If the agency gives the same consideration given 
eligible offers to offers of U.S.-made end products that are not 
domestic offers, it is unnecessary to determine if U.S.-made end 
products are domestic (large or small business). No further analysis is 
necessary. Award on the low remaining offer, Offer C (see 25.502(b)(2)).

[69 FR 77875, Dec. 28, 2004, as amended at 75 FR 38690, July 2, 2010]



Sec. 25.504-3  FTA/Israeli Trade Act.

    (a) Example 1.

Offer A.............................    $105,000  Domestic end product,
                                                   small business.
Offer B.............................     100,000  Eligible product.
 

    Analysis: Since the low offer is an eligible offer, award on the low 
offer (see 25.502(c)(1)).
    (b) Example 2.

Offer A.............................    $105,000  Eligible product.
Offer B.............................     103,000  Noneligible product.
 

    Analysis: Since the acquisition is not covered by the WTO GPA , the 
contracting officer can consider the noneligible offer. Since no 
domestic offer was received, make a nonavailability determination and 
award on Offer B (see 25.502(c)(2)).
    (c) Example 3.

Offer A.............................    $105,000  Domestic end product,
                                                   large business.
Offer B.............................     103,000  Eligible product.
Offer C.............................     100,000  Noneligible product.
 

    Analysis: Since the acquisition is not covered by the WTO GPA , the 
contracting officer can consider the noneligible offer. Because the 
eligible offer (Offer B) is lower than the domestic offer (Offer A), no 
evaluation factor applies to the low offer (Offer C). Award on the low 
offer (see 25.502(c)(3)).

[69 FR 77875, Dec. 28, 2004]



Sec. 25.504-4  Group award basis.

    (a) Example 1.

----------------------------------------------------------------------------------------------------------------
                                                                         Offers
                 Item                 --------------------------------------------------------------------------
                                                  A                        B                        C
----------------------------------------------------------------------------------------------------------------
1....................................             DO = $55,000             EL = $56,000            NEL = $50,000
2....................................             NEL = 13,000              EL = 10,000              EL = 13,000
3....................................             NEL = 11,500              DO = 12,000              DO = 10,000
4....................................             NEL = 24,000              EL = 28,000             NEL = 22,000
5....................................              DO = 18,000             NEL = 10,000              DO = 14,000
                                      --------------------------------------------------------------------------
                                                       121,500                  116,000                  109,000
----------------------------------------------------------------------------------------------------------------
Key: DO = Domestic end product; EL = Eligible product; NEL = Noneligible product.

    Problem: Offeror C specifies all-or-none award. Assume all offerors 
are large businesses. The acquisition is not covered by the WTO GPA.


[[Page 579]]


Analysis: (see 25.503)

    STEP 1: Evaluate Offers A & B before considering Offer C and 
determine which offer has the lowest evaluated cost for each line item 
(the tentative award pattern):
    Item 1: Low offer A is domestic; select A.
    Item 2: Low offer B is eligible; do not apply factor; select B.
    Item 3: Low offer A is noneligible and Offer B is a domestic offer. 
Apply a 6 percent factor to Offer A. The evaluated price of Offer A is 
higher than Offer B; select B.
    Item 4: Low offer A is noneligible. Since neither offer is a 
domestic offer, no evaluation factor applies; select A.
    Item 5: Low offer B is noneligible; apply a 6 percent factor to 
Offer B. Offer A is still higher than Offer B; select B.
    STEP 2: Evaluate Offer C against the tentative award pattern for 
Offers A and B:

----------------------------------------------------------------------------------------------------------------
                                                                         Offers
                                      --------------------------------------------------------------------------
                 Item                                           Tentative award pattern
                                              Low offer               from A and B                  C
----------------------------------------------------------------------------------------------------------------
1....................................                        A               DO=$55,000            * NEL=$53,000
2....................................                        B                EL=10,000                EL=13,000
3....................................                        B                DO=12,000                DO=10,000
4....................................                        A               NEL=24,000               NEL=22,000
5....................................                        B              *NEL=10,600                DO=14,000
                                      --------------------------------------------------------------------------
                                                                                111,600                  112,000
----------------------------------------------------------------------------------------------------------------
* Offer + 6 percent.

    On a line item basis, apply a factor to any noneligible offer if the 
other offer for that line item is domestic.
    For Item 1, apply a factor to Offer C because Offer A is domestic 
and the acquisition was not covered by the WTO GPA. The evaluated price 
of Offer C, Item 1, becomes $53,000 ($50,000 plus 6 percent). Apply a 
factor to Offer B, Item 5, because it is a noneligible product and Offer 
C is domestic. The evaluated price of Offer B is $10,600 ($10,000 plus 6 
percent). Evaluate the remaining items without applying a factor.
    STEP 3: The tentative unrestricted award pattern from Offers A and B 
is lower than the evaluated price of Offer C. Award the combination of 
Offers A and B. Note that if Offer C had not specified all-or-none 
award, award would be made on Offer C for line items 1, 3, and 4, 
totaling an award of $82,000.
    (b) Example 2.

----------------------------------------------------------------------------------------------------------------
                                                                         Offers
                 Item                 --------------------------------------------------------------------------
                                                  A                        B                        C
----------------------------------------------------------------------------------------------------------------
1....................................               DO=$50,000               EL=$50,500              NEL=$50,000
2....................................               NEL=10,300               NEL=10,000                EL=10,200
3....................................                EL=20,400                EL=21,000               NEL=20,200
4....................................                DO=10,500                DO=10,300                DO=10,400
                                      --------------------------------------------------------------------------
                                                        91,200                   91,800                   90,800
----------------------------------------------------------------------------------------------------------------

    Problem: The solicitation specifies award on a group basis. Assume 
the Buy American Act applies and the acquisition cannot be set aside for 
small business concerns. All offerors are large businesses.
    Analysis: (see 25.503(c))
    STEP 1: Determine which of the offers are domestic (see 
25.503(c)(1)):

------------------------------------------------------------------------
             Domestic [percent]                   Determination
------------------------------------------------------------------------
  A  60,500/91,200=66.3%..............  Domestic
  B  10,300/91,800=11.2%..............  Foreign
  C  10,400/90,800=11.5%..............  Foreign
------------------------------------------------------------------------

    STEP 2: Determine whether foreign offers are eligible or noneligible 
offers (see 25.503(c)(2)):

------------------------------------------------------------------------
       Domestic + eligible [percent]              Determination
------------------------------------------------------------------------
  A  N/A..............................  Domestic
  B  81,800/91,800=89.1%..............  Eligible
  C  20,600/90,800=22.7%..............  Noneligible
------------------------------------------------------------------------

    STEP 3: Determine whether to apply an evaluation factor (see 
25.503(c)(3)). The low offer (Offer C) is a foreign offer. There is no 
eligible offer lower than the domestic offer. Therefore, apply the 
factor to the low offer. Addition of the 6 percent factor (use 12 
percent if Offer A is a small business) to Offer C yields an evaluated 
price of $96,248 ($90,800 + 6 percent). Award on Offer A (see 
25.502(c)(4)(ii)). Note that, if Offer A were greater than Offer B, an 
evaluation factor

[[Page 580]]

would not be applied and award would be on Offer C (see 25.502(c)(3)).

[64 FR 72419, Dec. 27, 1999; 65 FR 4633, Jan. 31, 2000; 69 FR 77875, 
Dec. 28, 2004]

  Subpart 25.6_American Recovery and Reinvestment Act_Buy American Act_
                         Construction Materials

    Source: 74 FR 14626, Mar. 31, 2009, unless otherwise noted.



Sec. 25.600  Scope of subpart.

    This subpart implements section 1605 in Division A of the American 
Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) (Recovery Act) 
with regard to manufactured construction material and the Buy American 
Act with regard to unmanufactured construction material. It applies to 
construction projects that use funds appropriated or otherwise provided 
by the Recovery Act.

[75 FR 53165, Aug. 30, 2010



Sec. 25.601  Definitions.

    As used in this subpart--
    Domestic construction material means the following:
    (1) An unmanufactured construction material mined or produced in the 
United States. (The Buy American Act applies.)
    (2) A manufactured construction material that is manufactured in the 
United States and, if the construction material consists wholly or 
predominantly of iron or steel, the iron or steel was produced in the 
United States. (Section 1605 of the Recovery Act applies.)
    Foreign construction material means a construction material other 
than a domestic construction material.
    Manufactured construction material means any construction material 
that is not unmanufactured construction material.
    Public building or public work means a building or work, the 
construction, prosecution, completion, or repair of which is carried on 
directly or indirectly by authority of, or with funds of, a Federal 
agency to serve the interest of the general public regardless of whether 
title thereof is in a Federal agency (see 22.401). These buildings and 
works may include, without limitation, bridges, dams, plants, highways, 
parkways, streets, subways, tunnels, sewers, mains, power lines, pumping 
stations, heavy generators, railways, airports, terminals, docks, piers, 
wharves, ways, lighthouses, buoys, jetties, breakwaters, levees, and 
canals, and the construction, alteration, maintenance, or repair of such 
buildings and works.
    Recovery Act designated country means a World Trade Organization 
Government Procurement Agreement country, a Free Trade Agreement 
country, or a least developed country.
    Steel means an alloy that includes at least 50 percent iron, between 
.02 and 2 percent carbon, and may include other elements.
    Unmanufactured construction material means raw material brought to 
the construction site for incorporation into the building or work that 
has not been--
    (1) Processed into a specific form and shape; or
    (2) Combined with other raw material to create a material that has 
different properties than the properties of the individual raw 
materials.

[74 FR 14626, Mar. 31, 2009, as amended at 75 FR 53165, Aug. 30, 2010]



Sec. 25.602  Policy.



Sec. 25.602-1  Section 1605 of the Recovery Act.

    Except as provided in 25.603--
    (a) None of the funds appropriated or otherwise made available by 
the Recovery Act may be used for a project for the construction, 
alteration, maintenance, or repair of a public building or public work 
unless the public building or public work is located in the United 
States and--
    (1) All of the iron, steel, and manufactured goods used as 
construction material in the project are produced or manufactured in the 
United States.
    (i) All manufactured construction material must be manufactured in 
the United States.
    (ii) Iron or steel components. (A) Iron or steel components of 
construction material consisting wholly or predominantly of iron or 
steel must be produced in the United States. This does

[[Page 581]]

not restrict the origin of the elements of the iron or steel, but 
requires that all manufacturing processes of the iron or steel must take 
place in the United States, except metallurgical processes involving 
refinement of steel additives.
    (B) The requirement in paragraph (a)(1)(ii)(A) of this section does 
not apply to iron or steel components or subcomponents in construction 
material that does not consist wholly or predominantly of iron or steel.
    (iii) All other components. There is no restriction on the origin or 
place of production or manufacture of components or subcomponents that 
do not consist of iron or steel.
    (iv) Examples. (A) If a steel guardrail consists predominantly of 
steel, even though coated with aluminum, then the steel would be subject 
to the section 1605 restriction requiring that all stages of production 
of the steel occur in the United States, in addition to the requirement 
to manufacture the guardrail in the United States. There would be no 
restrictions on the other components of the guardrail.
    (B) If a wooden window frame is delivered to the site as a single 
construction material, there is no restriction on any of the components, 
including the steel lock on the window frame; or
    (2) If trade agreements apply, the manufactured construction 
material shall either comply with the requirements of paragraph (a)(1) 
of this subsection, or be wholly the product of or be substantially 
transformed in a Recovery Act designated country;
    (b) Manufactured materials purchased directly by the Government and 
delivered to the site for incorporation into the project shall meet the 
same domestic source requirements as specified for manufactured 
construction material in paragraphs (a)(1) and (a)(2) of this section; 
and
    (c) A project may include several contracts, a single contract, or 
one or more line items on a contract.



Sec. 25.602-2  Buy American Act.

    Except as provided in 25.603, use only unmanufactured construction 
material mined or produced in the United States, as required by the Buy 
American Act or, if trade agreements apply, unmanufactured construction 
material mined or produced in a designated country may also be used.

[75 FR 53165, Aug. 30, 2010]



Sec. 25.603  Exceptions.

    (a)(1) When one of the following exceptions applies, the contracting 
officer may allow the contractor to incorporate foreign manufactured 
construction materials without regard to the restrictions of section 
1605 of the Recovery Act or foreign unmanufactured construction material 
without regard to the restrictions of the Buy American Act:
    (i) Nonavailability. The head of the contracting activity may 
determine that a particular construction material is not mined, 
produced, or manufactured in the United States in sufficient and 
reasonably available commercial quantities of a satisfactory quality. 
The determinations of nonavailability of the articles listed at 
25.104(a) and the procedures at 25.103(b)(1) also apply if any of those 
articles are acquired as construction materials.
    (ii) Unreasonable cost. The contracting officer concludes that the 
cost of domestic construction material is unreasonable in accordance 
with 25.605.
    (iii) Inconsistent with public interest. The head of the agency may 
determine that application of the restrictions of section 1605 of the 
Recovery Act to a particular manufactured construction material, or the 
restrictions of the Buy American Act to a particular unmanufactured 
construction material would be inconsistent with the public interest.
    (2) In addition, the head of the agency may determine that 
application of the Buy American Act to a particular unmanufactured 
construction material would be impracticable.
    (b) Determinations. When a determination is made, for any of the 
reasons stated in this section, that certain foreign construction 
materials may be used--
    (1) The contracting officer shall list the excepted materials in the 
contract; and
    (2) For determinations with regard to the inapplicability of section 
1605 of the Recovery Act, unless the construction material has already 
been determined to be domestically nonavailable

[[Page 582]]

(see list at 25.104), the head of the agency shall provide a notice to 
the Federal Register within three business days after the determination 
is made, with a copy to the Administrator for Federal Procurement Policy 
and to the Recovery Accountability and Transparency Board. The notice 
shall include--
    (i) The title ``Buy American Exception under the American Recovery 
and Reinvestment Act of 2009'';
    (ii) The dollar value and brief description of the project; and
    (iii) A detailed justification as to why the restriction is being 
waived.
    (c) Acquisitions under trade agreements. (1) For construction 
contracts with an estimated acquisition value of $7,777,000 or more, 
also see subpart 25.4. Offers proposing the use of construction material 
from a designated country shall receive equal consideration with offers 
proposing the use of domestic construction material.
    (2) For purposes of applying section 1605 of the Recovery Act to 
evaluation of manufactured construction material, designated countries 
do not include the Caribbean Basin Countries.

[75 FR 53166, Aug. 30, 2010, as amended at 77 FR 12934, Mar. 2, 2012]



Sec. 25.604  Preaward determination concerning the inapplicability of 
          section 1605 of the Recovery Act or the Buy American Act.

    (a) For any acquisition, an offeror may request from the contracting 
officer a determination concerning the inapplicability of section 1605 
of the Recovery Act or the Buy American Act for specifically identified 
construction materials. The time for submitting the request is specified 
in the solicitation in paragraph (b) of either 52.225-22 or 52.225-24, 
whichever applies. The information and supporting data that must be 
included in the request are also specified in the solicitation in 
paragraphs (c) and (d) of either 52.225-21 or 52.225-23, whichever 
applies.
    (b) Before award, the contracting officer must evaluate all requests 
based on the information provided and may supplement this information 
with other readily available information.
    (c) Determination based on unreasonable cost of domestic 
construction material.
    (1) Manufactured construction material. The contracting officer must 
compare the offered price of the contract using foreign manufactured 
construction material (i.e., any construction material not manufactured 
in the United States, or construction material consisting predominantly 
of iron or steel and the iron or steel is not produced in the United 
States) to the estimated price if all domestic manufactured construction 
material were used. If use of domestic manufactured construction 
material would increase the overall offered price of the contract by 
more than 25 percent, then the contracting officer shall determine that 
the cost of the domestic manufactured construction material is 
unreasonable.
    (2) Unmanufactured construction material. The contracting officer 
must compare the cost of each foreign unmanufactured construction 
material to the cost of domestic unmanufactured construction material. 
If the cost of the domestic unmanufactured construction material exceeds 
the cost of the foreign unmanufactured construction material by more 
than 6 percent, then the contracting officer shall determine that the 
cost of the domestic unmanufactured construction material is 
unreasonable.

[74 FR 14626, Mar. 31, 2009, as amended at 75 FR 53166, Aug. 30, 2010]



Sec. 25.605  Evaluating offers of foreign construction material.

    (a) If the contracting officer has determined that an exception 
applies because the cost of certain domestic construction material is 
unreasonable, in accordance with section 25.604, then the contracting 
officer shall apply evaluation factors to the offer incorporating the 
use of such foreign construction material as follows:
    (1) Use an evaluation factor of 25 percent, applied to the total 
offered price of the contract, if foreign manufactured construction 
material is incorporated in the offer based on an exception for 
unreasonable cost of comparable domestic construction material requested 
by the offeror.

[[Page 583]]

    (2) In addition, use an evaluation factor of 6 percent applied to 
the cost of foreign unmanufactured construction material incorporated in 
the offer based on an exception for unreasonable cost of comparable 
domestic unmanufactured construction material requested by the offeror.
    (3) Total evaluated price = offered price + (.25 x offered price, if 
(a)(1) applies) + (.06 x cost of foreign unmanufactured construction 
material, if (a)(2) applies).
    (b) If the solicitation specifies award on the basis of factors in 
addition to cost or price, apply the evaluation factors as specified in 
paragraph (a) of this section and use the evaluated price in determining 
the offer that represents the best value to the Government.
    (c) Unless paragraph (b) applies, if two or more offers are equal in 
price, the contracting officer must give preference to an offer that 
does not include foreign construction material excepted at the request 
of the offeror on the basis of unreasonable cost.
    (d) Offerors also may submit alternate offers based on use of 
equivalent domestic construction material to avoid possible rejection of 
the entire offer if the Government determines that an exception 
permitting use of a particular foreign construction material does not 
apply.
    (e) If the contracting officer awards a contract to an offeror that 
proposed foreign construction material not listed in the applicable 
clause in the solicitation (paragraph (b)(3) of 52.225-21, or paragraph 
(b)(3) of 52.225-23), the contracting officer must add the excepted 
materials to the list in the contract clause.

[74 FR 14626, Mar. 31, 2009, as amended at 75 FR 53166, Aug. 30, 2010]



Sec. 25.606  Postaward determinations.

    (a) If a contractor requests a determination regarding the 
inapplicability of section 1605 of the Recovery Act or the Buy American 
Act after contract award, the contractor must explain why it could not 
request the determination before contract award or why the need for such 
determination otherwise was not reasonably foreseeable. If the 
contracting officer concludes that the contractor should have made the 
request before contract award, the contracting officer may deny the 
request.
    (b) The contracting officer must base evaluation of any request for 
a determination regarding the inapplicability of section 1605 of the 
Recovery Act or the Buy American Act made after contract award on 
information required by paragraphs (c) and (d) of the applicable clause 
at 52.225-21 or 52.225-23 and/or other readily available information.
    (c) If a determination, under 25.603(a), is made after contract 
award that an exception to section 1605 of the Recovery Act or to the 
Buy American Act applies, the contracting officer must negotiate 
adequate consideration and modify the contract to allow use of the 
foreign construction material. When the basis for the exception is the 
unreasonable cost of a domestic construction material, adequate 
consideration is at least the differential established in 25.605(a).



Sec. 25.607  Noncompliance.

    The contracting officer must--
    (a) Review allegations of violations of section 1605 of the Recovery 
Act or Buy American Act;
    (b) Unless fraud is suspected, notify the contractor of the apparent 
unauthorized use of foreign construction material and request a reply, 
to include proposed corrective action; and
    (c) If the review reveals that a contractor or subcontractor has 
used foreign construction material without authorization, take 
appropriate action, including one or more of the following:
    (1) Process a determination concerning the inapplicability of 
section 1605 of the Recovery Act or the Buy American Act in accordance 
with 25.606.
    (2) Consider requiring the removal and replacement of the 
unauthorized foreign construction material.
    (3) If removal and replacement of foreign construction material 
incorporated in a building or work would be impracticable, cause undue 
delay, or otherwise be detrimental to the interests of the Government, 
the contracting officer may determine in writing that the foreign 
construction material need not be removed and replaced.

[[Page 584]]

A determination to retain foreign construction material does not 
constitute a determination that an exception to section 1605 of the 
Recovery Act or the Buy American Act applies, and this should be stated 
in the determination. Further, a determination to retain foreign 
construction material does not affect the Government's right to suspend 
or debar a contractor, subcontractor, or supplier for violation of 
section 1605 of the Recovery Act or the Buy American Act, or to exercise 
other contractual rights and remedies, such as reducing the contract 
price or terminating the contract for default.
    (4) If the noncompliance is sufficiently serious, consider 
exercising appropriate contractual remedies, such as terminating the 
contract for default. Also consider preparing and forwarding a report to 
the agency suspending or debarring official in accordance with subpart 
9.4. If the noncompliance appears to be fraudulent, refer the matter to 
other appropriate agency officials, such as the agency's inspector 
general or the officer responsible for criminal investigation.

[74 FR 14626, Mar. 31, 2009, as amended at 75 FR 53167, Aug. 30, 2010]

                     Subpart 25.7_Prohibited Sources

    Source: 73 FR 33638, June 12, 2008, unless otherwise noted.



Sec. 25.700  Scope of subpart.

    This subpart implements--
    (a) Economic sanctions administered by the Office of Foreign Assets 
Control (OFAC) in the Department of the Treasury prohibiting 
transactions involving certain countries, entities, and individuals;
    (b) The Sudan Accountability and Divestment Act of 2007 (Pub. L. 
110-174);
    (c) The Iran Sanctions Act of 1996 (Iran Sanctions Act) (Pub. L. 
104-172; 50 U.S.C. 1701 note), including amendments by the Iran Freedom 
Support Act (Pub. L. 109-293), section 102 of the Comprehensive Iran 
Sanctions, Accountability, and Divestment Act of 2010 (Pub. L. 111-195), 
and Titles II and III of the Iran Threat Reduction and Syria Human 
Rights Act of 2012 (Pub. L. 112-158); and
    (d) Prohibition against contracting with entities that export 
sensitive technologies to Iran (22 U.S.C. 8515).

[75 FR 60256, Sept. 29, 2010, as amended at 77 FR 73518, Dec. 10, 2012; 
78 FR 46783, Aug. 1, 2013]



Sec. 25.701  Restrictions administered by the Department of the Treasury 
          on acquisitions of supplies or services from prohibited 
          sources.

    (a) Except as authorized by OFAC, agencies and their contractors and 
subcontractors must not acquire any supplies or services if any 
proclamation, Executive order, or statute administered by OFAC, or if 
OFAC's implementing regulations at 31 CFR Chapter V, would prohibit such 
a transaction by a person subject to the jurisdiction of the United 
States.
    (b) Except as authorized by OFAC, most transactions involving Cuba, 
Iran, and Sudan are prohibited, as are most imports from Burma or North 
Korea into the United States or its outlying areas. In addition, lists 
of entities and individuals subject to economic sanctions are included 
in OFAC's List of Specially Designated Nationals and Blocked Persons at 
http://www.treas.gov/offices/enforcement/ofac/sdn. More information 
about these restrictions, as well as updates, is available in OFAC's 
regulations at 31 CFR Chapter V and/or on OFAC's website at http://
www.treas.gov/offices/enforcement/ofac.
    (c) Refer questions concerning the restrictions in paragraphs (a) or 
(b) of this section to the Department of the Treasury, Office of Foreign 
Assets Control, Washington, DC 20220, (Telephone (202) 622-2490).



Sec. 25.702  Prohibition on contracting with entities that conduct 
          restricted business operations in Sudan.



Sec. 25.702-1  Definitions.

    As used in this section--
    Appropriate Congressional committees means--
    (1) The Committee on Banking, Housing, and Urban Affairs, The 
Committee on Foreign Relations, and the Select Committee on Intelligence 
of the Senate; and
    (2) The Committee on Financial Services, the Committee on Foreign

[[Page 585]]

Relations, and the Permanent Select Committee on Intelligence of the 
House of Representatives.
    Business operations means engaging in commerce in any form, 
including by acquiring, developing, maintaining, owning, selling, 
possessing, leasing, or operating equipment, facilities, personnel, 
products, services, personal property, real property, or any other 
apparatus of business or commerce.
    Marginalized populations of Sudan means--
    (1) Adversely affected groups in regions authorized to receive 
assistance under section 8(c) of the Darfur Peace and Accountability Act 
(Pub. L. 109-344) (50 U.S.C. 1701 note); and
    (2) Marginalized areas in Northern Sudan described in section 4(9) 
of such Act.
    Restricted business operations--
    (1) Means, except as provided in paragraph (2) of this definition, 
business operations in Sudan that include power production activities, 
mineral extraction activities, oil-related activities, or the production 
of military equipment, as those terms are defined in the Sudan 
Accountability and Divestment Act of 2007 (Pub. L. 110-174).
    (2) Does not include business operations that the person (as that 
term is defined in Section 2 of the Sudan Accountability and Divestment 
Act of 2007) conducting the business can demonstrate--
    (i) Are conducted under contract directly and exclusively with the 
regional government of southern Sudan;
    (ii) Are conducted pursuant to specific authorization from the 
Office of Foreign Assets Control in the Department of the Treasury, or 
are expressly exempted under Federal law from the requirement to be 
conducted under such authorization;
    (iii) Consist of providing goods or services to marginalized 
populations of Sudan;
    (iv) Consist of providing goods or services to an internationally 
recognized peacekeeping force or humanitarian organization;
    (v) Consist of providing goods or services that are used only to 
promote health or education; or
    (vi) Have been voluntarily suspended.

[64 FR 72419, Dec. 27, 1999, as amended at 74 FR 40465, Aug. 11, 2009]



Sec. 25.702-2  Certification.

    As required by the Sudan Accountability and Divestment Act of 2007 
(Pub. L. 110-174), each offeror must certify that it does not conduct 
restricted business operations in Sudan.



Sec. 25.702-3  Remedies.

    Upon the determination of a false certification under subsection 
25.702-2--
    (a) The contracting officer may terminate the contract;
    (b) The suspending official may suspend the contractor in accordance 
with the procedures in Subpart 9.4; and
    (c) The debarring official may debar the contractor for a period not 
to exceed 3 years in accordance with the procedures in Subpart 9.4.



Sec. 25.702-4  Waiver.

    (a) The President may waive the requirement of subsection 25.702-2 
on a case-by-case basis if the President determines and certifies in 
writing to the appropriate congressional committees that it is in the 
national interest to do so.
    (b) An agency seeking waiver of the requirement shall submit the 
request to the Administrator of the Office of Federal Procurement Policy 
(OFPP), allowing sufficient time for review and approval. Upon receipt 
of the waiver request, OFPP shall consult with the President's National 
Security Council, Office of African Affairs, and the Department of State 
Sudan Office and Sanctions Office to assess foreign policy aspects of 
making a national interest recommendation.
    (c) Agencies may request a waiver on an individual or class basis; 
however, waivers are not indefinite and can be cancelled if warranted.
    (1) A class waiver may be requested only when the class of supplies 
is not available from any other source and it is in the national 
interest.
    (2) Prior to submitting the waiver request, the request must be 
reviewed and cleared by the agency head.
    (3) All waiver requests must include the following information:

[[Page 586]]

    (i) Agency name, complete mailing address, and point of contact 
name, telephone number, and email address;
    (ii) Offeror's name, complete mailing address, and point of contact 
name, telephone number, and email address;
    (iii) Description/nature of product or service;
    (iv) The total cost and length of the contract;
    (v) Justification, with market research demonstrating that no other 
offeror can provide the product or service and stating why the product 
or service must be procured from this offeror, as well as why it is in 
the national interest for the President to waive the prohibition on 
contracting with this offeror that conducts restricted business 
operations in Sudan, including consideration of foreign policy aspects 
identified in consultation(s) pursuant to 25.702-4(b);
    (vi) Documentation regarding the offeror's past performance and 
integrity (see the Past Performance Information Retrieval System 
including the Federal Awardee Performance Information and Integrity 
System at http://www.ppirs.gov and any other relevant information);
    (vii) Information regarding the offeror's relationship or connection 
with other firms that conduct prohibited business operations in Sudan; 
and
    (viii) Any humanitarian efforts engaged in by the offeror, the human 
rights impact of doing business with the offeror for which the waiver is 
requested, and the extent of the offeror's business operations in Sudan.
    (d) The consultation in 25.702-4(b) and the information in 25.702-
4(c)(3) will be considered in determining whether to recommend that the 
President waive the requirement of subsection 25.702-2. In accordance 
with section 6(c) of the Sudan Accountability and Divestment Act of 
2007, OFPP will semiannually submit a report to Congress, on April 15th 
and October 15th, on the waivers granted.

[73 FR 33638, June 12, 2008, as amended at 76 FR 68038, Nov. 2, 2011]



Sec. 25.703  Prohibition on contracting with entities that engage in 
          certain activities or transactions relating to Iran.



Sec. 25.703-1  Definitions.

    As used in this section--
    Person--
    (1) Means--
    (i) A natural person;
    (ii) A corporation, business association, partnership, society, 
trust, financial institution, insurer, underwriter, guarantor, and any 
other business organization, any other nongovernmental entity, 
organization, or group, and any governmental entity operating as a 
business enterprise; and
    (iii) Any successor to any entity described in paragraph (1)(ii) of 
this definition; and
    (2) Does not include a government or governmental entity that is not 
operating as a business enterprise.
    Sensitive technology--
    (1) Means hardware, software, telecommunications equipment, or any 
other technology that is to be used specifically--
    (i) To restrict the free flow of unbiased information in Iran; or
    (ii) To disrupt, monitor, or otherwise restrict speech of the people 
of Iran; and
    (2) Does not include information or informational materials the 
export of which the President does not have the authority to regulate or 
prohibit pursuant to section 203(b)(3) of the International Emergency 
Economic Powers Act (50 U.S.C. 1702(b)(3)).

[75 FR 60256, Sept. 29, 2010, as amended at 76 FR 68030, Nov. 2, 2011; 
77 FR 23368, Apr. 18, 2012]



Sec. 25.703-2  Iran Sanctions Act.

    (a) Certification--(1) Certification relating to activities 
described in section 5 of the Iran Sanctions Act. As required by section 
6(b)(1)(A) of the Iran Sanctions Act (50 U.S.C. 1701 note), unless an 
exception applies in accordance with paragraph (c) of this subsection, 
or a waiver is granted in accordance with 25.703-4, each offeror must 
certify that the offeror, and any person owned or controlled by the 
offeror, does not engage in any activity for which sanctions may be 
imposed under section 5

[[Page 587]]

of the Iran Sanctions Act. Such activities, which are described in 
detail in section 5 of the Iran Sanctions Act, relate to the energy 
sector of Iran and development by Iran of weapons of mass destruction or 
other military capabilities.
    (2) Certification relating to transactions with Iran's Revolutionary 
Guard Corps. As required by section 6(b)(1)(B) of the Iran Sanctions Act 
(50 U.S.C. 1701 note), unless an exception applies in accordance with 
paragraph (c) of this subsection, or a waiver is granted in accordance 
with 25.703-4, each offeror must certify that the offeror, and any 
person owned or controlled by the offeror, does not knowingly engage in 
any significant transaction (i.e., a transaction that exceeds $3,000) 
with Iran's Revolutionary Guard Corps or any of its officials, agents, 
or affiliates, the property and interests in property of which are 
blocked pursuant to the International Emergency Economic Powers Act (50 
U.S.C. 1701 et seq.) (see OFAC's Specially Designated Nationals and 
Blocked Persons List at http://www.treasury.gov/ofac/downloads/
t11sdn.pdf).
    (b) Remedies. Upon the determination of a false certification under 
paragraph (a) of this subsection, the agency shall take one or more of 
the following actions:
    (1) The contracting officer terminates the contract in accordance 
with procedures in part 49, or for commercial items, see 12.403.
    (2) The suspending official suspends the contractor in accordance 
with the procedures in subpart 9.4.
    (3) The debarring official debars the contractor for a period of at 
least two years in accordance with the procedures in subpart 9.4.
    (c) Exception for trade agreements. The certification requirements 
of paragraph (a) of this subsection do not apply if the acquisition is 
subject to trade agreements and the offeror certifies that all the 
offered products are designated country end products or designated 
country construction material (see subpart 25.4).

[77 FR 73519, Dec. 10, 2012]



Sec. 25.703-3  Prohibition on contracting with entities that export 
          sensitive technology to Iran.

    (a) The head of an executive agency may not enter into or extend a 
contract for the procurement of goods or services with a person that 
exports certain sensitive technology to Iran, as determined by the 
President and listed in the System for Award Management Exclusions via 
http://www.acquisition.gov (22 U.S.C. 8515).
    (b) Each offeror must represent that it does not export any 
sensitive technology to the government of Iran or any entities or 
individuals owned or controlled by, or acting on behalf or at the 
direction of, the government of Iran.
    (c) Exception for trade agreements. The representation requirement 
of paragraph (b) of this subsection does not apply if the acquisition is 
subject to trade agreements and the offeror certifies that all the 
offered products are designated country end products or designated 
country construction material (see subpart 25.4).

[76 FR 68031, Nov. 2, 2011, as amended at 77 FR 188, Jan. 3, 2012; 77 FR 
73519, Dec. 10, 2012; 78 FR 37679, June 21, 2013; 78 FR 46783, Aug. 1, 
2013]



Sec. 25.703-4  Waiver.

    (a) An agency or contractor seeking a waiver of the requirements of 
25.703-2 or 25.703-3, consistent with section 6(b)(5) of the Iran 
Sanctions Act or 22 U.S.C. 8551(b), respectively, and the Presidential 
Memorandum of September 23, 2010 (75 FR 67025), shall submit the request 
to the Office of Federal Procurement Policy, allowing sufficient time 
for review and approval.
    (b) Agencies may request a waiver on an individual or class basis; 
however, waivers are not indefinite and can be cancelled, if warranted.
    (1) A class waiver may be requested only when the class of supplies 
or equipment is not available from any other source and it is in the 
national interest.
    (2) Prior to submitting the waiver request, the request must be 
reviewed and cleared by the agency head.
    (c) In general, all waiver requests should include the following 
information:

[[Page 588]]

    (1) Agency name, complete mailing address, and point of contact 
name, telephone number, and email address.
    (2) Offeror's name, complete mailing address, and point of contact 
name, telephone number, and email address.
    (3) Description/nature of product or service.
    (4) The total cost and length of the contract.
    (5) Justification, with market research demonstrating that no other 
offeror can provide the product or service and stating why the product 
or service must be procured from this offeror.
    (i) If the offeror exports sensitive technology to the government of 
Iran or any entities or individuals owned or controlled by, or acting on 
behalf or at the direction of, the government of Iran, provide rationale 
why it is in the national interest for the President to waive the 
prohibition on contracting with this offeror, as required by 22 U.S.C. 
8551(b).
    (ii) If the offeror conducts activities for which sanctions may be 
imposed under section 5 of the Iran Sanctions Act or engages in any 
transaction that exceeds $3,000 with Iran's Revolutionary Guard Corps or 
any of its officials, agents, or affiliates, the property and interests 
in property of which are blocked pursuant to the International Emergency 
Economic Powers Act, provide rationale why it is essential to the 
national security interests of the United States for the President to 
waive the prohibition on contracting with this offeror, as required by 
section 6(b)(5) of the Iran Sanctions Act.
    (6) Documentation regarding the offeror's past performance and 
integrity (see the Past Performance Information Retrieval System and the 
Federal Awardee Performance Information and Integrity System at 
www.ppirs.gov, and any other relevant information).
    (7) Information regarding the offeror's relationship or connection 
with other firms that--
    (i) Export sensitive technology to the government of Iran or any 
entities or individuals owned or controlled by, or acting on behalf or 
at the direction of, the government of Iran;
    (ii) Conduct activities for which sanctions may be imposed under 
section 5 of the Iran Sanctions Act; or
    (iii) Conduct any transaction that exceeds $3,000 with Iran's 
Revolutionary Guard Corps or any of its officials, agents, or 
affiliates, the property and interests in property of which are blocked 
pursuant to the International Emergency Economic Powers Act.
    (8) Describe-- (i) The sensitive technology and the entity or 
individual to which it was exported (i.e., the government of Iran or an 
entity or individual owned or controlled by, or acting on behalf or at 
the direction of, the government of Iran);
    (ii) The activities in which the offeror is engaged for which 
sanctions may be imposed under section 5 of the Iran Sanctions Act; or
    (iii) The transactions that exceed $3,000 with Iran's Revolutionary 
Guard Corps or any of its officials, agents, or affiliates, the property 
and interests in property of which are blocked pursuant to the 
International Emergency Economic Powers Act.

[77 FR 73519, Dec. 10, 2012]

      Subpart 25.8_Other International Agreements and Coordination



Sec. 25.801  General.

    Treaties and agreements between the United States and foreign 
governments affect the evaluation of offers from foreign entities and 
the performance of contracts in foreign countries.



Sec. 25.802  Procedures.

    (a) When placing contracts with contractors located outside the 
United States, for performance outside the United States, contracting 
officers must--
    (1) Determine the existence and applicability of any international 
agreements and ensure compliance with these agreements; and
    (2) Conduct the necessary advance acquisition planning and 
coordination between the appropriate U.S. executive agencies and foreign 
interests as required by these agreements.
    (b) The Department of State publishes many international agreements 
in the ``United States Treaties and

[[Page 589]]

Other International Agreements'' series. Copies of this publication 
normally are available in overseas legal offices and U.S. diplomatic 
missions.
    (c) Contracting officers must award all contracts with Taiwanese 
firms or organizations through the American Institute of Taiwan (AIT). 
AIT is under contract to the Department of State.

                     Subpart 25.9_Customs and Duties



Sec. 25.900  Scope of subpart.

    This subpart provides policies and procedures for exempting from 
import duties certain supplies purchased under Government contracts.



Sec. 25.901  Policy.

    United States laws impose duties on foreign supplies imported into 
the customs territory of the United States. Certain exemptions from 
these duties are available to Government agencies. Agencies must use 
these exemptions when the anticipated savings to appropriated funds will 
outweigh the administrative costs associated with processing required 
documentation.



Sec. 25.902  Procedures.

    For regulations governing importations and duties, see the Customs 
Regulations issued by the U.S. Customs Service, Department of the 
Treasury (19 CFR Chapter 1). Except as provided elsewhere in the Customs 
Regulations (see 19 CFR 10.100), all shipments of imported supplies 
purchased under Government contracts are subject to the usual Customs 
entry and examination requirements. Unless the agency obtains an 
exemption (see 25.903), those shipments are also subject to duty.



Sec. 25.903  Exempted supplies.

    (a) Subchapters VIII and X of Chapter 98 of the Harmonized Tariff 
Schedule of the United States (19 U.S.C. 1202) list supplies for which 
exemptions from duty may be obtained when imported into the customs 
territory of the United States under a Government contract. For certain 
of these supplies, the contracting agency must certify to the 
Commissioner of Customs that they are for the purpose stated in the 
Harmonized Tariff Schedule (see 19 CFR 10.102-104, 10.114, and 10.121 
and 15 CFR part 301 for requirements and formats).
    (b) Supplies (excluding equipment) for Government-operated vessels 
or aircraft may be withdrawn from any customs-bonded warehouse, from 
continuous customs custody elsewhere than in a bonded warehouse, or from 
a foreign-trade zone, free of duty and internal revenue tax as provided 
in 19 U.S.C. 1309 and 1317. The contracting activity must cite this 
authority on the appropriate customs form when making purchases (see 19 
CFR 10.59-10.65).

        Subpart 25.10_Additional Foreign Acquisition Regulations



Sec. 25.1001  Waiver of right to examination of records.

    (a) Policy. The clause at 52.215-2, Audit and Records--Negotiation, 
prescribed at 15.209(b), and paragraph (d) of the clause at 52.212-5, 
Contract Terms and Conditions Required to Implement Statutes or 
Executive Orders--Commercial Items, prescribed at 12.301(b)(4), 
implement 10 U.S.C. 2313 and 41 U.S.C. 254d. The basic clauses authorize 
examination of records by the Comptroller General.
    (1) Insert the appropriate basic clause, whenever possible, in 
negotiated contracts with foreign contractors.
    (2) The contracting officer may use 52.215-2 with its Alternate III 
or 52.212-5 with its Alternate I after--
    (i) Exhausting all reasonable efforts to include the basic clause;
    (ii) Considering factors such as alternate sources of supply, 
additional cost, and time of delivery; and
    (iii) The head of the agency has executed a determination and 
findings in accordance with paragraph (b) of this section, with the 
concurrence of the Comptroller General. However, concurrence of the 
Comptroller General is not required if the contractor is a foreign 
government or agency thereof or is precluded by the laws of the country 
involved from making its records available for examination.
    (b) Determination and findings. The determination and findings 
must--
    (1) Identify the contract and its purpose, and identify if the 
contract is

[[Page 590]]

with a foreign contractor or with a foreign government or an agency of a 
foreign government;
    (2) Describe the efforts to include the basic clause;
    (3) State the reasons for the contractor's refusal to include the 
basic clause;
    (4) Describe the price and availability of the supplies or services 
from the United States and other sources; and
    (5) Determine that it will best serve the interest of the United 
States to use the appropriate alternate clause in paragraph (a)(2) of 
this section.



Sec. 25.1002  Use of foreign currency.

    (a) Unless an international agreement or the WTO GPA (see 
25.408(a)(4)) requires a specific currency, contracting officers must 
determine whether solicitations for contracts to be entered into and 
performed outside the United States will require submission of offers in 
U.S. currency or a specified foreign currency. In unusual circumstances, 
the contracting officer may permit submission of offers in other than a 
specified currency.
    (b) To ensure a fair evaluation of offers, solicitations generally 
should require all offers to be priced in the same currency. However, if 
the solicitation permits submission of offers in other than a specified 
currency, the contracting officer must convert the offered prices to 
U.S. currency for evaluation purposes. The contracting officer must use 
the current market exchange rate from a commonly used source in effect 
as follows:
    (1) For acquisitions conducted using sealed bidding procedures, on 
the date of bid opening.
    (2) For acquisitions conducted using negotiation procedures--
    (i) On the date specified for receipt of offers, if award is based 
on initial offers; otherwise
    (ii) On the date specified for receipt of final proposal revisions.
    (c) If a contract is priced in foreign currency, the agency must 
ensure that adequate funds are available to cover currency fluctuations 
to avoid a violation of the Anti-Deficiency Act (31 U.S.C. 1341, 1342, 
1511-1519).

[64 FR 72419, Dec. 27, 1999, as amended at 69 FR 1055, Jan. 7, 2004; 69 
FR 77876, Dec. 28, 2004]

       Subpart 25.11_Solicitation Provisions and Contract Clauses



Sec. 25.1101  Acquisition of supplies.

    The following provisions and clauses apply to the acquisition of 
supplies and the acquisition of services involving the furnishing of 
supplies.
    (a)(1) Insert the clause at 52.225-1, Buy American Act--Supplies, in 
solicitations and contracts with a value exceeding the micro-purchase 
threshold but not exceeding $25,000; and in solicitations and contracts 
with a value exceeding $25,000, if none of the clauses prescribed in 
paragraphs (b) and (c) of this section apply, except if--
    (i) The solicitation is restricted to domestic end products in 
accordance with Subpart 6.3;
    (ii) The acquisition is for supplies for use within the United 
States and an exception to the Buy American Act applies (e.g., 
nonavailability, public interest, or information technology that is a 
commercial item); or
    (iii) The acquisition is for supplies for use outside the United 
States.
    (2) Insert the provision at 52.225-2, Buy American Act Certificate, 
in solicitations containing the clause at 52.225-1.
    (b)(1)(i) Insert the clause at 52.225-3, Buy American Act--Free 
Trade Agreements--Israeli Trade Act, in solicitations and contracts if--
    (A) The acquisition is for supplies, or for services involving the 
furnishing of supplies, for use within the United States, and the 
acquisition value is $25,000 or more, but is less than $202,000;
    (B) The acquisition is not for information technology that is a 
commercial item, using fiscal year 2004 or subsequent fiscal year funds; 
and
    (C) No exception in 25.401 applies. For acquisitions of agencies not 
subject to the Israeli Trade Act (see 25.406), see agency regulations.
    (ii) If the acquisition value is $25,000 or more but is less than 
$50,000, use the clause with its Alternate I.

[[Page 591]]

    (iii) If the acquisition value is $50,000 or more but is less than 
$77,494, use the clause with its Alternate II.
    (iv) If the acquisition value is $77,494 or more but is less than 
$100,000, use the clause with its Alternate III.
    (2)(i) Insert the provision at 52.225-4, Buy American Act--Free 
Trade Agreements--Israeli Trade Act Certificate, in solicitations 
containing the clause at 52.225-3.
    (ii) If the acquisition value is $25,000 or more but is less than 
$50,000, use the provision with its Alternate I.
    (iii) If the acquisition value is $50,000 or more but is less than 
$77,494, use the provision with its Alternate II.
    (iv) If the acquisition value is $77,494 or more, but is less than 
$100,000, use the provision with its Alternate III.
    (c)(1) Insert the clause at 52.225-5, Trade Agreements, in 
solicitations and contracts valued at $202,000 or more, if the 
acquisition is covered by the WTO GPA applies (see Subpart 25.4) and the 
agency has determined that the restrictions of the Buy American Act are 
not applicable to U.S.-made end products. If the agency has not made 
such a determination, the contracting officer must follow agency 
procedures.
    (2) Insert the provision at 52.225-6, Trade Agreements Certificate, 
in solicitations containing the clause at 52.225-5.
    (d) Insert the provision at 52.225-7, Waiver of Buy American Act for 
Civil Aircraft and Related Articles, in solicitations for civil aircraft 
and related articles (see 25.407), if the acquisition value is less than 
$202,000.
    (e) Insert the clause at 52.225-8, Duty-Free Entry, in solicitations 
and contracts for supplies that may be imported into the United States 
and for which duty-free entry may be obtained in accordance with 
25.903(a), if the value of the acquisition--
    (1) Exceeds the simplified acquisition threshold; or
    (2) Does not exceed the simplified acquisition threshold, but the 
savings from waiving the duty is anticipated to be more than the 
administrative cost of waiving the duty. When used for acquisitions that 
do not exceed the simplified acquisition threshold, the contracting 
officer may modify paragraphs (c)(1) and (j)(2) of the clause to reduce 
the dollar figure.
    (f) Insert the provision at 52.225-18, Place of Manufacture, in 
solicitations that are predominantly for the acquisition of manufactured 
end products, as defined in the provision at 52.225-18 (i.e., the 
estimated value of the manufactured end products exceeds the estimated 
value of other items to be acquired as a result of the solicitation).

[64 FR 72419, Dec. 27, 1999]

    Editorial Note: For Federal Register citations affecting 22.1101, 
see the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and at www.fdsys.gov.



Sec. 25.1102  Acquisition of construction.

    When using funds other than those appropriated under the American 
Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) (Recovery Act), 
follow the prescriptions in paragraphs (a) through (d) of this section. 
Otherwise, follow the prescription in paragraph (e).
    (a) Insert the clause at 52.225-9, Buy American Act--Construction 
Materials, in solicitations and contracts for construction that is 
performed in the United States valued at less than $7,777,000.
    (1) List in paragraph (b)(2) of the clause all foreign construction 
material excepted from the requirements of the Buy American Act.
    (2) If the head of the agency determines that a higher percentage is 
appropriate, substitute the higher evaluation percentage in paragraph 
(b)(3)(i) of the clause.
    (b)(1) Insert the provision at 52.225-10, Notice of Buy American Act 
Requirement--Construction Materials, in solicitations containing the 
clause at 52.225-9.
    (2) If insufficient time is available to process a determination 
regarding the inapplicability of the Buy American Act before receipt of 
offers, use the provision with its Alternate I.
    (c) Insert the clause at 52.225-11, Buy American Act--Construction 
Materials under Trade Agreements, in solicitations and contracts for 
construction that is performed in the United States valued at $7,777,000 
or more.

[[Page 592]]

    (1) List in paragraph (b)(3) of the clause all foreign construction 
material excepted from the requirements of the Buy American Act, other 
than designated country construction material.
    (2) If the head of the agency determines that a higher percentage is 
appropriate, substitute the higher evaluation percentage in paragraph 
(b)(4)(i) of the clause.
    (3) For acquisitions valued at $7,777,000 or more, but less than 
$10,074,262, use the clause with its Alternate I. List in paragraph 
(b)(3) of the clause all foreign construction material excepted from the 
requirements of the Buy American Act, unless the excepted foreign 
construction material is from a designated country other than Bahrain, 
Mexico, and Oman.
    (d)(1) Insert the provision at 52.225-12, Notice of Buy American Act 
Requirement--Construction Materials under Trade Agreements, in 
solicitations containing the clause at 52.225-11.
    (2) If insufficient time is available to process a determination 
regarding the inapplicability of the Buy American Act before receipt of 
offers, use the provision with its Alternate I.
    (3) For acquisitions valued at $7,777,000 or more, but less than 
$10,074,262, use the clause with its Alternate II.
    (e)(1) When using funds appropriated under the Recovery Act for 
construction, use provisions and clauses 52.225-21, 52.225-22, 52.225-
23, or 52.225-24 (with appropriate Alternates) in lieu of the provisions 
and clauses 52.225-9, 52.225-10, 52.225-11, or 52.225-12 (with 
appropriate Alternates), respectively, that would be applicable as 
prescribed in paragraphs (a) through (d) of this section if Recovery Act 
funds were not used.
    (2) If these Recovery Act provisions and clauses are only applicable 
to a project consisting of certain line items in the contract, identify 
in the schedule the line items to which the provisions and clauses 
apply.
    (3) When using clause 52.225-23, list foreign construction material 
in paragraph (b)(3) of the clause as follows:
    (i) Basic clause. List all foreign construction materials excepted 
from the Buy American Act or section 1605 of the Recovery Act, other 
than manufactured construction material from a Recovery Act designated 
country or unmanufactured construction material from a designated 
country.
    (ii) Alternate I. List in paragraph (b)(3) of the clause all foreign 
construction material excepted from the Buy American Act or section 1605 
of the Recovery Act, other than--
    (A) Manufactured construction material from a Recovery Act 
designated country other than Bahrain, Mexico, or Oman; or
    (B) Unmanufactured construction material from a designated country 
other than Bahrain, Mexico, or Oman.

[64 FR 72419, Dec. 27, 1999, as amended at 65 FR 36026, June 6, 2000; 67 
FR 21536, Apr. 30, 2002; 67 FR 56124, Aug. 30, 2002; 69 FR 1055, Jan. 7, 
2004; 69 FR 77876, Dec. 28, 2004; 71 FR 219, Jan. 3, 2006; 71 FR 866, 
Jan. 5, 2006; 71 FR 20308, Apr. 19, 2006; 73 FR 10963, Feb. 28, 2008; 74 
FR 14628, Mar. 31, 2009; 74 FR 22810, May 14, 2009; 75 FR 38691, July 2, 
2010; 75 FR 53167, Aug. 30, 2010; 77 FR 12934, Mar. 2, 2012]



Sec. 25.1103  Other provisions and clauses.

    (a) Restrictions on certain foreign purchases. Insert the clause at 
52.225-13, Restrictions on Certain Foreign Purchases, in solicitations 
and contracts, unless an exception applies.
    (b) Translations. Insert the clause at 52.225-14, Inconsistency 
Between English Version and Translation of Contract, in solicitations 
and contracts if anticipating translation into another language.
    (c) Foreign currency offers. Insert the provision at 52.225-17, 
Evaluation of Foreign Currency Offers, in solicitations that permit the 
use of other than a specified currency. Insert in the provision the 
source of the rate to be used in the evaluation of offers.
    (d) The contracting officer shall include in each solicitation for 
the acquisition of products or services (other than commercial items 
procured under Part 12) the provision at 52.225-20, Prohibition on 
Conducting Restricted Business Operations in Sudan--Certification.
    (e) The contracting officer shall include in all solicitations the 
provision at 52.225-25, Prohibition on Contracting with Entities 
Engaging in Certain Activities or Transactions Relating to

[[Page 593]]

Iran--Representation and Certifications.

[64 FR 72419, Dec. 27, 1999, as amended at 65 FR 36026, 36028, June 6, 
2000; 67 FR 21538, Apr. 30, 2002; 67 FR 56122, 56124, Aug. 30, 2002; 68 
FR 4051, Jan. 27, 2003; 68 FR 56686, Oct. 1, 2003; 69 FR 1055, Jan. 7, 
2004; 69 FR 8315, Feb. 23, 2004; 71 FR 866, Jan. 5, 2006; 71 FR 20306, 
Apr. 19, 2006; 71 FR 57368, Sept. 28, 2006; 73 FR 33639, June 12, 2008; 
75 FR 60257, Sept. 29, 2010; 76 FR 68031, Nov. 2, 2011; 77 FR 73518, 
Dec. 10, 2012]

                  PART 26_OTHER SOCIOECONOMIC PROGRAMS

                  Subpart 26.1_Indian Incentive Program

Sec.

Sec. 26.100 Scope of subpart.

Sec. 26.101 Definitions.

Sec. 26.102 Policy.

Sec. 26.103 Procedures.

Sec. 26.104 Contract clause.

        Subpart 26.2_Disaster or Emergency Assistance Activities


Sec. 26.200 Scope of subpart.

Sec. 26.201 Definitions.

Sec. 26.202 Local area preference.

Sec. 26.202-1 Local area set-aside.

Sec. 26.202-2 Evaluation preference.

Sec. 26.203 Transition of work.

Sec. 26.204 Justification for expenditures to other than local firms.

Sec. 26.205 Disease Response Registry.

Sec. 26.206 Solicitation provision and contract clauses.

 Subpart 26.3_Historically Black Colleges and Universities and Minority 
                              Institutions


Sec. 26.300 Scope of subpart.

Sec. 26.301 [Reserved]

Sec. 26.302 General policy.

Sec. 26.303 Data collection and reporting requirements.

Sec. 26.304 Solicitation provision.

         Subpart 26.4_Food Donations to Nonprofit Organizations


Sec. 26.400 Scope of subpart.

Sec. 26.401 Definitions.

Sec. 26.402 Policy.

Sec. 26.403 Procedures.

Sec. 26.404 Contract clause.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 
20113.

    Source: 56 FR 41737, Aug. 22, 1991, unless otherwise noted.
    Note: This part has been created to facilitate promulgation of 
additional FAR and agency level socioeconomic coverage which properly 
fall under FAR Subchapter D--Socioeconomic Programs, but neither 
implements nor supplements existing FAR Parts 19 or 22 through 25.

                  Subpart 26.1_Indian Incentive Program



Sec. 26.100  Scope of subpart.

    This subpart implements 25 U.S.C. 1544, which provides an incentive 
to prime contractors that use Indian organizations and Indian-owned 
economic enterprises as subcontractors.



Sec. 26.101  Definitions.

    As used in this subpart--
    Indian means any person who is a member of any Indian tribe, band, 
group, pueblo, or community that is recognized by the Federal Government 
as eligible for services from the Bureau of Indian Affairs (BIA) in 
accordance with 25 U.S.C. 1452(c) and any ``Native'' as defined in the 
Alaska Native Claims Settlement Act (43 U.S.C. 1601).
    Indian organization means the governing body of any Indian tribe or 
entity established or recognized by the governing body of an Indian 
tribe for the purposes of 25 U.S.C., chapter 17.
    Indian-owned economic enterprise means any Indian-owned (as 
determined by the Secretary of the Interior) commercial, industrial, or 
business activity established or organized for the purpose of profit, 
provided that Indian ownership constitutes not less than 51 percent of 
the enterprise.
    Indian tribe means any Indian tribe, band, group, pueblo, or 
community, including native villages and native groups (including 
corporations organized by Kenai, Juneau, Sitka, and Kodiak) as defined 
in the Alaska Native Claims Settlement Act, that is recognized by the 
Federal Government as eligible for services from BIA in accordance with 
25 U.S.C. 1452(c).
    Interested party means a prime contractor or an actual or 
prospective offeror whose direct economic interest would be affected by 
the award of a subcontract or by the failure to award a subcontract.

[56 FR 41737, Aug. 22, 1991, as amended at 61 FR 39210, July 26, 1996; 
65 FR 24323, Apr. 25, 2000]

[[Page 594]]



Sec. 26.102  Policy.

    Indian organizations and Indian-owned economic enterprises shall 
have the maximum practicable opportunity to participate in performing 
contracts awarded by Federal agencies. In fulfilling this requirement, 
the Indian Incentive Program allows an incentive payment equal to 5 
percent of the amount paid to a subcontractor in performing the 
contract, if the contract so authorizes and the subcontractor is an 
Indian organization or Indian-owned economic enterprise.

[61 FR 39211, July 26, 1996]



Sec. 26.103  Procedures.

    (a) Contracting officers and prime contractors, acting in good 
faith, may rely on the representation of an Indian organization or 
Indian-owned economic enterprise as to its eligibility, unless an 
interested party challenges its status or the contracting officer has 
independent reason to question that status.
    (b) In the event of a challenge to the representation of a 
subcontractor, the contracting officer shall refer the matter to the 
U.S. Department of the Interior, Bureau of Indian Affairs (BIA), Attn: 
Chief, Division of Contracting and Grants Administration, 1849 C Street, 
NW., MS-2626-MIB, Washington, DC 20240-4000. The BIA will determine the 
eligibility and notify the contracting officer.
    (c) The BIA will acknowledge receipt of the request from the 
contracting officer within 5 working days. Within 45 additional working 
days, BIA will advise the contracting officer, in writing, of its 
determination.
    (d) The contracting officer will notify the prime contractor upon 
receipt of a challenge.
    (1) To be considered timely, a challenge shall--
    (i) Be in writing;
    (ii) Identify the basis for the challenge;
    (iii) Provide detailed evidence supporting the claim; and
    (iv) Be filed with and received by the contracting officer prior to 
award of the subcontract in question.
    (2) If the notification of a challenge is received by the prime 
contractor prior to award, it shall withhold award of the subcontract 
pending the determination by BIA, unless the prime contractor 
determines, and the contracting officer agrees, that award must be made 
in order to permit timely performance of the prime contract.
    (3) Challenges received after award of the subcontract shall be 
referred to BIA, but the BIA determination shall have prospective 
application only.
    (e) If the BIA determination is not received within the prescribed 
time period, the contracting officer and the prime contractor may rely 
on the representation of the subcontractor.
    (f) Subject to the terms and conditions of the contract and the 
availability of funds, contracting officers shall authorize an incentive 
payment of 5 percent of the amount paid to the subcontractor. 
Contracting officers shall seek funding in accordance with agency 
procedures.

[56 FR 41737, Aug. 22, 1991, as amended at 57 FR 20377, May 12, 1992; 61 
FR 39211, July 26, 1996; 62 FR 40236, July 25, 1997; 64 FR 10532, Mar. 
4, 1999]



Sec. 26.104  Contract clause.

    Contracting officers in civilian agencies may insert the clause at 
52.226-1, Utilization of Indian Organizations and Indian-Owned Economic 
Enterprises, in solicitations and contracts if--
    (a) In the opinion of the contracting officer, subcontracting 
possibilities exist for Indian organizations or Indian-owned economic 
enterprises; and
    (b) Funds are available for any increased costs as described in 
paragraph (b)(2) of the clause at 52.226-1.

[65 FR 24323, Apr. 25, 2000]

        Subpart 26.2_Disaster or Emergency Assistance Activities

    Source: 72 FR 63087, Nov. 7, 2007, unless otherwise noted.



Sec. 26.200  Scope of subpart.

    This subpart implements the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act (42 U.S.C. 5150), which provides a preference 
for local organizations, firms, and individuals when contracting for 
major disaster or emergency assistance activities.

[[Page 595]]



Sec. 26.201  Definitions.

    Emergency response contract means a contract with private entities 
that supports assistance activities in a major disaster or emergency 
area, such as debris clearance, distribution of supplies, or 
reconstruction.
    Local firm means a private organization, firm, or individual 
residing or doing business primarily in a major disaster or emergency 
area.
    Major disaster or emergency area means the area included in the 
official Presidential declaration(s) and any additional areas identified 
by the Department of Homeland Security. Major disaster declarations and 
emergency declarations are published in the Federal Register and are 
available at http://www.fema.gov/news/disasters.fema.



Sec. 26.202  Local area preference.

    When awarding emergency response contracts during the term of a 
major disaster or emergency declaration by the President of the United 
States under the authority of the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act (42 U.S.C.5121, et seq.), preference shall be 
given, to the extent feasible and practicable, to local firms. 
Preference may be given through a local area set-aside or an evaluation 
preference.



Sec. 26.202-1  Local area set-aside.

    The contracting officer may set aside solicitations to allow only 
local firms within a specific geographic area to compete (see 6.208).
    (a) The contracting officer, in consultation with the requirements 
office, shall define the specific geographic area for the local set-
aside.
    (b) A major disaster or emergency area may span counties in several 
contiguous States. The set-aside area need not include all the counties 
in the declared disaster/emergency area(s), but cannot go outside it.
    (c) The contracting officer shall also determine whether a local 
area set-aside should be further restricted to small business concerns 
in the set-aside area (see Part 19).

[72 FR 63087, Nov. 7, 2007, as amended at 76 FR 18312, Apr. 1, 2011]



Sec. 26.202-2  Evaluation preference.

    The contracting officer may use an evaluation preference, when 
authorized in agency regulations or procedures.

[73 FR 53996, Sept. 17, 2008]



Sec. 26.203  Transition of work.

    (a) In anticipation of potential emergency response requirements, 
agencies involved in response planning should consider awarding 
emergency response contracts before a major disaster or emergency occurs 
to ensure immediate response and relief. These contracts should be 
structured to respond to immediate emergency response needs, and should 
not be structured in any way that may inhibit the transition of 
emergency response work to local firms (e.g., unnecessarily broad scopes 
of work or long periods of performance).
    (b) 42 U.S.C. 5150(b)(2) requires that agencies performing response, 
relief, and reconstruction activities transition to local firms any work 
performed under contracts in effect on the date on which the President 
declares a major disaster or emergency, unless the head of such agency 
determines in writing that it is not feasible or practicable. This 
determination may be made on an individual contract or class basis. The 
written determination shall be prepared within a reasonable time given 
the circumstances of the emergency.
    (c) In effecting the transition, agencies are not required to 
terminate or renegotiate existing contracts. Agencies should transition 
the work at the earliest practical opportunity after consideration of 
the following:
    (1) The potential duration of the disaster or emergency.
    (2) The severity of the disaster or emergency.
    (3) The scope and structure of the existing contract, including its 
period of performance and the milestone(s) at which a transition is 
reasonable (e.g., before exercising an option).
    (4) The potential impact of a transition, including safety, national 
defense, and mobilization.
    (5) The expected availability of qualified local offerors who can 
provide the products or services at a reasonable price.

[[Page 596]]

    (d) The agency shall transition the work to local firms using the 
local area set-aside identified in 26.202-1.



Sec. 26.204  Justification for expenditures to other than local firms.

    (a) 42 U.S.C. 5150(b)(1) requires that, subsequent to any 
Presidential declaration of a major disaster or emergency, any 
expenditure of Federal funds, under an emergency response contract not 
awarded to a local firm, must be justified in writing in the contract 
file. The justification should include consideration for the scope of 
the major disaster or emergency and the immediate requirements or needs 
of supplies and services to ensure life is protected, victims are cared 
for, and property is protected.
    (b) The justification may be made on an individual or class basis. 
The contracting officer approves the justification.



Sec. 26.205  Disaster Response Registry.

    (a) Contracting officers shall consult the Disaster Response 
Registry via https://www.acquisition.gov to determine the availability 
of contractors for debris removal, distribution of supplies, 
reconstruction, and other disaster or emergency relief activities inside 
the United States and outlying areas.
    (b) A list of prospective vendors voluntarily participating in the 
Disaster Response Registry can be retrieved using the System for Award 
Management (SAM) search tool, which can be accessed via https://
www.acquisition.gov. These vendors may be identified by selecting the 
criteria for ``Disaster Response Contractors''. Contractors are required 
to register with SAM in order to gain access to the Disaster Response 
Registry.

[74 FR 52849, Oct. 14, 2009, as amended at 77 FR 188, Jan. 3, 2012; 78 
FR 37679, June 21, 2013]



Sec. 26.206  Solicitation provision and contract clauses.

    (a) The contracting officer shall insert the provision at 52.226-3, 
Disaster or Emergency Area Representation, in solicitations involving 
the local area set-aside. For commercial items, see 12.301(e)(4).
    (b) The contracting officer shall insert the clause at 52.226-4, 
Notice of Disaster or Emergency Area Set-aside in solicitations and 
contracts involving local area set-asides.
    (c) The contracting officer shall insert the clause at 52.226-5, 
Restrictions on Subcontracting Outside Disaster or Emergency Area, in 
all solicitations and contracts that involve local area set-asides.

[72 FR 63087, Nov. 7, 2007. Redesignated at 74 FR 52849, Oct. 14, 2009]

 Subpart 26.3_Historically Black Colleges and Universities and Minority 
                              Institutions

    Source: 62 FR 12703, Mar. 17, 1997, unless otherwise noted.



Sec. 26.300  Scope of subpart.

    (a) This subpart implements Executive Order 12928 of September 16, 
1994, which promotes participation of Historically Black Colleges and 
Universities (HBCUs) and Minority Institutions (MIs) in Federal 
procurement.
    (b) This subpart does not pertain to contracts performed entirely 
outside the United States and its outlying areas.

[62 FR 12703, Mar. 17, 1997, as amended at 68 FR 28083, May 22, 2003]



Sec. 26.301  [Reserved]



Sec. 26.302  General policy.

    It is the policy of the Government to promote participation of HBCUs 
and MIs in Federal procurement.



Sec. 26.303  Data collection and reporting requirements.

    Executive Order 12928 requires periodic reporting to the President 
on the progress of departments and agencies in complying with the laws 
and requirements mentioned in the Executive order.



Sec. 26.304  Solicitation provision.

    Insert the provision at 52.226-2, Historically Black College or 
University and Minority Institution Representation, in solicitations 
exceeding the micro-purchase threshold, for research, studies, supplies, 
or services of the type normally acquired from higher educational 
institutions. For DoD,

[[Page 597]]

NASA, and Coast Guard acquisitions, also insert the provision in 
solicitations that contain the clause at 52.219-23, Notice of Price 
Evaluation Adjustment for Small Disadvantaged Business Concerns.

[64 FR 36224, July 2, 1999]

         Subpart 26.4_Food Donations to Nonprofit Organizations

    Source: 74 FR 11831, Mar. 19, 2009, unless otherwise noted.



Sec. 26.400  Scope of subpart.

    This section implements the Federal Food Donation Act of 2008 (Pub. 
L. 110-247).



Sec. 26.401  Definitions.

    As used in this subpart--
    Apparently wholesome food means food that meets all quality and 
labeling standards imposed by Federal, State, and local laws and 
regulations even though the food may not be readily marketable due to 
appearance, age, freshness, grade, size, surplus, or other conditions, 
in accordance with (b)(2)of the Bill Emerson Good Samaritan Food 
Donation Act (42 U.S.C. 1791(b)).
    Excess food means food that--
    (1) Is not required to meet the needs of the executive agencies; and
    (2) Would otherwise be discarded.
    Food-insecure means inconsistent access to sufficient, safe, and 
nutritious food.
    Nonprofit organization means any organization that is--
    (1) Described in section 501(c) of the Internal Revenue Code of 
1986; and
    (2) Exempt from tax under section 501(a) of that Code.



Sec. 26.402  Policy.

    The Government encourages executive agencies and their contractors, 
to the maximum extent practicable and safe, to donate excess apparently 
wholesome food to nonprofit organizations that provide assistance to 
food-insecure people in the United States.



Sec. 26.403  Procedures.

    (a) In accordance with the Federal Food Donation Act of 2008 (Pub. 
L. 110-247) an executive agency shall comply with the following:
    (1) Encourage donations. In the applicable contracts stated at 
section 26.404, encourage contractors, to the maximum extent practicable 
and safe, to donate apparently wholesome excess food to nonprofit 
organizations that provide assistance to food-insecure people in the 
United States.
    (2) Costs. (i) In any case in which a contractor enters into a 
contract with an executive agency under which apparently wholesome food 
is donated to food-insecure people in the United States, the head of the 
executive agency shall not assume responsibility for the costs and 
logistics of collecting, transporting, maintaining the safety of, or 
distributing excess, apparently wholesome food to food-insecure people 
in the United States under this Act.
    (ii) The Government will not reimburse any costs incurred by the 
contractor against this contract or any other contract for the donation 
of Federal excess foods. Any costs incurred for Federal excess food 
donations are not considered allowable public relations costs in 
accordance with 31.205-1(f)(8).
    (3) Liability. An executive agency (including an executive agency 
that enters into a contract with a contractor) and any contractor making 
donations pursuant to this Act shall be exempt from civil and criminal 
liability to the extent provided under the Bill Emerson Good Samaritan 
Food Donation Act (42 U.S.C. 1791).



Sec. 26.404  Contract clause.

    Insert the clause at 52.226-6, Promoting Excess Food Donation to 
Nonprofit Organizations, in solicitations and contracts greater than 
$25,000 for the provision, service, or sale of food in the United 
States.

[[Page 598]]

              SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS

                  PART 27_PATENTS, DATA, AND COPYRIGHTS

Sec.

Sec. 27.000 Scope of part.

Sec. 27.001 Definition.

                          Subpart 27.1_General


Sec. 27.101 Applicability.

Sec. 27.102 General guidance.

                   Subpart 27.2_Patents and Copyrights


Sec. 27.200 Scope of subpart.

Sec. 27.201 Patent and copyright infringement liability.

Sec. 27.201-1 General.

Sec. 27.201-2 Contract clauses.

Sec. 27.202 Royalties.

Sec. 27.202-1 Reporting of royalties.

Sec. 27.202-2 Notice of Government as a licensee.

Sec. 27.202-3 Adjustment of royalties.

Sec. 27.202-4 Refund of royalties.

Sec. 27.202-5 Solicitation provisions and contract clause.

Sec. 27.203 Security requirements for patent applications containing 
          classified subject matter.

Sec. 27.203-1 General.

Sec. 27.203-2 Contract clause.

Sec. 27.204 Patented technology under trade agreements.

Sec. 27.204-1 Use of patented technology under the North American Free 
          Trade Agreement.

Sec. 27.204-2 Use of patented technology under the General Agreement on 
          Tariffs and Trade (GATT).

          Subpart 27.3_Patent Rights under Government Contracts


Sec. 27.300 Scope of subpart.

Sec. 27.301 Definitions.

Sec. 27.302 Policy.

Sec. 27.303 Contract clauses.

Sec. 27.304 Procedures.

Sec. 27.304-1 General.

Sec. 27.304-2 Contracts placed by or for other Government agencies.

Sec. 27.304-3 Subcontracts.

Sec. 27.304-4 Appeals.

Sec. 27.305 Administration of patent rights clauses.

Sec. 27.305-1 Goals.

Sec. 27.305-2 Administration by the Government.

Sec. 27.305-3 Securing invention rights acquired by the Government.

Sec. 27.305-4 Protection of invention disclosures.

Sec. 27.306 Licensing background patent rights to third parties.

               Subpart 27.4_Rights in Data and Copyrights


Sec. 27.400 Scope of subpart.

Sec. 27.401 Definitions.

Sec. 27.402 Policy.

Sec. 27.403 Data rights--General.

Sec. 27.404 Basic rights in data clause.

Sec. 27.404-1 Unlimited rights data.

Sec. 27.404-2 Limited rights data and restricted computer software.

Sec. 27.404-3 Copyrighted works.

Sec. 27.404-4 Contractor's release, publication, and use of data.

Sec. 27.404-5 Unauthorized, omitted, or incorrect markings.

Sec. 27.404-6 Inspection of data at the contractor's facility.

Sec. 27.405 Other data rights provisions.

Sec. 27.405-1 Special works.

Sec. 27.405-2 Existing works.

Sec. 27.405-3 Commercial computer software.

Sec. 27.405-4 Other existing data.

Sec. 27.406 Acquisition of data.

Sec. 27.406-1 General.

Sec. 27.406-2 Additional data requirements.

Sec. 27.406-3 Major system acquisition.

Sec. 27.407 Rights to technical data in successful proposals.

Sec. 27.408 Cosponsored research and development activities.

Sec. 27.409 Solicitation provisions and contract clauses.

    Subpart 27.5_Foreign License and Technical Assistance Agreements


Sec. 27.501 General.

    Source: 72 FR 63049, Nov. 7, 2007, unless otherwise noted.



Sec. 27.000  Scope of part.

    This part prescribes the policies, procedures, solicitation 
provisions, and contract clauses pertaining to patents, data, and 
copyrights.



Sec. 27.001  Definition.

    United States, as used in this part, means the 50 States and the 
District of Columbia, U.S. territories and possessions, Puerto Rico, and 
the Northern Mariana Islands.

                          Subpart 27.1_General



Sec. 27.101  Applicability.

    This part applies to all agencies. However, agencies are authorized 
to adopt alternative policies, procedures,

[[Page 599]]

solicitation provisions, and contract clauses to the extent necessary to 
meet the specific requirements of laws, executive orders, treaties, or 
international agreements. Any agency adopting alternative policies, 
procedures, solicitation provisions, and contract clauses should include 
them in the agency's published regulations.



Sec. 27.102  General guidance.

    (a) The Government encourages the maximum practical commercial use 
of inventions made under Government contracts.
    (b) Generally, the Government will not refuse to award a contract on 
the grounds that the prospective contractor may infringe a patent. The 
Government may authorize and consent to the use of inventions in the 
performance of certain contracts, even though the inventions may be 
covered by U.S. patents.
    (c) Generally, contractors providing commercial items should 
indemnify the Government against liability for the infringement of U.S. 
patents.
    (d) The Government recognizes rights in data developed at private 
expense, and limits its demands for delivery of that data. When such 
data is delivered, the Government will acquire only those rights 
essential to its needs.
    (e) Generally, the Government requires that contractors obtain 
permission from copyright owners before including copyrighted works, 
owned by others, in data to be delivered to the Government.

                   Subpart 27.2_Patents and Copyrights



Sec. 27.200  Scope of subpart.

    This subpart prescribes policies and procedures with respect to--
    (a) Patent and copyright infringement liability;
    (b) Royalties;
    (c) Security requirements for patent applications containing 
classified subject matter; and
    (d) Patented technology under trade agreements.



Sec. 27.201  Patent and copyright infringement liability.



Sec. 27.201-1  General.

    (a) Pursuant to 28 U.S.C. 1498, the exclusive remedy for patent or 
copyright infringement by or on behalf of the Government is a suit for 
monetary damages against the Government in the Court of Federal Claims. 
There is no injunctive relief available, and there is no direct cause of 
action against a contractor that is infringing a patent or copyright 
with the authorization or consent of the Government (e.g., while 
performing a contract).
    (b) The Government may expressly authorize and consent to a 
contractor's use or manufacture of inventions covered by U.S. patents by 
inserting the clause at 52.227-1, Authorization and Consent.
    (c) Because of the exclusive remedies granted in 28 U.S.C. 1498, the 
Government requires notice and assistance from its contractors regarding 
any claims for patent or copyright infringement by inserting the clause 
at 52.227-2, Notice and Assistance, Regarding Patent and Copyright 
Infringement.
    (d) The Government may require a contractor to reimburse it for 
liability for patent infringement arising out of a contract for 
commercial items by inserting the clause at FAR 52.227-3, Patent 
Indemnity.



Sec. 27.201-2  Contract clauses.

    (a)(1) Insert the clause at 52.227-1, Authorization and Consent, in 
solicitations and contracts except that use of the clause is--
    (i) Optional when using simplified acquisition procedures; and
    (ii) Prohibited when both complete performance and delivery are 
outside the United States.
    (2) Use the clause with its Alternate I in all R&D solicitations and 
contracts for which the primary purpose is R&D work, except that this 
alternate shall not be used in construction and architect-engineer 
contracts unless the contract calls exclusively for R&D work.
    (3) Use the clause with its Alternate II in solicitations and 
contracts for

[[Page 600]]

communication services with a common carrier and the services are 
unregulated and not priced by a tariff schedule set by a regulatory 
body.
    (b) Insert the clause at 52.227-2, Notice and Assistance Regarding 
Patent and Copyright Infringement, in all solicitations and contracts 
that include the clause at 52.227-1, Authorization and Consent.
    (c)(1) Insert the clause at 52.227-3, Patent Indemnity, in 
solicitations and contracts that may result in the delivery of 
commercial items, unless--
    (i) Part 12 procedures are used;
    (ii) The simplified acquisition procedures of Part 13 are used;
    (iii) Both complete performance and delivery are outside the United 
States; or
    (iv) The contracting officer determines after consultation with 
legal counsel that omission of the clause would be consistent with 
commercial practice.
    (2) Use the clause with either its Alternate I (identification of 
excluded items) or II (identification of included items) if--
    (i) The contract also requires delivery of items that are not 
commercial items; or
    (ii) The contracting officer determines after consultation with 
legal counsel that limitation of applicability of the clause would be 
consistent with commercial practice.
    (3) Use the clause with its Alternate III if the solicitation or 
contract is for communication services and facilities where performance 
is by a common carrier, and the services are unregulated and are not 
priced by a tariff schedule set by a regulatory body.
    (d)(1) Insert the clause at 52.227-4, Patent Indemnity--Construction 
Contracts, in solicitations and contracts for construction or that are 
fixed-price for dismantling, demolition, or removal of improvements. Do 
not insert the clause in contracts solely for architect-engineer 
services.
    (2) If the contracting officer determines that the construction will 
necessarily involve the use of structures, products, materials, 
equipment, processes, or methods that are nonstandard, noncommercial, or 
special, the contracting officer may expressly exclude them from the 
patent indemnification by using the clause with its Alternate I. Note 
that this exclusion is for items, as distinguished from identified 
patents (see paragraph (e) of this subsection).
    (e) It may be in the Government's interest to exempt specific U.S. 
patents from the patent indemnity clause. Exclusion from indemnity of 
identified patents, as distinguished from items, is the prerogative of 
the agency head. Upon written approval of the agency head, the 
contracting officer may insert the clause at 52.227-5, Waiver of 
Indemnity, in solicitations and contracts in addition to the appropriate 
patent indemnity clause.
    (f) If a patent indemnity clause is not prescribed, the contracting 
officer may include one in the solicitation and contract if it is in the 
Government's interest to do so.
    (g) The contracting officer shall not include in any solicitation or 
contract any clause whereby the Government agrees to indemnify a 
contractor for patent infringement.



Sec. 27.202  Royalties.



Sec. 27.202-1  Reporting of royalties.

    (a) To determine whether royalties anticipated or actually paid 
under Government contracts are excessive, improper, or inconsistent with 
Government patent rights the solicitation provision at 52.227-6 requires 
prospective contractors to furnish royalty information. The contracting 
officer shall take appropriate action to reduce or eliminate excessive 
or improper royalties.
    (b) If the response to a solicitation includes a charge for 
royalties, the contracting officer shall, before award of the contract, 
forward the information to the office having cognizance of patent 
matters for the contracting activity. The cognizant office shall 
promptly advise the contracting officer of appropriate action.
    (c) The contracting officer, when considering the approval of a 
subcontract, shall require royalty information if it is required under 
the prime contract. The contracting officer shall forward the 
information to the office having cognizance of patent matters. However,

[[Page 601]]

the contracting officer need not delay consent while awaiting advice 
from the cognizant office.
    (d) The contracting officer shall forward any royalty reports to the 
office having cognizance of patent matters for the contracting activity.



Sec. 27.202-2  Notice of Government as a licensee.

    (a) When the Government is obligated to pay a royalty on a patent 
because of an existing license agreement and the contracting officer 
believes that the licensed patent will be applicable to a prospective 
contract, the Government should furnish the prospective offerors with--
    (1) Notice of the license;
    (2) The number of the patent; and
    (3) The royalty rate cited in the license.
    (b) When the Government is obligated to pay such a royalty, the 
solicitation should also require offerors to furnish information 
indicating whether or not each offeror is the patent owner or a licensee 
under the patent. This information is necessary so that the Government 
may either--
    (1) Evaluate an offeror's price by adding an amount equal to the 
royalty; or
    (2) Negotiate a price reduction with an offeror when the offeror is 
licensed under the same patent at a lower royalty rate.



Sec. 27.202-3  Adjustment of royalties.

    (a) If at any time the contracting officer believes that any 
royalties paid, or to be paid, under a contract or subcontract are 
inconsistent with Government rights, excessive, or otherwise improper, 
the contracting officer shall promptly report the facts to the office 
having cognizance of patent matters for the contracting activity 
concerned.
    (b) In coordination with the cognizant office, the contracting 
officer shall promptly act to protect the Government against payment of 
royalties--
    (1) With respect to which the Government has a royalty-free license;
    (2) At a rate in excess of the rate at which the Government is 
licensed; or
    (3) When the royalties in whole or in part otherwise constitute an 
improper charge.
    (c) In appropriate cases, the contracting officer in coordination 
with the cognizant office shall demand a refund pursuant to any refund 
of royalties clause in the contract (see 27.202-4) or negotiate for a 
reduction of royalties.
    (d) For guidance in evaluating information furnished pursuant to 
27.202-1, see 31.205-37. See also 31.109 regarding advance 
understandings on particular cost items, including royalties.



Sec. 27.202-4  Refund of royalties.

    The clause at 52.227-9, Refund of Royalties, establishes procedures 
to pay the contractor royalties under the contract and recover royalties 
not paid by the contractor when the royalties were included in the 
contractor's fixed price.



Sec. 27.202-5  Solicitation provisions and contract clause.

    (a)(1) Insert a solicitation provision substantially the same as the 
provision at 52.227-6, Royalty Information, in--
    (i) Any solicitation that may result in a negotiated contract for 
which royalty information is desired and for which certified cost or 
pricing data are obtained under 15.403; or
    (ii) Sealed bid solicitations only if the need for such information 
is approved at a level above the contracting officer as being necessary 
for proper protection of the Government's interests.
    (2) If the solicitation is for communication services and facilities 
by a common carrier, use the provision with its Alternate I.
    (b) If the Government is obligated to pay a royalty on a patent 
involved in the prospective contract, insert in the solicitation a 
provision substantially the same as the provision at 52.227-7, Patents--
Notice of Government Licensee. If the clause at 52.227-6 is not included 
in the solicitation, the contracting officer may require offerors to 
provide information sufficient to provide this notice to the other 
offerors.
    (c) Insert the clause at 52.227-9, Refund of Royalties, in 
negotiated fixed-price solicitations and contracts when royalties may be 
paid under the contract. If a fixed-price incentive contract is 
contemplated, change ``price'' to ``target cost and target profit''

[[Page 602]]

wherever it appears in the clause. The clause may be used in cost-
reimbursement contracts where agency approval of royalties is necessary 
to protect the Government's interests.

[72 FR 63049, Nov. 7, 2007, as amended at 75 FR 53149, Aug. 30, 2010]



Sec. 27.203  Security requirements for patent applications containing 
          classified subject matter.



Sec. 27.203-1  General.

    (a) Unauthorized disclosure of classified subject matter, whether in 
patent applications or resulting from the issuance of a patent, may be a 
violation of 18 U.S.C. 792, et seq. (Chapter 37--Espionage and 
Censorship), and related statutes, and may be contrary to the interests 
of national security.
    (b) Upon receipt of a patent application under paragraph (a) or (b) 
of the clause at 52.227-10, Filing of Patent Applications--Classified 
Subject Matter, the contracting officer shall ascertain the proper 
security classification of the patent application. If the application 
contains classified subject matter, the contracting officer shall inform 
the contractor how to transmit the application to the United States 
Patent Office in accordance with procedures provided by legal counsel. 
If the material is classified ``Secret'' or higher, the contracting 
officer shall make every effort to notify the contractor within 30 days 
of the Government's determination, pursuant to paragraph (a) of the 
clause.
    (c) Upon receipt of information furnished by the contractor under 
paragraph (d) of the clause at 52.227-10, the contracting officer shall 
promptly submit that information to legal counsel in order that the 
steps necessary to ensure the security of the application will be taken.
    (d) The contracting officer shall act promptly on requests for 
approval of foreign filing under paragraph (c) of the clause at 52.227-
10 in order to avoid the loss of valuable patent rights of the 
Government or the contractor.



Sec. 27.203-2  Contract clause.

    Insert the clause at 52.227-10, Filing of Patent Applications--
Classified Subject Matter, in all classified solicitations and contracts 
and in all solicitations and contracts where the nature of the work 
reasonably might result in a patent application containing classified 
subject matter.



Sec. 27.204  Patented technology under trade agreements.



Sec. 27.204-1  Use of patented technology under the North American Free 
          Trade Agreement.

    (a) The requirements of this section apply to the use of technology 
covered by a valid patent when the patent holder is from a country that 
is a party to the North American Free Trade Agreement (NAFTA).
    (b) Article 1709(10) of NAFTA generally requires a user of 
technology covered by a valid patent to make a reasonable effort to 
obtain authorization prior to use of the patented technology. However, 
NAFTA provides that this requirement for authorization may be waived in 
situations of national emergency or other circumstances of extreme 
urgency, or for public noncommercial use.
    (c) Section 6 of Executive Order 12889, ``Implementation of the 
North American Free Trade Act,'' of December 27, 1993, waives the 
requirement to obtain advance authorization for an invention used or 
manufactured by or for the Federal Government. However, the patent owner 
shall be notified in advance whenever the agency or its contractor knows 
or has reasonable grounds to know, without making a patent search, that 
an invention described in and covered by a valid U.S. patent is or will 
be used or manufactured without a license. In cases of national 
emergency or other circumstances of extreme urgency, this notification 
need not be made in advance, but shall be made as soon as reasonably 
practicable.
    (d) The contracting officer, in consultation with the office having 
cognizance of patent matters, shall ensure compliance with the notice 
requirements of NAFTA Article 1709(10) and Executive Order 12889. A 
contract award should not be suspended pending notification to the 
patent owner.
    (e) Section 6(c) of Executive Order 12889 provides that the notice 
to the patent owner does not constitute an

[[Page 603]]

admission of infringement of a valid privately-owned patent.
    (f) When addressing issues regarding compensation for the use of 
patented technology, Government personnel should be advised that NAFTA 
uses the term ``adequate remuneration.'' Executive Order 12889 equates 
``remuneration'' to ``reasonable and entire compensation'' as used in 28 
U.S.C. 1498, the statute that gives jurisdiction to the U.S. Court of 
Federal Claims to hear patent and copyright cases involving infringement 
by the Government.
    (g) When questions arise regarding the notice requirements or other 
matters relating to this section, the contracting officer should consult 
with legal counsel.



Sec. 27.204-2  Use of patented technology under the General Agreement on 
          Tariffs and Trade (GATT).

    Article 31 of Annex 1C, Agreement on Trade-Related Aspects of 
Intellectual Property Rights, to GATT (Uruguay Round) addresses 
situations where the law of a member country allows for use of a patent 
without authorization, including use by the Government.

          Subpart 27.3_Patent Rights under Government Contracts



Sec. 27.300  Scope of subpart.

    This subpart prescribes policies, procedures, solicitation 
provisions, and contract clauses pertaining to inventions made in the 
performance of work under a Government contract or subcontract for 
experimental, developmental, or research work. Agency policies, 
procedures, solicitation provisions, and contract clauses may be 
specified in agency supplemental regulations as permitted by law, 
including 37 CFR 401.1.



Sec. 27.301  Definitions.

    As used in this subpart--
    Invention means any invention or discovery that is or may be 
patentable or otherwise protectable under title 35 of the U.S. Code, or 
any variety of plant that is or may be protectable under the Plant 
Variety Protection Act (7 U.S.C. 2321, et seq.)
    Made means--
    (1) When used in relation to any invention other than a plant 
variety, means the conception or first actual reduction to practice of 
the invention; or
    (2) When used in relation to a plant variety, means that the 
contractor has at least tentatively determined that the variety has been 
reproduced with recognized characteristics.
    Nonprofit organization means a university or other institution of 
higher education or an organization of the type described in section 
501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. 501(c)) and 
exempt from taxation under section 501(a) of the Internal Revenue Code 
(26 U.S.C. 501(a)), or any nonprofit scientific or educational 
organization qualified under a State nonprofit organization statute.
    Practical application means to manufacture, in the case of a 
composition or product; to practice, in the case of a process or method; 
or to operate, in the case of a machine or system; and, in each case, 
under such conditions as to establish that the invention is being 
utilized and that its benefits are, to the extent permitted by law or 
Government regulations, available to the public on reasonable terms.
    Subject invention means any invention of the contractor made in the 
performance of work under a Government contract.



Sec. 27.302  Policy.

    (a) Introduction. In accordance with chapter 18 of title 35, U.S.C. 
(as implemented by 37 CFR part 401), Presidential Memorandum on 
Government Patent Policy to the Heads of Executive Departments and 
Agencies dated February 18, 1983, and Executive Order 12591, 
Facilitating Access to Science and Technology dated April 10, 1987, it 
is the policy and objective of the Government to--
    (1) Use the patent system to promote the use of inventions arising 
from federally supported research or development;
    (2) Encourage maximum participation of industry in federally 
supported research and development efforts;
    (3) Ensure that these inventions are used in a manner to promote 
free competition and enterprise without unduly

[[Page 604]]

encumbering future research and discovery;
    (4) Promote the commercialization and public availability of the 
inventions made in the United States by United States industry and 
labor;
    (5) Ensure that the Government obtains sufficient rights in 
federally supported inventions to meet the needs of the Government and 
protect the public against nonuse or unreasonable use of inventions; and
    (6) Minimize the costs of administering patent policies.
    (b) Contractor right to elect title. (1) Generally, pursuant to 35 
U.S.C. 202 and the Presidential Memorandum and Executive order cited in 
paragraph (a) of this section, each contractor may, after required 
disclosure to the Government, elect to retain title to any subject 
invention.
    (2) A contract may require the contractor to assign to the 
Government title to any subject invention--
    (i) When the contractor is not located in the United States or does 
not have a place of business located in the United States or is subject 
to the control of a foreign government (see 27.303(e)(1)(i));
    (ii) In exceptional circumstances, when an agency determines that 
restriction or elimination of the right to retain title in any subject 
invention will better promote the policy and objectives of chapter 18 of 
title 35, U.S.C. and the Presidential Memorandum;
    (iii) When a Government authority, that is authorized by statute or 
executive order to conduct foreign intelligence or counterintelligence 
activities, determines that the restriction or elimination of the right 
to retain title to any subject invention is necessary to protect the 
security of such activities;
    (iv) When the contract includes the operation of a Government-owned, 
contractor-operated facility of the Department of Energy (DOE) primarily 
dedicated to the Department's naval nuclear propulsion or weapons 
related programs and all funding agreement limitations under 35 U.S.C. 
202(a)(iv) for agreements with small business concerns and nonprofit 
organizations are limited to inventions occurring under the above two 
programs; or
    (v) Pursuant to statute or in accordance with agency regulations.
    (3) When the Government has the right to acquire title to a subject 
invention, the contractor may, nevertheless, request greater rights to a 
subject invention (see 27.304-1(c)).
    (4) Consistent with 37 CFR part 401, when a contract with a small 
business concern or nonprofit organization requires assignment of title 
to the Government based on the exceptional circumstances enumerated in 
paragraph (b)(2)(ii) or (iii) of this section for reasons of national 
security, the contract shall still provide the contractor with the right 
to elect ownership to any subject invention that--
    (i) Is not classified by the agency; or
    (ii) Is not limited from dissemination by the DOE within 6 months 
from the date it is reported to the agency.
    (5) Contracts in support of DOE's naval nuclear propulsion program 
are exempted from this paragraph (b).
    (6) When a contract involves a series of separate task orders, an 
agency may structure the contract to apply the exceptions at paragraph 
(b)(2)(ii) or (iii) of this section to individual task orders.
    (c) Government license. The Government shall have at least a 
nonexclusive, nontransferable, irrevocable, paid-up license to practice, 
or have practiced for or on behalf of the United States, any subject 
invention throughout the world. The Government may require additional 
rights in order to comply with treaties or other international 
agreements. In such case, these rights shall be made a part of the 
contract (see 27.303).
    (d) Government right to receive title. (1) In addition to the right 
to obtain title to subject inventions pursuant to paragraph (b)(2)(i) 
through (v) of this section, the Government has the right to receive 
title to an invention--
    (i) If the contractor has not disclosed the invention within the 
time specified in the clause; or
    (ii) In any country where the contractor--
    (A) Does not elect to retain rights or fails to elect to retain 
rights to the invention within the time specified in the clause;

[[Page 605]]

    (B) Has not filed a patent or plant variety protection application 
within the time specified in the clause;
    (C) Decides not to continue prosecution of a patent or plant variety 
protection application, pay maintenance fees, or defend in a 
reexamination or opposition proceeding on the patent; or
    (D) No longer desires to retain title.
    (2) For the purposes of this paragraph, filing in a European Patent 
Office Region or under the Patent Cooperation Treaty constitutes 
election in the countries selected in the application(s).
    (e) Utilization reports. The Government has the right to require 
periodic reporting on how any subject invention is being used by the 
contractor or its licensees or assignees. In accordance with 35 U.S.C. 
202(c)(5) and 37 CFR part 401, agencies shall not disclose such 
utilization reports to persons outside the Government without permission 
of the contractor. Contractors should mark as confidential/proprietary 
any utilization report to help prevent inadvertent release outside the 
Government.
    (f) March-in rights. (1) Pursuant to 35 U.S.C. 203, agencies have 
certain march-in rights that require the contractor, an assignee, or 
exclusive licensee of a subject invention to grant a nonexclusive, 
partially exclusive, or exclusive license in any field of use to 
responsible applicants, upon terms that are reasonable under the 
circumstances. If the contractor, assignee or exclusive licensee of a 
subject invention refuses to grant such a license, the agency can grant 
the license itself. March-in rights may be exercised only if the agency 
determines that this action is necessary--
    (i) Because the contractor or assignee has not taken, or is not 
expected to take within a reasonable time, effective steps to achieve 
practical application of the subject invention in the field(s) of use;
    (ii) To alleviate health or safety needs that are not reasonably 
satisfied by the contractor, assignee, or their licensees;
    (iii) To meet requirements for public use specified by Federal 
regulations and these requirements are not reasonably satisfied by the 
contractor, assignee, or licensees; or
    (iv) Because the agreement required by paragraph (g) of this section 
has neither been obtained nor waived, or because a licensee of the 
exclusive right to use or sell any subject invention in the United 
States is in breach of its agreement obtained pursuant to paragraph (g) 
of this section.
    (2) The agency shall not exercise its march-in rights unless the 
contractor has been provided a reasonable time to present facts and show 
cause why the proposed agency action should not be taken. The agency 
shall provide the contractor an opportunity to dispute or appeal the 
proposed action, in accordance with 27.304-1(g).
    (g) Preference for United States industry. In accordance with 35 
U.S.C. 204, no contractor that receives title to any subject invention 
and no assignee of the contractor shall grant to any person the 
exclusive right to use or sell any subject invention in the United 
States unless that person agrees that any products embodying the subject 
invention or produced through the use of the subject invention will be 
manufactured substantially in the United States. However, in individual 
cases, the requirement for this agreement may be waived by the agency 
upon a showing by the contractor or assignee that reasonable but 
unsuccessful efforts have been made to grant licenses on similar terms 
to potential licensees that would be likely to manufacture substantially 
in the United States or that under the circumstances domestic 
manufacture is not commercially feasible.
    (h) Special conditions for nonprofit organizations' preference for 
small business concerns. (1) Nonprofit organization contractors are 
expected to use reasonable efforts to attract small business licensees 
(see paragraph (i)(4) of the clause at 52.227-11, Patent Rights--
Ownership by the Contractor). What constitutes reasonable efforts to 
attract small business licensees will vary with the circumstances and 
the nature, duration, and expense of efforts needed to bring the 
invention to the market.
    (2) Small business concerns that believe a nonprofit organization is 
not meeting its obligations under the

[[Page 606]]

clause may report the matter to the Secretary of Commerce. To the extent 
deemed appropriate, the Secretary of Commerce will undertake informal 
investigation of the matter, and may discuss or negotiate with the 
nonprofit organization ways to improve its efforts to meet its 
obligations under the clause. However, in no event will the Secretary of 
Commerce intervene in ongoing negotiations or contractor decisions 
concerning the licensing of a specific subject invention. These 
investigations, discussions, and negotiations involving the Secretary of 
Commerce will be in coordination with other interested agencies, 
including the Small Business Administration. In the case of a contract 
for the operation of a Government-owned, contractor-operated research or 
production facility, the Secretary of Commerce will coordinate with the 
agency responsible for the facility prior to any discussions or 
negotiations with the contractor.
    (i) Minimum rights to contractor. (1) When the Government acquires 
title to a subject invention, the contractor is normally granted a 
revocable, nonexclusive, paid-up license to that subject invention 
throughout the world. The contractor's license extends to any of its 
domestic subsidiaries and affiliates within the corporate structure of 
which the contractor is a part and includes the right to grant 
sublicenses to the extent the contractor was legally obligated to do so 
at the time of contract award. The contracting officer shall approve or 
disapprove, in writing, any contractor request to transfer its licenses. 
No approval is necessary when the transfer is to the successor of that 
part of the contractor's business to which the subject invention 
pertains.
    (2) In response to a third party's proper application for an 
exclusive license, the contractor's domestic license may be revoked or 
modified to the extent necessary to achieve expeditious practical 
application of the subject invention. The application shall be submitted 
in accordance with the applicable provisions in 37 CFR part 404 and 
agency licensing regulations. The contractor's license will not be 
revoked in that field of use or the geographical areas in which the 
contractor has achieved practical application and continues to make the 
benefits of the subject invention reasonably accessible to the public. 
The license in any foreign country may be revoked or modified to the 
extent the contractor, its licensees, or its domestic subsidiaries or 
affiliates have failed to achieve practical application in that country. 
(See the procedures at 27.304-1(f).)
    (j) Confidentiality of inventions. Publishing information concerning 
an invention before a patent application is filed on a subject invention 
may create a bar to a valid patent. To avoid this bar, agencies may 
withhold information from the public that discloses any invention in 
which the Government owns or may own a right, title, or interest 
(including a nonexclusive license) (see 35 U.S.C. 205 and 37 CFR part 
401). Agencies may only withhold information concerning inventions for a 
reasonable time in order for a patent application to be filed. Once 
filed in any patent office, agencies are not required to release copies 
of any document that is a part of a patent application for those subject 
inventions. (See also 27.305-4.)



Sec. 27.303  Contract clauses.

    (a)(1) Insert a patent rights clause in all solicitations and 
contracts for experimental, developmental, or research work as 
prescribed in this section.
    (2) This section also applies to solicitations or contracts for 
construction work or architect-engineer services that include--
    (i) Experimental, developmental, or research work;
    (ii) Test and evaluation studies; or
    (iii) The design of a Government facility that may involve novel 
structures, machines, products, materials, processes, or equipment 
(including construction equipment).
    (3) The contracting officer shall not include a patent rights clause 
in solicitations or contracts for construction work or architect-
engineer services that call for or can be expected to involve only 
``standard types of construction.'' ``Standard types of construction'' 
are those involving previously developed equipment, methods, and 
processes and in which the distinctive features include only--

[[Page 607]]

    (i) Variations in size, shape, or capacity of conventional 
structures; or
    (ii) Purely artistic or aesthetic (as distinguished from 
functionally significant) architectural configurations and designs of 
both structural and nonstructural members or groupings, whether or not 
they qualify for design patent protection.
    (b)(1) Unless an alternative patent rights clause is used in 
accordance with paragraph (c), (d), or (e) of this section, insert the 
clause at 52.227-11, Patent Rights--Ownership by the Contractor.
    (2) To the extent the information is not required elsewhere in the 
contract, and unless otherwise specified by agency supplemental 
regulations, the contracting officer may modify 52.227-11(e) or 
otherwise supplement the clause to require the contractor to do one or 
more of the following:
    (i) Provide periodic (but not more frequently than annually) 
listings of all subject inventions required to be disclosed during the 
period covered by the report.
    (ii) Provide a report prior to the closeout of the contract listing 
all subject inventions or stating that there were none.
    (iii) Provide the filing date, serial number, title, patent number 
and issue date for any patent application filed on any subject invention 
in any country or, upon request, copies of any patent application so 
identified.
    (iv) Furnish the Government an irrevocable power to inspect and make 
copies of the patent application file when a Government employee is a 
co-inventor.
    (3) Use the clause with its Alternate I if the Government must grant 
a foreign government a sublicense in subject inventions pursuant to a 
specified treaty or executive agreement. The contracting officer may 
modify Alternate I, if the agency head determines, at contract award, 
that it would be in the national interest to sublicense foreign 
governments or international organizations pursuant to any existing or 
future treaty or agreement. When necessary to effectuate a treaty or 
agreement, Alternate I may be appropriately modified.
    (4) Use the clause with its Alternate II in contracts that may be 
affected by existing or future treaties or agreements.
    (5) Use the clause with its Alternate III in contracts with 
nonprofit organizations for the operation of a Government-owned 
facility.
    (6) If the contract is for the operation of a Government-owned 
facility, the contracting officer may use the clause with its Alternate 
IV.
    (7) If the contract is for the performance of services at a 
Government owned and operated laboratory or at a Government owned and 
contractor operated laboratory directed by the Government to fulfill the 
Government's obligations under a Cooperative Research and Development 
Agreement (CRADA) authorized by 15 U.S.C. 3710a, the contracting officer 
may use the clause with its Alternate V. Since this provision is 
considered an exercise of an agency's ``exceptional circumstances'' 
authority, the contracting officer must comply with 37 CFR 401.3(e) and 
401.4.
    (c) Insert a patent rights clause in accordance with the procedures 
at 27.304-2 if the solicitation or contract is being placed on behalf of 
another Government agency.
    (d) Insert a patent rights clause in accordance with agency 
procedures if the solicitation or contract is for DoD, DOE, or NASA, and 
the contractor is other than a small business concern or nonprofit 
organization.
    (e)(1) Except as provided in paragraph (e)(2) of this section, and 
after compliance with the applicable procedures in 27.304-1(b), the 
contracting officer may insert the clause at 52.227-13, Patent Rights--
Ownership by the Government, or a clause prescribed by agency 
supplemental regulations, if--
    (i) The contractor is not located in the United States or does not 
have a place of business located in the United States or is subject to 
the control of a foreign government;
    (ii) There are exceptional circumstances and the agency head 
determines that restriction or elimination of the right to retain title 
to any subject invention will better promote the policy and objectives 
of chapter 18 of title 35 of the United States Code;

[[Page 608]]

    (iii) A Government authority that is authorized by statute or 
executive order to conduct foreign intelligence or counterintelligence 
activities, determines that restriction or elimination of the right to 
retain any subject invention is necessary to protect the security of 
such activities; or
    (iv) The contract includes the operation of a Government-owned, 
contractor-operated facility of DOE primarily dedicated to that 
Department's naval nuclear propulsion or weapons related programs.
    (2) If an agency exercises the exceptions at paragraph (e)(1)(ii) or 
(iii) of this section in a contract with a small business concern or a 
nonprofit organization, the contracting officer shall use the clause at 
52.227-11 with only those modifications necessary to address the 
exceptional circumstances and shall include in the modified clause 
greater rights determinations procedures equivalent to those at 52.227-
13(b)(2).
    (3) When using the clause at 52.227-13, Patent Rights--Ownership by 
the Government, the contracting officer may supplement the clause to 
require the contractor to--
    (i) Furnish a copy of each subcontract containing a patent rights 
clause (but if a copy of a subcontract is furnished under another 
clause, a duplicate shall not be requested under the patent rights 
clause);
    (ii) Submit interim and final invention reports listing subject 
inventions and notifying the contracting officer of all subcontracts 
awarded for experimental, developmental, or research work;
    (iii) Provide the filing date, serial number, title, patent number, 
and issue date for any patent application filed on any subject invention 
in any country or, upon specific request, copies of any patent 
application so identified; and
    (iv) Submit periodic reports on the utilization of a subject 
invention.
    (4) Use the clause at 52.227-13 with its Alternate I if--
    (i) The Government must grant a foreign government a sublicense in 
subject inventions pursuant to a treaty or executive agreement; or
    (ii) The agency head determines, at contract award, that it would be 
in the national interest to sublicense foreign governments or 
international organizations pursuant to any existing or future treaty or 
agreement. If other rights are necessary to effectuate any treaty or 
agreement, Alternate I may be appropriately modified.
    (5) Use the clause at 52.227-13 with its Alternate II in the 
contract when necessary to effectuate an existing or future treaty or 
agreement.



Sec. 27.304  Procedures.



Sec. 27.304-1  General.

    (a) Status as small business concern or nonprofit organization. If 
an agency has reason to question the size or nonprofit status of the 
prospective contractor, the agency may require the prospective 
contractor to furnish evidence of its nonprofit status or may file a 
size protest in accordance with FAR 19.302.
    (b) Exceptions. (1) Before using any of the exceptions under 
27.303(e)(1) in a contract with a small business concern or a nonprofit 
organization and before using the exception of 27.303(e)(1)(ii) for any 
contractor, the agency shall follow the applicable procedures at 37 CFR 
401.
    (2) A small business concern or nonprofit organization is entitled 
to an administrative review of the use of the exceptions at 
27.303(e)(1)(i) through (e)(1)(iv) in accordance with agency procedures 
and 37 CFR part 401.
    (c) Greater rights determinations. Whenever the contract contains 
the clause at 52.227-13, Patent Rights--Ownership by the Government, or 
a patent rights clause modified pursuant to 27.303(e)(2), the contractor 
(or an employee-inventor of the contractor after consultation with the 
contractor) may request greater rights to an identified invention within 
the period specified in the clause. The contracting officer may grant 
requests for greater rights if the contracting officer determines that 
the interests of the United States and the general public will be better 
served. In making these determinations, the contracting officer shall 
consider at least the following objectives (see 37 CFR 401.3(b) and 
401.15):
    (1) Promoting the utilization of inventions arising from federally 
supported research and development.

[[Page 609]]

    (2) Ensuring that inventions are used in a manner to promote full 
and open competition and free enterprise without unduly encumbering 
future research and discovery.
    (3) Promoting public availability of inventions made in the United 
States by United States industry and labor.
    (4) Ensuring that the Government obtains sufficient rights in 
federally supported inventions to meet the needs of the Government and 
protect the public against nonuse or unreasonable use of inventions.
    (d) Retention of rights by inventor. If the contractor elects not to 
retain title to a subject invention, the agency may consider and, after 
consultation with the contractor, grant requests for retention of rights 
by the inventor. Retention of rights by the inventor will be subject to 
the conditions in paragraphs (d) (except paragraph (d)(1)(i)), (e)(4), 
(f), (g), and (h) of the clause at 52.227-11, Patent Rights--Ownership 
by the Contractor.
    (e) Government assignment to contractor of rights in Government 
employees' inventions. When a Government employee is a co-inventor of an 
invention made under a contract with a small business concern or 
nonprofit organization, the agency employing the co-inventor may license 
or assign whatever rights it may acquire in the subject invention from 
its employee to the contractor, subject at least to the conditions of 35 
U.S.C. 202-204.
    (f) Revocation or modification of contractor's minimum rights. 
Before revoking or modifying the contractor's license in accordance with 
27.302(i)(2), the contracting officer shall furnish the contractor a 
written notice of intention to revoke or modify the license. The agency 
shall allow the contractor at least 30 days (or another time as may be 
authorized for good cause by the contracting officer) after the notice 
to show cause why the license should not be revoked or modified. The 
contractor has the right to appeal, in accordance with applicable 
regulations in 37 CFR part 404 and agency licensing regulations, any 
decisions concerning the revocation or modification.
    (g) Exercise of march-in rights. When exercising march-in rights, 
agencies shall follow the procedures set forth in 37 CFR 401.6.
    (h) Licenses and assignments under contracts with nonprofit 
organizations. If the contractor is a nonprofit organization, paragraph 
(i) of the clause at 52.227-11 provides that certain contractor actions 
require agency approval.



Sec. 27.304-2  Contracts placed by or for other Government agencies.

    The following procedures apply unless an interagency agreement 
provides otherwise:
    (a) When a Government agency requests another Government agency to 
award a contract on its behalf, the request should explain any special 
circumstances surrounding the contract and specify the patent rights 
clause to be used. The clause should be selected and modified, if 
necessary, in accordance with the policies and procedures of this 
subpart. If, however, the request states that a clause of the requesting 
agency is required (e.g., because of statutory requirements, a 
deviation, or exceptional circumstances), the awarding agency shall use 
that clause rather than those of this subpart.
    (1) If the request states that an agency clause is required and the 
work to be performed under the contract is not severable and is funded 
wholly or in part by the requesting agency, then include the requesting 
agency clause and no other patent rights clause in the contract.
    (2) If the request states that an agency clause is required, and the 
work to be performed under the contract is severable, then the 
contracting officer shall assure that the requesting agency clause 
applies only to that severable portion of the work and that the work for 
the awarding agency is subject to the appropriate patent rights clause.
    (3) If the request states that a requesting agency clause is not 
required in any resulting contract, the awarding agency shall use the 
appropriate patent rights clause, if any.
    (b) Any action requiring an agency determination, report, or 
deviation involved in the use of the requesting agency's clause is the 
responsibility of the requesting agency unless the agencies agree 
otherwise. However, the

[[Page 610]]

awarding agency may not alter the requesting agency's clause without 
prior approval of the requesting agency.
    (c) The requesting agency may require, and provide instructions 
regarding, the forwarding or handling of any invention disclosures or 
other reporting requirements of the specified clauses. Normally, the 
requesting agency is responsible for the administration of any subject 
inventions. This responsibility shall be established in advance of 
awarding any contracts.



Sec. 27.304-3  Subcontracts.

    (a) The policies and procedures in this subpart apply to all 
subcontracts at any tier.
    (b) Whenever a prime contractor or a subcontractor considers 
including a particular clause in a subcontract to be inappropriate or a 
subcontractor refuses to accept the clause, the contracting officer, in 
consultation with counsel, shall resolve the matter.
    (c) It is Government policy that contractors shall not use their 
ability to award subcontracts as economic leverage to acquire rights for 
themselves in inventions resulting from subcontracts.



Sec. 27.304-4  Appeals.

    (a) The designated agency official shall provide the contractor with 
a written statement of the basis, including any relevant facts, for 
taking any of the following actions:
    (1) A refusal to grant an extension to the invention disclosure 
period under paragraph (c)(4) of the clause at 52.227-11;
    (2) A demand for a conveyance of title to the Government under 
27.302(d)(1)(i) and (ii);
    (3) A refusal to grant a waiver under 27.302(g), Preference for 
United States industry; or
    (4) A refusal to approve an assignment under 27.304-1(h).
    (b) Each agency may establish and publish procedures under which any 
of these actions may be appealed. These appeal procedures should include 
administrative due process procedures and standards for fact-finding. 
The resolution of any appeal shall consider both the factual and legal 
basis for the action and its consistency with the policy and objectives 
of 35 U.S.C. 200-206 and 210.
    (c) To the extent that any of the actions described in paragraph (a) 
of this section are subject to appeal under the Contract Disputes Act, 
the procedures under that Act will satisfy the requirements of paragraph 
(b).



Sec. 27.305  Administration of patent rights clauses.



Sec. 27.305-1  Goals.

    (a) Contracts having a patent rights clause should be so 
administered that--
    (1) Inventions are identified, disclosed, and reported as required 
by the contract, and elections are made;
    (2) The rights of the Government in subject inventions are 
established;
    (3) When patent protection is appropriate, patent applications are 
timely filed and prosecuted by contractors or by the Government;
    (4) The rights of the Government in filed patent applications are 
documented by formal instruments such as licenses or assignments; and
    (5) Expeditious commercial utilization of subject inventions is 
achieved.
    (b) If a subject invention is made under a contract funded by more 
than one agency, at the request of the contractor or on their own 
initiative, the agencies shall designate one agency as responsible for 
administration of the rights of the Government in the invention.



Sec. 27.305-2  Administration by the Government.

    (a) Agencies should establish and maintain appropriate follow-up 
procedures to protect the Government's interest and to check that 
subject inventions are identified and disclosed, and when appropriate, 
patent applications are filed, and that the Government's rights therein 
are established and protected. Follow-up activities for contracts that 
include a clause referenced in 27.304-2 should be coordinated with the 
appropriate agency.
    (b)(1) The contracting officer administering the contract (or other 
representative specifically designated in

[[Page 611]]

the contract for this purpose) is responsible for receiving invention 
disclosures, reports, confirmatory instruments, notices, requests, and 
other documents and information submitted by the contractor pursuant to 
a patent rights clause.
    (i) For other than confirmatory instruments, if the contractor fails 
to furnish documents or information as called for by the clause within 
the time required, the contracting officer shall promptly request the 
contractor to supply the required documents or information. If the 
failure persists, the contracting officer shall take appropriate action 
to secure compliance.
    (ii) If the contractor does not furnish confirmatory instruments 
within 6 months after filing each patent application, or within 6 months 
after submitting the invention disclosure if the application has been 
previously filed, the contracting officer shall request the contractor 
to supply the required documents.
    (2) The contracting officer shall promptly furnish all invention 
disclosures, reports, confirmatory instruments, notices, requests, and 
other documents and information relating to patent rights clauses to 
legal counsel.
    (c) Contracting activities should establish appropriate procedures 
to detect and correct failures by the contractor to comply with its 
obligations under the patent rights clauses, such as failures to 
disclose and report subject inventions, both during and after contract 
performance. Government effort to review and correct contractor 
compliance with its patent rights obligations should be directed 
primarily toward contracts that are more likely to result in subject 
inventions significant in number or quality. These contracts include 
contracts of a research, developmental, or experimental nature; 
contracts of a large dollar amount; and any other contracts when there 
is reason to believe the contractor may not be complying with its 
contractual obligations. Other contracts may be reviewed using a spot-
check method, as feasible. Appropriate follow-up procedures and 
activities may include the investigation or review of selected contracts 
or contractors by those qualified in patent and technical matters to 
detect failures to comply with contract obligations.
    (d) Follow-up activities should include, where appropriate, use of 
Government patent personnel--
    (1) To interview agency technical personnel to identify novel 
developments made in contracts;
    (2) To review technical reports submitted by contractors with 
cognizant agency technical personnel;
    (3) To check the Official Gazette of the United States Patent and 
Trademark Office and other sources for patents issued to the contractor 
in fields related to its Government contracts; and
    (4) To have cognizant Government personnel interview contractor 
personnel regarding work under the contract involved, observe the work 
on site, and inspect laboratory notebooks and other records of the 
contractor related to work under the contract.
    (e) If a contractor or subcontractor does not have a clear 
understanding of its obligations under the clause, or its procedures for 
complying with the clause are deficient, the contracting officer should 
explain to the contractor its obligations. The withholding of payments 
provision (if any) of the patent rights clause may be invoked if the 
contractor fails to meet the obligations required by the patents rights 
clause. Significant or repeated failures by a contractor to comply with 
the patent rights obligation in its contracts shall be documented and 
made a part of the general file (see 4.801(c)(3)).



Sec. 27.305-3  Securing invention rights acquired by the Government.

    (a) Agencies are responsible for implementing procedures necessary 
to protect the Government's interest in subject inventions. When the 
Government acquires the entire right, title, and interest in an 
invention by contract, the chain of title from the inventor to the 
Government shall be clearly established. This is normally accomplished 
by an assignment either from each inventor to the contractor and from 
the contractor to the Government, or from the inventor to the Government 
with the consent of the contractor. When the Government's rights are 
limited to a license, there should

[[Page 612]]

be a confirmatory instrument to that effect.
    (b) Agencies may, by supplemental instructions, develop suitable 
assignments, licenses, and other papers evidencing any rights of the 
Government in patents or patents applications. These instruments should 
be recorded in the U.S. Patent and Trademark Office (see Executive Order 
9424, Establishing in the United States Patent Office a Register of 
Government Interests in Patents and Applications for Patents, (February 
18, 1944).



Sec. 27.305-4  Protection of invention disclosures.

    (a) The Government will, to the extent authorized by 35 U.S.C. 205, 
withhold from disclosure to the public any invention disclosures 
reported under the patent rights clauses of 52.227-11 or 52.227-13 for a 
reasonable time in order for patent applications to be filed. The 
Government will follow the policy in 27.302(j) regarding protection of 
confidentiality.
    (b) The Government should also use reasonable efforts to withhold 
from disclosure to the public for a reasonable time other information 
disclosing a subject invention. This information includes any data 
delivered pursuant to contract requirements provided that the contractor 
notifies the agency as to the identity of the data and the subject 
invention to which it relates at the time of delivery of the data. This 
notification shall be provided to both the contracting officer and to 
any patent representative to which the invention is reported, if other 
than the contracting officer.
    (c) For more information on protection of invention disclosures, 
also see 37 CFR 401.13.



Sec. 27.306  Licensing background patent rights to third parties.

    (a) A contract with a small business concern or nonprofit 
organization shall not contain a provision allowing the Government to 
require the licensing to third parties of inventions owned by the 
contractor that are not subject inventions unless the agency head has 
approved and signed a written justification in accordance with paragraph 
(b) of this section. The agency head may not delegate this authority and 
may exercise the authority only if it is determined that the--
    (1) Use of the invention by others is necessary for the practice of 
a subject invention or for the use of a work object of the contract; and
    (2) Action is necessary to achieve the practical application of the 
subject invention or work object.
    (b) Any determination will be on the record after an opportunity for 
a hearing, and the agency shall notify the contractor of the 
determination by certified or registered mail. The notification shall 
include a statement that the contractor must bring any action for 
judicial review of the determination within 60 days after the 
notification.

               Subpart 27.4_Rights in Data and Copyrights



Sec. 27.400  Scope of subpart.

    This subpart sets forth policies and procedures regarding rights in 
data and copyrights, and acquisition of data. The policy statement in 
27.402 applies to all executive agencies. The remainder of the subpart 
applies to all executive agencies except the Department of Defense.



Sec. 27.401  Definitions.

    As used in this subpart--
    Data means recorded information, regardless of form or the media on 
which it may be recorded. The term includes technical data and computer 
software. The term does not include information incidental to contract 
administration, such as financial, administrative, cost or pricing, or 
management information.
    Form, fit, and function data means data relating to items, 
components, or processes that are sufficient to enable physical and 
functional interchangeability, and data identifying source, size, 
configuration, mating and attachment characteristics, functional 
characteristics, and performance requirements. For computer software it 
means data identifying source, functional characteristics, and 
performance requirements, but specifically excludes the source code, 
algorithms, processes, formulas, and flow charts of the software.

[[Page 613]]

    Limited rights means the rights of the Government in limited rights 
data as set forth in a Limited Rights Notice.
    Limited rights data means data, other than computer software, that 
embody trade secrets or are commercial or financial and confidential or 
privileged, to the extent that such data pertain to items, components, 
or processes developed at private expense, including minor 
modifications. (Agencies may, however, adopt the following alternate 
definition: Limited rights data means data (other than computer 
software) developed at private expense that embody trade secrets or are 
commercial or financial and confidential or privileged (see 27.404-
2(b)).
    Restricted computer software means computer software developed at 
private expense and that is a trade secret, is commercial or financial 
and confidential or privileged, or is copyrighted computer software, 
including minor modifications of the computer software.
    Restricted rights means the rights of the Government in restricted 
computer software as set forth in a Restricted Rights Notice.
    Unlimited rights means the rights of the Government to use, 
disclose, reproduce, prepare derivative works, distribute copies to the 
public, and perform publicly and display publicly, in any manner and for 
any purpose, and to have or permit others to do so.



Sec. 27.402  Policy.

    (a) To carry out their missions and programs, agencies acquire or 
obtain access to many kinds of data produced during or used in the 
performance of their contracts. Agencies require data to--
    (1) Obtain competition among suppliers;
    (2) Fulfill certain responsibilities for disseminating and 
publishing the results of their activities;
    (3) Ensure appropriate utilization of the results of research, 
development, and demonstration activities including the dissemination of 
technical information to foster subsequent technological developments;
    (4) Meet other programmatic and statutory requirements; and
    (5) Meet specialized acquisition needs and ensure logistics support.
    (b) Contractors may have proprietary interests in data. In order to 
prevent the compromise of these interests, agencies shall protect 
proprietary data from unauthorized use and disclosure. The protection of 
such data is also necessary to encourage qualified contractors to 
participate in and apply innovative concepts to Government programs. In 
light of these considerations, agencies shall balance the Government's 
needs and the contractor's legitimate proprietary interests.



Sec. 27.403  Data rights--General.

    All contracts that require data to be produced, furnished, acquired, 
or used in meeting contract performance requirements, must contain terms 
that delineate the respective rights and obligations of the Government 
and the contractor regarding the use, reproduction, and disclosure of 
that data. Data rights clauses do not specify the type, quantity or 
quality of data that is to be delivered, but only the respective rights 
of the Government and the contractor regarding the use, disclosure, or 
reproduction of the data. Accordingly, the contract shall specify the 
data to be delivered.



Sec. 27.404  Basic rights in data clause.

    This section describes the operation of the clause at 52.227-14, 
Rights in Data--General, and also the use of the provision at 52.227-15, 
Representation of Limited Rights Data and Restricted Computer Software.



Sec. 27.404-1  Unlimited rights data.

    The Government acquires unlimited rights in the following data 
except for copyrighted works as provided in 27.404-3:
    (a) Data first produced in the performance of a contract (except to 
the extent the data constitute minor modifications to data that are 
limited rights data or restricted computer software).
    (b) Form, fit, and function data delivered under contract.
    (c) Data (except as may be included with restricted computer 
software)

[[Page 614]]

that constitute manuals or instructional and training material for 
installation, operation, or routine maintenance and repair of items, 
components, or processes delivered or furnished for use under a 
contract.
    (d) All other data delivered under the contract other than limited 
rights data or restricted computer software (see 27.404-2).



Sec. 27.404-2  Limited rights data and restricted computer software.

    (a) General. The basic clause at 52.227-14, Rights in Data--General, 
enables the contractor to protect qualifying limited rights data and 
restricted computer software by withholding the data from the Government 
and instead delivering form, fit, and function data.
    (b) Alternate definition of limited rights data. For contracts that 
do not require the development, use, or delivery of items, components, 
or processes that are intended to be acquired by or for the Government, 
an agency may adopt the alternate definition of limited rights data set 
forth in Alternate I to the clause at 52.227-14. The alternate 
definition does not require that the data pertain to items, components, 
or processes developed at private expense; but rather that the data were 
developed at private expense and embody a trade secret or are commercial 
or financial and confidential or privileged.
    (c) Protection of limited rights data specified for delivery. (1) 
The clause at 52.227-14 with its Alternate II enables the Government to 
require delivery of limited rights data rather than allow the contractor 
to withhold the data. To obtain delivery, the contract may identify and 
specify data to be delivered, or the contracting officer may require, by 
written request during contract performance, the delivery of data that 
has been withheld or identified to be withheld under paragraph (g)(1) of 
the clause. In addition, the contract may specifically identify data 
that are not to be delivered under Alternate II or which, if delivered, 
will be delivered with limited rights. The limited rights obtained by 
the Government are set forth in the Limited Rights Notice contained in 
paragraph (g)(3) of Alternate II. Agencies shall not, without permission 
of the contractor, use limited rights data for purposes of manufacture 
or disclose the data outside the Government except as set forth in the 
Notice. Any disclosure by the Government shall be subject to prohibition 
against further use and disclosure by the recipient. The following are 
examples of specific purposes that may be adopted by an agency in its 
supplement and added to the Limited Rights Notice of paragraph (g)(3) of 
Alternate II of the clause:
    (i) Use (except for manufacture) by support service contractors.
    (ii) Evaluation by nongovernment evaluators.
    (iii) Use (except for manufacture) by other contractors 
participating in the Government's program of which the specific contract 
is a part.
    (iv) Emergency repair or overhaul work.
    (v) Release to a foreign government, or its instrumentalities, if 
required to serve the interests of the U.S. Government, for information 
or evaluation, or for emergency repair or overhaul work by the foreign 
government.
    (2) The provision at 52.227-15, Representation of Limited Rights 
Data and Restricted Computer Software, helps the contracting officer to 
determine whether the clause at 52.227-14 should be used with its 
Alternate II. This provision requests that an offeror state whether 
limited rights data are likely to be delivered. Where limited rights 
data are expected to be delivered, use Alternate II. Where negotiations 
are based on an unsolicited proposal, the need for Alternate II of the 
clause at 52.227-14 should be addressed during negotiations or 
discussions, and if Alternate II was not included initially it may be 
added by modification, if needed, during contract performance.
    (3) If data that would otherwise qualify as limited rights data is 
delivered as a computer database, the data shall be treated as limited 
rights data, rather than restricted computer software, for the purposes 
of paragraph (g) of the clause at 52.227-14.
    (d) Protection of restricted computer software specified for 
delivery. (1) Alternate III of the clause at 52.227-14, enables the 
Government to require delivery of restricted computer software rather 
than allow the contractor to

[[Page 615]]

withhold such restricted computer software. To obtain delivery of 
restricted computer software the contracting officer shall--
    (i) Identify and specify the deliverable computer software in the 
contract; or
    (ii) Require by written request during contract performance, the 
delivery of computer software that has been withheld or identified to be 
withheld under paragraph (g)(1) of the clause.
    (2) In considering whether to use Alternate III, contracting 
officers should note that, unlike other data, computer software is also 
an end item in itself. Thus, the contracting officer shall use Alternate 
III if delivery of restricted computer software is required to meet 
agency needs.
    (3) Unless otherwise agreed (see paragraph (d)(4) of this 
subsection), the restricted rights obtained by the Government are set 
forth in the Restricted Rights Notice contained in paragraph (g)(4) 
(Alternate III). Such restricted computer software will not be used or 
reproduced by the Government, or disclosed outside the Government, 
except that the computer software may be--
    (i) Used or copied for use with the computers for which it was 
acquired, including use at any Government installation to which the 
computers may be transferred;
    (ii) Used or copied for use with a backup computer if any computer 
for which it was acquired is inoperative;
    (iii) Reproduced for safekeeping (archives) or backup purposes;
    (iv) Modified, adapted, or combined with other computer software, 
provided that the modified, adapted, or combined portions of the 
derivative software incorporating any of the delivered, restricted 
computer software shall be subject to the same restricted rights;
    (v) Disclosed to and reproduced for use by support service 
contractors or their subcontractors, in accordance with paragraphs 
(3)(i) through (iv) of this section; and
    (vi) Used or copied for use with a replacement computer.
    (4) The restricted rights set forth in paragraph (d)(3) of this 
subsection are the minimum rights the Government normally obtains with 
restricted computer software and will automatically apply when such 
software is acquired under the Restricted Rights Notice of paragraph 
(g)(4) of Alternate III of the clause at 52.227-14. However, the 
contracting officer may specify different rights in the contract, 
consistent with the purposes and needs for which the software is to be 
acquired. For example, the contracting officer should consider any 
networking needs or any requirements for use of the computer software 
from remote terminals. Also, in addressing such needs, the scope of the 
restricted rights may be different for the documentation accompanying 
the computer software than for the programs and databases. Any additions 
to, or limitations on, the restricted rights set forth in the Restricted 
Rights Notice of paragraph (g)(4) of Alternate III of the clause at 
52.227-14 shall be expressly stated in the contract or in a collateral 
agreement incorporated in and made part of the contract, and the notice 
modified accordingly.
    (5) The provision at 52.227-15, Representation of Limited Rights 
Data and Restricted Computer Software, helps the contracting officer 
determine whether to use the clause at 52.227-14 with its Alternate III. 
This provision requests that an offeror state whether restricted 
computer software is likely to be delivered under the contract. In 
addition, the need for Alternate III should be addressed during 
negotiations or discussions with an offeror, particularly where 
negotiations are based on an unsolicited proposal. However, if Alternate 
III is not used initially, it may be added by modification, if needed, 
during contract performance.



Sec. 27.404-3  Copyrighted works.

    (a) Data first produced in the performance of a contract. (1) 
Generally, the contractor must obtain permission of the contracting 
officer prior to asserting rights in any copyrighted work containing 
data first produced in the performance of a contract. However, 
contractors are normally authorized, without prior approval of the 
contracting officer, to assert copyright in technical or scientific 
articles based on

[[Page 616]]

or containing such data that is published in academic, technical or 
professional journals, symposia proceedings and similar works.
    (2) The contractor must make a written request for permission to 
assert its copyright in works containing data first produced under the 
contract. In its request, the contractor should identify the data 
involved or furnish copies of the data for which permission is 
requested, as well as a statement as to the intended publication or 
dissemination media or other purpose for which the permission is 
requested. Generally, a contracting officer should grant the 
contractor's request when copyright protection will enhance the 
appropriate dissemination or use of the data unless the--
    (i) Data consist of a report that represents the official views of 
the agency or that the agency is required by statute to prepare;
    (ii) Data are intended primarily for internal use by the Government;
    (iii) Data are of the type that the agency itself distributes to the 
public under an agency program;
    (iv) Government determines that limitation on distribution of the 
data is in the national interest; or
    (v) Government determines that the data should be disseminated 
without restriction.
    (3) Alternate IV of the clause at 52.227-14 provides a substitute 
paragraph (c)(1) granting permission for contractors to assert copyright 
in any data first produced in the performance of the contract without 
the need for any further requests. Except for contracts for management 
or operation of Government facilities and contracts and subcontracts in 
support of programs being conducted at those facilities or where 
international agreements require otherwise, Alternate IV shall be used 
in all contracts for basic or applied research to be performed solely by 
colleges and universities. Alternate IV shall not be used in contracts 
with colleges and universities if a purpose of the contract is for 
development of computer software for distribution to the public 
(including use in solicitations) by or on behalf of the Government. In 
addition, Alternate IV may be used in other contracts if an agency 
determines that it is not necessary for a contractor to request further 
permission to assert copyright in data first produced in performance of 
the contract. The contracting officer may exclude any data, or items or 
categories of data, from the provisions of Alternate IV by expressly so 
providing in the contract or by adding a paragraph (d)(4) to the clause, 
consistent with 27.404-4(b).
    (4) Pursuant to paragraph (c)(1) of the clause at 52.227-14, the 
contractor grants the Government a paid-up nonexclusive, irrevocable, 
worldwide license to reproduce, prepare derivative works, distribute to 
the public, perform publicly and display publicly by or on behalf of the 
Government, for all data (other than computer software) first produced 
in the performance of a contract. For computer software, the scope of 
the Government's license includes all of the above rights except the 
right to distribute to the public. Agencies may also obtain a license of 
different scope if the contracting officer determines, after consulting 
with legal counsel, such a license will substantially enhance the 
dissemination of any data first produced under the contract or if such a 
license is required to comply with international agreements. If an 
agency obtains a different license, the contractor shall clearly state 
the scope of that license in a conspicuous place on the medium on which 
the data is recorded. For example, if the data is delivered as a report, 
the terms of the license shall be stated on the cover, or first page, of 
the report.
    (5) The clause requires the contractor to affix the applicable 
copyright notices of 17 U.S.C. 401 or 402, and acknowledgment of 
Government sponsorship, (including the contract number) to data when it 
asserts copyright in data. Failure to do so could result in such data 
being treated as unlimited rights data (see 27.404-5(b)).
    (b) Data not first produced in the performance of a contract. (1) 
Contractors shall not deliver any data that is not first produced under 
the contract without either--
    (i) Acquiring for or granting to the Government a copyright license 
for the data; or

[[Page 617]]

    (ii) Obtaining permission from the contracting officer to do 
otherwise.
    (2) The copyright license the Government acquires for such data will 
normally be of the same scope as discussed in paragraph (a)(4) of this 
subsection, and is set forth in paragraph (c)(2) of the clause at 
52.227-14. However, agencies may obtain a license of different scope if 
the agency determines, after consultation with its legal counsel, that 
such different license will not be inconsistent with the purpose of 
acquiring the data. If a license of a different scope is acquired, it 
must be so stated in the contract and clearly set forth in a conspicuous 
place on the data when delivered to the Government. If the contractor 
delivers computer software not first produced under the contract, the 
contractor shall grant the Government the license set forth in paragraph 
(g)(4) of Alternate III if included in the clause at 52.227-14, or a 
license agreed to in a collateral agreement made part of the contract.



Sec. 27.404-4  Contractor's release, publication, and use of data.

    (a) In contracts for basic or applied research with universities or 
colleges, agencies shall not place any restrictions on the conduct of or 
reporting on the results of unclassified basic or applied research, 
except as provided in applicable U.S. statutes. However, agencies may 
restrict the release or disclosure of computer software that is or is 
intended to be developed to the point of practical application 
(including for agency distribution under established programs). This is 
not considered a restriction on the reporting of the results of basic or 
applied research. Agencies may also preclude a contractor from asserting 
copyright in any computer software for purposes of established agency 
distribution programs, or where required to accomplish the purpose for 
which the software is acquired.
    (b) Except for the results of basic or applied research under 
contracts with universities or colleges, agencies may, to the extent 
provided in their FAR supplements, place limitations or restrictions on 
the contractor's exercise of its rights in data first produced in the 
performance of the contract, including a requirement to assign copyright 
to the Government or another party. Any of these restrictions shall be 
expressly included in the contract.



Sec. 27.404-5  Unauthorized, omitted, or incorrect markings.

    (a) Unauthorized marking of data. (1) The Government has, in 
accordance with paragraph (e) of the clause at 52.227-14, the right to 
either return data containing unauthorized markings or to cancel or 
ignore the markings.
    (2) Agencies shall not cancel or ignore markings without making 
written inquiry of the contractor and affording the contractor at least 
60 days to provide a written justification substantiating the propriety 
of the markings.
    (i) If the contractor fails to respond or fails to provide a written 
justification substantiating the propriety of the markings within the 
time afforded, the Government may cancel or ignore the markings.
    (ii) If the contractor provides a written justification 
substantiating the propriety of the markings, the contracting officer 
shall consider the justification.
    (A) If the contracting officer determines that the markings are 
authorized, the contractor will be so notified in writing.
    (B) If the contracting officer determines, with concurrence of the 
head of the contracting activity, that the markings are not authorized, 
the contractor will be furnished a written determination which becomes 
the final agency decision regarding the appropriateness of the markings 
and the markings will be cancelled or ignored and the data will no 
longer be made subject to disclosure prohibitions, unless the contractor 
files suit within 90 days in a court of competent jurisdiction. The 
markings will not be cancelled or ignored until final resolution of the 
matter, either by the contracting officer's determination becoming the 
final agency decision or by final disposition of the matter by court 
decision if suit is filed.
    (3) The foregoing procedures may be modified in accordance with 
agency regulations implementing the Freedom

[[Page 618]]

of Information Act (5 U.S.C. 552) if necessary to respond to a request. 
In addition, the contractor may bring a claim, in accordance with the 
Disputes clause of the contract, that may arise as the result of the 
Government's action to remove or ignore any markings on data, unless the 
action occurs as the result of a final disposition of the matter by a 
court of competent jurisdiction.
    (b) Omitted or incorrect notices. (1) Data delivered under a 
contract containing the clause without a limited rights notice or 
restricted rights notice, and without a copyright notice, will be 
presumed to have been delivered with unlimited rights, and the 
Government assumes no liability for the disclosure, use, or reproduction 
of the data. However, to the extent the data has not been disclosed 
without restriction outside the Government, the contractor may, within 6 
months (or a longer period approved by the contracting officer for good 
cause shown), request permission of the contracting officer to have the 
omitted limited rights or restricted rights notices, as applicable, 
placed on qualifying data at the contractor's expense. The contracting 
officer may permit adding appropriate notices if the contractor--
    (i) Identifies the data for which a notice is to be added;
    (ii) Demonstrates that the omission of the proposed notice was 
inadvertent;
    (iii) Establishes that use of the proposed notice is authorized; and
    (iv) Acknowledges that the Government has no liability with respect 
to any disclosure or use of any such data made prior to the addition of 
the notice or resulting from the omission of the notice.
    (2) The contracting officer may also--
    (i) Permit correction, at the contractor's expense, of incorrect 
notices if the contractor identifies the data on which correction of the 
notice is to be made, and demonstrates that the correct notice is 
authorized; or
    (ii) Correct any incorrect notices.



Sec. 27.404-6  Inspection of data at the contractor's facility.

    Contracting officers may obtain the right to inspect data at the 
contractor's facility by use of the clause at 52.227-14 with its 
Alternate V, which adds paragraph (j) to provide that right. Agencies 
may also adopt Alternate V for general use. The data subject to 
inspection may be data withheld or withholdable under paragraph (g)(1) 
of the clause. Inspection may be made by the contracting officer or 
designee (including nongovernmental personnel under the same conditions 
as the contracting officer) for the purpose of verifying a contractor's 
assertion regarding the limited rights or restricted rights status of 
the data, or for evaluating work performance under the contract. This 
right may be exercised up to 3 years after acceptance of all items to be 
delivered under the contract. The contract may specify data items that 
are not subject to inspection under paragraph (j) of the Alternate. If 
the contractor demonstrates to the contracting officer that there would 
be a possible conflict of interest if inspection were made by a 
particular representative, the contracting officer shall designate an 
alternate representative.



Sec. 27.405  Other data rights provisions.



Sec. 27.405-1  Special works.

    (a) The clause at 52.227-17, Rights in Data--Special Works, is for 
use in contracts (or may be made applicable to portions thereof) that 
are primarily for the production or compilation of data (other than 
limited rights data or restricted computer software) for the 
Government's own use, or when there is a specific need to limit 
distribution and use of the data or to obtain indemnity for liabilities 
that may arise out of the content, performance, or disclosure of the 
data. Examples are contracts for--
    (1) The production of audiovisual works, including motion pictures 
or television recordings with or without accompanying sound, or for the 
preparation of motion picture scripts, musical compositions, sound 
tracks, translation, adaptation, and the like;
    (2) Histories of the respective agencies, departments, services, or 
units thereof;
    (3) Surveys of Government establishments;

[[Page 619]]

    (4) Works pertaining to the instruction or guidance of Government 
officers and employees in the discharge of their official duties;
    (5) The compilation of reports, books, studies, surveys, or similar 
documents that do not involve research, development, or experimental 
work;
    (6) The collection of data containing personally identifiable 
information such that the disclosure thereof would violate the right of 
privacy or publicity of the individual to whom the information relates;
    (7) Investigatory reports;
    (8) The development, accumulation, or compilation of data (other 
than that resulting from research, development, or experimental work 
performed by the contractor), the early release of which could prejudice 
follow-on acquisition activities or agency regulatory or enforcement 
activities; or
    (9) The development of computer software programs, where the 
program--
    (i) May give a commercial advantage; or
    (ii) Is agency mission sensitive, and release could prejudice agency 
mission, programs, or follow-on acquisitions.
    (b) The contract may specify the purposes and conditions (including 
time limitations) under which the data may be used, released, or 
reproduced other than for contract performance. Contracts for the 
production of audiovisual works, sound recordings, etc., may include 
limitations in connection with talent releases, music licenses, and the 
like that are consistent with the purposes for which the works are 
acquired.
    (c) Paragraph (c)(1)(ii) of the clause, which enables the Government 
to obtain assignment of copyright in any data first produced in the 
performance of the contract, may be deleted if the contracting officer 
determines that such assignment is not needed to further the objectives 
of the contract.
    (d) Paragraph (e) of the clause, which requires the contractor to 
indemnify the Government against any liability incurred as the result of 
any violation of trade secrets, copyrights, right of privacy or 
publicity, or any libelous or other unlawful matter arising out of or 
contained in any production or compilation of data that are subject to 
the clause, may be deleted or limited in scope where the contracting 
officer determines that, because of the nature of the particular data 
involved, such liability will not arise.
    (e) When the audiovisual or other special works are produced to 
accomplish a public purpose other than acquisition for the Government's 
own use (such as for production and distribution to the public of the 
works by other than a Federal agency) agencies are authorized to modify 
the clause for use in contracts, with rights in data provisions that 
meet agency mission needs yet protect free speech and freedom of 
expression, as well as the artistic license of the creator of the work.



Sec. 27.405-2  Existing works.

    The clause at 52.227-18, Rights in Data--Existing Works, is for use 
in contracts exclusively for the acquisition (without modification) of 
existing works such as, motion pictures, television recordings, and 
other audiovisual works; sound recordings; musical, dramatic, and 
literary works; pantomimes and choreographic works; pictorial, graphic, 
and sculptural works; and works of a similar nature. The contract may 
set forth limitations consistent with the purposes for which the works 
covered by the contract are being acquired. Examples of these 
limitations are means of exhibition or transmission, time, type of 
audience, and geographical location. However, if the contract requires 
that works of the type indicated in this paragraph are to be modified 
through editing, translation, or addition of subject matter, etc. 
(rather than purchased in existing form), then see 27.405-1.



Sec. 27.405-3  Commercial computer software.

    (a) When contracting other than from GSA's Multiple Award Schedule 
contracts for the acquisition of commercial computer software, no 
specific contract clause prescribed in this subpart need be used, but 
the contract shall specifically address the Government's rights to use, 
disclose, modify, distribute, and reproduce the software. Section 12.212 
sets forth the guidance

[[Page 620]]

for the acquisition of commercial computer software and states that 
commercial computer software or commercial computer software 
documentation shall be acquired under licenses customarily provided to 
the public to the extent the license is consistent with Federal law and 
otherwise satisfies the Government's needs. The clause at 52.227-19, 
Commercial Computer Software License, may be used when there is any 
confusion as to whether the Government's needs are satisfied or whether 
a customary commercial license is consistent with Federal law. 
Additional or lesser rights may be negotiated using the guidance 
concerning restricted rights as set forth in 27.404-2(d), or the clause 
at 52.227-19. If greater rights than the minimum rights identified in 
the clause at 52.227-19 are needed, or lesser rights are to be acquired, 
they shall be negotiated and set forth in the contract. This includes 
any additions to, or limitations on, the rights set forth in paragraph 
(b) of the clause at 52.227-19 when used. Examples of greater rights may 
be those necessary for networking purposes or use of the software from 
remote terminals communicating with a host computer where the software 
is located. If the computer software is to be acquired with unlimited 
rights, the contract shall also so state. In addition, the contract 
shall adequately describe the computer programs and/or databases, the 
media on which it is recorded, and all the necessary documentation.
    (b) If the contract incorporates, makes reference to, or uses a 
vendor's standard commercial lease, license, or purchase agreement, the 
contracting officer shall ensure that the agreement is consistent with 
paragraph (a)(1) of this subsection. The contracting officer should 
exercise caution in accepting a vendor's terms and conditions, since 
they may be directed to commercial sales and may not be appropriate for 
Government contracts. Any inconsistencies in a vendor's standard 
commercial agreement shall be addressed in the contract and the contract 
terms shall take precedence over the vendor's standard commercial 
agreement. If the clause at 52.227-19 is used, inconsistencies in the 
vendor's standard commercial agreement regarding the Government's right 
to use, reproduce or disclose the computer software are reconciled by 
that clause.
    (c) If a prime contractor under a contract containing the clause at 
52.227-14, Rights in Data--General, with paragraph (g)(4) (Alternate 
III) in the clause, acquires restricted computer software from a 
subcontractor (at any tier) as a separate acquisition for delivery to or 
for use on behalf of the Government, the contracting officer may approve 
any additions to, or limitations on the restricted rights in the 
Restricted Rights Notice of paragraph (g)(4) in a collateral agreement 
incorporated in and made part of the contract.



Sec. 27.405-4  Other existing data.

    (a) Except for existing works pursuant to 27.405-2 or commercial 
computer software pursuant to 27.405-3, no clause contained in this 
subpart is required to be included in--
    (1) Contracts solely for the acquisition of books, periodicals, and 
other printed items in the exact form in which these items are to be 
obtained unless reproduction rights are to be acquired; or
    (2) Other contracts that require only existing data (other than 
limited rights data) to be delivered and the data are available without 
disclosure prohibitions, unless reproduction rights to the data are to 
be obtained.
    (b) If the reproduction rights to the data are to be obtained in any 
contract of the type described in paragraph (b)(1) (i) or (ii) of this 
section, the rights shall be specifically set forth in the contract. No 
clause contained in this subpart is required to be included in contracts 
substantially for on-line data base services in the same form as they 
are normally available to the general public.



Sec. 27.406  Acquisition of data.



Sec. 27.406-1  General.

    (a) It is the Government's practice to determine, to the extent 
feasible, its data requirements in time for inclusion in solicitations. 
The data requirements may be subject to revision during contract 
negotiations. Since the preparation, reformatting, maintenance and

[[Page 621]]

updating, cataloging, and storage of data represents an expense to both 
the Government and the contractor, efforts should be made to keep the 
contract data requirements to a minimum, consistent with the purposes of 
the contract.
    (b) The contracting officer shall specify in the contract all known 
data requirements, including the time and place for delivery and any 
limitations and restrictions to be imposed on the contractor in the 
handling of the data. Further, and to the extent feasible, in major 
system acquisitions, the contracting officer shall set out data 
requirements as separate contract line items. In establishing the 
contract data requirements and in specifying data items to be delivered 
by a contractor, agencies may, consistent with paragraph (a) of this 
subsection, develop their own contract schedule provisions. Agency 
procedures may, among other things, provide for listing, specifying, 
identifying source, assuring delivery, and handling any data required to 
be delivered, first produced, or specifically used in the performance of 
the contract.
    (c) Data delivery requirements should normally not require that a 
contractor provide the Government, as a condition of the procurement, 
unlimited rights in data that qualify as limited rights data or 
restricted computer software. Rather, form, fit, and function data may 
be furnished with unlimited rights instead of the qualifying data, or 
the qualifying data may be furnished with limited rights or restricted 
rights if needed (see 27.404-2(c) and (d)). If greater rights are 
needed, they should be clearly set forth in the solicitation and the 
contractor fairly compensated for the greater rights.



Sec. 27.406-2  Additional data requirements.

    (a) In some contracting situations, such as experimental, 
developmental, research, or demonstration contracts, it may not be 
feasible to ascertain all the data requirements at contract award. The 
clause at 52.227-16, Additional Data Requirements, may be used to enable 
the subsequent ordering by the contracting officer of additional data 
first produced or specifically used in the performance of these 
contracts as the actual requirements become known. The clause shall 
normally be used in solicitations and contracts involving experimental, 
developmental, research or demonstration work (other than basic or 
applied research to be performed under a contract solely by a university 
or college when the contract amount will be $500,000 or less) unless all 
the requirements for data are believed to be known at the time of 
contracting and specified in the contract. If the contract is for basic 
or applied research to be performed by a university or college, and the 
contracting officer believes the contract effort will in the future 
exceed $500,000, even though the initial award does not, the contracting 
officer may include the clause in the initial award.
    (b) Data may be ordered under the clause at 52.227-16 at any time 
during contract performance or within a period of 3 years after 
acceptance of all items to be delivered under the contract. The 
contractor is to be compensated for converting the data into the 
prescribed form, for reproduction, and for delivery. In order to 
minimize storage costs for the retention of data, the contracting 
officer may relieve the contractor of the retention requirements for 
specified data items at any time during the retention period required by 
the clause. The contracting officer may permit the contractor to 
identify and specify in the contract data not to be ordered for delivery 
under the clause if the data is not necessary to meet the Government's 
requirements for data. Also, the contracting officer may alter the 
clause by deleting the term ``or specifically used'' in paragraph (a) of 
the clause if delivery of the data is not necessary to meet the 
Government's requirements for data. Any data ordered under this clause 
will be subject to the clause at 52.227-14, Rights in Data--General, (or 
other equivalent clause setting forth the respective rights of the 
Government and the contractor) in the contract. Data authorized to be 
withheld under such clause will not be required to be delivered under 
the clause at 52.227-16, except as provided in Alternate II or Alternate 
III, if included (see 27.404-2(c) and (d)).

[[Page 622]]

    (c) Absent an established program for dissemination of computer 
software, agencies should not order additional computer software under 
the clause at 52.227-16, for the sole purpose of disseminating or 
marketing the software to the public. In ordering software for internal 
purposes, the contracting officer shall consider, consistent with the 
Government's needs, not ordering particular source codes, algorithms, 
processes, formulas, or flow charts of the software if the contractor 
shows that this aids its efforts to disseminate or market the software.



Sec. 27.406-3  Major system acquisition.

    (a) The clause at 52.227-21, Technical Data Declaration, Revision, 
and Withholding of Payment--Major Systems, implements 41 U.S.C. 418a(d). 
When using the clause at 52.227-21, the section of the contract 
specifying data delivery requirements (see 27.406-1(b)) shall expressly 
identify those line items of technical data to which the clause applies. 
Upon delivery of the technical data, the contracting officer shall 
review the technical data and the contractor's declaration relating to 
it to assure that the data are complete, accurate, and comply with 
contract requirements. If the data are not complete, accurate, or 
compliant, the contracting officer should request the contractor to 
correct the deficiencies, and may withhold payment. Final payment shall 
not be made under the contract until it has been determined that the 
delivery requirements of those line items of data to which the clause 
applies have been satisfactorily met.
    (b) In a contract for, or in support of, a major system awarded by a 
civilian agency other than NASA or the U.S. Coast Guard, the following 
applies:
    (1) The contracting officer shall require the delivery of any 
technical data relating to the major system or supplies for the major 
system, that are to be developed exclusively with Federal funds if the 
delivery of the technical data is needed to ensure the competitive 
acquisition of supplies or services that will be required in substantial 
quantities in the future. The clause at 52.227-22, Major System--Minimum 
Rights, is used in addition to the clause at 52.227-14, Rights in Data--
General, and other required clauses, to ensure that the Government 
acquires at least those rights required by Pub. L. 98-577 in technical 
data developed exclusively with Federal funds.
    (2) Technical data, relating to a major system or supplies for a 
major system, procured or to be procured by the Government and also 
relating to the design, development, or manufacture of products or 
processes offered or to be offered for sale to the public (except for 
such data as may be necessary for the Government to operate or maintain 
the product, or use the process if obtained by the Government as an 
element of performance under the contract), shall not be required to be 
provided to the Government from persons who have developed such products 
or processes as a condition for the procurement of such products or 
processes by the Government.



Sec. 27.407  Rights to technical data in successful proposals.

    The clause at 52.227-23, Rights to Proposal Data (Technical), allows 
the Government to acquire unlimited rights to technical data in 
successful proposals. Pursuant to the clause, the prospective contractor 
is afforded the opportunity to specifically identify pages containing 
technical data to be excluded from the grant of unlimited rights. This 
exclusion is not dispositive of the protective status of the data, but 
any excluded technical data, as well as any commercial and financial 
information contained in the proposal, will remain subject to the 
policies in Subpart 15.2 or 15.6 (or agency supplements) relating to 
proposal information (e.g., will be used for evaluation purposes only). 
If there is a need to have access to any of the excluded technical data 
during contract performance, consideration should be given to acquiring 
the data with limited rights, if they so qualify, in accordance with 
27.404-2(c).



Sec. 27.408  Cosponsored research and development activities.

    (a) In contracts involving cosponsored research and development that 
require the contractor to make substantial contributions of funds or 
resources (e.g., by cost-sharing or by repayment of nonrecurring costs), 
and

[[Page 623]]

the contractor's and the Government's respective contributions to any 
item, component, process, or computer software, developed or produced 
under the contract are not readily segregable, the contracting officer 
may limit the acquisition of, or acquire less than unlimited rights to, 
any data developed and delivered under the contract. Agencies may 
regulate the use of this authority in their supplements. Lesser rights 
shall, at a minimum, assure use of the data for agreed-to Governmental 
purposes (including reprocurement rights as appropriate), and address 
any disclosure limitations or restrictions to be imposed on the data. 
Also, consideration may be given to requiring the contractor to directly 
license others if needed to carry out the objectives of the contract. 
Since the purpose of the cosponsored research and development, the 
legitimate proprietary interests of the contractor, the needs of the 
Government, and the respective contributions of both parties may vary, 
no specific clauses are prescribed, but a clause providing less than 
unlimited rights in the Government for data developed and delivered 
under the contract (such as license rights) may be tailored to the 
circumstances consistent with the foregoing and the policy set forth in 
27.402. As a guide, a clause may be appropriate when the contractor 
contributes money or resources, or agrees to make repayment of 
nonrecurring costs, of a value of approximately 50 percent of the total 
cost of the contract (i.e., Government, contractor, and/or third party 
paid costs), and the respective contributions are not readily segregable 
for any work element to be performed under the contract. A clause may be 
used for all or for only specifically identified tasks or work elements 
under the contract. In the latter instance, its use will be in addition 
to whatever other data rights clause is prescribed under this subpart, 
with the contract specifically identifying which clause is to apply to 
which tasks or work elements. Further, this type of clause may not be 
appropriate where the purpose of the contract is to produce data for 
dissemination to the public, or to develop or demonstrate technologies 
that will be available, in any event, to the public for its direct use.
    (b) Where the contractor's contributions are readily segregable (by 
performance requirements and the funding for the contract) and so 
identified in the contract, any resulting data may be treated under this 
clause as limited rights data or restricted computer software in 
accordance with 27.404-2(c) or (d), as applicable; or if this treatment 
is inconsistent with the purpose of the contract, rights to the data 
may, if so negotiated and stated in the contract, be treated in a manner 
consistent with paragraph (a) of this section.



Sec. 27.409  Solicitation provisions and contract clauses

    (a) Generally, a contract should contain only one data rights 
clause. However, where more than one is needed, the contract should 
distinguish the portion of contract performance to which each pertains.
    (b)(1) Insert the clause at 52.227-14, Rights in Data--General, in 
solicitations and contracts if it is contemplated that data will be 
produced, furnished, or acquired under the contract, unless the contract 
is--
    (i) For the production of special works of the type set forth in 
27.405-1, although in these cases insert the clause at 52.227-14, Rights 
in Data--General, and make it applicable to data other than special 
works, as appropriate (see paragraph (e) of this section);
    (ii) For the acquisition of existing data, commercial computer 
software, or other existing data, as described in 27.405-2 through 
27.405-4 (see paragraphs (f) and (g) of this section);
    (iii) A small business innovation research contract (see paragraph 
(h) of this section);
    (iv) To be performed outside the United States (see paragraph (i)(1) 
of this section);
    (v) For architect-engineer services or construction work (see 
paragraph (i)(2) of this section);
    (vi) For the management, operation, design, or construction of a 
Government-owned facility to perform research, development, or 
production work (see paragraph (i)(3) of this section); or

[[Page 624]]

    (vii) A contract involving cosponsored research and development in 
which a clause providing for less than unlimited right has been 
authorized (see 27.408).
    (2) If an agency determines, in accordance with 27.404-2(b), to 
adopt the alternate definition of ``Limited Rights Data'' in paragraph 
(a) of the clause, use the clause with its Alternate I.
    (3) If a contracting officer determines, in accordance with 27.404-
2(c) that it is necessary to obtain limited rights data, use the clause 
with its Alternate II. The contracting officer shall complete paragraph 
(g)(3) to include the purposes, if any, for which limited rights data 
are to be disclosed outside the Government.
    (4) In accordance with 27.404-2(d), if a contracting officer 
determines it is necessary to obtain restricted computer software, use 
the clause with its Alternate III. Any greater or lesser rights 
regarding the use, reproduction, or disclosure of restricted computer 
software than those set forth in the Restricted Rights Notice of 
paragraph (g)(4) of the clause shall be specified in the contract and 
the notice modified accordingly.
    (5) Use the clause with its Alternate IV in contracts for basic or 
applied research (other than those for the management or operation of 
Government facilities, and contracts and subcontracts in support of 
programs being conducted at those facilities or where international 
agreements require otherwise) to be performed solely by universities and 
colleges. The clause may be used with its Alternate IV in other 
contracts if in accordance with 27.404-3(a), an agency determines to 
grant permission for the contractor to assert claim to copyright 
subsisting in all data first produced without further request being made 
by the contractor. When Alternate IV is used, the contract may exclude 
items or categories of data from the permission granted, either by 
express provisions in the contract or by the addition of a paragraph 
(d)(4) to the clause (see 27.404-4).
    (6) In accordance with 27.404-6, if the Government needs the right 
to inspect certain data at a contractor's facility, use the clause with 
its Alternate V.
    (c) In accordance with 27.404-2(c)(2) and 27.404-2(d)(5), if the 
contracting officer desires to have an offeror state in response to a 
solicitation whether limited rights data or restricted computer software 
are likely to be used in meeting the data delivery requirements set 
forth in the solicitation, insert the provision at 52.227-15, 
Representation of Limited Rights Data and Restricted Computer Software, 
in any solicitation containing the clause at 52.227-14, Rights in Data--
General. The contractor's response may provide an aid in determining 
whether the clause should be used with Alternate II and/or Alternate 
III.
    (d) Insert the clause at 52.227-16, Additional Data Requirements, in 
solicitations and contracts involving experimental, developmental, 
research, or demonstration work (other than basic or applied research to 
be performed solely by a university or college where the contract amount 
will be $500,000 or less) unless all the requirements for data are 
believed to be known at the time of contracting and specified in the 
contract (see 27.406-2). This clause may also be used in other contracts 
when considered appropriate. For example, if the contract is for basic 
or applied research to be performed by a university or college, and the 
contracting officer believes the contract effort will in the future 
exceed $500,000, even though the initial award does not, the contracting 
officer may include the clause in the initial award.
    (e) In accordance with 27.405-1, insert the clause at 52.227-17, 
Rights in Data--Special Works, in solicitations and contracts primarily 
for the production or compilation of data (other than limited rights 
data or restricted computer software) for the Government's internal use, 
or when there is a specific need to limit distribution and use of the 
data or to obtain indemnity for liabilities that may arise out of the 
content, performance, or disclosure of the data. Examples of such 
contracts are set forth in 27.405-1.
    (1) Insert the clause if existing works are to be modified, as by 
editing, translation, addition of subject matter, etc.
    (2) The contract may specify the purposes and conditions (including 
time limitations) under which the data may

[[Page 625]]

be used, released, or reproduced by the contractor for other than 
contract performance.
    (3) Contracts for the production of audiovisual works, sound 
recordings, etc. may include limitations in connection with talent 
releases, music licenses, and the like that are consistent with the 
purposes for which the data is acquired.
    (4) The clause may be modified in accordance with paragraphs (c) 
through (e) of 27.405-1.
    (f) Insert the clause at 52.227-18, Rights in Data--Existing Works, 
in solicitations and contracts exclusively for the acquisition, without 
modification, of existing audiovisual and similar works of the type set 
forth in 27.405-2. The contract may set forth limitations consistent 
with the purposes for which the work is being acquired. While no 
specific clause of this subpart is required to be included in contracts 
solely for the acquisition, without disclosure prohibitions, of books, 
publications, and similar items in the exact form in which the items 
exist prior to the request for purchase (i.e., the off-the-shelf 
purchase of such items), or in other contracts where only existing data 
available without disclosure prohibitions is to be furnished, if 
reproduction rights are to be acquired, the contract shall include terms 
addressing such rights. (See 27.405-4.)
    (g) In accordance with 27.405-3, when contracting (other than from 
GSA's Multiple Award Schedule contracts) for the acquisition of 
commercial computer software, the contracting officer may insert the 
clause at 52.227-19, Commercial Computer Software License, in the 
solicitation and contract. In any event, the contracting officer shall 
assure that the contract contains terms to obtain sufficient rights for 
the Government to fulfill the need for which the software is being 
acquired and is otherwise consistent with 27.405-3).
    (h) If the contract is a Small Business Innovation Research (SBIR) 
contract, insert the clause at 52.227-20, Rights in Data--SBIR Program 
in all Phase I, Phase II, and Phase III contracts awarded under the 
Small Business Innovation Research Program established pursuant to 15 
U.S.C. 638. The SBIR protection period may be extended in accordance 
with the Small Business Administration's ``Small Business Innovation 
Research Program Policy Directive'' (September 24, 2002).
    (i) Agencies may prescribe in their procedures, as appropriate, a 
clause consistent with the policy of 27.402 in contracts--
    (1) To be performed outside the United States;
    (2) For architect-engineer services and construction work, e.g., the 
clause at 52.227-17, Rights in Data--Special Works); or
    (3) For management, operation, design, or construction of 
Government-owned research, development, or production facilities, and in 
contracts and subcontracts in support of programs being conducted at 
such facilities.
    (j) In accordance with 27.406-3(a), insert the clause at 52.227-21, 
Technical Data Declaration, Revision, and Withholding of Payment--Major 
Systems, in contracts for major systems acquisitions or for support of 
major systems acquisitions. This requirement includes contracts for 
detailed design, development, or production of a major system and 
contracts for any individual part, component, subassembly, assembly, or 
subsystem integral to the major system, and other property that may be 
replaced during the service life of the system, including spare parts. 
When used, this clause requires that the technical data to which it 
applies be specified in the contract (see 27.406-3(a)).
    (k) In accordance with 27.406-3(b), in the case of civilian agencies 
other than NASA and the U.S. Coast Guard, insert the clause at 52.227-
22, Major System--Minimum Rights, in contracts for major systems or 
contracts in support of major systems.
    (l) In accordance with 27.407, if a contracting officer desires to 
acquire unlimited rights in technical data contained in a successful 
proposal upon which a contract award is based, insert the clause at 
52.227-23, Rights to Proposal Data (Technical). Rights to technical data 
in a proposal are not acquired by mere incorporation by reference of the 
proposal in the contract, and if a proposal is incorporated by 
reference, the contracting officer shall

[[Page 626]]

follow 27.404 to assure that the rights are appropriately addressed.

    Subpart 27.5_Foreign License and Technical Assistance Agreements



Sec. 27.501  General.

    Agencies shall provide necessary policy and procedures regarding 
foreign technical assistance agreements and license agreements involving 
intellectual property, including avoiding unnecessary royalty charges.

                       PART 28_BONDS AND INSURANCE

Sec.

Sec. 28.000 Scope of part.

Sec. 28.001 Definitions.

           Subpart 28.1_Bonds and Other Financial Protections


Sec. 28.100 Scope of subpart.

Sec. 28.101 Bid guarantees.

Sec. 28.101-1 Policy on use.

Sec. 28.101-2 Solicitation provision or contract clause.

Sec. 28.101-3 Authority of an attorney-in-fact for a bid bond.

Sec. 28.101-4 Noncompliance with bid guarantee requirements.

Sec. 28.102 Performance and payment bonds and alternative payment 
          protections for construction contracts.

Sec. 28.102-1 General.

Sec. 28.102-2 Amount required.

Sec. 28.102-3 Contract clauses.

Sec. 28.103 Performance and payment bonds for other than construction 
          contracts.

Sec. 28.103-1 General.

Sec. 28.103-2 Performance bonds.

Sec. 28.103-3 Payment bonds.

Sec. 28.103-4 Contract clause.

Sec. 28.104 Annual performance bonds.

Sec. 28.105 Other types of bonds.

Sec. 28.105-1 Advance payment bonds.

Sec. 28.105-2 Patent infringement bonds.

Sec. 28.106 Administration.

Sec. 28.106-1 Bonds and bond related forms.

Sec. 28.106-2 Substitution of surety bonds.

Sec. 28.106-3 Additional bond and security.

Sec. 28.106-4 Contract clause.

Sec. 28.106-5 Consent of surety.

Sec. 28.106-6 Furnishing information.

Sec. 28.106-7 Withholding contract payments.

Sec. 28.106-8 Payment to subcontractors or suppliers.

           Subpart 28.2_Sureties and Other Security for Bonds


Sec. 28.200 Scope of subpart.

Sec. 28.201 Requirements for security.

Sec. 28.202 Acceptability of corporate sureties.

Sec. 28.203 Acceptability of individual sureties.

Sec. 28.203-1 Security interests by an individual surety.

Sec. 28.203-2 Acceptability of assets.

Sec. 28.203-3 Acceptance of real property.

Sec. 28.203-4 Substitution of assets.

Sec. 28.203-5 Release of lien.

Sec. 28.203-6 Contract clause.

Sec. 28.203-7 Exclusion of individual sureties.

Sec. 28.204 Alternatives in lieu of corporate or individual sureties.

Sec. 28.204-1 United States bonds or notes.

Sec. 28.204-2 Certified or cashiers checks, bank drafts, money orders, 
          or currency.

Sec. 28.204-3 Irrevocable letter of credit (ILC).

Sec. 28.204-4 Contract clause.

                         Subpart 28.3_Insurance


Sec. 28.301 Policy.

Sec. 28.302 Notice of cancellation or change.

Sec. 28.303 Insurance against loss of or damage to Government property.

Sec. 28.304 Risk-pooling arrangements.

Sec. 28.305 Overseas workers' compensation and war-hazard insurance.

Sec. 28.306 Insurance under fixed-price contracts.

Sec. 28.307 Insurance under cost-reimbursement contracts.

Sec. 28.307-1 Group insurance plans.

Sec. 28.307-2 Liability.

Sec. 28.308 Self-insurance.

Sec. 28.309 Contract clauses for workers' compensation insurance.

Sec. 28.310 Contract clause for work on a Government installation.

Sec. 28.311 Solicitation provision and contract clause on liability 
          insurance under cost-reimbursement contracts.

Sec. 28.311-1 Contract clause.

Sec. 28.311-2 Agency solicitation provisions and contract clauses.

Sec. 28.312 Contract clause for insurance of leased motor vehicles.

Sec. 28.313 Contract clauses for insurance of transportation or 
          transportation-related services.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 
20113.

    Source: 48 FR 42286, Sept. 19, 1983, unless otherwise noted.



Sec. 28.000  Scope of part.

    This part prescribes requirements for obtaining financial protection 
against losses under contracts that result from the use of the sealed 
bid or negotiated methods. It covers bid guarantees, bonds, alternative 
payment protections, security for bonds, and insurance.

[67 FR 13056, Mar. 20, 2002]

[[Page 627]]



Sec. 28.001  Definitions.

    As used in this part--
    Attorney-in-fact means an agent, independent agent, underwriter, or 
any other company or individual holding a power of attorney granted by a 
surety (see also power of attorney at 2.101).
    Bid means any response to a solicitation, including a proposal under 
a negotiated acquisition. See the definition of ``offer'' at 2.101.
    Bidder means any entity that is responding or has responded to a 
solicitation, including an offeror under a negotiated acquisition.
    Bid guarantee means a form of security assuring that the bidder (1) 
will not withdraw a bid within the period specified for acceptance and 
(2) will execute a written contract and furnish required bonds, 
including any necessary coinsurance or reinsurance agreements, within 
the time specified in the bid, unless a longer time is allowed, after 
receipt of the specified forms.
    Bond means a written instrument executed by a bidder or contractor 
(the ``principal''), and a second party (``the surety'' or ``sureties'') 
(except as provided in 28.204), to assure fulfillment of the principal's 
obligations to a third party (the ``obligee'' or ``Government''), 
identified in the bond. If the principal's obligations are not met, the 
bond assures payment, to the extent stipulated, of any loss sustained by 
the obligee. The types of bonds and related documents are as follows:
    (1) An advance payment bond secures fulfillment of the contractor's 
obligations under an advance payment provision.
    (2) An annual bid bond is a single bond furnished by a bidder, in 
lieu of separate bid bonds, which secures all bids (on other than 
construction contracts) requiring bonds submitted during a specific 
Government fiscal year.
    (3) An annual performance bond is a single bond furnished by a 
contractor, in lieu of separate performance bonds, to secure fulfillment 
of the contractor's obligations under contracts (other than construction 
contracts) requiring bonds entered into during a specific Government 
fiscal year.
    (4) A patent infringement bond secures fulfillment of the 
contractor's obligations under a patent provision.
    (5) A payment bond assures payments as required by law to all 
persons supplying labor or material in the prosecution of the work 
provided for in the contract.
    (6) A performance bond secures performance and fulfillment of the 
contractor's obligations under the contract.
    Consent of surety means an acknowledgment by a surety that its bond 
given in connection with a contract continues to apply to the contract 
as modified.
    Penal sum or penal amount means the amount of money specified in a 
bond (or a percentage of the bid price in a bid bond) as the maximum 
payment for which the surety is obligated or the amount of security 
required to be pledged to the Government in lieu of a corporate or 
individual surety for the bond.
    Reinsurance means a transaction which provides that a surety, for a 
consideration, agrees to indemnify another surety against loss which the 
latter may sustain under a bond which it has issued.

[48 FR 42286, Sept. 19, 1983, as amended at 61 FR 31652, June 20, 1996; 
62 FR 44806, Aug. 22, 1997; 66 FR 2130, Jan. 10, 2001; 67 FR 13056, Mar. 
20, 2002]

           Subpart 28.1_Bonds and Other Financial Protections



Sec. 28.100  Scope of subpart.

    This subpart prescribes requirements and procedures for the use of 
bonds, alternative payment protections, and all types of bid guarantees.

[62 FR 44806, Aug. 22, 1997]



Sec. 28.101  Bid guarantees.



Sec. 28.101-1  Policy on use.

    (a) A contracting officer shall not require a bid guarantee unless a 
performance bond or a performance and payment bond is also required (see 
28.102 and 28.103). Except as provided in paragraph (c) of this 
subsection, bid guarantees shall be required whenever a

[[Page 628]]

performance bond or a performance and payment bond is required.
    (b) All types of bid guarantees are acceptable for supply or service 
contracts (see annual bid bonds and annual performance bonds coverage in 
28.001). Only separate bid guarantees are acceptable in connection with 
construction contracts. Agencies may specify that only separate bid 
bonds are acceptable in connection with construction contracts.
    (c) The chief of the contracting office may waive the requirement to 
obtain a bid guarantee when a performance bond or a performance and 
payment bond is required if it is determined that a bid guarantee is not 
in the best interest of the Government for a specific acquisition (e.g., 
overseas construction, emergency acquisitions, sole-source contracts). 
Class waivers may be authorized by the agency head or designee.

[48 FR 42286, Sept. 19, 1983, as amended at 51 FR 2665, Jan. 17, 1986; 
52 FR 19803, May 27, 1987; 52 FR 30076, Aug. 12, 1987; 54 FR 34755, Aug. 
21, 1989; 61 FR 39213, July 26, 1996]



Sec. 28.101-2  Solicitation provision or contract clause.

    (a) The contracting officer shall insert a provision or clause 
substantially the same as the provision at 52.228-1, Bid Guarantee, in 
solicitations or contracts that require a bid guarantee or similar 
guarantee. For example, the contracting officer may modify this 
provision--
    (1) To set a period of time that is other than 10 days for the 
return of executed bonds;
    (2) For use in connection with construction solicitations when the 
agency has specified that only separate bid bonds are acceptable in 
accordance with 28.101-1(b);
    (3) For use in solicitations for negotiated contracts; or
    (4) For use in service contracts containing options for extended 
performance.
    (b) The contracting officer shall determine the amount of the bid 
guarantee for insertion in the provision at 52.228-1 (see 28.102-2(a)). 
The amount shall be adequate to protect the Government from loss should 
the successful bidder fail to execute further contractual documents and 
bonds as required. The bid guarantee amount shall be at least 20 percent 
of the bid price but shall not exceed $3 million. When the penal sum is 
expressed as a percentage, a maximum dollar limitation may be stated.

[61 FR 39213, July 26, 1996, as amended at 65 FR 46070, July 26, 2000]



Sec. 28.101-3  Authority of an attorney-in-fact for a bid bond.

    (a) Any person signing a bid bond as an attorney-in-fact shall 
include with the bid bond evidence of authority to bind the surety.
    (b) An original, or a photocopy or facsimile of an original, power 
of attorney is sufficient evidence of such authority.
    (c) For purposes of this section, electronic, mechanically-applied 
and printed signatures, seals and dates on the power of attorney shall 
be considered original signatures, seals and dates, without regard to 
the order in which they were affixed.
    (d) The contracting officer shall--
    (1) Treat the failure to provide a signed and dated power of 
attorney at the time of bid opening as a matter of responsiveness; and
    (2) Treat questions regarding the authenticity and enforceability of 
the power of attorney at the time of bid opening as a matter of 
responsibility. These questions are handled after bid opening.
    (e)(1) If the contracting officer contacts the surety to validate 
the power of attorney, the contracting officer shall document the file 
providing, at a minimum, the following information:
    (i) Name of person contacted.
    (ii) Date and time of contact.
    (iii) Response of the surety.
    (2) If, upon investigation, the surety declares the power of 
attorney to have been valid at the time of bid opening, the contracting 
officer may require correction of any technical error.
    (3) If the surety declares the power of attorney to have been 
invalid, the contracting officer shall not allow the bidder to 
substitute a replacement power of attorney or a replacement surety.
    (f) Determinations of non-responsibility based on the 
unacceptability of a power of attorney are not subject to

[[Page 629]]

the Certificate of Competency process of subpart 19.6 if the surety has 
disavowed the validity of the power of attorney.

[70 FR 57461, Sept. 30, 2005]



Sec. 28.101-4  Noncompliance with bid guarantee requirements.

    (a) In sealed bidding, noncompliance with a solicitation requirement 
for a bid guarantee requires rejection of the bid, except in the 
situations described in paragraph (c) of this subsection when the 
noncompliance shall be waived.
    (b) In negotiation, noncompliance with a solicitation requirement 
for a bid guarantee requires rejection of an initial proposal as 
unacceptable, if a determination is made to award the contract based on 
initial proposals without discussion, except in the situations described 
in paragraph (c) of this subsection when noncompliance shall be waived. 
(See 15.306(a)(2) for conditions regarding making awards based on 
initial proposals.) If the conditions for awarding based on initial 
proposals are not met, deficiencies in bid guarantees submitted by 
offerors determined to be in the competitive range shall be addressed 
during discussions and the offeror shall be given an opportunity to 
correct the deficiency.
    (c) Noncompliance with a solicitation requirement for a bid 
guarantee shall be waived in the following circumstances unless the 
contracting officer determines in writing that acceptance of the bid 
would be detrimental to the Government's interest when--
    (1) Only one offer is received. In this case, the contracting 
officer may require the furnishing of the bid guarantee before award;
    (2) The amount of the bid guarantee submitted is less than required, 
but is equal to or greater than the difference between the offer price 
and the next higher acceptable offer;
    (3) The amount of the bid guarantee submitted, although less than 
that required by the solicitation for the maximum quantity offered, is 
sufficient for a quantity for which the offeror is otherwise eligible 
for award. Any award to the offeror shall not exceed the quantity 
covered by the bid guarantee;
    (4) The bid guarantee is received late, and late receipt is waived 
under 14.304;
    (5) A bid guarantee becomes inadequate as a result of the correction 
of a mistake under 14.407 (but only if the bidder will increase the bid 
guarantee to the level required for the corrected bid);
    (6) A telegraphic offer modification is received without 
corresponding modification of the bid guarantee, if the modification 
expressly refers to the previous offer and the offeror corrects any 
deficiency in bid guarantee;
    (7) An otherwise acceptable bid bond was submitted with a signed 
offer, but the bid bond was not signed by the offeror;
    (8) An otherwise acceptable bid bond is erroneously dated or bears 
no date at all; or
    (9) A bid bond does not list the United States as obligee, but 
correctly identifies the offeror, the solicitation number, and the name 
and location of the project involved, so long as it is acceptable in all 
other respects.

[54 FR 48985, Nov. 28, 1989, as amended at 60 FR 34739, July 3, 1995; 62 
FR 51271, Sept. 30, 1997]



Sec. 28.102  Performance and payment bonds and alternative payment 
          protections for construction contracts.



Sec. 28.102-1  General.

    (a) The Miller Act (40 U.S.C. 3131 et seq.) requires performance and 
payment bonds for any construction contract exceeding $150,000, except 
that this requirement may be waived (1) by the contracting officer for 
as much of the work as is to be performed in a foreign country upon 
finding that it is impracticable for the contractor to furnish such 
bond, or (2) as otherwise authorized by the Miller Act or other law.
    (b)(1) Pursuant to 40 U.S.C. 3132, for construction contracts 
greater than $30,000, but not greater than $150,000, the contracting 
officer shall select two or more of the following payment protections, 
giving particular consideration to inclusion of an irrevocable letter of 
credit as one of the selected alternatives:
    (i) A payment bond.
    (ii) An irrevocable letter of credit (ILC).

[[Page 630]]

    (iii) A tripartite escrow agreement. The prime contractor 
establishes an escrow account in a federally insured financial 
institution and enters into a tripartite escrow agreement with the 
financial institution, as escrow agent, and all of the suppliers of 
labor and material. The escrow agreement shall establish the terms of 
payment under the contract and of resolution of disputes among the 
parties. The Government makes payments to the contractor's escrow 
account, and the escrow agent distributes the payments in accordance 
with the agreement, or triggers the disputes resolution procedures if 
required.
    (iv) Certificates of deposit. The contractor deposits certificates 
of deposit from a federally insured financial institution with the 
contracting officer, in an acceptable form, executable by the 
contracting officer.
    (v) A deposit of the types of security listed in 28.204-1 and 
28.204-2.
    (2) The contractor shall submit to the Government one of the payment 
protections selected by the contracting officer.
    (c) The contractor shall furnish all bonds or alternative payment 
protection, including any necessary reinsurance agreements, before 
receiving a notice to proceed with the work or being allowed to start 
work.

[48 FR 42286, Sept. 19, 1983, as amended at 61 FR 31652, June 20, 1996; 
70 FR 57454, Sept. 30, 2005; 71 FR 57368, Sept. 28, 2006; 75 FR 53134, 
Aug. 30, 2010]



Sec. 28.102-2  Amount required.

    (a) Definition. As used in this subsection--
    Original contract price means the award price of the contract; or, 
for requirements contracts, the price payable for the estimated total 
quantity; or, for indefinite-quantity contracts, the price payable for 
the specified minimum quantity. Original contract price does not include 
the price of any options, except those options exercised at the time of 
contract award.
    (b) Contracts exceeding $150,000 (Miller Act).
    (1) Performance bonds. Unless the contracting officer determines 
that a lesser amount is adequate for the protection of the Government, 
the penal amount of performance bonds must equal--
    (i) 100 percent of the original contract price; and
    (ii) If the contract price increases, an additional amount equal to 
100 percent of the increase.
    (2) Payment bonds. (i) Unless the contracting officer makes a 
written determination supported by specific findings that a payment bond 
in this amount is impractical, the amount of the payment bond must 
equal--
    (A) 100 percent of the original contract price; and
    (B) If the contract price increases, an additional amount equal to 
100 percent of the increase.
    (ii) The amount of the payment bond must be no less than the amount 
of the performance bond.
    (c) Contracts exceeding $30,000 but not exceeding $150,000. Unless 
the contracting officer determines that a lesser amount is adequate for 
the protection of the Government, the penal amount of the payment bond 
or the amount of alternative payment protection must equal--
    (1) 100 percent of the original contract price; and
    (2) If the contract price increases, an additional amount equal to 
100 percent of the increase.
    (d) Securing additional payment protection. If the contract price 
increases, the Government must secure any needed additional protection 
by directing the contractor to--
    (1) Increase the penal sum of the existing bond;
    (2) Obtain an additional bond; or
    (3) Furnish additional alternative payment protection.
    (e) Reducing amounts. The contracting officer may reduce the amount 
of security to support a bond, subject to the conditions of 28.203-5(c) 
or 28.204(b).

[65 FR 46070, July 26, 2000, as amended at 71 FR 57368, Sept. 28, 2006; 
75 FR 53134, Aug. 30, 2010]



Sec. 28.102-3  Contract clauses.

    (a) Insert a clause substantially the same as the clause at 52.228-
15, Performance and Payment Bonds--Construction, in solicitations and 
contracts for construction that contain a

[[Page 631]]

requirement for performance and payment bonds if the resultant contract 
is expected to exceed $150,000. The contracting officer may revise 
paragraphs (b)(1) and/or (b)(2) of the clause to establish a lower 
percentage in accordance with 28.102-2(b). If the provision at 52.228-1 
is not included in the solicitation, the contracting officer must set a 
period of time for return of executed bonds.
    (b) Insert the clause at 52.228-13, Alternative Payment Protections, 
in solicitations and contracts for construction, when the estimated or 
actual value exceeds $30,000 but does not exceed $150,000. Complete the 
clause by specifying the payment protections selected (see 28.102-
1(b)(1)) and the deadline for submission. The contracting officer may 
revise paragraph (b) of the clause to establish a lower percentage in 
accordance with 28.102-2(c).

[48 FR 42286, Sept. 19, 1983, as amended at 61 FR 31652, June 20, 1996; 
61 FR 39213, July 26, 1996; 62 FR 44806, Aug. 22, 1997; 65 FR 46070, 
July 26, 2000; 71 FR 57368, Sept. 28, 2006; 75 FR 53134, Aug. 30, 2010]



Sec. 28.103  Performance and payment bonds for other than construction 
          contracts.



Sec. 28.103-1  General.

    (a) Generally, agencies shall not require performance and payment 
bonds for other than construction contracts. However, performance and 
payment bonds may be used as permitted in 28.103-2 and 28.103-3.
    (b) The contractor shall furnish all bonds before receiving a notice 
to proceed with the work.
    (c) No bond shall be required after the contract has been awarded if 
it was not specifically required in the contract, except as may be 
determined necessary for a contract modification.



Sec. 28.103-2  Performance bonds.

    (a) Performance bonds may be required for contracts exceeding the 
simplified acquisition threshold when necessary to protect the 
Government's interest. The following situations may warrant a 
performance bond:
    (1) Government property or funds are to be provided to the 
contractor for use in performing the contract or as partial compensation 
(as in retention of salvaged material).
    (2) A contractor sells assets to or merges with another concern, and 
the Government, after recognizing the latter concern as the successor in 
interest, desires assurance that it is financially capable.
    (3) Substantial progress payments are made before delivery of end 
items starts.
    (4) Contracts are for dismantling, demolition, or removal of 
improvements.
    (b) The Government may require additional performance bond 
protection when a contract price is increased.
    (c) The contracting officer must determine the contractor's 
responsibility (see subpart 9.1) even though a bond has been or can be 
obtained.

[48 FR 42286, Sept. 19, 1983, as amended at 60 FR 34759, July 3, 1995; 
61 FR 39213, July 26, 1996]



Sec. 28.103-3  Payment bonds.

    (a) A payment bond is required only when a performance bond is 
required, and if the use of payment bond is in the Government's 
interest.
    (b) When a contract price is increased, the Government may require 
additional bond protection in an amount adequate to protect suppliers of 
labor and material.

[48 FR 42286, Sept. 19, 1983, as amended at 61 FR 39213, July 26, 1996]



Sec. 28.103-4  Contract clause.

    The contracting officer shall insert a clause substantially the same 
as the clause at 52.228-16, Performance and Payment Bonds--Other than 
Construction, in solicitations and contracts that contain a requirement 
for both payment and performance bonds. The contracting officer shall 
determine the amount of each bond for insertion in the clause. The 
amount shall be adequate to protect the interest of the Government. The 
contracting officer shall also set a period of time (normally 10 days) 
for return of executed bonds. Alternate I shall be used when only 
performance bonds are required.

[61 FR 39213, July 26, 1996]

[[Page 632]]



Sec. 28.104  Annual performance bonds.

    (a) Annual performance bonds only apply to non-construction 
contracts. They shall provide a gross penal sum applicable to the total 
amount of all covered contracts.
    (b) When the penal sums obligated by contracts are approximately 
equal to or exceed the penal sum of the annual performance bond, an 
additional bond will be required to cover additional contracts.



Sec. 28.105  Other types of bonds.

    The head of the contracting activity may approve using other types 
of bonds in connection with acquiring particular supplies or services. 
These types include advance payment bonds and patent infringement bonds.



Sec. 28.105-1  Advance payment bonds.

    Advance payment bonds may be required only when the contract 
contains an advance payment provision and a performance bond is not 
furnished. The contracting officer shall determine the amount of the 
advance payment bond necessary to protect the Government.



Sec. 28.105-2  Patent infringement bonds.

    (a) Contracts providing for patent indemnity may require these bonds 
only if--
    (1) A performance bond is not furnished; and
    (2) The financial responsibility of the contractor is unknown or 
doubtful.
    (b) The contracting officer shall determine the penal sum.



Sec. 28.106  Administration.



Sec. 28.106-1  Bonds and bond related forms.

    The following Standard Forms (SF's) and Optional Forms (OF's) shown 
in 53.301 and 53.302 shall be used, except in foreign countries, when a 
bid bond, performance or payment bond, or an individual surety is 
required. The bond forms shall be used as indicated in the instruction 
portion of each form.
    (a) SF 24, Bid Bond (see 28.101).
    (b) SF 25, Performance Bond (see 28.102-1 and 28.106-3(b)).
    (c) SF 25-A, Payment Bond (see 28.102-1 and 28.106-3(b)).
    (d) SF 25-B, Continuation Sheet (for SF's 24, 25, and 25-A).
    (e) SF 28, Affidavit of Individual Surety (see 28.203).
    (f) SF 34, Annual Bid Bond (see 28.001).
    (g) SF 35, Annual Performance Bond (see 28.104).
    (h) SF 273, Reinsurance Agreement for a Miller Act Performance Bond 
(see 28.202(a)(4)).
    (i) SF 274, Reinsurance Agreement for a Miller Act Payment Bond (see 
28.202(a)(4)).
    (j) SF 275, Reinsurance Agreement in Favor of the United States (see 
28.202(a)(4)).
    (k) SF 1414, Consent of Surety (see 28.106-5).
    (l) SF 1415, Consent of Surety and Increase of Penalty (see 28.106-
3).
    (m) SF 1416, Payment Bond for Other Than Construction Contracts (see 
28.103-3 and 28.106-3(b)).
    (n) SF 1418, Performance Bond for Other Than Construction Contracts 
(see 28.103-2 and 28.106-3(b)).
    (o) OF 90, Release of Lien on Real Property (see 28.203-5).
    (p) OF 91, Release of Personal Property from Escrow (see 28.203-5).

[48 FR 42286, Sept. 19, 1983, as amended at 54 FR 48986, Nov. 28, 1989; 
61 FR 39213, July 26, 1996]



Sec. 28.106-2  Substitution of surety bonds.

    (a) A new surety bond covering all or part of the obligations on a 
bond previously approved may be substituted for the original bond if 
approved by the head of the contracting activity, or as otherwise 
specified in agency regulation.
    (b) When a new surety bond is approved, the contracting officer 
shall notify the principal and surety of the original bond of the 
effective date of the new bond.

[48 FR 42286, Sept. 19, 1983, as amended at 61 FR 39213, July 26, 1996]



Sec. 28.106-3  Additional bond and security.

    (a) When additional bond coverage is required and is secured in 
whole or in part by the original surety or sureties, agencies shall use 
Standard Form 1415, Consent of Surety and Increase of Penalty. Standard 
Form 1415 is authorized for local reproduction, and a copy of

[[Page 633]]

the form is furnished for this purpose in part 53 of the looseleaf 
edition of the FAR.
    (b) When additional bond coverage is required and is secured in 
whole or in part by a new surety or by one of the alternatives described 
in 28.204 in lieu of corporate or individual surety, agencies shall use 
Standard Form 25, Performance Bond; Standard Form 1418, Performance Bond 
for Other Than Construction Contracts; Standard Form 25-A, Payment Bond; 
or Standard Form 1416, Payment Bond for Other Than Construction 
Contracts.

[63 FR 44806, Aug. 22, 1997]



Sec. 28.106-4  Contract clause.

    (a) The contracting officer shall insert the clause at 52.228-2, 
Additional Bond Security, in solicitations and contracts when bonds are 
required.
    (b) In accordance with Section 806(a)(3) of Pub. L. 102-190, as 
amended by Sections 2091 and 8105 of Pub. L. 103-355, the contracting 
officer shall insert the clause at 52.228-12, Prospective Subcontractor 
Requests for Bonds, in solicitations and contracts with respect to which 
a payment bond will be furnished pursuant to the Miller Act (see 28.102-
1), except for contracts for the acquisition of commercial items as 
defined in Subpart 2.1.

[48 FR 42286, Sept. 19, 1983, as amended at 60 FR 48273, Sept. 18, 1995]



Sec. 28.106-5  Consent of surety.

    (a) When any contract is modified, the contracting officer shall 
obtain the consent of surety if--
    (1) An additional bond is obtained from other than the original 
surety;
    (2) No additional bond is required and--
    (i) The modification is for new work beyond the scope of the 
original contract; or
    (ii) The modification does not change the contract scope but changes 
the contract price (upward or downward) by more than 25 percent or 
$50,000; or
    (3) Consent of surety is required for a novation agreement (See 
subpart 42.12).
    (b) When a contract for which performance or payment is secured by 
any of the types of security listed in 28.204 is modified as described 
in paragraph (a) of this subsection, no consent of surety is required.
    (c) Agencies shall use Standard Form 1414, Consent of Surety, for 
all types of contracts.

[48 FR 42286, Sept. 19, 1983, as amended at 61 FR 31652, June 20, 1996]



Sec. 28.106-6  Furnishing information.

    (a) The surety on the bond, upon its written request, may be 
furnished information on the progress of the work, payments, and the 
estimated percentage of completion, concerning the contract for which 
the bond was furnished.
    (b) When a payment bond has been provided, the contracting officer 
shall, upon request, furnish the name and address of the surety or 
sureties to any subcontractor or supplier who has furnished or been 
requested to furnish labor or material for the contract. In addition, 
general information concerning the work progress, payments, and the 
estimated percentage of completion may be furnished to persons who have 
provided labor or materials and have not been paid.
    (c) When a payment bond has been provided for a contract, the head 
of the agency or designee shall furnish a certified copy of the bond and 
the contract for which it was given to any person who makes a request 
therefor and who furnishes an affidavit that the requestor has supplied 
labor or materials for such work and payment therefor has not been made 
or that the requestor is being sued on such bond. The person who makes 
the request shall be required to pay such costs of preparation as 
determined by the head of the agency or designee to be reasonable and 
appropriate (see 40 U.S.C. 3133).
    (d) Section 806(a)(2) of Pub. L. 102-190, as amended by Sections 
2091 and 8105 of Pub. L. 103-355, requires that the Federal Government 
provide information to subcontractors on payment bonds under contracts 
for other than commercial items as defined in Subpart 2.1. Upon the 
written or oral request of a subcontractor/supplier, or prospective 
subcontractor/supplier, under a contract with respect to which a payment 
bond has been furnished pursuant to the Miller Act, the contracting 
officer

[[Page 634]]

shall promptly provide to the requester, either orally or in writing, as 
appropriate, any of the following:
    (1) Name and address of the surety or sureties on the payment bond.
    (2) Penal amount of the payment bond.
    (3) Copy of the payment bond. The contracting officer may impose 
reasonable fees to cover the cost of copying and providing a copy of the 
payment bond.

[48 FR 42286, Sept. 19, 1983, as amended at 50 FR 26903, June 28, 1985; 
60 FR 48273, Sept. 18, 1995; 70 FR 57454, Sept. 30, 2005]



Sec. 28.106-7  Withholding contract payments.

    (a) During contract performance, agencies shall not withhold 
payments due contractors or assignees because subcontractors or 
suppliers have not been paid.
    (b) If, after completion of the contract work, the Government 
receives written notice from the surety regarding the contractor's 
failure to meet its obligation to its subcontractors or suppliers, the 
contracting officer shall withhold final payment. However, the surety 
must agree to hold the Government harmless from any liability resulting 
from withholding the final payment. The contracting officer will 
authorize final payment upon agreement between the contractor and surety 
or upon a judicial determination of the rights of the parties.
    (c) For any withholding incident to the labor standards provisions 
of the contract, see part 22.



Sec. 28.106-8  Payment to subcontractors or suppliers.

    The contracting officer will only authorize payment to 
subcontractors or suppliers from an ILC (or any other cash equivalent 
security) upon a judicial determination of the rights of the parties, a 
signed notarized statement by the contractor that the payment is due and 
owed, or a signed agreement between the parties as to amount due and 
owed.

[62 FR 44807, Aug. 22, 1997]

           Subpart 28.2_Sureties and Other Security for Bonds



Sec. 28.200  Scope of subpart.

    This subpart prescribes procedures for the use of sureties and other 
security to protect the Government from financial losses.

[62 FR 44807, Aug. 22, 1997]



Sec. 28.201  Requirements for security.

    (a) Agencies shall obtain adequate security for bonds (including 
coinsurance and reinsurance agreements) required or used with a contract 
for supplies or services (including construction). Acceptable forms of 
security include (1) corporate or individual sureties or (2) any of the 
types of security authorized in lieu of sureties by 28.204.
    (b) Solicitations shall not preclude offerors from using the types 
of surety or other security permitted by this subpart, unless prohibited 
by law or regulation.

[48 FR 42286, Sept. 19, 1983, as amended at 55 FR 25530, June 21, 1990; 
62 FR 44807, Aug. 22, 1997]



Sec. 28.202  Acceptability of corporate sureties.

    (a)(1) Corporate sureties offered for bonds furnished with contracts 
performed in the United States or its outlying areas must appear on the 
list contained in the Department of the Treasury Circular 570, 
``Companies Holding Certificates of Authority as Acceptable Sureties on 
Federal Bonds and Acceptable Reinsuring Companies.''
    (2) The penal amount of the bond should not exceed the surety's 
underwriting limit stated in the Department of the Treasury circular. If 
the penal amount exceeds the underwriting limit, the bond will be 
acceptable only if (i) the amount which exceeds the specified limit is 
coinsured or reinsured and (ii) the amount of coinsurance or reinsurance 
does not exceed the underwriting limit of each coinsurer or reinsurer.
    (3) Coinsurance or reinsurance agreements shall conform to the 
Department of the Treasury regulations in 31 CFR 223.10 and 223.11. When 
reinsurance is contemplated, the contracting office

[[Page 635]]

generally shall require reinsurance agreements to be executed and 
submitted with the bonds before making a final determination on the 
bonds.
    (4) When specified in the solicitation, the contracting officer may 
accept a bond from the direct writing company in satisfaction of the 
total bond requirement of the contract. This is permissible until 
necessary reinsurance agreements are executed, even though the total 
bond requirement may exceed the insurer's underwriting limitation. The 
contractor shall execute and submit necessary reinsurance agreements to 
the contracting officer within the time specified on the bid form, which 
may not exceed 45 calendar days after the execution of the bond. The 
contractor shall use Standard Form 273, Reinsurance Agreement for a 
Miller Act Performance Bond, and Standard Form 274, Reinsurance 
Agreement for a Miller Act Payment Bond, when reinsurance is furnished 
with Miller Act bonds. Standard Form 275, Reinsurance Agreement in Favor 
of the United States, is used when reinsurance is furnished with bonds 
for other purposes.
    (b) For contracts performed in a foreign country, sureties not 
appearing on Treasury Department Circular 570 are acceptable if the 
contracting officer determines that it is impracticable for the 
contractor to use Treasury listed sureties.
    (c) The Department of the Treasury issues supplements to Circular 
570, notifying all Federal agencies of (1) new approved corporate surety 
companies and (2) the termination of the authority of any specific 
corporate surety to qualify as a surety on Federal bonds. Upon receipt 
of notification of termination of a company's authority to qualify as a 
surety on Federal bonds, the contracting officer shall review the 
outstanding contracts and take action necessary to protect the 
Government, including, where appropriate, securing new bonds with 
acceptable sureties in lieu of outstanding bonds with the named company.
    (d) The Department of the Treasury Circular 570 may be obtained from 
the U.S. Department of the Treasury, Financial Management Service, 
Surety Bond Branch, 3700 East West Highway, Room 6F01, Hyattsville, MD 
20782. Or via the internet at http://www.fms.treas.gov/c570/.

[48 FR 42286, Sept. 19, 1983, as amended at 54 FR 48986, Nov. 28, 1989; 
68 FR 28083, May 22, 2003; 71 FR 67779, Nov. 22, 2006]



Sec. 28.203  Acceptability of individual sureties.

    (a) An individual surety is acceptable for all types of bonds except 
position schedule bonds. The contracting officer shall determine the 
acceptability of individuals proposed as sureties, and shall ensure that 
the surety's pledged assets are sufficient to cover the bond obligation. 
(See 28.203-7 for information on excluded individual sureties.)
    (b) An individual surety must execute the bond, and the unencumbered 
value of the assets (exclusive of all outstanding pledges for other bond 
obligations) pledged by the individual surety, must equal or exceed the 
penal amount of each bond. The individual surety shall execute the 
Standard Form 28 and provide a security interest in accordance with 
28.203-1. One individual surety is adequate support for a bond, provided 
the unencumbered value of the assets pledged by that individual surety 
equal or exceed the amount of the bond. An offeror may submit up to 
three individual sureties for each bond, in which case the pledged 
assets, when combined, must equal or exceed the penal amount of the 
bond. Each individual surety must accept both joint and several 
liability to the extent of the penal amount of the bond.
    (c) If the contracting officer determines that no individual surety 
in support of a bid guarantee is acceptable, the offeror utilizing the 
individual surety shall be rejected as nonresponsible, except as 
provided in 28.101-4. A finding of nonresponsibility based on 
unacceptability of an individual surety, need not be referred to the 
Small Business Administration for a competency review. (See 19.602-
1(a)(2)(i) and 61 Comp. Gen. 456 (1982).)
    (d) A contractor submitting an unacceptable individual surety in 
satisfaction of a performance or payment bond requirement may be 
permitted a reasonable time, as determined by the contracting officer, 
to substitute an acceptable surety for a surety previously determined to 
be unacceptable.

[[Page 636]]

    (e) When evaluating individual sureties, contracting officers may 
obtain assistance from the office identified in 28.202(d).
    (f) Contracting officers shall obtain the opinion of legal counsel 
as to the adequacy of the documents pledging the assets prior to 
accepting the bid guarantee and payment and performance bonds.
    (g) Evidence of possible criminal or fraudulent activities by an 
individual surety shall be referred to the appropriate agency official 
in accordance with agency procedures.

[54 FR 48986, Nov. 28, 1989]



Sec. 28.203-1  Security interests by an individual surety.

    (a) An individual surety may be accepted only if a security interest 
in assets acceptable under 28.203-2 is provided to the Government by the 
individual surety. The security interest shall be furnished with the 
bond.
    (b) The value at which the contracting officer accepts the assets 
pledged must be equal to or greater than the aggregate penal amounts of 
the bonds required by the solicitation and may be provided by one or a 
combination of the following methods:
    (1) An escrow account with a federally insured financial institution 
in the name of the contracting agency. (See 28.203-2(b)(2) with respect 
to Government securities in book entry form.) Acceptable securities for 
deposit in escrow are discussed in 28.203-2. While the offeror is 
responsible for establishing the escrow account, the terms and 
conditions must be acceptable to the contracting officer. At a minimum, 
the escrow account shall provide for the following:
    (i) The account must provide the contracting officer the sole and 
unrestricted right to draw upon all or any part of the funds deposited 
in the account. A written demand for withdrawal shall be sent to the 
financial institution by the contracting officer, after obtaining the 
concurrence of legal counsel, with a copy to the offeror/contractor and 
to the surety. Within the time period specified in the demand, the 
financial institution would pay the Government the amount demanded up to 
the amount on deposit. If any dispute should arise between the 
Government and the offeror/contractor, the surety, or the subcontractors 
or suppliers with respect to the offer or contract, the financial 
institution would be required, unless precluded by order of a court of 
competent jurisdiction, to disburse monies to the Government as directed 
by the contracting officer.
    (ii) The financial institution would be authorized to release to the 
individual surety all or part of the balance of the escrow account, 
including any accrued interest, upon receipt of written authorization 
from the contracting officer.
    (iii) The Government would not be responsible for any costs 
attributable to the establishment, maintenance, administration, or any 
other aspect of the account.
    (iv) The financial institution would not be liable or responsible 
for the interpretation of any provisions or terms and conditions of the 
solicitation or contract.
    (v) The financial institution would provide periodic account 
statements to the contracting officer.
    (vi) The terms of the escrow account could not be amended without 
the consent of the contracting officer.
    (2) A lien on real property, subject to the restrictions in 28.203-2 
and 28.203-3.

[54 FR 48986, Nov. 28, 1989]



Sec. 28.203-2  Acceptability of assets.

    (a) The Government will accept only cash, readily marketable assets, 
or irrevocable letters of credit from a federally insured financial 
institution from individual sureties to satisfy the underlying bond 
obligations.
    (b) Acceptable assets include--
    (1) Cash, or certificates of deposit, or other cash equivalents with 
a federally insured financial institution;
    (2) United States Government securities at market value. (An escrow 
account is not required if an individual surety offers Government 
securities held in book entry form at a depository institution. In lieu 
thereof, the individual shall provide evidence that the depository 
institution has (i) placed a notation against the individual's book

[[Page 637]]

entry account indicating that the security has been pledged in favor of 
the respective agency; (ii) agreed to notify the agency prior to 
maturity of the security; and (iii) agreed to hold the proceeds of the 
security subject to the pledge in favor of the agency until a 
substitution of securities is made or the security interest is formally 
released by the agency);
    (3) Stocks and bonds actively traded on a national U.S. security 
exchange with certificates issued in the name of the individual surety. 
National security exchanges are--(i) the New York Stock Exchange; (ii) 
the American Stock Exchange; (iii) the Boston Stock Exchange; (iv) the 
Cincinnati Stock Exchange; (v) the Midwest Stock Exchange; (vi) the 
Philadelphia Stock Exchange; (vii) the Pacific Stock Exchange; and 
(viii) the Spokane Stock Exchange. These assets will be accepted at 90 
percent of their 52-week low, as reflected at the time of submission of 
the bond. Stock options and stocks on the over-the-counter (OTC) market 
or NASDQ Exchanges will not be accepted. Assistance in evaluating the 
acceptability of securities may be obtained from the Securities and 
Exchange Commission, Division of Enforcement, 450 Fifth Street NW., 
Washington, DC 20549.
    (4) Real property owned in fee simple by the surety without any form 
of concurrent ownership, except as provided in paragraph (c)(3)(iii) of 
this subsection, and located in the United States or its outlying areas. 
These assets will be accepted at 100 percent of the most current tax 
assessment value (exclusive of encumbrances) or 75 percent of the 
properties' unencumbered market value provided a current appraisal is 
furnished (see 28.203-3).
    (5) Irrevocable letters of credit (ILC) issued by a federally 
insured financial institution in the name of the contracting agency and 
which identify the agency and solicitation or contract number for which 
the ILC is provided.
    (c) Unacceptable assets include but are not limited to--
    (1) Notes or accounts receivable;
    (2) Foreign securities;
    (3) Real property as follows:
    (i) Real property located outside the United States and its outlying 
areas.
    (ii) Real property which is a principal residence of the surety.
    (iii) Real property owned concurrently regardless of the form of co-
tenancy (including joint tenancy, tenancy by the entirety, and tenancy 
in common) except where all co-tenants agree to act jointly.
    (iv) Life estates, leasehold estates, or future interests in real 
property.
    (4) Personal property other than that listed in paragraph (b) of 
this subsection (e.g., jewelry, furs, antiques);
    (5) Stocks and bonds of the individual surety in a controlled, 
affiliated, or closely held concern of the offeror/contractor;
    (6) Corporate assets (e.g., plant and equipment);
    (7) Speculative assets (e.g., mineral rights);
    (8) Letters of credit, except as provided in 28.203-2(b)(5).

[54 FR 48987, Nov. 28, 1989, as amended at 68 FR 28083, May 22, 2003]



Sec. 28.203-3  Acceptance of real property.

    (a) Whenever a bond with a security interest in real property is 
submitted, the individual surety shall provide--
    (1) A mortgagee title insurance policy, in an insurance amount equal 
to the amount of the lien, or other evidence of title that is consistent 
with the requirements of Section 2 of the United States Department of 
Justice Title Standards at http://www.justice.gov/enrd/ENRD--Assets/
Title--Standards--2001.pdf. This title evidence must show fee simple 
title vested in the surety along with any concurrent owners; whether any 
real estate taxes are due and payable; and any recorded encumbrances 
against the property, including the lien filed in favor of the 
Government under paragraph (d) of this subsection. Agency contracting 
officers should request the assistance of their designated agency legal 
counsel in determining if the title evidence is consistent with the 
Department of Justice standards;
    (2) Evidence of the amount due under any encumbrance shown in the 
evidence of title;
    (3) A copy of the current real estate tax assessment of the property 
or a current appraisal dated no earlier than 6 months prior to the date 
of the bond,

[[Page 638]]

prepared by a professional appraiser who certifies that the appraisal 
has been conducted in accordance with the generally accepted appraisal 
standards as reflected in the Uniform Standards of Professional 
Appraisal Practice as promulgated by the Appraisal Foundation, 1029 
Vermont Avenue NW., Washington, DC 20005.
    (b) Failure to provide evidence that the lien has been properly 
recorded will render the offeror nonresponsible.
    (c) The individual surety is liable for the payment of all 
administrative costs of the Government, including legal fees, associated 
with the liquidation of pledged real estate.
    (d) The following format, or any document substantially the same, 
shall be signed by all owners of the property and used by the surety and 
recorded in the local recorder's office when a surety pledges real 
estate on Standard Form 28, Affidavit of Individual Surety.

                           Lien on Real Estate

    I/we agree that this instrument constitutes a lien in the amount of 
$-------- on the property described in this lien. The rights of the 
United States Government shall take precedence over any subsequent lien 
or encumbrance until the lien is formally released by a duly authorized 
representative of the United States. I/we hereby grant the United States 
the power of sale of subject property, including the right to satisfy 
its reasonable administrative costs, including legal fees associated 
with any sale of subject property, in the event of contractor default if 
I/we otherwise fail to satisfy the underlying ( ) bid guarantee, ( ) 
performance bond, ( ) or payment bond obligations as an individual 
surety on solicitation/contract number --------. The lien is upon the 
real estate now owned by me/us described as follows: (legal description, 
street address and other identifying description)
    IN WITNESS HEREOF, I/we have hereunto affixed my/our hand(s) and 
seal(s) this ---- DAY OF ---------------------- 20----.

________________________________________________________________________

WITNESS:

________________________________________________________________________

(SEAL)

    I, ------, a Notary Public in and for the (CITY) ------, (STATE) --
----, do hereby certify that ------, a party or parties to a certain 
Agreement bearing the date ------ day of ------------ 20--, and hereunto 
annexed, personally appeared before me, the said ------ being personally 
well known to me as the person(s) who executed said lien, and 
acknowledged the same to be his/her/their act and deed. GIVEN under my 
hand and seal this ------ day of ---------- 20----.

________________________________________________________________________

NOTARY PUBLIC, STATE

    My Commission expires:

[54 FR 48987, Nov. 28, 1989, as amended at 70 FR 11763, Mar. 9, 2005; 74 
FR 40467, Aug. 11, 2009; 77 FR 204, Jan. 3, 2012]



Sec. 28.203-4  Substitution of assets.

    An individual surety may request the Government to accept a 
substitute asset for that currently pledged by submitting a written 
request to the responsible contracting officer. The contracting officer 
may agree to the substitution of assets upon determining, after 
consultation with legal counsel, that the substitute assets to be 
pledged are adequate to protect the outstanding bond or guarantee 
obiligations. If acceptable, the substitute assets shall be pledged as 
provided for in subpart 28.2.

[54 FR 48988, Nov. 28, 1989]



Sec. 28.203-5  Release of lien.

    (a) After consultation with legal counsel, the contracting officer 
shall release the security interest on the individual surety's assets 
using the Optional Form 90, Release of Lien on Real Property, or 
Optional Form 91, Release of Personal Property from Escrow, or a similar 
release as soon as possible consistent with the conditions in 
subparagraphs (a) (1) and (2) of this subsection. A surety's assets 
pledged in support of a payment bond may be released to a subcontractor 
or supplier upon Government receipt of a Federal district court 
judgment, or a sworn statement by the subcontractor or supplier that the 
claim is correct along with a notarized authorization of the release by 
the surety stating that it approves of such release.
    (1) Contracts subject to the Miller Act. The security interest shall 
be maintained for the later of (i) 1 year following final payment, (ii) 
until completion of any warranty period (applicable only to performance 
bonds), or (iii) pending resolution of all claims filed

[[Page 639]]

against the payment bond during the 1-year period following final 
payment.
    (2) Contracts subject to alternative payment protection (28.102-
1(b)(1)). The security interest shall be maintained for the full 
contract performance period plus one year.
    (3) Other contracts not subject to the Miller Act. The security 
interest shall be maintained for 90 days following final payment or 
until completion of any warranty period (applicable only to performance 
bonds), whichever is later.
    (b) Upon written request, the contracting officer may release the 
security interest on the individual surety's assets in support of a bid 
guarantee based upon evidence that the offer supported by the individual 
surety will not result in contract award.
    (c) Upon written request by the individual surety, the contracting 
officer may release a portion of the security interest on the individual 
surety's assets based upon substantial performance of the contractor's 
obligations under its performance bond. Release of the security interest 
in support of a payment bond must comply with the subparagraphs (a) (1) 
through (3) of this subsection. In making this determination, the 
contracting officer will give consideration as to whether the unreleased 
portion of the lien is sufficient to cover the remaining contract 
obligations, including payments to subcontractors and other potential 
liabilities. The individual surety shall, as a condition of the partial 
release, furnish an affidavit agreeing that the release of such assets 
does not relieve the individual surety of its obligations under the 
bond(s).

[54 FR 48988, Nov. 28, 1989, as amended at 61 FR 31652, June 20, 1996]



Sec. 28.203-6  Contract clause.

    Insert the clause at 52.228-11 in solicitations and contracts which 
require the submission of bid guarantees, performance, or payment bonds.

[54 FR 48988, Nov. 28, 1989]



Sec. 28.203-7  Exclusion of individual sureties.

    (a) An individual may be excluded from acting as a surety on bonds 
submitted by offerors on procurement by the executive branch of the 
Federal Government, by the acquiring agency's head or designee utilizing 
the procedures in subpart 9.4. The exclusion shall be for the purpose of 
protecting the Government.
    (b) An individual may be excluded for any of the following causes:
    (1) Failure to fulfill the obligations under any bond.
    (2) Failure to disclose all bond obligations.
    (3) Misrepresentation of the value of available assets or 
outstanding liabilities.
    (4) Any false or misleading statement, signature or representation 
on a bond or affidavit of individual suretyship.
    (5) Any other cause affecting responsibility as a surety of such 
serious and compelling nature as may be determined to warrant exclusion.
    (c) An individual surety excluded pursuant to this subsection shall 
be included in the System for Award Management Exclusions. (See 9.404.)
    (d) Contracting officers shall not accept the bonds of individual 
sureties whose names appear in the System for Award Management 
Exclusions (see 9.404) unless the acquiring agency's head or a designee 
states in writing the compelling reasons justifying acceptance.
    (e) An exclusion of an individual surety under this subsection will 
also preclude such party from acting as a contractor in accordance with 
subpart 9.4.

[54 FR 48988, Nov. 28, 1989, as amended at 60 FR 33066, June 26, 1995; 
69 FR 76349, Dec. 20, 2004; 78 FR 37678, June 21, 2013]



Sec. 28.204  Alternatives in lieu of corporate or individual sureties.

    (a) Any person required to furnish a bond to the Government may 
furnish any of the types of security listed in 28.204-1 through 28.204-3 
instead of a corporate or individual surety for the bond. When any of 
those types of security are deposited, a statement shall be incorporated 
in the bond form pledging the security in lieu of execution of the bond 
form by corporate or individual sureties. The contractor shall execute

[[Page 640]]

the bond forms as the principal. Agencies shall establish safeguards to 
protect against loss of the security and shall return the security or 
its equivalent to the contractor when the bond obligation has ceased.
    (b) Upon written request by any contractor securing a performance or 
payment bond by any of the types of security listed in 28.204-1 through 
28.204-3, the contracting officer may release a portion of the security 
only when the conditions allowing the partial release of lien in 28.203-
5(c) are met. The contractor shall, as a condition of the partial 
release, furnish an affidavit agreeing that the release of such security 
does not relieve the contractor of its obligations under the bond(s).
    (c) The contractor may satisfy a requirement for bond security by 
furnishing a combination of the types of security listed in 28.204-1 
through 28.204-3 or a combination of bonds supported by these types of 
security and additional surety bonds under 28.202 or 28.203. During the 
period for which a bond supported by security is required, the 
contractor may substitute one type of security listed in 28.204-1 
through 28.204-3 for another, or may substitute, in whole or 
combination, additional surety bonds under 28.202 or 28.203.

[61 FR 31653, June 20, 1996, as amended at 62 FR 44807, Aug. 22, 1997]



Sec. 28.204-1  United States bonds or notes.

    Any person required to furnish a bond to the Government has the 
option, instead of furnishing a surety or sureties on the bond, of 
depositing certain United States bonds or notes in an amount equal at 
their par value to the penal sum of the bond (the Act of February 24, 
1919 (31 U.S.C. 9303) and Treasury Department Circular No. 154 dated 
July 1, 1978 (31 CFR part 225)). In addition, a duly executed power of 
attorney and agreement authorizing the collection or sale of such United 
States bonds or notes in the event of default of the principal on the 
bond shall accompany the deposited bonds or notes. The contracting 
officer may (a) turn securities over to the finance or other authorized 
agency official, or (b) deposit them with the Treasurer of the United 
States, a Federal Reserve Bank (or branch with requisite facilities), or 
other depository designated for that purpose by the Secretary of the 
Treasury, under procedures prescribed by the agency concerned and 
Treasury Department Circular No. 154 (exception: The contracting officer 
shall deposit all bonds and notes received in the District of Columbia 
with the Treasurer of the United States).

[48 FR 42286, Sept. 19, 1983. Redesignated and amended at 54 FR 48986, 
48989, Nov. 28, 1989]



Sec. 28.204-2  Certified or cashiers checks, bank drafts, money orders, 
          or currency.

    Any person required to furnish a bond has an option to furnish a 
certified or cashier's check, bank draft, Post Office money order, or 
currency, in an amount equal to the penal sum of the bond, instead of 
furnishing surety or sureties on the bonds. Those furnishing checks, 
drafts, or money orders shall draw them to the order of the appropriate 
Federal agency.

[48 FR 42286, Sept. 19, 1983. Redesignated at 54 FR 48986, Nov. 28, 
1989]



Sec. 28.204-3  Irrevocable letter of credit (ILC).

    (a) Any person required to furnish a bond has the option to furnish 
a bond secured by an ILC in an amount equal to the penal sum required to 
be secured (see 28.204). A separate ILC is required for each bond.
    (b) The ILC shall be irrevocable, require presentation of no 
document other than a written demand and the ILC (and letter of 
confirmation, if any), expire only as provided in paragraph (f) of this 
subsection, and be issued/confirmed by an acceptable federally insured 
financial institution as provided in paragraph (g) of this subsection.
    (c) To draw on the ILC, the contracting officer shall use the sight 
draft set forth in the clause at 52.228-14, and present it with the ILC 
(including letter of confirmation, if any) to the issuing financial 
institution or the confirming financial institution (if any).
    (d) If the contractor does not furnish an acceptable replacement 
ILC, or other acceptable substitute, at least 30 days before an ILC's 
scheduled expiration, the contracting officer shall immediately draw on 
the ILC.

[[Page 641]]

    (e) If, after the period of performance of a contract where ILCs are 
used to support payment bonds, there are outstanding claims against the 
payment bond, the contracting officer shall draw on the ILC prior to the 
expiration date of the ILC to cover these claims.
    (f) The period for which financial security is required shall be as 
follows:
    (1) If used as a bid guarantee, the ILC should expire no earlier 
than 60 days after the close of the bid acceptance period.
    (2) If used as an alternative to corporate or individual sureties as 
security for a performance or payment bond, the offeror/contractor may 
submit an ILC with an initial expiration date estimated to cover the 
entire period for which financial security is required or an ILC with an 
initial expiration date that is a minimum period of one year from the 
date of issuance. The ILC shall provide that, unless the issuer provides 
the beneficiary written notice of non-renewal at least 60 days in 
advance of the current expiration date, the ILC is automatically 
extended without amendment for one year from the expiration date, or any 
future expiration date, until the period of required coverage is 
completed and the contracting officer provides the financial institution 
with a written statement waiving the right to payment. The period of 
required coverage shall be:
    (i) For contracts subject to the Miller Act, the later of--
    (A) One year following the expected date of final payment;
    (B) For performance bonds only, until completion of any warranty 
period; or
    (C) For payment bonds only, until resolution of all claims filed 
against the payment bond during the one-year period following final 
payment.
    (ii) For contracts not subject to the Miller Act, the later of--
    (A) 90 days following final payment; or
    (B) For performance bonds only, until completion of any warranty 
period.
    (g) Only federally insured financial institutions rated investment 
grade or higher shall issue or confirm the ILC. Unless the financial 
institution issuing the ILC had letter of credit business of at least 
$25 million in the past year, ILCs over $5 million must be confirmed by 
another acceptable financial institution that had letter of credit 
business of at least $25 million in the past year.
    (1) The offeror/contractor shall provide the contracting officer a 
credit rating from a recognized commercial rating service as specified 
in Office of Federal Procurement Policy Pamphlet No. 7 (see 28.204-3(h)) 
that indicates the financial institution has the required rating(s) as 
of the date of issuance of the ILC.
    (2) If the contracting officer learns that a financial institution's 
rating has dropped below the required level, the contracting officer 
shall give the contractor 30 days to substitute an acceptable ILC or 
shall draw on the ILC using the sight draft in paragraph (g) of the 
clause at 52.228-14.
    (h)(1) Additional information on credit rating services and 
investment grade ratings is contained within Office of Federal 
Procurement Policy Pamphlet No. 7, Use of Irrevocable Letters of Credit. 
This pamphlet may be obtained by calling the Office of Management and 
Budget's publications office at (202) 395-7332.
    (2) A copy of the Uniform Customs and Practice (UCP) for Documentary 
Credits, 1993 Revision, International Chamber of Commerce Publication 
No. 500, is available from: ICC Publishing, Inc., 156 Fifth Avenue, New 
York NY, 10010, Telephone: (212) 206-1150, Telefax: (212) 633-6025, E-
mail: [email protected].

[61 FR 31653, June 20, 1996, as amended at 62 FR 44807, Aug. 22, 1997]



Sec. 28.204-4  Contract clause.

    Insert the clause at 52.228-14, Irrevocable Letter of Credit, in 
solicitations and contracts for services, supplies, or construction, 
when a bid guarantee, or performance bonds, or performance and payment 
bonds are required.

[61 FR 31653, June 20, 1996]

[[Page 642]]

                         Subpart 28.3_Insurance



Sec. 28.301  Policy.

    Contractors shall carry insurance under the following circumstances:
    (a)(1) The Government requires any contractor subject to Cost 
Accounting Standard (CAS) 416 (48 CFR 9004.416 (appendix B, FAR loose-
leaf edition)) to obtain insurance, by purchase or self-coverage, for 
the perils to which the contractor is exposed, except when (i) the 
Government, by providing in the contract in accordance with law, agrees 
to indemnify the contractor under specified circumstances or (ii) the 
contract specifically relieves the contractor of liability for loss of 
or damage to Government property.
    (2) The Government reserves the right to disapprove the purchase of 
any insurance coverage not in the Government's interest.
    (3) Allowability of the insurance program's cost shall be determined 
in accordance with the criteria in 31.205-19.
    (b) Contractors, whether or not their contracts are subject to CAS 
416, are required by law and this regulation to provide insurance for 
certain types of perils (e.g., workers' compensation). Insurance is 
mandatory also when commingling of property, type of operation, 
circumstances of ownership, or condition of the contract make it 
necessary for the protection of the Government. The minimum amounts of 
insurance required by this regulation (see 28.307-2) may be reduced when 
a contract is to be performed outside the United states and its outlying 
areas. When more than one agency is involved, the agency responsible for 
review and approval of a contractor's insurance program shall coordinate 
with other interested agencies before acting on significant insurance 
matters.
    (c) Contractors awarded nonpersonal services contracts for health 
care services are required to maintain medical liability insurance and 
indemnify the Government for liability producing acts or omissions by 
the contractor, its employees and agents (see 37.400).

[48 FR 42286, Sept. 19, 1983, as amended at 54 FR 5056, Jan. 31, 1989; 
59 FR 67043, Dec. 28, 1994; 68 FR 28083, May 22, 2003]



Sec. 28.302  Notice of cancellation or change.

    When the Government requires the contractor to provide insurance 
coverage, the policies shall contain an endorsement that any 
cancellation or material change in the coverage adversely affecting the 
Government's interest shall not be effective unless the insurer or the 
contractor gives written notice of cancellation or change as required by 
the contracting officer. When the coverage is provided by self-
insurance, the contractor shall not change or decrease the coverage 
without the administrative contracting officer's prior approval (see 
28.308(c)).



Sec. 28.303  Insurance against loss of or damage to Government property.

    When the Government requires or approves insurance to cover loss of 
or damage to Government property (see 45.104, Responsibility and 
liability for Government property), it may be provided by specific 
insurance policies or by inclusion of the risks in the contractor's 
existing policies. The policies shall disclose the Government's interest 
in the property.

[48 FR 42286, Sept. 19, 1983, as amended at 72 FR 27384, May 15, 2007]



Sec. 28.304  Risk-pooling arrangements.

    Agencies may establish risk-pooling arrangements. These arrangements 
are designed to use the services of the insurance industry for safety 
engineering and the handling of claims at minimum cost to the 
Government. The agency responsible shall appoint a single manager or 
point of contact for each arrangement.



Sec. 28.305  Overseas workers' compensation and war-hazard insurance.

    (a) Public-work contract, as used in this subpart, means any 
contract for a fixed improvement or for any other project, fixed or not, 
for the public use of the United States or its allies, involving 
construction, alteration, removal, or repair, including projects or 
operations under service contracts and projects in connection with the 
national defense or with war activities, dredging, harbor improvements, 
dams,

[[Page 643]]

roadways, and housing, as well as preparatory and ancillary work in 
connection therewith at the site or on the project.
    (b) The Defense Base Act (42 U.S.C. 1651 et seq.) extends the 
Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. 901) to 
various classes of employees working outside the United States, 
including those engaged in performing--
    (1) Public-work contracts; or
    (2) Contracts approved or financed under the Foreign Assistance Act 
of 1961 (Pub. L. 87-195) other than (i) contracts approved or financed 
by the Development Loan Fund (unless the Secretary of Labor, acting upon 
the recommendation of a department or agency, determines that such 
contracts should be covered) or (ii) contracts exclusively for materials 
or supplies.
    (c) When the Defense Base Act applies (see 42 U.S.C. 1651 et seq.) 
to these employees, the benefits of the Longshoremen's and Harbor 
Workers' Compensation Act are extended through operation of the War 
Hazards Compensation Act (42 U.S.C. 1701 et seq.) to protect the 
employees against the risk of war hazards (injury, death, capture, or 
detention). When, by means of an insurance policy or a self-insurance 
program, the contractor provides the workers' compensation coverage 
required by the Defense Base Act, the contractor's employees 
automatically receive war-hazard risk protection.
    (d) When the agency head recommends a waiver to the Secretary of 
Labor, the Secretary may waive the applicability of the Defense Base Act 
to any contract, subcontract, work location, or classification of 
employees.
    (e) If the Defense Base Act is waived for some or all of the 
contractor's employees, the benefits of the War Hazards Compensation Act 
are automatically waived with respect to those employees for whom the 
Defense Base Act is waived. For those employees, the contractor shall 
provide workers' compensation coverage 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. The 
contract shall provide either that the costs of this liability or the 
reasonable costs of insurance against this liability shall be allowed as 
a cost under the contract.



Sec. 28.306  Insurance under fixed-price contracts.

    (a) General. Although the Government is not ordinarily concerned 
with the contractor's insurance coverage if the contract is a fixed-
price contract, in special circumstances agencies may specify insurance 
requirements under fixed-price contracts. Examples of such circumstances 
include the following:
    (1) The contractor is--or has a separate operation--engaged 
principally in Government work.
    (2) Government property is involved.
    (3) The work is to be performed on a Government installation.
    (4) The Government elects to assume risks for which the contractor 
ordinarily obtains commercial insurance.
    (b) Work on a Government installation. (1) When the clause at 
52.228-5, Insurance--Work on a Government Installation, is required to 
be included in a fixed-price contract by 28.310, the coverage specified 
in 28.307 is the minimum insurance required and shall be included in the 
contract Schedule or elsewhere in the contract. The contracting officer 
may require additional coverage and higher limits.
    (2) When the clause at 52.228-5, Insurance--Work on a Government 
Installation, is not required by 28.310 but is included because the 
contracting officer considers it to be in the Government's interest to 
do so, any of the types of insurance specified in 28.307 may be omitted 
or the limits may be lowered, if appropriate.



Sec. 28.307  Insurance under cost-reimbursement contracts.

    Cost-reimbursement contracts (and subcontracts, if the terms of the 
prime contract are extended to the subcontract) ordinarily require the 
types of insurance listed in 28.307-2, with the minimum amounts of 
liability indicated. (See 28.308 for self-insurance.)



Sec. 28.307-1  Group insurance plans.

    (a) Prior approval requirement. Under cost-reimbursement contracts, 
before buying insurance under a group insurance plan, the contractor 
must submit

[[Page 644]]

the plan for approval, in accordance with agency regulations. Any change 
in benefits provided under an approved plan that can reasonably be 
expected to increase significantly the cost to the Government requires 
similar approval.
    (b) Premium refunds or credits. The plan shall provide for the 
Government to share in any premium refunds or credits paid or otherwise 
allowed to the contractor. In determining the extent of the Government's 
share in any premium refunds or credits, any special reserves and other 
refunds to which the contractor may be entitled in the future shall be 
taken into account.



Sec. 28.307-2  Liability.

    (a) Workers' compensation and employer's liability. Contractors are 
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 
workers' compensation to be written by private carriers. (See 28.305(c) 
for treatment of contracts subject to the Defense Base Act.)
    (b) General liability. (1) The contracting officer shall require 
bodily injury liability insurance coverage written on the comprehensive 
form of policy of at least $500,000 per occurrence.
    (2) Property damage liability insurance shall be required only in 
special circumstances as determined by the agency.
    (c) Automobile liability. The contracting officer shall require 
automobile liability insurance written on the 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. The amount of liability coverage on other policies 
shall be commensurate with any legal requirements of the locality and 
sufficient to meet normal and customary claims.
    (d) Aircraft public and passenger liability. When aircraft are used 
in connection with performing the contract, the contracting officer 
shall require 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 liability, and 
$200,000 per occurrence for property damage. Coverage for passenger 
liability bodily injury shall be at least $200,000 multiplied by the 
number of seats or passengers, whichever is greater.
    (e) Vessel liability. When contract performance involves use of 
vessels, the contracting officer shall require, as determined by the 
agency, vessel collision liability and protection and indemnity 
liability insurance.



Sec. 28.308  Self-insurance.

    (a) When it is anticipated that 50 percent or more of the self-
insurance costs to be incurred at a segment of a contractor's business 
will be allocable to negotiated Government contracts, and the self-
insurance costs at the segment for the contractor's fiscal year are 
expected to be $200,000 or more, the contractor shall submit, in 
writing, information on its proposed self-insurance program to the 
administrative contracting officer and obtain that official's approval 
of the program. The submission shall be by segment or segments of the 
contractor's business to which the program applies and shall include--
    (1) A complete description of the program, including any resolution 
of the board of directors authorizing and adopting coverage, including 
types of risks, limits of coverage, assignments of safety and loss 
control, and legal service responsibilities;
    (2) If available, the corporate insurance manual and organization 
chart detailing fiscal responsibilities for insurance;

[[Page 645]]

    (3) The terms regarding insurance coverage for any Government 
property;
    (4) The contractor's latest financial statements;
    (5) Any self-insurance feasibility studies or insurance market 
surveys reporting comparative alternatives;
    (6) Loss history, premiums history, and industry ratios;
    (7) A formula for establishing reserves, including percentage 
variations between losses paid and losses reserved;
    (8) Claims administration policy, practices, and procedures;
    (9) The method of calculating the projected average loss; and
    (10) A disclosure of all captive insurance company and re-insurance 
agreements, including methods of computing cost.
    (b) Programs of self-insurance covering a contractor's insurable 
risks, including the deductible portion of purchased insurance, may be 
approved when examination of a program indicates that its application is 
in the Government's interest. Agencies shall not approve a program of 
self-insurance for workers' compensation in a jurisdiction where 
workers' compensation does not completely cover the employer's liability 
to employees, unless the contractor--
    (1) Maintains an approved program of self-insurance for any 
employer's liability not so covered; or
    (2) Shows that the combined cost to the Government of self-insurance 
for workers' compensation and commercial insurance for employer's 
liability will not exceed the cost of covering both kinds of risk by 
commercial insurance.
    (c) Once the administrative contracting officer has approved a 
program, the contractor must submit to that official for approval any 
major proposed changes to the program. Any program approval may be 
withdrawn if a contracting officer finds that either (1) any part of a 
program does not comply with the requirements of this subpart and/or the 
criteria at 31.205-19 or (2) conditions or situations existing at the 
time of approval that were a basis for original approval of the program 
have changed to the extent that a program change is necessary.
    (d) To qualify for a self-insurance program, a contractor must 
demonstrate ability to sustain the potential losses involved. In making 
the determination, the contracting officer shall consider the following 
factors:
    (1) The soundness of the contractor's financial condition, including 
available lines of credit.
    (2) The geographic dispersion of assets, so that the potential of a 
single loss depleting all the assets is unlikely.
    (3) The history of previous losses, including frequency of 
occurrence and the financial impact of each loss.
    (4) The type and magnitude of risk, such as minor coverage for the 
deductible portion of purchased insurance or major coverage for 
hazardous risks.
    (5) The contractor's compliance with Federal and State laws and 
regulations.
    (e) Agencies shall not approve a program of self-insurance for 
catastrophic risks (e.g., see 50.104-3, Special procedures for unusually 
hazardous or nuclear risks). Should performance of Government contracts 
create the risk of catastrophic losses, the Government may, to the 
extent authorized by law, agree to indemnify the contractor or recognize 
an appropriate share of premiums for purchased insurance, or both.
    (f) Self-insurance programs to protect a contractor against the 
costs of correcting its own defects in materials or workmanship shall 
not be approved. For these purposes, normal rework estimates and 
warranty costs will not be considered self-insurance.

[48 FR 42286, Sept. 19, 1983, as amended at 55 FR 3883, Feb. 5, 1990; 66 
FR 2131, Jan. 10, 2001; 72 FR 63030, Nov. 7, 2007]



Sec. 28.309  Contract clauses for workers' compensation insurance.

    (a) The contracting officer shall insert the clause at 52.228-3, 
Workers' Compensation Insurance (Defense Base Act), in solicitations and 
contracts when the Defense Base Act applies (see 28.305) and--
    (1) The contract will be a public-work contract performed outside 
the United States; or
    (2) The contract will be approved or financed under the Foreign 
Assistance

[[Page 646]]

Act of 1961 (Pub. L. 87-195) and is not excluded by 28.305(b)(2).
    (b) The contracting officer shall insert the clause at 52.228-4, 
Workers' Compensation and War-Hazard Insurance Overseas, in 
solicitations and contracts when the contract will be a public-work 
contract performed outside the United States and the Secretary of Labor 
waives the applicability of the Defense Base Act (see 28.305(d)).



Sec. 28.310  Contract clause for work on a Government installation.

    (a) Insert the clause at 52.228-5, Insurance--Work on a Government 
Installation, in solicitations and contracts if a fixed-price contract 
is contemplated, the contract amount is expected to exceed the 
simplified acquisition threshold, and the contract will require work on 
a Government installation, unless--
    (1) Only a small amount of work is required on the Government 
installation (e.g., a few brief visits per month); or
    (2) All work on the Government installation will be performed 
outside the United States and its outlying areas.
    (b) The contracting officer may insert the clause at 52.228-5 in 
solicitations and contracts described in (a)(1) and (2) above if it is 
in the Government's interest to do so.

[48 FR 42286, Sept. 19, 1983, as amended at 60 FR 34759, July 3, 1995; 
61 FR 39190, July 26, 1996; 68 FR 28083, May 22, 2003]



Sec. 28.311  Solicitation provision and contract clause on liability 
          insurance under cost-reimbursement contracts.



Sec. 28.311-1  Contract clause.

    In accordance with agency acquisition regulations, the contracting 
officer shall insert the clause at 52.228-7, Insurance--Liability to 
Third Persons, in solicitations and contracts, other than those for 
construction contracts and those for architect-engineer services, when a 
cost-reimbursement contract is contemplated.

[55 FR 52793, Dec. 21, 1990. Redesignated and amended at 61 FR 2639, 
Jan. 26, 1996]



Sec. 28.311-2  Agency solicitation provisions and contract clauses.

    Agencies may prescribe their own solicitation provisions and 
contract clauses to implement the basic policies contained in this 
subpart 28.3.

[55 FR 52793, Dec. 21, 1990. Redesignated at 61 FR 2639, Jan. 26, 1996]



Sec. 28.312  Contract clause for insurance of leased motor vehicles.

    The contracting officer shall insert the clause at 52.228-8, 
Liability and Insurance--Leased Motor Vehicles, in solicitations and 
contracts for the leasing of motor vehicles (see subpart 8.11).



Sec. 28.313  Contract clauses for insurance of transportation or 
          transportation-related services.

    (a) The contracting officer shall insert the clause at 52.228-9, 
Cargo Insurance, in solicitations and contracts for transportation or 
for transportation-related services, except when freight is shipped 
under rates subject to released or declared value.
    (b) The contracting officer shall insert a clause substantially the 
same as that at 52.228-10, Vehicular and General Public Liability 
Insurance, in solicitations and contracts for transportation or for 
transportation-related services when the contracting officer determines 
that vehicular liability or general public liability insurance required 
by law is not sufficient.

                              PART 29_TAXES

Sec.

Sec. 29.000 Scope of part.

                          Subpart 29.1_General


Sec. 29.101 Resolving tax problems.

                    Subpart 29.2_Federal Excise Taxes


Sec. 29.201 General.

Sec. 29.202 General exemptions.

Sec. 29.203 Other Federal tax exemptions.

                   Subpart 29.3_State and Local Taxes


Sec. 29.300 Scope of subpart.

Sec. 29.301 [Reserved]

Sec. 29.302 Application of State and local taxes to the Government.

Sec. 29.303 Application of State and local taxes to Government 
          contractors and subcontractors.

[[Page 647]]


Sec. 29.304 Matters requiring special consideration.

Sec. 29.305 State and local tax exemptions.

                      Subpart 29.4_Contract Clauses


Sec. 29.401 Domestic contracts.

Sec. 29.401-1 Indefinite-delivery contracts for leased equipment.

Sec. 29.401-2 Construction contracts performed in North Carolina.

Sec. 29.401-3 Federal, State, and local taxes.

Sec. 29.401-4 New Mexico gross receipts and compensating tax.

Sec. 29.402 Foreign contracts.

Sec. 29.402-1 Foreign fixed-price contracts.

Sec. 29.402-2 Foreign cost-reimbursement contracts.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 
20113.

    Source: 48 FR 42293, Sept. 19, 1983, unless otherwise noted.



Sec. 29.000  Scope of part.

    This part prescribes policies and procedures for (a) using tax 
clauses in contracts (including foreign contracts), (b) asserting 
immunity or exemption from taxes, and (c) obtaining tax refunds. It 
explains Federal, State, and local taxes on certain supplies and 
services acquired by executive agencies and the applicability of such 
taxes to the Federal Government. It is for the general information of 
Government personnel and does not present the full scope of the tax laws 
and regulations.

                          Subpart 29.1_General



Sec. 29.101  Resolving tax problems.

    (a) Contract tax problems are essentially legal in nature and vary 
widely. Specific tax questions must be resolved by reference to the 
applicable contract terms and to the pertinent tax laws and regulations. 
Therefore, when tax questions arise, contracting officers should request 
assistance from the agency-designated legal counsel.
    (b) To keep treatment within an agency consistent, contracting 
officers or other authorized personnel shall consult the agency-
designated counsel before negotiating with any taxing authority for the 
purpose of (1) determining whether or not a tax is valid or applicable 
or (2) obtaining exemption from, or refund of, a tax.
    (c) When the constitutional immunity of the Government from State or 
local taxation may reasonably be at issue, contractors should be 
discouraged from negotiating independently with taxing authorities if 
the contract involved is either (1) a cost-reimbursement contract or (2) 
a fixed-price contract containing a tax escalation clause.
    (d) Before purchasing goods or services from a foreign source, the 
contracting officer should consult the agency-designated counsel (1) for 
information on foreign tax treaties and agreements in force and on the 
implementation of any foreign-tax-relief programs and (2) to resolve any 
other tax questions affecting the prospective contract.

                    Subpart 29.2_Federal Excise Taxes



Sec. 29.201  General.

    (a) Federal excise taxes are levied on the sale or use of particular 
supplies or services. Subtitle D of the Internal Revenue Code of 1954, 
Miscellaneous Excise Taxes, 26 U.S.C. 4041 et seq., and its implementing 
regulations, 26 CFR parts 40 through 299, cover miscellaneous federal 
excise tax requirements. Questions arising in this area should be 
directed to the agency-designated counsel. The most common excise taxes 
are--
    (1) Manufacturers' excise taxes imposed on certain motor-vehicle 
articles, tires and inner tubes, gasoline, lubricating oils, coal, 
fishing equipment, firearms, shells, and cartridges sold by 
manufacturers, producers, or importers; and
    (2) Special-fuels excise taxes imposed at the retail level on diesel 
fuel and special motor fuels.
    (b) Sometimes the law exempts the Federal Government from these 
taxes. Contracting officers should solicit prices on a tax-exclusive 
basis when it is known that the Government is exempt from these taxes, 
and on a tax-inclusive basis when no exemption exists.
    (c) Executive agencies shall take maximum advantage of available 
Federal excise tax exemptions.

[48 FR 42293, Sept. 19, 1983, as amended at 55 FR 52793, Dec. 21, 1990]

[[Page 648]]



Sec. 29.202  General exemptions.

    No Federal manufacturers' or special-fuels excise taxes are imposed 
in many contracting situations as, for example, when the supplies are 
for any of the following:
    (a) The exclusive use of any State or political subdivision, 
including the District of Columbia (26 U.S.C. 4041 and 4221).
    (b) Shipment for export to a foreign country or an outlying area of 
the United States. Shipment must occur within 6 months of the time title 
passes to the Government. When the exemption is claimed, the words ``for 
export'' must appear on the contract or purchase document, and the 
contracting officer must furnish the seller proof of export (see 26 CFR 
48.4221-3).
    (c) Further manufacture, or resale for further manufacture (this 
exemption does not include tires and inner tubes) (26 CFR 48.4221-2).
    (d) Use as fuel supplies, ships or sea stores, or legitimate 
equipment on vessels of war, including (1) aircraft owned by the United 
States and constituting a part of the armed forces and (2) guided 
missiles and pilotless aircraft owned or chartered by the United States. 
When this exemption is to be claimed, the purchase should be made on a 
tax-exclusive basis. The contracting officer shall furnish the seller an 
exemption certificate for Supplies for Vessels of War (an example is 
given in 26 CFR 48.4221-4(d)(2); the IRS will accept one certificate 
covering all orders under a single contract for a specified period of up 
to 12 calendar quarters) (26 U.S.C. 4041 and 4221).
    (e) A nonprofit educational organization (26 U.S.C. 4041 and 4221).
    (f) Emergency vehicles (26 U.S.C. 4053 and 4064(b)(1)(c)).

[48 FR 42293, Sept. 19, 1983, as amended at 53 FR 662, Jan. 11, 1988; 68 
FR 28083, May 22, 2003]



Sec. 29.203  Other Federal tax exemptions.

    (a) Pursuant to 26 U.S.C. 4293, the Secretary of the Treasury has 
exempted the United States from the communications excise tax imposed in 
26 U.S.C. 4251, when the supplies and services are for the exclusive use 
of the United States. (Secretarial Authorization, June 20, 1947, 
Internal Revenue Cumulative Bulletin, 1947-1, 205.)
    (b) Pursuant to 26 U.S.C. 4483(b), the Secretary of the Treasury has 
exempted the United States from the federal highway vehicle users tax 
imposed in 26 U.S.C. 4481. The exemption applies whether the vehicle is 
owned or leased by the United States. (Secretarial Authorization, 
Internal Revenue Cumulative Bulletin, 1956-2, 1369.)

[53 FR 662, Jan. 11, 1988]

                   Subpart 29.3_State and Local Taxes



Sec. 29.300  Scope of subpart.

    This subpart prescribes the policies and procedures regarding the 
exemption or immunity of Federal Government purchases and property from 
State and local taxation.



Sec. 29.301  [Reserved]



Sec. 29.302  Application of State and local taxes to the Government.

    (a) Generally, purchases and leases made by the Federal Government 
are immune from State and local taxation. Whether any specific purchase 
or lease is immune, however, is a legal question requiring advice and 
assistance of the agency-designated counsel.
    (b) When it is economically feasible to do so, executive agencies 
shall take maximum advantage of all exemptions from State and local 
taxation that may be available. If appropriate, the contracting officer 
shall provide a Standard Form 1094, U.S. Tax Exemption Form (see part 
53), or other evidence listed in 29.305(a) to establish that the 
purchase is being made by the Government.

[48 FR 42293, Sept. 19, 1983, as amended at 62 FR 237, Jan. 2, 1997]



Sec. 29.303  Application of State and local taxes to Government 
          contractors and subcontractors.

    (a) Prime contractors and subcontractors shall not normally be 
designated as agents of the Government for the purpose of claiming 
immunity from State or local sales or use taxes. Before any activity 
contends that a

[[Page 649]]

contractor is an agent of the Government, the matter shall be referred 
to the agency head for review. The referral shall include all pertinent 
data on which the contention is based, together with a thorough analysis 
of all relevant legal precedents.
    (b) When purchases are not made by the Government itself, but by a 
prime contractor or by a subcontractor under a prime contract, the right 
to an exemption of the transaction from a sales or use tax may not rest 
on the Government's immunity from direct taxation by States and 
localities. It may rest instead on provisions of the particular State or 
local law involved, or, in some cases, the transaction may not in fact 
be expressly exempt from the tax. The Government's interest shall be 
protected by using the procedures in 29.101.
    (c) Frequently, property (including property acquired under the 
progress payments clause of fixed-price contracts or the Government 
property clause of cost-reimbursement contracts) owned by the Government 
is in the possession of a contractor or subcontractor. Situations may 
arise in which States or localities assert the right to tax Government 
property directly or to tax the contractor's or subcontractor's 
possession of, interest in, or use of that property. In such cases, the 
contracting officer shall seek review and advice from the agency-
designated counsel on the appropriate course of action.



Sec. 29.304  Matters requiring special consideration.

    The imposition of State and local taxes may result in special 
contract considerations including the following:
    (a) With coordination of the agency-designated counsel, a contract 
may (1) state that the contract price includes or excludes a specified 
tax or (2) require that the contractor take certain actions with regard 
to payment, nonpayment, refund, protest, or other treatment of a 
specified tax. Such special treatment may be appropriate when there is 
doubt as to the applicability or allocability of the tax, or when the 
applicability of the tax is being litigated.
    (b) The applicability of State and local taxes to purchases by the 
Federal Government may depend on the place and terms of delivery. When 
the contract price will be substantial, alternative places and terms of 
delivery should be considered in light of possible tax consequences.
    (c) Indefinite-delivery contracts for equipment rental may require 
the contractor to furnish equipment in any of the States. Since leased 
equipment remains the contractor's property, States and local 
governments impose a wide variety of property, use, or other taxes on 
equipment leased to the Government. The amount of these taxes can vary 
considerably from jurisdiction to jurisdiction. See 29.401-1 for the 
prescription of the contract clause to be included in contracts when 
delivery points are not known at time of contracting.
    (d) The North Carolina State and local sales and use tax.
    (1) The North Carolina Sales and Use Tax Act authorizes counties and 
incorporated cities and towns to obtain each year from the Commissioner 
of Revenue of the State of North Carolina a refund of sales and use 
taxes indirectly paid on building materials, supplies, fixtures, and 
equipment that become a part of or are annexed to any building or 
structure erected, altered, or repaired for such counties and 
incorporated cities and towns in North Carolina. In United States v. 
Clayton, 250 F. Supp. 827 (1965), it was held that the United States is 
entitled to the benefit of the refund, but must follow the refund 
procedure of the Act and the regulations to recover what it is due.
    (2) The Act provides that, to receive the refund, claimants must 
file, within 6 months after the claimant's fiscal year closes, a written 
request substantiated by such records, receipts, and information as the 
Commissioner of Revenue may require. No refund will be made on an 
application not filed within the time allowed and in such manner as the 
Commissioner may require. The requirements of the Commissioner are set 
forth in regulations that provide that, to substantiate a refund claim 
for sales or use taxes paid on purchases of building materials, 
supplies, fixtures,

[[Page 650]]

or equipment by a contractor, the Government must secure from the 
contractor certified statements setting forth the cost of the property 
purchased from each vendor and the amount of sales or use taxes paid. In 
the event the contractor makes several purchases from the same vendor, 
the certified statement must indicate the invoice numbers, the inclusive 
dates of the invoices, the total amount of the invoices, and the sales 
and use taxes paid. The statement must also include the cost of any 
tangible personal property withdrawn from the contractor's warehouse 
stock and the amount of sales or use tax paid by the contractor. Similar 
certified statements by subcontractors must be obtained by the general 
contractor and furnished to the claimant. Any local sales or use taxes 
included in the contractor's statement must be shown separately from the 
State sales or use taxes.
    (3) The clause prescribed at 29.401-2 requires contractors to submit 
to contracting officers by November 30 of each year a certified 
statement disclosing North Carolina State and local sales and use taxes 
paid during the 12-month period that ended the preceding September 30. 
The contracting officer shall ensure that contractors comply with this 
requirement and shall obtain the annual refund to which the Government 
may be entitled. The application for refund must be filed each year 
before March 31 and in the manner and form required by the Commissioner 
of Revenue. Copies of the form may be obtained from the State of North 
Carolina, Department of Revenue, P.O. Box 25000, Raleigh, NC 27640.

[48 FR 42293, Sept. 19, 1983, as amended at 62 FR 40237, July 25, 1997]



Sec. 29.305  State and local tax exemptions.

    (a) Evidence of exemption. Evidence needed to establish exemption 
from State or local taxes depends on the grounds for the exemption 
claimed, the parties to the transaction, and the requirements of the 
taxing jurisdiction. Such evidence may include the following:
    (1) A copy of the contract or relevant portion.
    (2) Copies of purchase orders, shipping documents, credit-card-
imprinted sales slips, paid or acknowledged invoices, or similar 
documents that identify an agency or instrumentality of the United 
States as the buyer.
    (3) A U.S. Tax Exemption Form (SF 1094).
    (4) A State or local form indicating that the supplies or services 
are for the exclusive use of the United States.
    (5) Any other State or locally required document for establishing 
general or specific exemption.
    (6) Shipping documents indicating that shipments are in interstate 
or foreign commerce.
    (b) Furnishing proof of exemption. If a reasonable basis to sustain 
a claimed exemption exists, the seller will be furnished evidence of 
exemption, as follows:
    (1) Under a contract containing the clause at 52.229-3, Federal, 
State, and Local Taxes, or at 52.229-4, Federal, State, and Local Taxes 
(State and Local Adjustments), in accordance with the terms of those 
clauses.
    (2) Under a cost-reimbursement contract, if requested by the 
contractor and approved by the contracting officer or at the discretion 
of the contracting officer.
    (3) Under a contract or purchase order that contains no tax 
provision, if--
    (i) Requested by the contractor and approved by the contracting 
officer or at the discretion of the contracting officer; and
    (ii) Either the contract price does not include the tax or, if the 
transaction or property is tax exempt, the contractor consents to a 
reduction in the contract price.

[48 FR 42293, Sept. 19, 1983, as amended at 62 FR 237, Jan. 2, 1997; 68 
FR 13205, Mar. 18, 2003]

                      Subpart 29.4_Contract Clauses



Sec. 29.401  Domestic contracts.



Sec. 29.401-1  Indefinite-delivery contracts for leased equipment.

    Insert the clause at 52.229-1, State and Local Taxes, in 
solicitations and contracts for leased equipment when--
    (a) A fixed-price indefinite-delivery contract is contemplated;

[[Page 651]]

    (b) The contract will be performed wholly or partly in the United 
States or its outlying areas; and
    (c) The place or places of delivery are not known at the time of 
contracting.

[68 FR 28083, May 22, 2003]



Sec. 29.401-2  Construction contracts performed in North Carolina.

    The contracting officer shall insert the clause at 52.229-2, North 
Carolina State and Local Sales and Use Tax, in solicitations and 
contracts for construction to be performed in North Carolina. If the 
requirement is for vessel repair to be performed in North Carolina, the 
clause shall be used with its Alternate I.



Sec. 29.401-3  Federal, State, and local taxes.

    (a) Except as provided in paragraph (b) of this section, insert the 
clause at 52.229-3, Federal, State, and Local Taxes, in solicitations 
and contracts if--
    (1) The contract is to be performed wholly or partly in the United 
States or its outlying areas;
    (2) A fixed-price contract is contemplated; and
    (3) The contract is expected to exceed the simplified acquisition 
threshold.
    (b) In a noncompetitive contract that meets all the conditions in 
paragraph (a) of this section, the contracting officer may insert the 
clause at 52.229-4, Federal, State, and Local Taxes (State and Local 
Adjustments), instead of the clause at 52.229-3, if the price would 
otherwise include an inappropriate contingency for potential postaward 
change(s) in State or local taxes.

[68 FR 13205, Mar. 18, 2003, as amended at 68 FR 28083, May 22, 2003]



Sec. 29.401-4  New Mexico gross receipts and compensating tax.

    (a) Definition. Services, as used in this subsection, is as defined 
in the Gross Receipts and Compensating Tax Act of the State of New 
Mexico, Sec. 7-9-3(k) NM SA 1978, and means all activities engaged in 
for other persons for a consideration, which activities involve 
predominately the performance of a service as distinguished from selling 
or leasing property. Services includes activities performed by a person 
for its members of shareholders. In determining what is a service, the 
intended use, principal objective or ultimate objective of the 
contracting parties shall not be controlling. Services also includes 
construction activities and all tangible personal property that will 
become an ingredient or component part of a construction project. Such 
tangible personal property retains its character as tangible personal 
property until it is installed as an ingredient or component part of a 
construction project in New Mexico. However, sales of tangible personal 
property that will become an ingredient or component part of a 
construction project to persons engaged in the construction business are 
sales of tangible personal property.
    (b) Contract clause. The contracting officer shall insert the clause 
at 52.229-10, State of New Mexico Gross Receipts and Compensating Tax, 
in solicitations and contracts issued by the agencies identified in 
paragraph (c) of this subsection when all three of the following 
conditions exist:
    (1) The contractor will be performing a cost-reimbursement contract.
    (2) The contract directs or authorizes the contractor to acquire 
tangible personal property as a direct cost under a contract and title 
to such property passes directly to and vests in the United States upon 
delivery of the property by the vendor.
    (3) The contract will be for services to be performed in whole or in 
part within the State of New Mexico.
    (c) Participating agencies. (1) The agencies listed below have 
entered into an agreement with the State of New Mexico to eliminate the 
double taxation of Government cost-reimbursement contracts when 
contractors and their subcontractors purchase tangible personal property 
to be used in performing services in whole or in part in the State of 
New Mexico and for which title to such property will pass to the United 
States upon delivery of the property to the contractor and its 
subcontractors by the vendor. Therefore, the clause applies only to 
solicitations and contracts issued by the--

United States Defense Advanced Research Projects Agency;

[[Page 652]]

United States Defense Threat Reduction Agency;
United States Department of Agriculture;
United States Department of the Air Force;
United States Department of the Army;
United States Department of Energy;
United States Department of Health and Human Services;
United States Department of Interior;
United States Department of Labor;
United States Department of the Navy;
United States Department of Transportation;
United States General Services Administration;
United States Missile Defense Agency; and
United States National Aeronautics and Space Administration.

    (2) Any other Federal agency which expects to award cost-
reimbursement contracts to be performed in New Mexico should contact the 
New Mexico Taxation and Revenue Department to execute a similar 
agreement.

[53 FR 34228, Sept. 2, 1988, as amended at 55 FR 3883, Feb. 5, 1990; 55 
FR 38517, Sept. 18, 1990; 62 FR 64930, Dec. 9, 1997. Redesignated at 68 
FR 13205, Mar. 18, 2003; 69 FR 17770, Apr. 5, 2004; 77 FR 44064, July 
26, 2012]



Sec. 29.402  Foreign contracts.



Sec. 29.402-1  Foreign fixed-price contracts.

    (a) The contracting officer shall insert the clause at 52.229-6, 
Taxes--Foreign Fixed-Price Contracts, in solicitations and contracts 
expected to exceed the simplified acquisition threshold when a fixed-
price contract is contemplated and the contract is to be performed 
wholly or partly in a foreign country, unless it is contemplated that 
the contract will be with a foreign government.
    (b) The contracting officer shall insert the clause at 52.229-7, 
Taxes--Fixed-Price Contracts With Foreign Governments, in solicitations 
and contracts that exceed the simplified acquisition threshold when a 
fixed-price contract with a foreign government is contemplated.

[48 FR 42293, Sept. 19, 1983, as amended at 55 FR 52793, Dec. 21, 1990; 
61 FR 39198, July 26, 1996]



Sec. 29.402-2  Foreign cost-reimbursement contracts.

    (a) The contracting officer shall insert the clause at 52.229-8, 
Taxes--Foreign Cost-Reimbursement Contracts, in solicitations and 
contracts when a cost-reimbursement contract is contemplated and the 
contract is to be performed wholly or partly in a foreign country, 
unless it is contemplated that the contract will be with a foreign 
government.
    (b) The contracting officer shall insert the clause at 52.229-9, 
Taxes--Cost-Reimbursement Contracts with Foreign Governments, in 
solicitations and contracts when a cost-reimbursement contract with a 
foreign government is contemplated.

            PART 30_COST ACCOUNTING STANDARDS ADMINISTRATION

Sec.

Sec. 30.000 Scope of part.

Sec. 30.001 Definitions.

                          Subpart 30.1_General


Sec. 30.101 Cost Accounting Standards.

Sec. 30.102 Cost Accounting Standards Board publication.

                  Subpart 30.2_CAS Program Requirements


Sec. 30.201 Contract requirements.

Sec. 30.201-1 CAS applicability.

Sec. 30.201-2 Types of CAS coverage.

Sec. 30.201-3 Solicitation provisions.

Sec. 30.201-4 Contract clauses.

Sec. 30.201-5 Waiver.

Sec. 30.201-6 Findings.

Sec. 30.201-7 Cognizant Federal agency responsibilities.

Sec. 30.202 Disclosure requirements.

Sec. 30.202-1 General requirements.

Sec. 30.202-2 Impracticality of submission.

Sec. 30.202-3 Amendments and revisions.

Sec. 30.202-4 Privileged and confidential information.

Sec. 30.202-5 Filing disclosure statements.

Sec. 30.202-6 Responsibilities.

Sec. 30.202-7 Determinations.

Sec. 30.202-8 Subcontractor disclosure statements.

Subpart 30.3--CAS Rules and Regulations [Reserved]

Subpart 30.4--Cost Accounting Standards [Reserved]

Subpart 30.5--Cost Accounting Standards for Educational Institutions 
[Reserved]

                     Subpart 30.6_CAS Administration


Sec. 30.601 Responsibility.

Sec. 30.602 Materiality.

[[Page 653]]


Sec. 30.603 Changes to disclosed or established cost accounting 
          practices.

Sec. 30.603-1 Required changes.

Sec. 30.603-2 Unilateral and desirable changes.

Sec. 30.604 Processing changes to disclosed or established cost 
          accounting practices.

Sec. 30.605 Processing noncompliances.

Sec. 30.606 Resolving cost impacts.

Sec. 30.607 Subcontract administration.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 
2473(c).

    Source: 57 FR 39587, Aug. 31, 1992, unless otherwise noted.



Sec. 30.000  Scope of part.

    This part describes policies and procedures for applying the Cost 
Accounting Standards Board (CASB) rules and regulations (48 CFR chapter 
99 (FAR appendix)) to negotiated contracts and subcontracts. This part 
does not apply to sealed bid contracts or to any contract with a small 
business concern (see 48 CFR 9903.201-1(b) (FAR appendix) for these and 
other exemptions).

[57 FR 39587, Aug. 31, 1992, as amended at 61 FR 18916, Apr. 29, 1996; 
62 FR 40237, July 25, 1997]



Sec. 30.001  Definitions.

    As used in this part--
    Affected CAS-covered contract or subcontract means a contract or 
subcontract subject to Cost Accounting Standards (CAS) rules and 
regulations for which a contractor or subcontractor--
    (1) Used one cost accounting practice to estimate costs and a 
changed cost accounting practice to accumulate and report costs under 
the contract or subcontract; or
    (2) Used a noncompliant practice for purposes of estimating or 
accumulating and reporting costs under the contract or subcontract.
    Cognizant Federal agency official (CFAO) means the contracting 
officer assigned by the cognizant Federal agency to administer the CAS.
    Desirable change means a compliant change to a contractor's 
established or disclosed cost accounting practices that the CFAO finds 
is desirable and not detrimental to the Government and is, therefore, 
not subject to the no increased cost prohibition provisions of CAS-
covered contracts and subcontracts affected by the change.
    Fixed-price contracts and subcontracts means--
    (1) Fixed-price contracts and subcontracts described at 16.202, 
16.203 (except when price adjustments are based on actual costs of labor 
or material, described at 16.203-1(a)(2)), and 16.207;
    (2) Fixed-price incentive contracts and subcontracts where the price 
is not adjusted based on actual costs incurred (Subpart 16.4);
    (3) Orders issued under indefinite-delivery contracts and 
subcontracts where final payment is not based on actual costs incurred 
(Subpart 16.5); and
    (4) The fixed-hourly rate portion of time-and-materials and labor-
hours contracts and subcontracts (Subpart 16.6).
    Flexibly-priced contracts and subcontracts means--
    (1) Fixed-price contracts and subcontracts described at 16.203-
1(a)(2), 16.204, 16.205, and 16.206;
    (2) Cost-reimbursement contracts and subcontracts (Subpart 16.3);
    (3) Incentive contracts and subcontracts where the price may be 
adjusted based on actual costs incurred (Subpart 16.4);
    (4) Orders issued under indefinite-delivery contracts and 
subcontracts where final payment is based on actual costs incurred 
(Subpart 16.5); and
    (5) The materials portion of time-and-materials contracts and 
subcontracts (Subpart 16.6).
    Noncompliance means a failure in estimating, accumulating, or 
reporting costs to--
    (1) Comply with applicable CAS; or
    (2) Consistently follow disclosed or established cost accounting 
practices.
    Required change means--
    (1) A change in cost accounting practice that a contractor is 
required to make in order to comply with applicable Standards, 
modifications or interpretations thereto, that subsequently becomes 
applicable to an existing CAS-covered contract or subcontract due to the 
receipt of another CAS-covered contract or subcontract; or
    (2) A prospective change to a disclosed or established cost 
accounting practice when the CFAO determines that the former practice 
was in compliance with applicable CAS and the

[[Page 654]]

change is necessary for the contractor to remain in compliance.
    Unilateral change means a change in cost accounting practice from 
one compliant practice to another compliant practice that a contractor 
with a CAS-covered contract(s) or subcontract(s) elects to make that has 
not been deemed a desirable change by the CFAO and for which the 
Government will pay no aggregate increased costs.

[70 FR 11752, Mar. 9, 2005, as amended at 73 FR 10966, Feb. 28, 2008]

                          Subpart 30.1_General



Sec. 30.101  Cost Accounting Standards.

    (a) Public Law 100-679 (41 U.S.C. 422) requires certain contractors 
and subcontractors to comply with Cost Accounting Standards (CAS) and to 
disclose in writing and follow consistently their cost accounting 
practices.
    (b) Contracts that refer to this part 30 for the purpose of applying 
the policies, procedures, standards and regulations promulgated by the 
CASB pursuant to Public Law 100-679, shall be deemed to refer to the 
CAS, and any other regulations promulgated by the CASB (see 48 CFR 
chapter 99), all of which are hereby incorporated in this part 30.
    (c) The appendix to the FAR loose-leaf edition contains--
    (1) Cost Accounting Standards and Cost Accounting Standards Board 
Rules and Regulations Recodified by the Cost Accounting Standards Board 
at 48 CFR Chapter 99; and
    (2) The following preambles:
    (i) Part I--Preambles to the Cost Accounting Standards Published by 
the Cost Accounting Standards Board.
    (ii) Part II--Preambles to the Related Rules and Regulations 
Published by the Cost Accounting Standards Board.
    (iii) Part III--Preambles Published under the FAR System.
    (d) The preambles are not regulatory but are intended to explain why 
the Standards and related Rules and Regulations were written, and to 
provide rationale for positions taken relative to issues raised in the 
public comments. The preambles are printed in chronological order to 
provide an administrative history.

[57 FR 39587, Aug. 31, 1992, as amended at 62 FR 40237, July 25, 1997; 
63 FR 9060, Feb. 23, 1998]



Sec. 30.102  Cost Accounting Standards Board publication.

    Copies of the CASB Standards and Regulations are printed in title 48 
of the Code of Federal Regulations, chapter 99, and may be obtained by 
writing the Superintendent of Documents, U.S. Government Printing 
Office, Washington, DC 20402, or by calling the Washington, DC, ordering 
desk at area code (202) 512-1800.

[57 FR 39587, Aug. 31, 1992, as amended at 62 FR 40237, July 25, 1997]

                  Subpart 30.2_CAS Program Requirements



Sec. 30.201  Contract requirements.

    Title 48 CFR 9903.201-1 (FAR appendix) describes the rules for 
determining whether a proposed contract or subcontract is exempt from 
CAS. Negotiated contracts not exempt in accordance with 48 CFR 9903.201-
1(b) shall be subject to CAS. A CAS-covered contract may be subject to 
either full or modified coverage. The rules for determining whether full 
or modified coverage applies are in 48 CFR 9903.201-2 (FAR appendix).

[57 FR 39587, Aug. 31, 1992, as amended at 61 FR 18916, Apr. 29, 1996; 
62 FR 40237, July 25, 1997]



Sec. 30.201-1  CAS applicability.

    See 48 CFR 9903.201-1 (FAR appendix).

[61 FR 18916, Apr. 29, 1996 as amended at 62 FR 40237, July 25, 1997]



Sec. 30.201-2  Types of CAS coverage.

    See 48 CFR 9903.201-2 (FAR appendix).

[61 FR 18916, Apr. 29, 1996, as amended at 62 FR 40237, July 25, 1997]



Sec. 30.201-3  Solicitation provisions.

    (a) The contracting officer shall insert the provision at 52.230-1, 
Cost Accounting Standards Notices and Certification, in solicitations 
for proposed contracts subject to CAS as specified in 48 CFR 9903.201 
(FAR appendix).

[[Page 655]]

    (b) If an award to an educational institution is contemplated prior 
to July 1, 1997, the contracting officer shall insert the basic 
provision set forth at 52.230-1 with its Alternate I, unless the 
contract is to be performed by a Federally Funded Research and 
Development Center (FFRDC) (see 48 CFR 9903.201-2(c)(5) (FAR appendix)), 
or the provision at 48 CFR 9903.201-2(c)(6) (FAR appendix) applies.
    (c) Insert the provision at FAR 52.230-7, Proposal Disclosure--Cost 
Accounting Practice Changes, in solicitations for contracts subject to 
CAS as specified in 48 CFR 9903.201 (FAR Appendix).

[61 FR 18917, Apr. 29, 1996, as amended at 62 FR 40237, July 25, 1997; 
70 FR 11753, Mar. 9, 2005]



Sec. 30.201-4  Contract clauses.

    (a) Cost Accounting Standards. (1) The contracting officer shall 
insert the clause at FAR 52.230-2, Cost Accounting Standards, in 
negotiated contracts, unless the contract is exempted (see 48 CFR 
9903.201-1 (FAR appendix)), the contract is subject to modified coverage 
(see 48 CFR 9903.201-2 (FAR appendix)), or the clause prescribed in 
paragraph (c) of this subsection is used.
    (2) The clause at FAR 52.230-2 requires the contractor to comply 
with all CAS specified in 48 CFR part 9904 (FAR appendix), to disclose 
actual cost accounting practices (applicable to CAS-covered contracts 
only), and to follow disclosed and established cost accounting practices 
consistently.
    (b) Disclosure and consistency of cost accounting practices. (1) 
Insert the clause at FAR 52.230-3, Disclosure and Consistency of Cost 
Accounting Practices, in negotiated contracts when the contract amount 
is over $700,000 but less than $50 million, and the offeror certifies it 
is eligible for and elects to use modified CAS coverage (see 48 CFR 
9903.201-2 (FAR Appendix)), unless the clause prescribed in paragraph 
(c) of this subsection is used.
    (2) The clause at FAR 52.230-3 requires the contractor to comply 
with 48 CFR 9904.401, 9904.402, 9904.405, and 9904.406 (FAR appendix) to 
disclose (if it meets certain requirements) actual cost accounting 
practices, and to follow consistently its established cost accounting 
practices.
    (c) Disclosure and Consistency of Cost Accounting Practices--Foreign 
Concerns. (1) The contracting officer shall insert the clause at 52.230-
4, Disclosure and Consistency of Cost Accounting Practices--Foreign 
Concerns, in negotiated contracts with foreign concerns, unless the 
contract is otherwise exempt from CAS (see 48 CFR 9903.201-1). Foreign 
concerns do not include foreign governments or their agents or 
instrumentalities.
    (2) The clause at 52.230-4 requires the contractor to comply with 48 
CFR 9904.401 and 48 CFR 9904.402 to disclose (if it meets certain 
requirements) actual cost accounting practices, and to follow 
consistently its disclosed and established cost accounting practices.
    (d) Administration of Cost Accounting Standards. (1) The contracting 
officer shall insert the clause at FAR 52.230-6, Administration of Cost 
Accounting Standards, in contracts containing any of the clauses 
prescribed in paragraphs (a), (b), (c), or (e) of this subsection.
    (2) The clause at FAR 52.230-6 specifies rules for administering CAS 
requirements and procedures to be followed in cases of failure to 
comply.
    (e) Cost Accounting Standards--Educational Institutions. (1) The 
contracting officer shall insert the clause at FAR 52.230-5, Cost 
Accounting Standards--Educational Institution, in negotiated contracts 
awarded to educational institutions, unless the contract is exempted 
(see 48 CFR 9903.201-1 (FAR appendix)), the contract is to be performed 
by an FFRDC (see 48 CFR 9903.201-2(c)(5) (FAR appendix)), or the 
provision at 48 CFR 9903.201-2(c)(6) (FAR appendix) applies.
    (2) The clause at FAR 52.230-5 requires the educational institution 
to comply with all CAS specified in 48 CFR part 9905 (FAR appendix), to 
disclose actual cost accounting practices as required by 48 CFR 
9903.202-1(f) (FAR appendix), and to follow disclosed and established 
cost accounting practices consistently.

[61 FR 18917, Apr. 29, 1996, as amended at 62 FR 40237, July 25, 1997; 
65 FR 36029, June 6, 2000; 73 FR 54012, 54013, Sept. 17, 2008; 75 FR 
34284, June 16, 2010; 77 FR 27551, May 10, 2012]

[[Page 656]]



Sec. 30.201-5  Waiver.

    (a) The head of the agency--
    (1) May waive the applicability of CAS for a particular contract or 
subcontract under the conditions listed in paragraph (b) of this 
subsection; and
    (2) Must not delegate this waiver authority to any official in the 
agency below the senior contract policymaking level.
    (b) The head of the agency may grant a waiver when one of the 
following conditions exists:
    (1) The contract or subcontract value is less than $15,000,000, and 
the head of the agency determines, in writing, that the segment of the 
contractor or subcontractor that will perform the contract or 
subcontract--
    (i) Is primarily engaged in the sale of commercial items; and
    (ii) Has no contracts or subcontracts that are subject to CAS.
    (2) The head of the agency determines that exceptional circumstances 
exist whereby a waiver of CAS is necessary to meet the needs of the 
agency. Exceptional circumstances exist only when the benefits to be 
derived from waiving the CAS outweigh the risk associated with the 
waiver. The determination that exceptional circumstances exist must--
    (i) Be set forth in writing; and
    (ii) Include a statement of the specific circumstances that justify 
granting the waiver.
    (c) When one of the conditions in paragraph (b) of this subsection 
exists, the request for waiver should include the following:
    (1) The amount of the proposed award.
    (2) A description of the contract or subcontract type (e.g., firm-
fixed-price, cost-reimbursement).
    (3) Whether the segment(s) that will perform the contract or 
subcontract has CAS-covered contracts or subcontracts.
    (4) A description of the item(s) being procured.
    (5) When the contractor or subcontractor will not accept the 
contract or subcontract if CAS applies, a statement to that effect.
    (6) Whether certified cost or pricing data will be obtained, and if 
so, a discussion of how the data will be used in negotiating the 
contract or subcontract price.
    (7) The benefits to the Government of waiving CAS.
    (8) The potential risk to the Government of waiving CAS.
    (9) The date by which the waiver is needed.
    (10) Any other information that may be useful in evaluating the 
request.
    (d) When neither of the conditions in paragraph (b) of this 
subsection exists, the waiver request must be prepared in accordance 
with 48 CFR 9903.201-5(e) (FAR Appendix) and submitted to the CAS Board.
    (e) Each agency must report any waivers granted under paragraph (a) 
of this subsection to the CAS Board, on a fiscal year basis, not later 
than 90 days after the close of the Government's fiscal year.

[65 FR 36030, June 6, 2000, as amended at 75 FR 53149, Aug. 30, 2010]



Sec. 30.201-6  Findings.

    See 48 CFR 9903.201-6 (FAR appendix).

[61 FR 18917, Apr. 29, 1996, as amended at 62 FR 40237, July 25, 1997]



Sec. 30.201-7  Cognizant Federal agency responsibilities.

    See 48 CFR 9903.201-7 (FAR appendix).

[61 FR 18917, Apr. 29, 1996, as amended at 62 FR 40237, July 25, 1997]



Sec. 30.202  Disclosure requirements.



Sec. 30.202-1  General requirements.

    See 48 CFR 9903.202-1 (FAR appendix).

[61 FR 18917, Apr. 29, 1996, as amended at 62 FR 40237, July 25, 1997]



Sec. 30.202-2  Impracticality of submission.

    See 48 CFR 9903.202-2 (FAR appendix).

[61 FR 18917, Apr. 29, 1996, as amended at 62 FR 40237, July 25, 1997]



Sec. 30.202-3  Amendments and revisions.

    See 48 CFR 9903.202-3 (FAR appendix).

[61 FR 18917, Apr. 29, 1996, as amended at 62 FR 40237, July 25, 1997]

[[Page 657]]



Sec. 30.202-4  Privileged and confidential information.

    See 48 CFR 9903.202-4 (FAR appendix).

[61 FR 18917, Apr. 29, 1996, as amended at 62 FR 40237, July 25, 1997]



Sec. 30.202-5  Filing disclosure statements.

    See 48 CFR 9903.202-5 (FAR appendix).

[61 FR 18917, Apr. 29, 1996, as amended at 62 FR 40237, July 25, 1997]



Sec. 30.202-6  Responsibilities.

    (a) The contracting officer is responsible for determining when a 
proposed contract may require CAS coverage and for including the 
appropriate notice in the solicitation. The contracting officer must 
then ensure that the offeror has made the required solicitation 
certifications and that required Disclosure Statements are submitted. 
(Also see 48 CFR 9903.201-3 and 9903.202 (FAR appendix).)
    (b) The contracting officer shall not award a CAS-covered contract 
until the cognizant Federal agency official (CFAO) has made a written 
determination that a required Disclosure Statement is adequate unless, 
in order to protect the Government's interest, the agency head, on a 
nondelegable basis, authorizes award without obtaining submission of the 
required Disclosure Statement (see 48 CFR 9903.202-2). In this event, 
the contractor shall submit the required Disclosure Statement and the 
CFAO shall make a determination of adequacy as soon as possible after 
the award.
    (c) The cognizant auditor is responsible for conducting reviews of 
Disclosure Statements for adequacy and compliance.
    (d) The CFAO is responsible for issuing determinations of adequacy 
and compliance of the Disclosure Statement.

[57 FR 39587, Aug. 31, 1992, as amended at 61 FR 18917, Apr. 29, 1996; 
62 FR 40237, July 25, 1997; 70 FR 11753, Mar. 9, 2005]



Sec. 30.202-7  Determinations.

    (a) Adequacy determination. (1) As prescribed by 48 CFR 9903.202-6 
(FAR Appendix), the auditor shall--
    (i) Conduct a review of the Disclosure Statement to ascertain 
whether it is current, accurate, and complete; and
    (ii) Report the results to the CFAO.
    (2) The CFAO shall determine if the Disclosure Statement adequately 
describes the contractor's cost accounting practices. Also, the CFAO 
shall--
    (i) If the Disclosure Statement is adequate, notify the contractor 
in writing, and provide a copy to the auditor with a copy to the 
contracting officer if the proposal triggers submission of a Disclosure 
Statement. The notice of adequacy shall state that--
    (A) The disclosed practices are adequately described and the CFAO 
currently is not aware of any additional practices that should be 
disclosed;
    (B) The notice is not a determination that all cost accounting 
practices were disclosed; and
    (C) The contractor shall not consider a disclosed practice, by 
virtue of such disclosure, an approved practice for estimating proposals 
or accumulating and reporting contract and subcontract cost data; or
    (ii) If the Disclosure Statement is inadequate, notify the 
contractor of the inadequacies and request a revised Disclosure 
Statement.
    (3) Generally, the CFAO should furnish the contractor notification 
of adequacy or inadequacy within 30 days after the CFAO receives the 
Disclosure Statement.
    (b) Compliance determination. (1) After the notification of 
adequacy, the auditor shall--
    (i) Conduct a detailed compliance review to ascertain whether or not 
the disclosed practices comply with CAS and Part 31, as applicable; and
    (ii) Advise the CFAO of the results.
    (2) The CFAO shall make a determination of compliance or take action 
regarding a report of alleged noncompliance in accordance with 
30.605(b). Such action should include requesting a revised Disclosure 
Statement that corrects the CAS noncompliance. Noncompliances with Part 
31 shall be processed separately.

[70 FR 11753, Mar. 9, 2005]



Sec. 30.202-8  Subcontractor disclosure statements.

    (a) When the Government requires determinations of adequacy of 
subcontractor disclosure statements, the

[[Page 658]]

CFAO for the subcontractor shall provide this determination to the CFAO 
for the contractor or next higher-tier subcontractor. The higher-tier 
CFAO shall not change the determination of the lower-tier CFAO.
    (b) Any determination that it is impractical to secure a 
subcontractor's Disclosure Statement must be made in accordance with 48 
CFR 9903.202-2 (FAR appendix).

[57 FR 39587, Aug. 31, 1992, as amended at 61 FR 18918, Apr. 29, 1996; 
62 FR 40237, July 25, 1997; 70 FR 11753, Mar. 9, 2005]

Subpart 30.3--CAS Rules and Regulations [Reserved]

    Note: See 48 CFR 9903.3 (FAR appendix).

Subpart 30.4--Cost Accounting Standards [Reserved]

    Note: See 48 CFR part 9904 (FAR appendix).

Subpart 30.5--Cost Accounting Standards for Educational Institutions 
[Reserved]

    Note: See 48 CFR part 9905 (FAR appendix).

                     Subpart 30.6_CAS Administration

    Source: 70 FR 11753, Mar. 9, 2005, unless otherwise noted.



Sec. 30.601  Responsibility.

    (a) The CFAO shall perform CAS administration for all contracts and 
subcontracts in a business unit, even when the contracting officer 
retains other administration functions. The CFAO shall make all CAS-
related required determinations and findings (see Subpart 1.7) for all 
CAS-covered contracts and subcontracts, including--
    (1) Whether a change in cost accounting practice or noncompliance 
has occurred; and
    (2) If a change in cost accounting practice or noncompliance has 
occurred, how any resulting cost impacts are resolved.
    (b) Within 30 days after the award of any new contract subject to 
CAS, the contracting officer making the award shall request the CFAO to 
perform administration for CAS matters (see Subpart 42.2). For 
subcontract awards, the contractor awarding the subcontract must follow 
the procedures at 52.230-6(l), (m), and (n).
    (c) In performing CAS administration, the CFAO shall request and 
consider the advice of the auditor as appropriate (see 1.602-2).

[70 FR 11753, Mar. 9, 2005, as amended at 73 FR 10967, Feb. 28, 2008]



Sec. 30.602  Materiality.

    (a) In determining materiality, the CFAO shall use the criteria in 
48 CFR 9903.305 (FAR Appendix).
    (b) A CFAO determination of materiality--
    (1) May be made before or after a general dollar magnitude proposal 
has been submitted, depending on the particular facts and circumstances; 
and
    (2) Shall be based on adequate documentation.
    (c) When the CFAO determines the cost impact is immaterial, the CFAO 
shall--
    (1) Make no contract adjustments and conclude the cost impact 
process;
    (2) Document the rationale for the determination; and
    (3) In the case of noncompliance issues, inform the contractor 
that--
    (i) The noncompliance should be corrected; and
    (ii) If the noncompliance is not corrected, the Government reserves 
the right to make appropriate contract adjustments should the cost 
impact become material in the future.
    (d) For required, unilateral, and desirable changes, and CAS 
noncompliances, when the amount involved is material, the CFAO shall 
follow the applicable provisions in 30.603, 30.604, 30.605, and 30.606.

[70 FR 11753, Mar. 9, 2005, as amended at 73 FR 10967, Feb. 28, 2008]



Sec. 30.603  Changes to disclosed or established cost accounting 
          practices.



Sec. 30.603-1  Required changes.

    (a) General. Offerors shall state whether or not the award of a 
contract would require a change to an established cost accounting 
practice affecting existing contracts and subcontracts

[[Page 659]]

(see 52.230-1). The contracting officer shall notify the CFAO if the 
offeror states that a change in cost accounting practice would be 
required.
    (b) CFAO responsibilities. Prior to making an equitable adjustment 
under the applicable paragraph(s) that address a required change at 
52.230-2, Cost Accounting Standards; 52.230-3, Disclosure and 
Consistency of Cost Accounting Practices; or 52.230-5, Cost Accounting 
Standards--yEducational Institution, the CFAO shall determine that--
    (1) The cost accounting practice change is required to comply with a 
CAS, or a modification or interpretation thereof, that subsequently 
became applicable to one or more contracts or subcontracts; or
    (2) The former cost accounting practice was in compliance with 
applicable CAS and the change is necessary to remain in compliance.
    (c) Notice and proposal preparation. (1) When the award of a 
contract would require a change to an established cost accounting 
practice, the provision at 52.230-7, Proposal Disclosure--Cost 
Accounting Practice Changes, requires the offeror to--
    (i) Prepare the contract pricing proposal in response to the 
solicitation using the changed cost accounting practice for the period 
of performance for which the practice will be used; and
    (ii) Submit a description of the changed cost accounting practice to 
the contracting officer and the CFAO as pricing support for the 
proposal.
    (2) When a change is required to remain in compliance (for reasons 
other than a contract award) or to comply with a new or modified 
standard, the clause at 52.230-6, Administration of Cost Accounting 
Standards, requires the contractor to--
    (i) Submit a description of the change to the CFAO not less than 60 
days (or other mutually agreeable date) before implementation of the 
change; and
    (ii) Submit rationale to support any contractor written statement 
that the cost impact of the change is immaterial.
    (d) Equitable adjustments for new or modified standards. (1) 
Required changes made to comply with new or modified standards may 
require equitable adjustments, but only to those contracts awarded 
before the effective date of the new or modified standard (see 52.230-2, 
52.230-3, or 52.230-5).
    (2) When a contractor elects to implement a required change to 
comply with a new or modified standard prior to the applicability date 
of the standard, the CFAO shall administer the change as a unilateral 
change (see 30.603-2). Contractors shall not receive an equitable 
adjustment that will result in increased costs in the aggregate to the 
Government prior to the applicability date unless the CFAO determines 
that the unilateral change is a desirable change.



Sec. 30.603-2  Unilateral and desirable changes.

    (a) Unilateral changes. (1) The contractor may unilaterally change 
its disclosed or established cost accounting practices, but the 
Government shall not pay any increased cost, in the aggregate, as a 
result of the unilateral change.
    (2) Prior to making any contract price or cost adjustments under the 
applicable paragraph(s) addressing a unilateral change at 52.230-2, 
52.230-3, or 52.230-5, the CFAO shall determine that--
    (i) The contemplated contract price or cost adjustments will protect 
the Government from the payment of the estimated increased costs, in the 
aggregate; and
    (ii) The net effect of the contemplated adjustments will not result 
in the recovery of more than the increased costs to the Government, in 
the aggregate.
    (b) Desirable changes. (1) Prior to taking action under the 
applicable paragraph(s) addressing a desirable change at 52.230-2, 
52.230-3, or 52.230-5, the CFAO shall determine the change is a 
desirable change and not detrimental to the interests of the Government.
    (2) Until the CFAO has determined a change to a cost accounting 
practice is a desirable change, the change is a unilateral change.
    (3) Some factors to consider in determining if a change is desirable 
include, but are not limited to, whether--

[[Page 660]]

    (i) The contractor must change the cost accounting practices it uses 
for Government contract and subcontract costing purposes to remain in 
compliance with the provisions of Part 31;
    (ii) The contractor is initiating management actions directly 
associated with the change that will result in cost savings for segments 
with CAS-covered contracts and subcontracts over a period for which 
forward pricing rates are developed or 5 years, whichever is shorter, 
and the cost savings are reflected in the forward pricing rates; and
    (iii) Funds are available if the determination would necessitate an 
upward adjustment of contract cost or price.
    (c) Notice and proposal preparation. (1) When a contractor makes a 
unilateral change, the clause at 52.230-6, Administration of Cost 
Accounting Standards, requires the contractor to--
    (i) Submit a description of the change to the CFAO not less than 60 
days (or other mutually agreeable date) before implementation of the 
change; and
    (ii) Submit rationale to support any contractor written statement 
that the cost impact of the change is immaterial.
    (2) If a contractor implements the change in cost accounting 
practice without submitting the notice as required in paragraph (c)(1) 
of this subsection, the CFAO may determine the change a failure to 
follow a cost accounting practice consistently and process it as a 
noncompliance in accordance with 30.605.
    (d) Retroactive changes. (1) If a contractor requests that a 
unilateral change be retroactive, the contractor shall submit supporting 
rationale.
    (2) The CFAO shall promptly evaluate the contractor's request and 
shall, as soon as practical, notify the contractor in writing whether 
the request is or is not approved.
    (3) The CFAO shall not approve a date for the retroactive change 
that is before the beginning of the contractor's fiscal year in which 
the request is made.
    (e) Contractor accounting changes due to external restructuring 
activities. The requirements for contract price and cost adjustments do 
not apply to compliant cost accounting practice changes that are 
directly associated with external restructuring activities that are 
subject to and meet the requirements of 10 U.S.C. 2325. However, the 
disclosure requirements in 52.230-6(b) shall be followed.



Sec. 30.604  Processing changes to disclosed or established cost 
          accounting practices.

    (a) Scope. This section applies to required, unilateral, and 
desirable changes in cost accounting practices.
    (b) Procedures. Upon receipt of the contractor's notification and 
description of the change in cost accounting practice, the CFAO should 
review the proposed change concurrently for adequacy and compliance. The 
CFAO shall--
    (1) If the description of the change is both adequate and compliant, 
notify the contractor in writing and--
    (i) For required or unilateral changes (except those requested to be 
determined desirable changes), request the contractor submit a general 
dollar magnitude (GDM) proposal by a specified date, unless the CFAO 
determines the cost impact is immaterial; or
    (ii) For unilateral changes that the contractor requests to be 
determined desirable changes, inform the contractor that the request 
shall include supporting rationale and--
    (A) For any request based on the criteria in 30.603-2(b)(3)(ii), the 
data necessary to demonstrate the required cost savings; or
    (B) For any request other than those based on the criteria in 
30.603-2(b)(3)(ii), a GDM proposal and any other data necessary for the 
CFAO to determine if the change is a desirable change;
    (2) If the description of the change is inadequate, request a 
revised description of the new cost accounting practice; and
    (3) If the disclosed practice is noncompliant, notify the contractor 
in writing that, if implemented, the CFAO will determine the cost 
accounting practice to be noncompliant and process it accordingly.
    (c) Evaluating requests for desirable changes. (1) When a contractor 
requests

[[Page 661]]

a unilateral change be determined a desirable change, the CFAO shall 
promptly evaluate the contractor's request and, as soon as practical, 
notify the contractor in writing whether the change is a desirable 
change or the request is denied.
    (2) If the CFAO determines the change is a desirable change, the 
CFAO shall negotiate any cost or price adjustments that may be needed to 
resolve the cost impact (see 30.606).
    (3) If the request is denied, the change is a unilateral change and 
shall be processed accordingly.
    (d) General dollar magnitude proposal. The GDM proposal--
    (1) Provides information to the CFAO on the estimated overall impact 
of a change in cost accounting practice on affected CAS-covered 
contracts and subcontracts that were awarded based on the previous cost 
accounting practice;
    (2) Assists the CFAO in determining whether individual contract 
price or cost adjustments are required; and
    (3) The contractor may submit a detailed cost-impact (DCI) proposal 
in lieu of a GDM proposal provided the DCI proposal is in accordance 
with paragraph (g) of this section.
    (e) General dollar magnitude proposal content. The GDM proposal--
    (1) Shall calculate the cost impact in accordance with paragraph (h) 
of this section;
    (2) May use one or more of the following methods to determine the 
increase or decrease in cost accumulations:
    (i) A representative sample of affected CAS-covered contracts and 
subcontracts.
    (ii) The change in indirect rates multiplied by the total estimated 
base computed for each of the following groups:
    (A) Fixed-price contracts and subcontracts.
    (B) Flexibly-priced contracts and subcontracts.
    (iii) Any other method that provides a reasonable approximation of 
the total increase or decrease in cost accumulations for all affected 
fixed-price and flexibly-priced contracts and subcontracts.
    (3) May be in any format acceptable to the CFAO but, as a minimum, 
shall include the following data:
    (i) A general dollar magnitude estimate of the total increase or 
decrease in cost accumulations by Executive agency, including any impact 
the change may have on contract and subcontract incentives, fees, and 
profits, for each of the following groups:
    (A) Fixed-price contracts and subcontracts.
    (B) Flexibly-priced contracts and subcontracts.
    (ii) For unilateral changes, the increased or decreased costs to the 
Government for each of the following groups:
    (A) Fixed-price contracts and subcontracts.
    (B) Flexibly-priced contracts and subcontracts; and
    (4) When requested by the CFAO, shall identify all affected CAS-
covered contracts and subcontracts.
    (f) General dollar magnitude proposal evaluation. The CFAO shall 
promptly evaluate the GDM proposal. If the cost impact is immaterial, 
the CFAO shall notify the contractor in writing and conclude the cost-
impact process with no contract adjustments. Otherwise, the CFAO shall--
    (1) Negotiate and resolve the cost impact (see 30.606). If 
necessary, the CFAO may request that the contractor submit a revised GDM 
proposal by a specified date with specific additional data needed to 
resolve the cost impact (e.g., an expanded sample of affected CAS-
covered contracts and subcontracts or a revised method of computing the 
increase or decrease in cost accumulations); or
    (2) Request that the contractor submit a DCI proposal by a specified 
date if the CFAO determines that the GDM proposal is not sufficient to 
resolve the cost impact.
    (g) Detailed cost-impact proposal. If the contractor is required to 
submit a DCI proposal, the CFAO shall promptly evaluate the DCI proposal 
and follow the procedures at 30.606 to negotiate and resolve the cost 
impact. The DCI proposal--
    (1) Shall calculate the cost impact in accordance with paragraph (h) 
of this section;

[[Page 662]]

    (2) Shall show the estimated increase or decrease in cost 
accumulations for each affected CAS-covered contract and subcontract 
unless the CFAO and contractor agree to--
    (i) Include only those affected CAS-covered contracts and 
subcontracts exceeding a specified amount; and
    (ii) Estimate the total increase or decrease in cost accumulations 
for all affected CAS-covered contracts and subcontracts, using the 
results in paragraph (g)(2)(i) of this section;
    (3) May be in any format acceptable to the CFAO but, as a minimum, 
shall include the requirements at paragraphs (e)(3)(i) and (ii) of this 
section; and
    (4) When requested by the CFAO, shall identify all affected 
contracts and subcontracts.
    (h) Calculating cost impacts. The cost impact calculation shall--
    (1) Include all affected CAS-covered contracts and subcontracts 
regardless of their status (i.e., open or closed) or the fiscal year(s) 
in which the costs are incurred (i.e., whether or not the final indirect 
rates have been established);
    (2) Combine the cost impact for all affected CAS-covered contracts 
and subcontracts for all segments if the effect of a change results in 
costs flowing between those segments;
    (3) For unilateral changes--
    (i) Determine the increased or decreased cost to the Government for 
flexibly-priced contracts and subcontracts as follows:
    (A) When the estimated cost to complete using the changed practice 
exceeds the estimated cost to complete using the current practice, the 
difference is increased cost to the Government.
    (B) When the estimated costs to complete using the changed practice 
is less than the estimated cost to complete using the current practice, 
the difference is decreased cost to the Government.
    (ii) Determine the increased or decreased cost to the Government for 
fixed-price contracts and subcontracts as follows:
    (A) When the estimated cost to complete using the changed practice 
is less than the estimated cost to complete using the current practice, 
the difference is increased cost to the Government.
    (B) When the estimated cost to complete using the changed practice 
exceeds the estimated cost to complete using the current practice, the 
difference is decreased cost to the Government.
    (iii) Calculate the total increase or decrease in contract and 
subcontract incentives, fees, and profits associated with the increased 
or decreased cost to the Government in accordance with 48 CFR 
9903.306(c). The associated increase or decrease is based on the 
difference between the negotiated incentives, fees and profits and the 
amounts that would have been negotiated had the cost impact been known 
at the time the contracts and subcontracts were negotiated.
    (iv) Calculate the increased cost to the Government in the 
aggregate.
    (4) For required or desirable changes, negotiate an equitable 
adjustment as provided in the Changes clause of the contract.
    (i) Remedies. If the contractor does not submit the accounting 
change description or the proposals required in paragraph (d) or (g) of 
this section within the specified time, or any extension granted by the 
CFAO, the CFAO shall--
    (1) Estimate the general dollar magnitude of the cost impact on 
affected CAS-covered contracts and subcontracts; and
    (2) Take one or both of the following actions:
    (i) Withhold an amount not to exceed 10 percent of each subsequent 
payment related to the contractor's CAS-covered contracts (up to the 
estimated general dollar magnitude of the cost impact), until the 
contractor furnishes the required information.
    (ii) Issue a final decision in accordance with 33.211 and 
unilaterally adjust the contract(s) by the estimated amount of the cost 
impact.

[70 FR 11753, Mar. 9, 2005, as amended at 73 FR 10967, Feb. 28, 2008]



Sec. 30.605  Processing noncompliances.

    (a) General. Prior to making any contract price or cost adjustments 
under the applicable paragraph(s) addressing noncompliance at 52.230-2, 
52.230-3, or

[[Page 663]]

52.230-5, the CFAO shall determine that--
    (1) The contemplated contract price or cost adjustments will protect 
the Government from the payment of increased costs, in the aggregate;
    (2) The net effect of the contemplated contract price or cost 
adjustments will not result in the recovery of more than the increased 
costs to the Government, in the aggregate;
    (3) The net effect of any invoice adjustments made to correct an 
estimating noncompliance will not result in the recovery of more than 
the increased costs paid by the Government, in the aggregate; and
    (4) The net effect of any interim and final voucher billing 
adjustments made to correct a cost accumulation noncompliance will not 
result in the recovery of more than the increased cost paid by the 
Government, in the aggregate.
    (b) Notice and determination. (1) Within 15 days of receiving a 
report of alleged noncompliance from the auditor, the CFAO shall--
    (i) Notify the auditor that the CFAO disagrees with the alleged 
noncompliance; or
    (ii) Issue a notice of potential noncompliance to the contractor and 
provide a copy to the auditor.
    (2) The notice of potential noncompliance shall--
    (i) Notify the contractor in writing of the exact nature of the 
noncompliance; and
    (ii) Allow the contractor 60 days or other mutually agreeable date 
to--
    (A) Agree or submit reasons why the contractor considers the 
existing practices to be in compliance; and
    (B) Submit rationale to support any written statement that the cost 
impact of the noncompliance is immaterial.
    (3) The CFAO shall--
    (i) If applicable, review the reasons why the contractor considers 
the existing practices to be compliant or the cost impact to be 
immaterial;
    (ii) Make a determination of compliance or noncompliance consistent 
with 1.704; and
    (iii) Notify the contractor and the auditor in writing of the 
determination of compliance or noncompliance and the basis for the 
determination.
    (4) If the CFAO makes a determination of noncompliance, the CFAO 
shall follow the procedures in paragraphs (c) through (h) of this 
section, as appropriate, unless the CFAO also determines the cost impact 
is immaterial. If immaterial, the CFAO shall--
    (i) Inform the contractor in writing that--
    (A) The noncompliance should be corrected; and
    (B) If the noncompliance is not corrected, the Government reserves 
the right to make appropriate contract adjustments should the 
noncompliance become material in the future; and
    (ii) Conclude the cost-impact process with no contract adjustments.
    (c) Correcting noncompliances. (1) The clause at 52.230-6 requires 
the contractor to submit a description of any cost accounting practice 
change needed to correct a noncompliance within 60 days after the 
earlier of--
    (i) Agreement with the CFAO that there is a noncompliance; or
    (ii) Notification by the CFAO of a determination of noncompliance.
    (2) The CFAO should review the proposed change to correct the 
noncompliance concurrently for adequacy and compliance (see 30.202-7). 
The CFAO shall--
    (i) When the description of the change is both adequate and 
compliant--
    (A) Notify the contractor in writing;
    (B) Request that the contractor submit by a specified date a general 
dollar magnitude (GDM) proposal, unless the CFAO determines the cost 
impact is immaterial; and
    (C) Follow the procedures at paragraph (b)(4) of this section if the 
CFAO determines the cost impact is immaterial.
    (ii) If the description of the change is inadequate, request a 
revised description of the new cost accounting practice; or
    (iii) If the disclosed practice is noncompliant, notify the 
contractor in writing that, if implemented, the CFAO will determine the 
cost accounting practice to be noncompliant and process it accordingly.
    (d) General dollar magnitude proposal content. The GDM proposal--

[[Page 664]]

    (1) Shall calculate the cost impact in accordance with paragraph (h) 
of this section;
    (2) May use one or more of the following methods to determine the 
increase or decrease in contract and subcontract price or cost 
accumulations, as applicable:
    (i) A representative sample of affected CAS-covered contracts and 
subcontracts affected by the noncompliance.
    (ii) When the noncompliance involves cost accumulation, the change 
in indirect rates multiplied by the applicable base for flexibly-priced 
contracts and subcontracts.
    (iii) Any other method that provides a reasonable approximation of 
the total increase or decrease in contract and subcontract prices and 
cost accumulations;
    (3) The contractor may submit a DCI proposal in lieu of a GDM 
proposal provided the DCI proposal is in accordance with paragraph (f) 
of this section.
    (4) May be in any format acceptable to the CFAO but, as a minimum, 
shall include the following data:
    (i) The total increase or decrease in contract and subcontract 
prices and cost accumulations, as applicable, by Executive agency, 
including any impact the noncompliance may have on contract and 
subcontract incentives, fees, and profits, for each of the following 
groups:
    (A) Fixed-price contracts and subcontracts.
    (B) Flexibly-priced contracts and subcontracts.
    (ii) The increased or decreased costs to the Government for each of 
the following groups:
    (A) Fixed-price contracts and subcontracts.
    (B) Flexibly-priced contracts and subcontracts.
    (iii) The total overpayments and underpayments for fixed-price and 
flexibly-priced contracts made by the Government during the period of 
noncompliance; and
    (5) When requested by the CFAO, shall identify all affected CAS-
covered contracts and subcontracts.
    (e) General dollar magnitude proposal evaluation. The CFAO shall 
promptly evaluate the GDM proposal. If the cost impact is immaterial, 
the CFAO shall follow the requirements in paragraph (b)(4) of this 
section. Otherwise, the CFAO shall--
    (1) Negotiate and resolve the cost impact (see 30.606). If 
necessary, the CFAO may request the contractor submit a revised GDM 
proposal by a specified date, with specific additional data needed to 
resolve the cost impact (e.g., an expanded sample of affected CAS-
covered contracts and subcontracts or a revised method of computing the 
increase or decrease in contract and subcontract price and cost 
accumulations); or
    (2) Request that the contractor submit a DCI proposal by a specified 
date if the CFAO determines that the GDM proposal is not sufficient to 
resolve the cost impact.
    (f) Detailed cost-impact proposal. If the contractor is required to 
submit a DCI proposal, the CFAO shall promptly evaluate the DCI proposal 
and follow the procedures at 30.606 to negotiate and resolve the cost 
impact. The DCI proposal--
    (1) Shall calculate the cost impact in accordance with paragraph (h) 
of this section.
    (2) Shall show the increase or decrease in price and cost 
accumulations, as applicable for each affected CAS-covered contract and 
subcontract unless the CFAO and contractor agree to--
    (i) Include only those affected CAS-covered contracts and 
subcontracts having--
    (A) Contract and subcontract values exceeding a specified amount 
when the noncompliance involves estimating costs; and
    (B) Incurred costs exceeding a specified amount when the 
noncompliance involves accumulating costs; and
    (ii) Estimate the total increase or decrease in price and cost 
accumulations for all affected CAS-covered contracts and subcontracts 
using the results in paragraph (f)(2)(i) of this section;
    (3) May be in any format acceptable to the CFAO but, as a minimum, 
shall include the information in paragraph (d)(4) of this section; and
    (4) When requested by the CFAO, shall identify all affected CAS-
covered contracts and subcontracts.

[[Page 665]]

    (g) Interest. The CFAO shall--
    (1) Separately identify interest on any increased cost paid, in the 
aggregate, as a result of the noncompliance;
    (2) Compute interest from the date of overpayment to the date of 
repayment using the rate specified in 26 U.S.C. 6621(a)(2).
    (h) Calculating cost impacts. The cost impact calculation shall--
    (1) Include all affected CAS-covered contracts and subcontracts 
regardless of their status (i.e., open or closed) or the fiscal year in 
which the costs are incurred (i.e., whether or not the final indirect 
cost rates have been established);
    (2) Combine the cost impact for all affected CAS-covered contracts 
and subcontracts for all segments if the effect of a change results in 
costs flowing between those segments;
    (3) For noncompliances that involve estimating costs, determine the 
increased or decreased cost to the Government for fixed-price contracts 
and subcontracts as follows:
    (i) When the negotiated contract or subcontract price exceeds what 
the negotiated price would have been had the contractor used a compliant 
practice, the difference is increased cost to the Government.
    (ii) When the negotiated contract or subcontract price is less than 
what the negotiated price would have been had the contractor used a 
compliant practice, the difference is decreased cost to the Government;
    (4) For noncompliances that involve accumulating costs, determine 
the increased or decreased cost to the Government for flexibly-priced 
contracts and subcontracts as follows:
    (i) When the costs that were accumulated under the noncompliant 
practice exceed the costs that would have been accumulated using a 
compliant practice (from the time the noncompliant practice was first 
implemented until the date the noncompliant practice was replaced with a 
compliant practice), the difference is increased cost to the Government.
    (ii) When the costs that were accumulated under the noncompliant 
practice are less than the costs that would have been accumulated using 
a compliant practice (from the time the noncompliant practice was first 
implemented until the date the noncompliant practice was replaced with a 
compliant practice) the difference is decreased cost to the Government;
    (5) Calculate the total increase or decrease in contract and 
subcontract incentives, fees, and profits associated with the increased 
or decreased costs to the Government in accordance with 48 CFR 
9903.306(c). The associated increase or decrease is based on the 
difference between the negotiated incentives, fees, and profits and the 
amounts that would have been negotiated had the contractor used a 
compliant practice;
    (6) Determine the cost impact of each noncompliance that affects 
both cost estimating and cost accumulation by combining the cost impacts 
in paragraphs (h)(3), (h)(4), and (h)(5) of this section; and
    (7) Calculate the increased cost to the Government in the aggregate.
    (i) Remedies. If the contractor does not correct the noncompliance 
or submit the proposal required in paragraph (d) or (f) of this section 
within the specified time, or any extension granted by the CFAO, the 
CFAO shall follow the procedures at 30.604(i).

[70 FR 11753, Mar. 9, 2005, as amended at 73 FR 10967, Feb. 28, 2008]



Sec. 30.606  Resolving cost impacts.

    (a) General. (1) The CFAO shall coordinate with the affected 
contracting officers before negotiating and resolving the cost impact 
when the estimated cost impact on any of their contracts is at least 
$100,000. However, the CFAO has the sole authority for negotiating and 
resolving the cost impact.
    (2) The CFAO may resolve a cost impact attributed to a change in 
cost accounting practice or a noncompliance by adjusting a single 
contract, several but not all contracts, all contracts, or any other 
suitable method.
    (3) In resolving the cost impact, the CFAO--
    (i) Shall not combine the cost impacts of any of the following:
    (A) A required change and a unilateral change.
    (B) A required change and a noncompliance.

[[Page 666]]

    (C) A desirable change and a unilateral change.
    (D) A desirable change and a noncompliance.
    (ii) Shall not combine the cost impacts of any of the following 
unless all of the cost impacts are increased costs to Government:
    (A) One or more unilateral changes.
    (B) One or more noncompliances.
    (C) Unilateral changes and noncompliances; and
    (iii) May consider the cost impacts of a unilateral change affecting 
two or more segments to be a single change if--
    (A) The change affects the flow of costs between segments; or
    (B) Implements a common cost accounting practice for two or more 
segments.
    (4) For desirable changes, the CFAO should consider the estimated 
cost impact of associated management actions on contract costs in 
resolving the cost impact.
    (b) Negotiations. The CFAO shall--
    (1) Negotiate and resolve the cost impact on behalf of all 
Government agencies; and
    (2) At the conclusion of negotiations, prepare a negotiation 
memorandum and send copies to the auditor and affected contracting 
officers.
    (c) Contract adjustments. (1) The CFAO may adjust some or all 
contracts with a material cost impact, subject to the provisions in 
paragraphs (c)(2) through (c)(6) of this section.
    (2) In selecting the contract or contracts to be adjusted, the CFAO 
should assure, to the maximum extent practical and subject to the 
provisions in paragraphs (c)(3) through (c)(6) of this section, that the 
adjustments reflect a pro rata share of the cost impact based on the 
ratio of the cost impact of each Executive agency to the total cost 
impact.
    (3) For unilateral changes and noncompliances, the CFAO shall--
    (i) To the maximum extent practical, not adjust the price upward for 
fixed-price contracts;
    (ii) If contract adjustments are made, preclude payment of aggregate 
increased costs by taking one or both of the following actions:
    (A) Reduce the contract price on fixed-price contracts.
    (B) Disallow costs on flexibly-priced contracts; and
    (iii) The CFAO may, in consultation with the affected contracting 
officers, increase or decrease individual contract prices, including 
contract cost ceilings or target costs on flexibly-priced contracts. In 
such cases, the CFAO shall limit any upward contract price adjustments 
on affected contracts to the amount of downward price adjustments to 
other affected contracts, i.e., the aggregate price of all contracts 
affected by a unilateral change shall not be increased (48 CFR 9903.201-
6(b)).
    (4) For noncompliances that involve estimating costs, the CFAO--
    (i) Shall, to the extent practical, not adjust the price upward for 
fixed-price contracts;
    (ii) Shall, if contract adjustments are made, preclude payment of 
aggregate increased costs by reducing the contract price on fixed-price 
contracts;
    (iii) May, in consultation with the affected contracting officers, 
increase or decrease individual contract prices, including costs 
ceilings or target costs on flexibly-priced contracts. In such cases, 
the CFAO shall limit any upward contract price adjustments to affected 
contracts to the amount of downward price adjustments to other affected 
contracts, i.e., the aggregate price of all contracts affected by a 
noncompliance that involves estimating costs shall not be increased (48 
CFR 9903.201-6(d));
    (iv) Shall require the contractor to correct the noncompliance, 
i.e., ensure that compliant cost accounting practices will now be 
utilized to estimate proposed contract costs; and
    (v) Shall require the contractor to adjust any invoices that were 
paid based on noncompliant contract prices to reflect the adjusted 
contract prices, after any contract price adjustments are made to 
resolve the noncompliance.
    (5) For noncompliances that involve cost accumulation, the CFAO--
    (i) Shall require the contractor to--
    (A) Correct noncompliant contract cost accumulations in the 
contractor's cost accounting records for affected

[[Page 667]]

contracts to reflect compliant contract cost accumulations; and
    (B) Adjust interim payment requests (public vouchers and/or progress 
payments) and final vouchers to reflect the difference between the costs 
paid using the noncompliant practice and the costs that should have been 
paid using the compliant practice; or
    (ii) Shall adjust contract prices. In adjusting contract prices, the 
CFAO shall preclude payment of aggregate increased costs by disallowing 
costs on flexibly-priced contracts.
    (A) The CFAO may, in consultation with the affected contracting 
officers, increase or decrease individual contract prices, including 
costs ceilings or target costs on flexibly-priced contracts. In such 
cases, the CFAO shall limit any upward contract price adjustments to 
affected contracts to the amount of downward price adjustments to other 
affected contracts, i.e., the aggregate price of all contracts affected 
by a noncompliance that involves cost accumulation shall not be 
increased (48 CFR 9903.201-6(d)).
    (B) Shall require the contractor to--
    (1) Correct contract cost accumulations in the contractor's cost 
accounting records to reflect the contract price adjustments; and
    (2) Adjust interim payment requests (public vouchers and/or progress 
payments) and final vouchers to reflect the contract price adjustments.
    (6) When contract adjustments are made, the CFAO shall--
    (i) Execute the bilateral modifications if the CFAO and contractor 
agree on the amount of the cost impact and the adjustments (see 
42.302(a)(11)(iv)); or
    (ii) When the CFAO and contractor do not agree on the amount of the 
cost impact or the contract adjustments, issue a final decision in 
accordance with 33.211 and unilaterally adjust the contract(s).
    (d) Alternate methods. (1) The CFAO may use an alternate method 
instead of adjusting contracts to resolve the cost impact, provided the 
Government will not pay more, in the aggregate, than would be paid if 
the CFAO did not use the alternate method and the contracting parties 
agree on the use of that alternate method.
    (2) The CFAO may not use an alternate method for contracts when 
application of the alternate method to contracts would result in--
    (i) An under recovery of monies by the Government (e.g., due to cost 
overruns); or
    (ii) Distortions of incentive provisions and relationships between 
target costs, ceiling costs, and actual costs for incentive type 
contracts.
    (3) When using an alternate method that excludes the costs from an 
indirect cost pool, the CFAO shall--
    (i) Apply such exclusion only to the determination of final indirect 
cost rates (see 42.705); and
    (ii) Adjust the exclusion to reflect the Government participation 
rate for flexibly-priced contracts and subcontracts. For example, if 
there are aggregate increased costs to the Government of $100,000, and 
the indirect cost pool where the adjustment is to be effected has a 
Government participation rate of 50 percent for flexibly-priced 
contracts and subcontracts, the contractor shall exclude $200,000 from 
the indirect cost pool ($100,000/50% = $200,000).



Sec. 30.607  Subcontract administration.

    When a negotiated CAS price adjustment or a determination of 
noncompliance is required at the subcontract level, the CFAO for the 
subcontractor shall furnish a copy of the negotiation memorandum or the 
determination to the CFAO for the contractor of the next higher-tier 
subcontractor. The CFAO of the contractor or the next higher-tier 
subcontractor shall not change the determination of the CFAO for the 
lower-tier subcontractor. If the subcontractor refuses to submit a GDM 
or DCI proposal, remedies are made at the prime contractor level.

             PART 31_CONTRACT COST PRINCIPLES AND PROCEDURES

Sec.

Sec. 31.000 Scope of part.

Sec. 31.001 Definitions.

Sec. 31.002 Availability of accounting guide.

                       Subpart 31.1_Applicability


Sec. 31.100 Scope of subpart.

Sec. 31.101 Objectives.

[[Page 668]]


Sec. 31.102 Fixed-price contracts.

Sec. 31.103 Contracts with commercial organizations.

Sec. 31.104 Contracts with educational institutions.

Sec. 31.105 Construction and architect-engineer contracts.

Sec. 31.106 [Reserved]

Sec. 31.107 Contracts with State, local, and federally recognized Indian 
          tribal governments.

Sec. 31.108 Contracts with nonprofit organizations.

Sec. 31.109 Advance agreements.

Sec. 31.110 Indirect cost rate certification and penalties on 
          unallowable costs.

          Subpart 31.2_Contracts With Commercial Organizations


Sec. 31.201 General.

Sec. 31.201-1 Composition of total cost.

Sec. 31.201-2 Determining allowability.

Sec. 31.201-3 Determining reasonableness.

Sec. 31.201-4 Determining allocability.

Sec. 31.201-5 Credits.

Sec. 31.201-6 Accounting for unallowable costs.

Sec. 31.201-7 Construction and architect-engineer contracts.

Sec. 31.202 Direct costs.

Sec. 31.203 Indirect costs.

Sec. 31.204 Application of principles and procedures.

Sec. 31.205 Selected costs.

Sec. 31.205-1 Public relations and advertising costs.

Sec. 31.205-2 [Reserved]

Sec. 31.205-3 Bad debts.

Sec. 31.205-4 Bonding costs.

Sec. 31.205-5 [Reserved]

Sec. 31.205-6 Compensation for personal services.

Sec. 31.205-7 Contingencies.

Sec. 31.205-8 Contributions or donations.

Sec. 31.205-9 [Reserved]

Sec. 31.205-10 Cost of money.

Sec. 31.205-11 Depreciation.

Sec. 31.205-12 Economic planning costs.

Sec. 31.205-13 Employee morale, health, welfare, food service, and 
          dormitory costs and credits.

Sec. 31.205-14 Entertainment costs.

Sec. 31.205-15 Fines, penalties, and mischarging costs.

Sec. 31.205-16 Gains and losses on disposition or impairment of 
          depreciable property or other capital assets.

Sec. 31.205-17 Idle facilities and idle capacity costs.

Sec. 31.205-18 Independent research and development and bid and proposal 
          costs.

Sec. 31.205-19 Insurance and indemnification.

Sec. 31.205-20 Interest and other financial costs.

Sec. 31.205-21 Labor relations costs.

Sec. 31.205-22 Lobbying and political activity costs.

Sec. 31.205-23 Losses on other contracts.

Sec. 31.205-24 Maintenance and repair costs.

Sec. 31.205-25 Manufacturing and production engineering costs.

Sec. 31.205-26 Material costs.

Sec. 31.205-27 Organization costs.

Sec. 31.205-28 Other business expenses.

Sec. 31.205-29 Plant protection costs.

Sec. 31.205-30 Patent costs.

Sec. 31.205-31 Plant reconversion costs.

Sec. 31.205-32 Precontract costs.

Sec. 31.205-33 Professional and consultant service costs.

Sec. 31.205-34 Recruitment costs.

Sec. 31.205-35 Relocation costs.

Sec. 31.205-36 Rental costs.

Sec. 31.205-37 Royalties and other costs for use of patents.

Sec. 31.205-38 Selling costs.

Sec. 31.205-39 Service and warranty costs.

Sec. 31.205-40 Special tooling and special test equipment costs.

Sec. 31.205-41 Taxes.

Sec. 31.205-42 Termination costs.

Sec. 31.205-43 Trade, business, technical, and professional activity 
          costs.

Sec. 31.205-44 Training and education costs.

Sec. 31.205-45 [Reserved]

Sec. 31.205-46 Travel costs.

Sec. 31.205-47 Costs related to legal and other proceedings.

Sec. 31.205-48 Research and development costs.

Sec. 31.205-49 Goodwill.

Sec. 31.205-50 [Reserved]

Sec. 31.205-51 Costs of alcoholic beverages.

Sec. 31.205-52 Asset valuations resulting from business combinations.

          Subpart 31.3_Contracts With Educational Institutions


Sec. 31.301 Purpose.

Sec. 31.302 General.

Sec. 31.303 Requirements.

Subparts 31.4-31.5 [Reserved]

   Subpart 31.6_Contracts With State, Local, and Federally Recognized 
                        Indian Tribal Governments


Sec. 31.601 Purpose.

Sec. 31.602 General.

Sec. 31.603 Requirements.

           Subpart 31.7_Contracts With Nonprofit Organizations


Sec. 31.701 Purpose.

Sec. 31.702 General.

Sec. 31.703 Requirements.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 
20113.

    Source: 48 FR 42301, Sept. 19, 1983, unless otherwise noted.

[[Page 669]]



Sec. 31.000  Scope of part.

    This part contains cost principles and procedures for (a) the 
pricing of contracts, subcontracts, and modifications to contracts and 
subcontracts whenever cost analysis is performed (see 15.404-1(c)) and 
(b) the determination, negotiation, or allowance of costs when required 
by a contract clause.

[48 FR 42301, Sept. 19, 1983, as amended at 62 FR 51271, Sept. 30, 1997]



Sec. 31.001  Definitions.

    As used in this part--
    Accrued benefit cost method means an actuarial cost method under 
which units of benefits are assigned to each cost accounting period and 
are valued as they accrue; i.e., based on the services performed by each 
employee in the period involved. The measure of normal cost under this 
method for each cost accounting period is the present value of the units 
of benefit deemed to be credited to employees for service in that 
period. The measure of the actuarial accrued liability at a plan's 
inception date is the present value of the units of benefit credited to 
employees for service prior to that date. (This method is also known as 
the unit credit cost method without salary projection.)
    Accumulating costs means collecting cost data in an organized 
manner, such as through a system of accounts.
    Actual cash value means the cost of replacing damaged property with 
other property of like kind and quality in the physical condition of the 
property immediately before the damage.
    Actual costs means (except for subpart 31.6) amounts determined on 
the basis of costs incurred, as distinguished from forecasted costs. 
Actual costs include standard costs properly adjusted for applicable 
variances.
    Actuarial accrued liability means pension cost attributable, under 
the actuarial cost method in use, to years prior to the current period 
considered by a particular actuarial valuation. As of such date, the 
actuarial accrued liability represents the excess of the present value 
of future benefits and administrative expenses over the present value of 
future normal costs for all plan participants and beneficiaries. The 
excess of the actuarial accrued liability over the actuarial value of 
the assets of a pension plan is the unfunded actuarial liability. The 
excess of the actuarial value of the assets of a pension plan over the 
actuarial accrued liability is an actuarial surplus and is treated as a 
negative unfunded actuarial liability.
    Actuarial assumption means an estimate of future conditions 
affecting pension cost; e.g., mortality rate, employee turnover, 
compensation levels, earnings on pension plan assets, and changes in 
values of pension plan assets.
    Actuarial cost method means a technique which uses actuarial 
assumptions to measure the present value of future pension benefits and 
pension plan administrative expenses, and that assigns the cost of such 
benefits and expenses to cost accounting periods. The actuarial cost 
method includes the asset valuation method used to determine the 
actuarial value of the assets of a pension plan.
    Actuarial gain and loss means the effect on pension cost resulting 
from differences between actuarial assumptions and actual experience.
    Actuarial valuation means the determination, as of a specified date, 
of the normal cost, actuarial accrued liability, actuarial value of the 
assets of a pension plan, and other relevant values for the pension 
plan.
    Allocate means to assign an item of cost, or a group of items of 
cost, to one or more cost objectives. This term includes both direct 
assignment of cost and the reassignment of a share from an indirect cost 
pool.
    Compensated personal absence means any absence from work for reasons 
such as illness, vacation, holidays, jury duty, military training, or 
personal activities for which an employer pays compensation directly to 
an employee in accordance with a plan or custom of the employer.
    Compensation for personal services means all remuneration paid 
currently or accrued, in whatever form and whether paid immediately or 
deferred, for services rendered by employees to the contractor.

[[Page 670]]

    Cost input means the cost, except general and administrative (G&A) 
expenses, which for contract costing purposes is allocable to the 
production of goods and services during a cost accounting period.
    Cost objective means (except for subpart 31.6) a function, 
organizational subdivision, contract, or other work unit for which cost 
data are desired and for which provision is made to accumulate and 
measure the cost of processes, products, jobs, capitalized projects, 
etc.
    Deferred compensation means an award made by an employer to 
compensate an employee in a future cost accounting period or periods for 
services rendered in one or more cost accounting periods before the date 
of the receipt of compensation by the employee. This definition shall 
not include the amount of year end accruals for salaries, wages, or 
bonuses that are to be paid within a reasonable period of time after the 
end of a cost accounting period.
    Defined-benefit pension plan means a pension plan in which the 
benefits to be paid, or the basis for determining such benefits, are 
established in advance and the contributions are intended to provide the 
stated benefits.
    Defined-contribution pension plan means a pension plan in which the 
contributions to be made are established in advance and the benefits are 
determined thereby.
    Directly associated cost means any cost which is generated solely as 
a result of the incurrence of another cost, and which would not have 
been incurred had the other cost not been incurred.
    Estimating costs means the process of forecasting a future result in 
terms of cost, based upon information available at the time.
    Expressly unallowable cost means a particular item or type of cost 
which, under the express provisions of an applicable law, regulation, or 
contract, is specifically named and stated to be unallowable.
    Final cost objective means (except for subparts 31.3 and 31.6) a 
cost objective that has allocated to it both direct and indirect costs 
and, in the contractors accumulation system, is one of the final 
accumulation points.
    Fiscal year means the accounting period for which annual financial 
statements are regularly prepared, generally a period of 12 months, 52 
weeks, or 53 weeks.
    Funded pension cost means the portion of pension cost for a current 
or prior cost accounting period that has been paid to a funding agency.
    Home office means an office responsible for directing or managing 
two or more, but not necessarily all, segments of an organization. It 
typically establishes policy for, and provides guidance to, the segments 
in their operations. It usually performs management, supervisory, or 
administrative functions, and may also perform service functions in 
support of the operations of the various segments. An organization which 
has intermediate levels, such as groups, may have several home offices 
which report to a common home office. An intermediate organization may 
be both a segment and a home office.
    Immediate-gain actuarial cost method means any of the several 
actuarial cost methods under which actuarial gains and losses are 
included as part of the unfunded actuarial liability of the pension 
plan, rather than as part of the normal cost of the plan.
    Independent research and development (IR&D) cost means the cost of 
effort which is neither sponsored by a grant, nor required in performing 
a contract, and which falls within any of the following four areas: (a) 
basic research, (b) applied research, (c) development, and (d) systems 
and other concept formulation studies.
    Indirect cost pools means (except for subparts 31.3 and 31.6) 
groupings of incurred costs identified with two or more cost objectives 
but not identified specifically with any final cost objective.
    Insurance administration expenses means the contractor's costs of 
administering an insurance program; e.g., the costs of operating an 
insurance or risk-management department, processing claims, actuarial 
fees, and service fees paid to insurance companies, trustees, or 
technical consultants.
    Intangible capital asset means an asset that has no physical 
substance, has

[[Page 671]]

more than minimal value, and is expected to be held by an enterprise for 
continued use or possession beyond the current accounting period for the 
benefits it yields.
    Job means a homogeneous cluster of work tasks, the completion of 
which serves an enduring purpose for the organization. Taken as a whole, 
the collection of tasks, duties, and responsibilities constitutes the 
assignment for one or more individuals whose work is of the same nature 
and is performed at the same skill/ responsibility level--as opposed to 
a position, which is a collection of tasks assigned to a specific 
individual. Within a job, there may be pay categories which are 
dependent on the degree of supervision required by the employee while 
performing assigned tasks which are performed by all persons with the 
same job.
    Job class of employees means employees performing in positions 
within the same job.
    Labor cost at standard means a preestablished measure of the labor 
element of cost, computed by multiplying labor-rate standard by labor-
time standard.
    Labor market means a place where individuals exchange their labor 
for compensation. Labor markets are identified and defined by a 
combination of the following factors:
    (1) Geography,
    (2) Education and/or technical background required,
    (3) Experience required by the job,
    (4) Licensing or certification requirements,
    (5) Occupational membership, and
    (6) Industry.
    Labor-rate standard means a preestablished measure, expressed in 
monetary terms, of the price of labor.
    Labor-time standard means a preestablished measure, expressed in 
temporal terms, of the quantity of labor.
    Material cost at standard means a preestablished measure of the 
material elements of cost, computed by multiplying material-price 
standard by material-quantity standard.
    Material-price standard means a preestablished measure, expressed in 
monetary terms, of the price of material.
    Material-quantity standard means a preestablished measure, expressed 
in physical terms, of the quantity of material.
    Moving average cost means an inventory costing method under which an 
average unit cost is computed after each acquisition by adding the cost 
of the newly acquired units to the cost of the units of inventory on 
hand and dividing this figure by the new total number of units.
    Nonqualified pension plan means any pension plan other than a 
qualified pension plan as defined in this part.
    Normal cost means the annual cost attributable, under the actuarial 
cost method in use, to current and future years as of a particular 
valuation date excluding any payment in respect of an unfunded actuarial 
liability.
    Original complement of low cost equipment means a group of items 
acquired for the initial outfitting of a tangible capital asset or an 
operational unit, or a new addition to either. The items in the group 
individually cost less than the minimum amount established by the 
contractor for capitalization for the classes of assets acquired but in 
the aggregate they represent a material investment. The group, as a 
complement, is expected to be held for continued service beyond the 
current period. Initial outfitting of the unit is completed when the 
unit is ready and available for normal operations.
    Pay-as-you-go cost method means a method of recognizing pension cost 
only when benefits are paid to retired employees or their beneficiaries.
    Pension plan means a deferred compensation plan established and 
maintained by one or more employers to provide systematically for the 
payment of benefits to plan participants after their retirements, 
provided that the benefits are paid for life or are payable for life at 
the option of the employees. Additional benefits such as permanent and 
total disability and death payments, and survivorship payments to 
beneficiaries of deceased employees, may be an integral part of a 
pension plan.
    Pension plan participant means any employee or former employee of an 
employer or any member or former member of an employee organization, who 
is

[[Page 672]]

or may become eligible to receive a benefit from a pension plan which 
covers employees of such employer or members of such organization who 
have satisfied the plan's participation requirements, or whose 
beneficiaries are receiving or may be eligible to receive any such 
benefit. A participant whose employment status with the employer has not 
been terminated is an active participant of the employer's pension plan.
    Profit center means (except for subparts 31.3 and 31.6) the smallest 
organizationally independent segment of a company charged by management 
with profit and loss responsibilities.
    Projected benefit cost method means either--
    (1) Any of the several actuarial cost methods that distribute the 
estimated total cost of all of the employees' prospective benefits over 
a period of years, usually their working careers; or
    (2) A modification of the accrued benefit cost method that considers 
projected compensation levels.
    Proposal means any offer or other submission used as a basis for 
pricing a contract, contract modification, or termination settlement or 
for securing payments thereunder.
    Qualified pension plan means a pension plan comprising a definite 
written program communicated to and for the exclusive benefit of 
employees that meets the criteria deemed essential by the Internal 
Revenue Service as set forth in the Internal Revenue Code for 
preferential tax treatment regarding contributions, investments, and 
distributions. Any other plan is a nonqualified pension plan.
    Self-insurance charge means a cost which represents the projected 
average loss under a self-insurance plan.
    Service life means the period of usefulness of a tangible capital 
asset (or group of assets) to its current owner. The period may be 
expressed in units of time or output. The estimated service life of a 
tangible capital asset (or group of assets) is a current forecast of its 
service life and is the period over which depreciation cost is to be 
assigned.
    Spread-gain actuarial cost method means any of the several projected 
benefit actuarial cost methods under which actuarial gains and losses 
are included as part of the current and future normal costs of the 
pension plan.
    Standard cost means any cost computed with the use of preestablished 
measures.
    Tangible capital asset means an asset that has physical substance, 
more than minimal value, and is expected to be held by an enterprise for 
continued use or possession beyond the current accounting period for the 
services it yields.
    Termination of employment gain or loss means an actuarial gain or 
loss resulting from the difference between the assumed and actual rates 
at which pension plan participants separate from employment for reasons 
other than retirement, disability, or death.
    Variance means the difference between a preestablished measure and 
an actual measure.
    Weighted average cost means an inventory costing method under which 
an average unit cost is computed periodically by dividing the sum of the 
cost of beginning inventory plus the cost of acquisitions by the total 
number of units included in these two categories.
    Welfare benefit fund means a trust or organization which receives 
and accumulates assets to be used either for the payment of 
postretirement benefits, or for the purchase of such benefits, provided 
such accumulated assets form a part of a postretirement benefit plan.

[48 FR 42301, Sept. 17, 1983, as amended at 54 FR 13024, Mar. 29, 1989; 
61 FR 39217, July 26, 1996; 61 FR 69288, Dec. 31, 1996; 63 FR 58596, 
Oct. 30, 1998; 66 FR 2131, Jan. 10, 2001; 68 FR 28091, May 22, 2003; 68 
FR 43866, July 24, 2003; 74 FR 65612, Dec. 10, 2009]



Sec. 31.002  Availability of accounting guide.

    Contractors needing assistance in developing or improving their 
accounting systems and procedures may request a copy of the Defense 
Contract Audit Agency Pamphlet No. 7641.90, Information for Contractors. 
The pamphlet is available via the Internet at http://www.dcaa.mil.

[67 FR 6120, Feb. 8, 2002]

[[Page 673]]

                       Subpart 31.1_Applicability



Sec. 31.100  Scope of subpart.

    This subpart describes the applicability of the cost principles and 
procedures in succeeding subparts of this part to various types of 
contracts and subcontracts. It also describes the need for advance 
agreements.



Sec. 31.101  Objectives.

    In recognition of differing organizational characteristics, the cost 
principles and procedures in the succeeding subparts are grouped 
basically by organizational type; e.g., commercial concerns and 
educational institutions. The overall objective is to provide that, to 
the extent practicable, all organizations of similar types doing similar 
work will follow the same cost principles and procedures. To achieve 
this uniformity, individual deviations concerning cost principles 
require advance approval of the agency head or designee. Class 
deviations for the civilian agencies require advance approval of the 
Civilian Agency Acquisition Council. Class deviations for the National 
Aeronautics and Space Administration require advance approval of the 
Deputy Chief Acquisition Officer. Class deviations for the Department of 
Defense require advance approval of the Director of Defense Procurement, 
Office of the Under Secretary of Defense for Acquisition, Technology, 
and Logistics.

[48 FR 42301, Sept. 19, 1983, as amended at 56 FR 67133, Dec. 27, 1991; 
61 FR 31655, June 20, 1996; 65 FR 24325, Apr. 25, 2000; 67 FR 13068, 
Mar. 20, 2002; 70 FR 11763, Mar. 9, 2005]



Sec. 31.102  Fixed-price contracts.

    The applicable subparts of part 31 shall be used in the pricing of 
fixed-price contracts, subcontracts, and modifications to contracts and 
subcontracts whenever (a) cost analysis is performed, or (b) a fixed-
price contract clause requires the determination or negotiation of 
costs. However, application of cost principles to fixed-price contracts 
and subcontracts shall not be construed as a requirement to negotiate 
agreements on individual elements of cost in arriving at agreement on 
the total price. The final price accepted by the parties reflects 
agreement only on the total price. Further, notwithstanding the 
mandatory use of cost principles, the objective will continue to be to 
negotiate prices that are fair and reasonable, cost and other factors 
considered.



Sec. 31.103  Contracts with commercial organizations.

    This category includes all contracts and contract modifications for 
supplies, services, or experimental, developmental, or research work 
negotiated with organizations other than educational institutions (see 
31.104), construction and architect-engineer contracts (see 31.105), 
State and local governments (see 31.107) and nonprofit organizations 
(see 31.108) on the basis of cost.
    (a) The cost principles and procedures in subpart 31.2 and agency 
supplements shall be used in pricing negotiated supply, service, 
experimental, developmental, and research contracts and contract 
modifications with commercial organizations whenever cost analysis is 
performed as required by 15.404-1(c).
    (b) In addition, the contracting officer shall incorporate the cost 
principles and procedures in subpart 31.2 and agency supplements by 
reference in contracts with commercial organizations as the basis for--
    (1) Determining reimbursable costs under (i) cost-reimbursement 
contracts and cost-reimbursement subcontracts under these contracts 
performed by commercial organizations and (ii) the cost-reimbursement 
portion of time-and-materials contracts except when material is priced 
on a basis other than at cost (see 16.601(c)(3));
    (2) Negotiating indirect cost rates (see subpart 42.7);
    (3) Proposing, negotiating, or determining costs under terminated 
contracts (see 49.103 and 49.113);
    (4) Price revision of fixed-price incentive contracts (see 16.204 
and 16.403);
    (5) Price redetermination of price redetermination contracts (see 
16.205 and 16.206); and
    (6) Pricing changes and other contract modifications.

[48 FR 42301, Sept. 19, 1983, as amended at 62 FR 51271, Sept. 30, 1997; 
72 FR 6882, Feb. 13, 2007]

[[Page 674]]



Sec. 31.104  Contracts with educational institutions.

    This category includes all contracts and contract modifications for 
research and development, training, and other work performed by 
educational institutions.
    (a) The contracting officer shall incorporate the cost principles 
and procedures in subpart 31.3 by reference in cost-reimbursement 
contracts with educational institutions as the basis for--
    (1) Determining reimbursable costs under the contracts and cost-
reimbursement subcontracts thereunder performed by educational 
institutions;
    (2) Negotiating indirect cost rates; and
    (3) Settling costs of cost-reimbursement terminated contracts (see 
subpart 49.3 and 49.109-7).
    (b) The cost principles in this subpart are to be used as a guide in 
evaluating costs in connection with negotiating fixed-price contracts 
and termination settlements.



Sec. 31.105  Construction and architect-engineer contracts.

    (a) This category includes all contracts and contract modifications 
negotiated on the basis of cost with organizations other than 
educational institutions (see 31.104), State and local governments (see 
31.107), and nonprofit organizations except those exempted under OMB 
Circular A-122 (see 31-108) for construction management or construction, 
alteration or repair of buildings, bridges, roads, or other kinds of 
real property. It also includes architect-engineer contracts related to 
construction projects. It does not include contracts for vessels, 
aircraft, or other kinds of personal property.
    (b) Except as otherwise provided in (d) below, the cost principles 
and procedures in subpart 31.2 shall be used in the pricing of contracts 
and contract modifications in this category if cost analysis is 
performed as required by 15.404-1(c).
    (c) In addition, the contracting officer shall incorporate the cost 
principles and procedures in subpart 31.2 (as modified by (d) below) by 
reference in contracts in this category as the basis for--
    (1) Determining reimbursable costs under cost-reimbursement 
contracts, including cost-reimbursement subcontracts thereunder;
    (2) Negotiating indirect cost rates;
    (3) Proposing, negotiating, or determining costs under terminated 
contracts;
    (4) Price revision of fixed-price incentive contracts; and
    (5) Pricing changes and other contract modifications.
    (d) Except as otherwise provided in this paragraph (d), the 
allowability of costs for construction and architect-engineer contracts 
shall be determined in accordance with subpart 31.2.
    (1) Because of widely varying factors such as the nature, size, 
duration, and location of the construction project, advance agreements 
as set forth in 31.109, for such items as home office overhead, 
partners' compensation, employment of consultants, and equipment usage 
costs, are particularly important in construction and architect-engineer 
contracts. When appropriate they serve to express the parties' 
understanding and avoid possible subsequent disputes or disallowances.
    (2) Construction equipment, as used in this section, means equipment 
(including marine equipment) in sound workable condition, either owned 
or controlled by the contractor or the subcontractor at any tier, or 
obtained from a commercial rental source, and furnished for use under 
Government contracts.
    (i) Allowable ownership and operating costs shall be determined as 
follows:
    (A) Actual cost data shall be used when such data can be determined 
for both ownership and operating costs for each piece of equipment, or 
groups of similar serial or series equipment, from the contractor's 
accounting records. When such costs cannot be so determined, the 
contracting agency may specify the use of a particular schedule of 
predetermined rates or any part thereof to determine ownership and 
operating costs of construction equipment (see subdivisions (d)(2)(i)(B) 
and (C) of this section). However, costs otherwise unallowable under 
this part shall not become allowable through the use of any schedule 
(see 31.109(c)). For

[[Page 675]]

example, schedules need to be adjusted for Government contract costing 
purposes if they are based on replacement cost, include unallowable 
interest costs, or use improper cost of money rates or computations. 
Contracting officers should review the computations and factors included 
within the specified schedule and ensure that unallowable or 
unacceptably computed factors are not allowed in cost submissions.
    (B) Predetermined schedules of construction equipment use rates 
(e.g., the Construction Equipment Ownership and Operating Expense 
Schedule published by the U.S. Army Corps of Engineers, industry 
sponsored construction equipment cost guides, or commercially published 
schedules of construction equipment use cost) provide average ownership 
and operating rates for construction equipment. The allowance for 
ownership costs should include the cost of depreciation and may include 
facilities capital cost of money. The allowance for operating costs may 
include costs for such items as fuel, filters, oil, and grease; 
servicing, repairs, and maintenance; and tire wear and repair. Costs of 
labor, mobilization, demobilization, overhead, and profit are generally 
not reflected in schedules, and separate consideration may be necessary.
    (C) When a schedule of predetermined use rates for construction 
equipment is used to determine direct costs, all costs of equipment that 
are included in the cost allowances provided by the schedule shall be 
identified and eliminated from the contractor's other direct and 
indirect costs charged to the contract. If the contractor's accounting 
system provides for site or home office overhead allocations, all costs 
which are included in the equipment allowances may need to be included 
in any cost input base before computing the contractor's overhead rate. 
In periods of suspension of work pursuant to a contract clause, the 
allowance for equipment ownership shall not exceed an amount for standby 
cost as determined by the schedule or contract provision.
    (ii) Reasonable costs of renting construction equipment are 
allowable (but see paragraph (C) below).
    (A) Costs, such as maintenance and minor or running repairs incident 
to operating such rented equipment, that are not included in the rental 
rate are allowable.
    (B) Costs incident to major repair and overhaul of rental equipment 
are unallowable.
    (C) The allowability of charges for construction equipment rented 
from any division, subsidiary, or organization under common control, 
will be determined in accordance with 31.205-36(b)(3).
    (3) Costs incurred at the job site incident to performing the work, 
such as the cost of superintendence, timekeeping and clerical work, 
engineering, utility costs, supplies, material handling, restoration and 
cleanup, etc., are allowable as direct or indirect costs, provided the 
accounting practice used is in accordance with the contractor's 
established and consistently followed cost accounting practices for all 
work.
    (4) Rental and any other costs, less any applicable credits incurred 
in acquiring the temporary use of land, structures, and facilities are 
allowable. Costs, less any applicable credits, incurred in constructing 
or fabricating structures and facilities of a temporary nature are 
allowable.

[48 FR 42301, Sept. 19, 1983, as amended at 50 FR 23607, June 4, 1985; 
52 FR 19804, May 27, 1987; 62 FR 51271, Sept. 30, 1997]



Sec. 31.106  [Reserved]



Sec. 31.107  Contracts with State, local, and federally recognized 
          Indian tribal governments.

    (a) Subpart 31.6 provides principles and standards for determining 
costs applicable to contracts with State, local, and federally 
recognized Indian tribal governments. They provide the basis for a 
uniform approach to the problem of determining costs and to promote 
efficiency and better relationships between State, local, and federally 
recognized Indian tribal governments, and Federal Government entities. 
They apply to all programs that involve contracts with State, local, and 
federally recognized Indian tribal governments, except contracts with--

[[Page 676]]

    (1) Publicly financed educational institutions subject to subpart 
31.3; or
    (2) Publicly owned hospitals and other providers of medical care 
subject to requirements promulgated by the sponsoring Government 
agencies.
    (b) The Office of Management and Budget will approve any other 
exceptions in particular cases when adequate justification is presented.

[48 FR 42301, Sept. 19, 1983, as amended at 52 FR 30076, Aug. 12, 1987]



Sec. 31.108  Contracts with nonprofit organizations.

    Subpart 31.7 provides principles and standards for determining costs 
applicable to contracts with nonprofit organizations other than 
educational institutions, State and local governments, and those 
nonprofit organizations exempted under OMB Circular No. A-122.



Sec. 31.109  Advance agreements.

    (a) The extent of allowability of the costs covered in this part 
applies broadly to many accounting systems in varying contract 
situations. Thus, the reasonableness, the allocability and the 
allowability under the specific cost principles at subparts 31.2, 31.3, 
31.6, and 31.7 of certain costs may be difficult to determine. To avoid 
possible subsequent disallowance or dispute based on unreasonableness, 
unallocability or unallowability under the specific cost principles at 
subparts 31.2, 31.3, 31.6, and 31.7, contracting officers and 
contractors should seek advance agreement on the treatment of special or 
unusual costs and on statistical sampling methodologies at 31.201-6(c). 
However, an advance agreement is not an absolute requirement and the 
absence of an advance agreement on any cost will not, in itself, affect 
the reasonableness, allocability or the allowability under the specific 
cost principles at subparts 31.2, 31.3, 31.6, and 31.7 of that cost.
    (b) Advance agreements may be negotiated either before or during a 
contract but should be negotiated before incurrence of the costs 
involved. The agreements must be in writing, executed by both 
contracting parties, and incorporated into applicable current and future 
contracts. An advance agreement shall contain a statement of its 
applicability and duration.
    (c) The contracting officer is not authorized by this 31.109 to 
agree to a treatment of costs inconsistent with this part. For example, 
an advance agreement may not provide that, notwithstanding 31.205-20, 
interest is allowable.
    (d) Advance agreements may be negotiated with a particular 
contractor for a single contract, a group of contracts, or all the 
contracts of a contracting office, an agency, or several agencies.
    (e) The cognizant administrative contracting officer (ACO), or other 
contracting officer established in part 42, shall negotiate advance 
agreements except that an advance agreement affecting only one contract, 
or class of contracts from a single contracting office, shall be 
negotiated by a contracting officer in the contracting office, or an ACO 
when delegated by the contracting officer. When the negotiation 
authority is delegated, the ACO shall coordinate the proposed agreement 
with the contracting officer before executing the advance agreement.
    (f) Before negotiating an advance agreement, the Government 
negotiator shall--
    (1) Determine if other contracting offices inside the agency or in 
other agencies have a significant unliquidated dollar balance in 
contracts with the same contractor;
    (2) Inform any such office or agency of the matters under 
consideration for negotiation; and
    (3) As appropriate, invite the office or agency and the responsible 
audit agency to participate in prenegotiation discussions and/or in the 
subsequent negotiations.
    (g) Upon completion of the negotiation, the sponsor shall prepare 
and distribute to other interested agencies and offices, including the 
audit agency, copies of the executed agreement and a memorandum 
providing the information specified in 15.406-3, as applicable.
    (h) Examples for which advance agreements may be particularly 
important are--
    (1) Compensation for personal services, including but not limited to 
allowances for off-site pay, incentive pay, location allowances, 
hardship pay,

[[Page 677]]

cost of living differential, and termination of defined benefit pension 
plans;
    (2) Use charges for fully depreciated assets;
    (3) Deferred maintenance costs;
    (4) Precontract costs;
    (5) Independent research and development and bid and proposal costs;
    (6) Royalties and other costs for use of patents;
    (7) Selling and distribution costs;
    (8) Travel and relocation costs, as related to special or mass 
personnel movements, as related to travel via contractor-owned, -leased, 
or -chartered aircraft, or as related to maximum per diem rates;
    (9) Costs of idle facilities and idle capacity;
    (10) Severance pay to employees on support service contracts;
    (11) Plant reconversion;
    (12) Professional services (e.g., legal, accounting, and 
engineering);
    (13) General and administrative costs (e.g., corporate, division, or 
branch allocations) attributable to the general management, supervision, 
and conduct of the contractor's business as a whole. These costs are 
particularly significant in construction, job-site, architect-engineer, 
facilities, and Government-owned contractor operated (GOCO) plant 
contracts (see 31.203(h));
    (14) Costs of construction plant and equipment (see 31.105(d)).
    (15) Costs of public relations and advertising;
    (16) Training and education costs (see 31.205-44(h)); and
    (17) Statistical sampling methods (see 31.201-6(c)(4).

[48 FR 42301, Sept. 19, 1983, as amended at 51 FR 12298, Apr. 9, 1986; 
51 FR 27489, July 31, 1986; 52 FR 9038, Mar. 20, 1987; 52 FR 27806, July 
24, 1987; 54 FR 34755, Aug. 21, 1989; 59 FR 67045, Dec. 28, 1994; 61 FR 
69288, Dec. 31, 1996; 62 FR 51271, Sept. 30, 1997; 63 FR 9061, Feb. 23, 
1998; 69 FR 17767, Apr. 5, 2004; 70 FR 57466, Sept. 30, 2005]



Sec. 31.110  Indirect cost rate certification and penalties on 
          unallowable costs.

    (a) Certain contracts require certification of the indirect cost 
rates proposed for final payment purposes. See 42.703-2 for 
administrative procedures regarding the certification provisions and the 
related contract clause prescription.
    (b) If unallowable costs are included in final indirect cost 
settlement proposals, penalties may be assessed. See 42.709 for 
administrative procedures regarding the penalty assessment provisions 
and the related contract clause prescription.

[60 FR 42658, Aug. 16, 1995, as amended at 62 FR 237, Jan. 2, 1997]

          Subpart 31.2_Contracts With Commercial Organizations



Sec. 31.201  General.



Sec. 31.201-1  Composition of total cost.

    (a) The total cost, including standard costs properly adjusted for 
applicable variances, of a contract is the sum of the direct and 
indirect costs allocable to the contract, incurred or to be incurred, 
plus any allocable cost of money pursuant to 31.205-10, less any 
allocable credits. In ascertaining what constitutes a cost, any 
generally accepted method of determining or estimating costs that is 
equitable and is consistently applied may be used.
    (b) While the total cost of a contract includes all costs properly 
allocable to the contract, the allowable costs to the Government are 
limited to those allocable costs which are allowable pursuant to Part 31 
and applicable agency supplements.

[69 FR 17767, Apr. 5, 2004]



Sec. 31.201-2  Determining allowability.

    (a) A cost is allowable only when the cost complies with all of the 
following requirements:
    (1) Reasonableness.
    (2) Allocability.
    (3) Standards promulgated by the CAS Board, if applicable, 
otherwise, generally accepted accounting principles and practices 
appropriate to the circumstances.
    (4) Terms of the contract.
    (5) Any limitations set forth in this subpart.
    (b) Certain cost principles in this subpart incorporate the 
measurement, assignment, and allocability rules of selected CAS and 
limit the allowability of costs to the amounts determined using the 
criteria in those selected standards. Only those CAS or portions

[[Page 678]]

of standards specifically made applicable by the cost principles in this 
subpart are mandatory unless the contract is CAS-covered (see 48 CFR 
9903). Business units that are not otherwise subject to these standards 
under a CAS clause are subject to the selected standards only for the 
purpose of determining allowability of costs on Government contracts. 
Including the selected standards in the cost principles does not subject 
the business unit to any other CAS rules and regulations. The 
applicability of the CAS rules and regulations is determined by the CAS 
clause, if any, in the contract and the requirements of the standards 
themselves.
    (c) When contractor accounting practices are inconsistent with this 
subpart 31.2, costs resulting from such inconsistent practices in excess 
of the amount that would have resulted from using practices consistent 
with this subpart are unallowable.
    (d) A contractor is responsible for accounting for costs 
appropriately and for maintaining records, including supporting 
documentation, adequate to demonstrate that costs claimed have been 
incurred, are allocable to the contract, and comply with applicable cost 
principles in this subpart and agency supplements. The contracting 
officer may disallow all or part of a claimed cost that is inadequately 
supported.

[48 FR 42301, Sept. 19, 1983, as amended at 57 FR 39590, Aug. 31, 1992; 
61 FR 31656, June 20, 1996; 69 FR 17767, Apr. 5, 2004]



Sec. 31.201-3  Determining reasonableness.

    (a) A cost is reasonable if, in its nature and amount, it does not 
exceed that which would be incurred by a prudent person in the conduct 
of competitive business. Reasonableness of specific costs must be 
examined with particular care in connection with firms or their separate 
divisions that may not be subject to effective competitive restraints. 
No presumption of reasonableness shall be attached to the incurrence of 
costs by a contractor. If an initial review of the facts results in a 
challenge of a specific cost by the contracting officer or the 
contracting officer's representative, the burden of proof shall be upon 
the contractor to establish that such cost is reasonable.
    (b) What is reasonable depends upon a variety of considerations and 
circumstances, including--
    (1) Whether it is the type of cost generally recognized as ordinary 
and necessary for the conduct of the contractor's business or the 
contract performance;
    (2) Generally accepted sound business practices, arm's length 
bargaining, and Federal and State laws and regulations;
    (3) The contractor's responsibilities to the Government, other 
customers, the owners of the business, employees, and the public at 
large; and
    (4) Any significant deviations from the contractor's established 
practices.

[52 FR 19804, May 27, 1987]



Sec. 31.201-4  Determining allocability.

    A cost is allocable if it is assignable or chargeable to one or more 
cost objectives on the basis of relative benefits received or other 
equitable relationship. Subject to the foregoing, a cost is allocable to 
a Government contract if it--
    (a) Is incurred specifically for the contract;
    (b) Benefits both the contract and other work, and can be 
distributed to them in reasonable proportion to the benefits received; 
or
    (c) Is necessary to the overall operation of the business, although 
a direct relationship to any particular cost objective cannot be shown.



Sec. 31.201-5  Credits.

    The applicable portion of any income, rebate, allowance, or other 
credit relating to any allowable cost and received by or accruing to the 
contractor shall be credited to the Government either as a cost 
reduction or by cash refund. See 31.205-6(j)(3) for rules governing 
refund or credit to the Government associated with pension adjustments 
and asset reversions.

[48 FR 42301, Sept. 19, 1983, as amended at 54 FR 34755, Aug. 21, 1989; 
63 FR 58597, Oct. 30, 1998; 72 FR 46363, Aug. 17, 2007]

[[Page 679]]



Sec. 31.201-6  Accounting for unallowable costs.

    (a) Costs that are expressly unallowable or mutually agreed to be 
unallowable, including mutually agreed to be unallowable directly 
associated costs, shall be identified and excluded from any billing, 
claim, or proposal applicable to a Government contract. A directly 
associated cost is any cost that is generated solely as a result of 
incurring another cost, and that would not have been incurred had the 
other cost not been incurred. When an unallowable cost is incurred, its 
directly associated costs are also unallowable.
    (b) Costs that specifically become designated as unallowable or as 
unallowable directly associated costs of unallowable costs as a result 
of a written decision furnished by a contracting officer shall be 
identified if included in or used in computing any billing, claim, or 
proposal applicable to a Government contract. This identification 
requirement applies also to any costs incurred for the same purpose 
under like circumstances as the costs specifically identified as 
unallowable under either this paragraph or paragraph (a) above.
    (c)(1) The practices for accounting for and presentation of 
unallowable costs must be those described in 48 CFR 9904.405, Accounting 
for Unallowable Costs.
    (2) Statistical sampling is an acceptable practice for contractors 
to follow in accounting for and presenting unallowable costs provided 
the following criteria in paragraphs (c)(2)(i), (c)(2)(ii), and 
(c)(2)(iii) of this subsection are met:
    (i) The statistical sampling results in an unbiased sample that is a 
reasonable representation of the sampling universe.
    (ii) Any large dollar value or high risk transaction is separately 
reviewed for unallowable costs and excluded from the sampling process.
    (iii) The statistical sampling permits audit verification.
    (3) For any indirect cost in the selected sample that is subject to 
the penalty provisions at 42.709, the amount projected to the sampling 
universe from that sampled cost is also subject to the same penalty 
provisions.
    (4) Use of statistical sampling methods for identifying and 
segregating unallowable costs should be the subject of an advance 
agreement under the provisions of 31.109 between the contractor and the 
cognizant administrative contracting officer or Federal official. The 
advance agreement should specify the basic characteristics of the 
sampling process. The cognizant administrative contracting officer or 
Federal official shall request input from the cognizant auditor before 
entering into any such agreements.
    (5) In the absence of an advance agreement, if an initial review of 
the facts results in a challenge of the statistical sampling methods by 
the contracting officer or the contracting officer's representative, the 
burden of proof shall be on the contractor to establish that such a 
method meets the criteria in paragraph (c)(2) of this subsection.
    (d) If a directly associated cost is included in a cost pool that is 
allocated over a base that includes the unallowable cost with which it 
is associated, the directly associated cost shall remain in the cost 
pool. Since the unallowable costs will attract their allocable share of 
costs from the cost pool, no further action is required to assure 
disallowance of the directly associated costs. In all other cases, the 
directly associated costs, if material in amount, must be purged from 
the cost pool as unallowable costs.
    (e)(1) In determining the materiality of a directly associated cost, 
consideration should be given to the significance of (i) the actual 
dollar amount, (ii) the cumulative effect of all directly associated 
costs in a cost pool, and (iii) the ultimate effect on the cost of 
Government contracts.
    (2) Salary expenses of employees who participate in activities that 
generate unallowable costs shall be treated as directly associated costs 
to the extent of the time spent on the proscribed activity, provided the 
costs are material in accordance with subparagraph (e)(1) above (except 
when such salary expenses are, themselves, unallowable). The time spent 
in proscribed activities should be compared to total time spent on 
company activities to determine if the costs are material. Time spent by

[[Page 680]]

employees outside the normal working hours should not be considered 
except when it is evident that an employee engages so frequently in 
company activities during periods outside normal working hours as to 
indicate that such activities are a part of the employee's regular 
duties.
    (3) When a selected item of cost under 31.205 provides that directly 
associated costs be unallowable, such directly associated costs are 
unallowable only if determined to be material in amount in accordance 
with the criteria provided in paragraphs (e)(1) and (e)(2) of this 
subsection, except in those situations where allowance of any of the 
directly associated costs involved would be considered to be contrary to 
public policy.

[48 FR 42301, Sept. 19, 1983, as amended at 59 FR 67045, Dec. 28, 1994; 
70 FR 57466, Sept. 30, 2005; 70 FR 69100, Nov. 14, 2005]



Sec. 31.201-7  Construction and architect-engineer contracts.

    Specific principles and procedures for evaluating and determining 
costs in connection with contracts and subcontracts for construction, 
and architect-engineer contracts related to construction projects, are 
in 31.105. The applicability of these principles and procedures is set 
forth in 31.000 and 31.100.



Sec. 31.202  Direct costs.

    (a) No final cost objective shall have allocated to it as a direct 
cost any cost, if other costs incurred for the same purpose in like 
circumstances have been included in any indirect cost pool to be 
allocated to that or any other final cost objective. Direct costs of the 
contract shall be charged directly to the contract. All costs 
specifically identified with other final cost objectives of the 
contractor are direct costs of those cost objectives and are not to be 
charged to the contract directly or indirectly.
    (b) For reasons of practicality, the contractor may treat any direct 
cost of a minor dollar amount as an indirect cost if the accounting 
treatment--
    (1) Is consistently applied to all final cost objectives; and
    (2) Produces substantially the same results as treating the cost as 
a direct cost.

[69 FR 17767, Apr. 5, 2004]



Sec. 31.203  Indirect costs.

    (a) For contracts subject to full CAS coverage, allocation of 
indirect costs shall be based on the applicable provisions. For all 
other contracts, the applicable CAS provisions in paragraphs (b) through 
(h) of this section apply.
    (b) After direct costs have been determined and charged directly to 
the contract or other work, indirect costs are those remaining to be 
allocated to intermediate or two or more final cost objectives. No final 
cost objective shall have allocated to it as an indirect cost any cost, 
if other costs incurred for the same purpose, in like circumstances, 
have been included as a direct cost of that or any other final cost 
objective.
    (c) The contractor shall accumulate indirect costs by logical cost 
groupings with due consideration of the reasons for incurring such 
costs. The contractor shall determine each grouping so as to permit use 
of an allocation base that is common to all cost objectives to which the 
grouping is to be allocated. The base selected shall allocate the 
grouping on the basis of the benefits accruing to intermediate and final 
cost objectives. When substantially the same results can be achieved 
through less precise methods, the number and composition of cost 
groupings should be governed by practical considerations and should not 
unduly complicate the allocation.
    (d) Once an appropriate base for allocating indirect costs has been 
accepted, the contractor shall not fragment the base by removing 
individual elements. All items properly includable in an indirect cost 
base shall bear a pro rata share of indirect costs irrespective of their 
acceptance as Government contract costs. For example, when a cost input 
base is used for the allocation of G&A costs, the contractor shall 
include in the base all items that would properly be part of the cost 
input base, whether allowable or unallowable, and these items shall bear 
their pro rata share of G&A costs.
    (e) The method of allocating indirect costs may require revision 
when there

[[Page 681]]

is a significant change in the nature of the business, the extent of 
subcontracting, fixed-asset improvement programs, inventories, the 
volume of sales and production, manufacturing processes, the 
contractor's products, or other relevant circumstances.
    (f) Separate cost groupings for costs allocable to offsite locations 
may be necessary to permit equitable distribution of costs on the basis 
of the benefits accruing to the several cost objectives.
    (g) A base period for allocating indirect costs is the cost 
accounting period during which such costs are incurred and accumulated 
for allocation to work performed in that period.
    (1) For contracts subject to full or modified CAS coverage, the 
contractor shall follow the criteria and guidance in 48 CFR 9904.406 for 
selecting the cost accounting periods to be used in allocating indirect 
costs.
    (2) For contracts other than those subject to paragraph (g)(1) of 
this section, the base period for allocating indirect costs shall be the 
contractor's fiscal year used for financial reporting purposes in 
accordance with generally accepted accounting principles. The fiscal 
year will normally be 12 months, but a different period may be 
appropriate (e.g., when a change in fiscal year occurs due to a business 
combination or other circumstances).
    (h) Special care should be exercised in applying the principles of 
paragraphs (c), (d), and (e) of this section when Government-owned 
contractor-operated (GOCO) plants are involved. The distribution of 
corporate, division or branch office G&A expenses to such plants 
operating with little or no dependence on corporate administrative 
activities may require more precise cost groupings, detailed accounts 
screening, and carefully developed distribution bases.
    (i) Indirect costs that meet the definition of ``excessive pass-
through charge'' in 52.215-23, are unallowable.

[69 FR 17767, Apr. 5, 2004, as amended at 74 FR 52855, Oct. 14, 2009]



Sec. 31.204  Application of principles and procedures.

    (a) Costs are allowable to the extent they are reasonable, 
allocable, and determined to be allowable under 31.201, 31.202, 31.203, 
and 31.205. These criteria apply to all of the selected items that 
follow, even if particular guidance is provided for certain items for 
emphasis or clarity.
    (b)(1) For the following subcontract types, costs incurred as 
reimbursements or payments to a subcontractor are allowable to the 
extent the reimbursements or payments are for costs incurred by the 
subcontractor that are consistent with this part:
    (i) Cost-reimbursement.
    (ii) Fixed-price incentive.
    (iii) Price redeterminable (i.e., fixed-price contracts with 
prospective price redetermination and fixed-ceiling-price contracts with 
retroactive price redetermination).
    (2) The requirements of paragraph (b)(1) of this section apply to 
any tier above the first firm-fixed-price subcontract or fixed-price 
subcontract with economic price adjustment provisions.
    (c) Costs incurred as payments under firm-fixed-price subcontracts 
or fixed-price subcontracts with economic price adjustment provisions or 
modifications thereto, for which subcontract cost analysis was performed 
are allowable if the price was negotiated in accordance with 31.102.
    (d) Section 31.205 does not cover every element of cost. Failure to 
include any item of cost does not imply that it is either allowable or 
unallowable. The determination of allowability shall be based on the 
principles and standards in this subpart and the treatment of similar or 
related selected items. When more than one subsection in 31.205 is 
relevant to a contractor cost, the cost shall be apportioned among the 
applicable subsections, and the determination of allowability of each 
portion shall be based on the guidance contained in the applicable 
subsection. When a cost, to which more than one subsection in 31.205 is 
relevant, cannot be apportioned, the determination of allowability shall 
be based on the guidance contained in the subsection that most 
specifically deals

[[Page 682]]

with, or best captures the essential nature of, the cost at issue.

[48 FR 42301, Sept. 19, 1983, as amended at 53 FR 17858, May 18, 1988; 
62 FR 51271, Sept. 30, 1997; 69 FR 34242, June 18, 2004]



Sec. 31.205  Selected costs.



Sec. 31.205-1  Public relations and advertising costs.

    (a) Public relations means all functions and activities dedicated 
to--
    (1) Maintaining, protecting, and enhancing the image of a concern or 
its products; or
    (2) Maintaining or promoting reciprocal understanding and favorable 
relations with the public at large, or any segment of the public. The 
term public relations includes activities associated with areas such as 
advertising, customer relations, etc.
    (b) Advertising means the use of media to promote the sale of 
products or services and to accomplish the activities referred to in 
paragraph (d) of this subsection, regardless of the medium employed, 
when the advertiser has control over the form and content of what will 
appear, the media in which it will appear, and when it will appear. 
Advertising media include but are not limited to conventions, exhibits, 
free goods, samples, magazines, newspapers, trade papers, direct mail, 
dealer cards, window displays, outdoor advertising, radio, and 
television.
    (c) Public relations and advertising costs include the costs of 
media time and space, purchased services performed by outside 
organizations, as well as the applicable portion of salaries, travel, 
and fringe benefits of employees engaged in the functions and activities 
identified in paragraphs (a) and (b) of this subsection.
    (d) The only allowable advertising costs are those that are--
    (1) Specifically required by contract, or that arise from 
requirements of Government contracts, and that are exclusively for--
    (i) Acquiring scarce items for contract performance; or
    (ii) Disposing of scrap or surplus materials acquired for contract 
performance;
    (2) Costs of activities to promote sales of products normally sold 
to the U.S. Government, including trade shows, which contain a 
significant effort to promote exports from the United States. Such costs 
are allowable, notwithstanding paragraphs (f)(1), (f)(3), (f)(4)(ii), 
and (f)(5) of this subsection. However, such costs do not include the 
costs of memorabilia (e.g., models, gifts, and souvenirs), alcoholic 
beverages, entertainment, and physical facilities that are used 
primarily for entertainment rather than product promotion; or
    (3) Allowable in accordance with 31.205-34.
    (e) Allowable public relations costs include the following:
    (1) Costs specifically required by contract.
    (2) Costs of--
    (i) Responding to inquiries on company policies and activities;
    (ii) Communicating with the public, press, stockholders, creditors, 
and customers; and
    (iii) Conducting general liaison with news media and Government 
public relations officers, to the extent that such activities are 
limited to communication and liaison necessary to keep the public 
informed on matters of public concern such as notice of contract awards, 
plant closings or openings, employee layoffs or rehires, financial 
information, etc.
    (3) Costs of participation in community service activities (e.g., 
blood bank drives, charity drives, savings bond drives, disaster 
assistance, etc.) (But see paragraph (f)(8) of this section.)
    (4) Costs of plant tours and open houses (but see subparagraph 
(f)(5) of this subsection).
    (5) Costs of keel laying, ship launching, commissioning, and roll-
out ceremonies, to the extent specifically provided for by contract.
    (f) Unallowable public relations and advertising costs include the 
following:
    (1) All public relations and advertising costs, other than those 
specified in paragraphs (d) and (e) of this subsection, whose primary 
purpose is to promote the sale of products or services by stimulating 
interest in a product or product line (except for those costs made 
allowable under 31.205-38(b)(5)), or by disseminating messages

[[Page 683]]

calling favorable attention to the contractor for purposes of enhancing 
the company image to sell the company's products or services.
    (2) All costs of trade shows and other special events which do not 
contain a significant effort to promote the export sales of products 
normally sold to the U.S. Government.
    (3) Costs of sponsoring meetings, conventions, symposia, seminars, 
and other special events when the principal purpose of the event is 
other than dissemination of technical information or stimulation of 
production.
    (4) Costs of ceremonies such as (i) corporate celebrations and (ii) 
new product announcements.
    (5) Costs of promotional material, motion pictures, videotapes, 
brochures, handouts, magazines, and other media that are designed to 
call favorable attention to the contractor and its activities.
    (6) Costs of souvenirs, models, imprinted clothing, buttons, and 
other mementos provided to customers or the public.
    (7) Costs of memberships in civic and community organizations.
    (8) Costs associated with the donation of excess food to nonprofit 
organizations in accordance with the Federal Food Donation Act of 2008 
(Pub. L. 110-247)(see FAR subpart 26.4).

[51 FR 12298, Apr. 9, 1986, as amended at 53 FR 12130, Apr. 12, 1988; 53 
FR 13274, Apr. 22, 1988; 54 FR 34755, Aug. 21, 1989; 56 FR 15153, Apr. 
15, 1991; 60 FR 42660, Aug. 16, 1995; 61 FR 67423, Dec. 20, 1996; 62 FR 
12704, Mar. 17, 1997; 64 FR 10547, Mar. 4, 1999; 68 FR 43872, July 24, 
2003; 74 FR 11831, Mar. 19, 2009]



Sec. 31.205-2  [Reserved]



Sec. 31.205-3  Bad debts.

    Bad debts, including actual or estimated losses arising from 
uncollectible accounts receivable due from customers and other claims, 
and any directly associated costs such as collection costs, and legal 
costs are unallowable.



Sec. 31.205-4  Bonding costs.

    (a) Bonding costs arise when the Government requires assurance 
against financial loss to itself or others by reason of the act or 
default of the contractor. They arise also in instances where the 
contractor requires similar assurance. Included are such bonds as bid, 
performance, payment, advance payment, infringement, and fidelity bonds.
    (b) Costs of bonding required pursuant to the terms of the contract 
are allowable.
    (c) Costs of bonding required by the contractor in the general 
conduct of its business are allowable to the extent that such bonding is 
in accordance with sound business practice and the rates and premiums 
are reasonable under the circumstances.



Sec. 31.205-5  [Reserved]



Sec. 31.205-6  Compensation for personal services.

    (a) General. Compensation for personal services is allowable subject 
to the following general criteria and additional requirements contained 
in other parts of this cost principle:
    (1) Compensation for personal services must be for work performed by 
the employee in the current year and must not represent a retroactive 
adjustment of prior years' salaries or wages (but see paragraphs (g), 
(h), (j), (k), (m), and (o) of this subsection).
    (2) The total compensation for individual employees or job classes 
of employees must be reasonable for the work performed; however, 
specific restrictions on individual compensation elements apply when 
prescribed.
    (3) The compensation must be based upon and conform to the terms and 
conditions of the contractor's established compensation plan or practice 
followed so consistently as to imply, in effect, an agreement to make 
the payment.
    (4) No presumption of allowability will exist where the contractor 
introduces major revisions of existing compensation plans or new plans 
and the contractor has not provided the cognizant ACO, either before 
implementation or within a reasonable period after it, an opportunity to 
review the allowability of the changes.
    (5) Costs that are unallowable under other paragraphs of this 
Subpart 31.2 are not allowable under this subsection 31.205-6 solely on 
the basis that they

[[Page 684]]

constitute compensation for personal services.
    (6)(i) Compensation costs for certain individuals give rise to the 
need for special consideration. Such individuals include:
    (A) Owners of closely held corporations, members of limited 
liability companies, partners, sole proprietors, or members of their 
immediate families; and
    (B) Persons who are contractually committed to acquire a substantial 
financial interest in the contractor's enterprise.
    (ii) For these individuals, compensation must--
    (A) Be reasonable for the personal services rendered; and
    (B) Not be a distribution of profits (which is not an allowable 
contract cost).
    (iii) For owners of closely held companies, compensation in excess 
of the costs that are deductible as compensation under the Internal 
Revenue Code (26 U.S.C.) and regulations under it is unallowable.
    (b) Reasonableness--(1) Compensation pursuant to labor-management 
agreements. If costs of compensation established under ``arm's length'' 
labor-management agreements negotiated under the terms of the Federal 
Labor Relations Act or similar state statutes are otherwise allowable, 
the costs are reasonable unless, as applied to work in performing 
Government contracts, the costs are unwarranted by the character and 
circumstances of the work or discriminatory against the Government. The 
application of the provisions of a labor-management agreement designed 
to apply to a given set of circumstances and conditions of employment 
(e.g., work involving extremely hazardous activities or work not 
requiring recurrent use of overtime) is unwarranted when applied to a 
Government contract involving significantly different circumstances and 
conditions of employment (e.g., work involving less hazardous activities 
or work continually requiring use of overtime). It is discriminatory 
against the Government if it results in employee compensation (in 
whatever form or name) in excess of that being paid for similar non-
Government work under comparable circumstances.
    (2) Compensation not covered by labor-management agreements. 
Compensation for each employee or job class of employees must be 
reasonable for the work performed. Compensation is reasonable if the 
aggregate of each measurable and allowable element sums to a reasonable 
total. In determining the reasonableness of total compensation, consider 
only allowable individual elements of compensation. In addition to the 
provisions of 31.201-3, in testing the reasonableness of compensation 
for particular employees or job classes of employees, consider factors 
determined to be relevant by the contracting officer. Factors that may 
be relevant include, but are not limited to, conformity with 
compensation practices of other firms--
    (i) Of the same size;
    (ii) In the same industry;
    (iii) In the same geographic area; and
    (iv) Engaged in similar non-Government work under comparable 
circumstances.
    (c) [Reserved]
    (d) Form of payment. (1) Compensation for personal services includes 
compensation paid or to be paid in the future to employees in the form 
of--
    (i) Cash;
    (ii) Corporate securities, such as stocks, bonds, and other 
financial instruments (see paragraph (d)(2) of this subsection regarding 
valuation); or
    (iii) Other assets, products, or services.
    (2) When compensation is paid with securities of the contractor or 
of an affiliate, the following additional restrictions apply:
    (i) Valuation placed on the securities is the fair market value on 
the first date the number of shares awarded is known, determined upon 
the most objective basis available.
    (ii) Accruals for the cost of securities before issuing the 
securities to the employees are subject to adjustment according to the 
possibilities that the employees will not receive the securities and 
that their interest in the accruals will be forfeited.

[[Page 685]]

    (e) Income tax differential pay. (1) Differential allowances for 
additional income taxes resulting from foreign assignments are 
allowable.
    (2) Differential allowances for additional income taxes resulting 
from domestic assignments are unallowable. (However, payments for 
increased employee income or Federal Insurance Contributions Act taxes 
incident to allowable reimbursed relocation costs are allowable under 
31.205-35(a)(10).)
    (f) Bonuses and incentive compensation. (1) Bonuses and incentive 
compensation are allowable provided the--
    (i) Awards are paid or accrued under an agreement entered into in 
good faith between the contractor and the employees before the services 
are rendered or pursuant to an established plan or policy followed by 
the contractor so consistently as to imply, in effect, an agreement to 
make such payment; and
    (ii) Basis for the award is supported.
    (2) When the bonus and incentive compensation payments are deferred, 
the costs are subject to the requirements of paragraphs (f)(1) and (k) 
of this subsection.
    (g) Severance pay. (1) Severance pay is a payment in addition to 
regular salaries and wages by contractors to workers whose employment is 
being involuntarily terminated. Payments for early retirement incentive 
plans are covered in paragraph (j)(6) of this subsection.
    (2) Severance pay is allowable only to the extent that, in each 
case, it is required by--
    (i) Law;
    (ii) Employer-employee agreement;
    (iii) Established policy that constitutes, in effect, an implied 
agreement on the contractor's part; or
    (iv) Circumstances of the particular employment.
    (3) Payments made in the event of employment with a replacement 
contractor where continuity of employment with credit for prior length 
of service is preserved under substantially equal conditions of 
employment, or continued employment by the contractor at another 
facility, subsidiary, affiliate, or parent company of the contractor are 
not severance pay and are unallowable.
    (4) Actual normal turnover severance payments shall be allocated to 
all work performed in the contractor's plant. However, if the contractor 
uses the accrual method to account for normal turnover severance 
payments, that method will be acceptable if the amount of the accrual 
is--
    (i) Reasonable in light of payments actually made for normal 
severances over a representative past period; and
    (ii) Allocated to all work performed in the contractor's plant.
    (5) Abnormal or mass severance pay is of such a conjectural nature 
that accruals for this purpose are not allowable. However, the 
Government recognizes its obligation to participate, to the extent of 
its fair share, in any specific payment. Thus, the Government will 
consider allowability on a case-by-case basis.
    (6) Under 10 U.S.C. 2324(e)(1)(M) and 41 U.S.C. 256(e)(1)(M), the 
costs of severance payments to foreign nationals employed under a 
service contract performed outside the United States are unallowable to 
the extent that such payments exceed amounts typically paid to employees 
providing similar services in the same industry in the United States. 
Further, under 10 U.S.C. 2324(e)(1)(N) and 41 U.S.C. 256(e)(1)(N), all 
such costs of severance payments that are otherwise allowable are 
unallowable if the termination of employment of the foreign national is 
the result of the closing of, or the curtailment of activities at, a 
United States facility in that country at the request of the government 
of that country; this does not apply if the closing of a facility or 
curtailment of activities is made pursuant to a status-of-forces or 
other country-to-country agreement entered into with the government of 
that country before November 29, 1989. 10 U.S.C. 2324(e)(3) and 41 
U.S.C. 256(e)(2) permit the head of the agency to waive these cost 
allowability limitations under certain circumstances (see 37.113 and the 
solicitation provision at 52.237-8).
    (h) Backpay. Backpay is a retroactive adjustment of prior years' 
salaries or wages. Backpay is unallowable except as follows:
    (1) Payments to employees resulting from underpaid work actually 
performed are allowable, if required by a

[[Page 686]]

negotiated settlement, order, or court decree.
    (2) Payments to union employees for the difference in their past and 
current wage rates for working without a contract or labor agreement 
during labor management negotiation are allowable.
    (3) Payments to nonunion employees based upon results of union 
agreement negotiation are allowable only if--
    (i) A formal agreement or understanding exists between management 
and the employees concerning these payments; or
    (ii) An established policy or practice exists and is followed by the 
contractor so consistently as to imply, in effect, an agreement to make 
such payments.
    (i) Compensation based on changes in the prices of corporate 
securities or corporate security ownership, such as stock options, stock 
appreciation rights, phantom stock plans, and junior stock conversions.
    (1) Any compensation which is calculated, or valued, based on 
changes in the price of corporate securities is unallowable.
    (2) Any compensation represented by dividend payments or which is 
calculated based on dividend payments is unallowable.
    (3) If a contractor pays an employee in lieu of the employee 
receiving or exercising a right, option, or benefit which would have 
been unallowable under this paragraph (i), such payments are also 
unallowable.
    (j) Pension costs. (1) Pension plans are normally segregated into 
two types of plans: defined-benefit and defined-contribution pension 
plans. The contractor shall measure, assign, and allocate the costs of 
all defined-benefit pension plans and the costs of all defined-
contribution pension plans in compliance with 48 CFR 9904.412--Cost 
Accounting Standard for Composition and Measurement of Pension Cost, and 
48 CFR 9904.413--Adjustment and Allocation of Pension Cost. Pension 
costs are allowable subject to the referenced standards and the cost 
limitations and exclusions set forth in paragraph (j)(1)(i) and in 
paragraphs (j)(2) through (j)(6) of this subsection.
    (i) Except for nonqualified pension plans using the pay-as-you-go 
cost method, to be allowable in the current year, the contractor shall 
fund pension costs by the time set for filing of the Federal income tax 
return or any extension. Pension costs assigned to the current year, but 
not funded by the tax return time, are not allowable in any subsequent 
year. For nonqualified pension plans using the pay-as-you-go method, to 
be allowable in the current year, the contractor shall allocate pension 
costs in the cost accounting period that the pension costs are assigned.
    (ii) Pension payments must be paid pursuant to an agreement entered 
into in good faith between the contractor and employees before the work 
or services are performed and to the terms and conditions of the 
established plan. The cost of changes in pension plans are not allowable 
if the changes are discriminatory to the Government or are not intended 
to be applied consistently for all employees under similar circumstances 
in the future.
    (iii) Except as provided for early retirement benefits in paragraph 
(j)(6) of this subsection, one-time-only pension supplements not 
available to all participants of the basic plan are not allowable as 
pension costs, unless the supplemental benefits represent a separate 
pension plan and the benefits are payable for life at the option of the 
employee.
    (iv) Increases in payments to previously retired plan participants 
covering cost-of-living adjustments are allowable if paid in accordance 
with a policy or practice consistently followed.
    (2) Defined-benefit pension plans. The cost limitations and 
exclusions pertaining to defined-benefit plans are as follows:
    (i)(A) Except for nonqualified pension plans, pension costs (see 48 
CFR 9904.412-40(a)(1)) assigned to the current accounting period, but 
not funded during it, are not allowable in subsequent years (except that 
a payment made to a fund by the time set for filing the Federal income 
tax return or any extension thereof is considered to have been made 
during such taxable year). However, any portion of pension cost computed 
for a cost accounting

[[Page 687]]

period, that exceeds the amount required to be funded pursuant to a 
waiver granted under the provisions of the Employee Retirement Income 
Security Act of 1974 (ERISA), will be allowable in those future 
accounting periods in which the funding of such excess amounts occurs 
(see 48 CFR 9904.412-50(c)(5)).
    (B) For nonqualified pension plans, except those using the pay-as-
you-go cost method, allowable costs are limited to the amount allocable 
in accordance with 48 CFR 9904.412-50(d)(2).
    (C) For nonqualified pension plans using the pay-as-you-go cost 
method, allowable costs are limited to the amounts allocable in 
accordance with 48 CFR 9904.412-50(d)(3).
    (ii) Any amount funded in excess of the pension cost assigned to a 
cost accounting period is not allowable in that period and shall be 
accounted for as set forth at 48 CFR 9904.412-50(a)(4). The excess 
amount is allowable in the future period to which it is assigned, to the 
extent it is not otherwise unallowable.
    (iii) Increased pension costs are unallowable if the increase is 
caused by a delay in funding beyond 30 days after each quarter of the 
year to which they are assignable. If a composite rate is used for 
allocating pension costs between the segments of a company and if, 
because of differences in the timing of the funding by the segments, an 
inequity exists, allowable pension costs for each segment will be 
limited to that particular segment's calculation of pension costs as 
provided for in 48 CFR 9904.413-50(c). The contractor shall make 
determinations of unallowable costs in accordance with the actuarial 
method used in calculating pension costs.
    (iv) The contracting officer will consider the allowability of the 
cost of indemnifying the Pension Benefit Guaranty Corporation (PBGC) 
under ERISA section 4062 or 4064 arising from terminating an employee 
deferred compensation plan on a case-by-case basis, provided that if 
insurance was required by the PBGC under ERISA section 4023, it was so 
obtained and the indemnification payment is not recoverable under the 
insurance. Consideration under the foregoing circumstances will be 
primarily for the purpose of appraising the extent to which the 
indemnification payment is allocable to Government work. If a beneficial 
or other equitable relationship exists, the Government will participate, 
despite the requirements of 31.205-19(c)(3) and (d)(3), in the 
indemnification payment to the extent of its fair share.
    (v) Increased pension costs resulting from the withdrawal of assets 
from a pension fund and transfer to another employee benefit plan fund, 
or transfer of assets to another account within the same fund, are 
unallowable except to the extent authorized by an advance agreement. If 
the withdrawal of assets from a pension fund is a plan termination under 
ERISA, the provisions of paragraph (j)(3) of this subsection apply. The 
advance agreement shall--
    (A) State the amount of the Government's equitable share in the 
gross amount withdrawn or transferred; and
    (B) Provide that the Government receives a credit equal to the 
amount of the Government's equitable share of the gross withdrawal or 
transfer.
    (3) Pension adjustments and asset reversions. (i) For segment 
closings, pension plan terminations, or curtailment of benefits, the 
amount of the adjustment shall be--
    (A) For contracts and subcontracts that are subject to full coverage 
under the Cost Accounting Standards (CAS) Board rules and regulations, 
the amount measured, assigned, and allocated in accordance with 48 CFR 
9904.413-50(c)(12); and
    (B) For contracts and subcontracts that are not subject to full 
coverage under the CAS, the amount measured, assigned, and allocated in 
accordance with 48 CFR 9904.413-50(c)(12), except the numerator of the 
fraction at 48 CFR 9904.413-50(c)(12)(vi) is the sum of the pension plan 
costs allocated to all non-CAS-covered contracts and subcontracts that 
are subject to Subpart 31.2 or for which certified cost or pricing data 
were submitted.
    (ii) For all other situations where assets revert to the contractor, 
or such assets are constructively received by it for any reason, the 
contractor shall, at the Government's option, make a refund or give a 
credit to the Government for its equitable share of the

[[Page 688]]

gross amount withdrawn. The Government's equitable share shall reflect 
the Government's participation in pension costs through those contracts 
for which certified cost or pricing data were submitted or that are 
subject to Subpart 31.2. Excise taxes on pension plan asset reversions 
or withdrawals under this paragraph (j)(3)(ii) are unallowable in 
accordance with 31.205-41(b)(6).
    (4) Defined-contribution pension plans. In addition to defined-
contribution pension plans, this paragraph also covers profit sharing, 
savings plans, and other such plans, provided the plans fall within the 
definition of a pension plan at 31.001.
    (i) Allowable pension cost is limited to the net contribution 
required to be made for a cost accounting period after taking into 
account dividends and other credits, where applicable. However, any 
portion of pension cost computed for a cost accounting period that 
exceeds the amount required to be funded pursuant to a waiver granted 
under the provisions of ERISA will be allowable in those future 
accounting periods in which the funding of such excess amounts occurs 
(see 48 CFR 9904.412-50(c)(5)).
    (ii) The provisions of paragraphs (j)(2)(ii) and (iv) of this 
subsection apply to defined-contribution plans.
    (5) Pension plans using the pay-as-you-go cost method. When using 
the pay-as-you-go cost method, the contractor shall measure, assign, and 
allocate the cost of pension plans in accordance with 48 CFR 9904.412 
and 9904.413. Pension costs for a pension plan using the pay-as-you-go 
cost method are allowable to the extent they are not otherwise 
unallowable.
    (6) Early retirement incentives. An early retirement incentive is an 
incentive given to an employee to retire early. For contract costing 
purposes, costs of early retirement incentives are allowable subject to 
the pension cost criteria contained in paragraphs (j)(2)(i) through (iv) 
of this subsection provided--
    (i) The contractor measures, assigns, and allocates the costs in 
accordance with the contractor's accounting practices for pension costs;
    (ii) The incentives are in accordance with the terms and conditions 
of an early retirement incentive plan;
    (iii) The contractor applies the plan only to active employees. The 
cost of extending the plan to employees who retired or were terminated 
before the adoption of the plan is unallowable; and
    (iv) The present value of the total incentives given to any employee 
in excess of the amount of the employee's annual salary for the previous 
fiscal year before the employee's retirement is unallowable. The 
contractor shall compute the present value in accordance with its 
accounting practices for pension costs. The contractor shall account for 
any unallowable costs in accordance with 48 CFR 9904.412-50(a)(2).
    (k) Deferred compensation other than pensions. The costs of deferred 
compensation awards are allowable subject to the following limitations:
    (1) The costs shall be measured, assigned, and allocated in 
accordance with 48 CFR 9904.415, Accounting for the Cost of Deferred 
Compensation.
    (2) The costs of deferred compensation awards are unallowable if the 
awards are made in periods subsequent to the period when the work being 
remunerated was performed.
    (l) Compensation incidental to business acquisitions. The following 
costs are unallowable:
    (1) Payments to employees under agreements in which they receive 
special compensation, in excess of the contractor's normal severance pay 
practice, if their employment terminates following a change in the 
management control over, or ownership of, the contractor or a 
substantial portion of its assets.
    (2) Payments to employees under plans introduced in connection with 
a change (whether actual or prospective) in the management control over, 
or ownership of, the contractor or a substantial portion of its assets 
in which those employees receive special compensation, which is 
contingent upon the employee remaining with the contractor for a 
specified period of time.
    (m) Fringe benefits. (1) Fringe benefits are allowances and services 
provided by the contractor to its employees as compensation in addition 
to regular

[[Page 689]]

wages and salaries. Fringe benefits include, but are not limited to, the 
cost of vacations, sick leave, holidays, military leave, employee 
insurance, and supplemental unemployment benefit plans. Except as 
provided otherwise in subpart 31.2, the costs of fringe benefit are 
allowable to the extent that they are reasonable and are required by 
law, employer-employee agreement, or an established policy of the 
contractor.
    (2) That portion of the cost of company-furnished automobiles that 
relates to personal use by employees (including transportation to and 
from work) is unallowable regardless of whether the cost is reported as 
taxable income to the employees (see 31.205-46(d)).
    (n) Employee rebate and purchase discount plans. Rebates and 
purchase discounts, in whatever form, granted to employees on products 
or services produced by the contractor or affiliates are unallowable.
    (o) Postretirement benefits other than pensions (PRB). (1) PRB 
covers all benefits, other than cash benefits and life insurance 
benefits paid by pension plans, provided to employees, their 
beneficiaries, and covered dependents during the period following the 
employees' retirement. Benefits encompassed include, but are not limited 
to, postretirement health care; life insurance provided outside a 
pension plan; and other welfare benefits such as tuition assistance, day 
care, legal services, and housing subsidies provided after retirement.
    (2) To be allowable, PRB costs shall be incurred pursuant to law, 
employer-employee agreement, or an established policy of the contractor, 
and shall comply with paragraphs (o)(2)(i), (ii), or (iii) of this 
subsection.
    (i) Pay-as-you-go. PRB costs are not accrued during the working 
lives of employees. Costs are assigned to the period in which--
    (A) Benefits are actually provided; or
    (B) The costs are paid to an insurer, provider, or other recipient 
for current year benefits or premiums.
    (ii) Terminal funding. PRB costs are not accrued during the working 
lives of the employees.
    (A) Terminal funding occurs when the entire PRB liability is paid in 
a lump sum upon the termination of employees (or upon conversion to such 
a terminal-funded plan) to an insurer or trustee to establish and 
maintain a fund or reserve for the sole purpose of providing PRB to 
retirees.
    (B) Terminal funded costs shall be amortized over a period of 15 
years.
    (iii) Accrual basis. PRB costs are accrued during the working lives 
of employees. Accrued PRB costs shall comply with the following:
    (A) Be measured and assigned in accordance with one of the following 
two methods described under paragraphs (o)(2)(iii)(A)(1) or 
(o)(2)(iii)(A)(2) of this subsection:
    (1) Generally accepted accounting principles. However, transitions 
from the pay-as-you-go method to the accrual accounting method must be 
handled according to paragraphs (o)(2)(iii)(A)(1)(i) through (iii) of 
this subsection.
    (i) In the year of transition from the pay-as-you-go method to 
accrual accounting for purposes of Government contract cost accounting, 
the transition obligation shall be the excess of the accumulated PRB 
obligation over the fair value of plan assets determined in accordance 
with paragraph (o)(2)(iii)(E) of this subsection; the fair value must be 
reduced by the prepayment credit as determined in accordance with 
paragraph (o)(2)(iii)(F) of this subsection.
    (ii) PRB cost attributable to the transition obligation assigned to 
the current year that is in excess of the amount assignable to 
accounting periods on the basis of a straight line amortization of the 
transition obligation over the average remaining working lives of active 
employees covered by the PRB plan or a 20-year period, whichever period 
is longer, is unallowable. However, if the plan is comprised of inactive 
participants only, the PRB cost attributable to the transition 
obligation assigned to the current year that is in excess of the amount 
assignable to accounting periods on a straight line amortization of the 
transition obligation over the average future life expectancy of the 
participants is unallowable.
    (iii) For a plan that transitioned from pay-as-you-go to accrual 
accounting

[[Page 690]]

for Government contract cost accounting prior to July 22, 2013, the 
unallowable amount of PRB cost attributable to the transition obligation 
amortization shall continue to be based on the cost principle in effect 
at the time of the transition until the original transition obligation 
schedule is fully amortized.
    (B) Be paid to an insurer or trustee to establish and maintain a 
fund or reserve for the sole purpose of providing PRB to retirees. The 
assets shall be segregated in the trust, or otherwise effectively 
restricted, so that they cannot be used by the employer for other 
purposes.
    (C) Be calculated in accordance with generally accepted actuarial 
principles and practices as promulgated by the Actuarial Standards 
Board.
    (D) Eliminate from costs of current and future periods the 
accumulated value of any prior period costs that were unallowable in 
accordance with paragraph (o)(3) of this section, adjusted for interest 
under paragraph (o)(4) of this section.
    (E) Calculate the unfunded actuarial liability (unfunded accumulated 
postretirement benefit obligation) using the market (fair) value of 
assets that have been accumulated by funding costs assigned to prior 
periods for contract accounting purposes.
    (F) Recognize as a prepayment credit the market (fair) value of 
assets that were accumulated by deposits or contributions that were not 
used to fund costs assigned to previous periods for contract accounting 
purposes.
    (G) Comply with the following when changing from one accrual 
accounting method to another: the contractor shall--
    (1) Treat the change in the unfunded actuarial liability (unfunded 
accumulated postretirement benefit obligation) as a gain or loss; and
    (2) Present an analysis demonstrating that all costs assigned to 
prior periods have been accounted for in accordance with paragraphs 
(o)(2)(iii)(D), (E), and (F) of this section to ensure that no duplicate 
recovery of costs exists. Any duplicate recovery of costs due to the 
change from one method to another is unallowable. The analysis and new 
accrual accounting method may be a subject appropriate for an advance 
agreement in accordance with 31.109.
    (3) To be allowable, PRB costs must be funded by the time set for 
filing the Federal income tax return or any extension thereof, or paid 
to an insurer, provider, or other recipient by the time set for filing 
the Federal income tax return or extension thereof. PRB costs assigned 
to the current year, but not funded, paid or otherwise liquidated by the 
tax return due date as extended are not allowable in any subsequent 
year.
    (4) Increased PRB costs caused by delay in funding beyond 30 days 
after each quarter of the year to which they are assignable are 
unallowable.
    (5) The Government shall receive an equitable share of any amount of 
previously funded PRB costs which revert or inure to the contractor. 
Such equitable share shall reflect the Government's previous 
participation in PRB costs through those contracts for which certified 
cost or pricing data were required or which were subject to Subpart 
31.2.
    (p) Limitation on allowability of compensation for certain 
contractor personnel. (1) Senior executive compensation limit. (i) 
Applicability. This paragraph (p)(1) applies to the following:
    (A) To all executive agencies, other than DoD, NASA and the Coast 
Guard, for contracts awarded before, on, or after December 31, 2011;
    (B) To DoD, NASA, and the Coast Guard for contracts awarded before 
December 31, 2011;
    (ii) Costs incurred after January 1, 1998. For costs incurred after 
January 1, 1998, for the compensation of a senior executive in excess of 
the benchmark compensation amount determined applicable for the 
contractor fiscal year by the Administrator, Office of Federal 
Procurement Policy (OFPP), under 41 U.S.C. 1127 are unallowable (10 
U.S.C. 2324(e)(1)(P) and 41 U.S.C. 4304(a)(16)). This limitation is the 
sole statutory limitation on allowable senior executive compensation 
costs incurred after January 1, 1998, under new or previously existing 
contracts. This limitation applies whether or not the affected contracts 
were previously subject to a statutory limitation on such costs. (Note 
that pursuant to section 804 of

[[Page 691]]

Pub. L. 105-261, the definition of ``senior executive'' in (p)(3) has 
been changed for compensation costs incurred after January 1, 1999.) (2) 
All employee compensation limit. (i) Applicability. This paragraph 
(p)(2) applies to DoD, NASA, and the Coast Guard for contracts awarded 
on or after December 31, 2011;
    (ii) Costs incurred after January 1, 1998. For costs incurred after 
January 1, 1998, for the compensation of any contractor employee in 
excess of the benchmark compensation amount, determined applicable for 
the contractor fiscal year by the Administrator, Office of Federal 
Procurement Policy (OFPP) under 41 U.S.C. 1127 are unallowable (10 
U.S.C. 2324(e)(1)(P)).
    (3) Definitions. As used in this paragraph (p)--
    (i) Compensation means the total amount of wages, salary, bonuses, 
deferred compensation (see paragraph (k) of this subsection), and 
employer contributions to defined contribution pension plans (see 
paragraphs (j)(4) and (q) of this subsection), for the fiscal year, 
whether paid, earned, or otherwise accruing, as recorded in the 
contractor's cost accounting records for the fiscal year.
    (ii) Senior executive means--
    (A) Prior to January 2, 1999--
    (1) The Chief Executive Officer (CEO) or any individual acting in a 
similar capacity at the contractor's headquarters;
    (2) The four most highly compensated employees in management 
positions at the contractor's headquarters, other than the CEO; and
    (3) If the contractor has intermediate home offices or segments that 
report directly to the contractor's headquarters, the five most highly 
compensated employees in management positions at each such intermediate 
home office or segment.
    (B) Effective January 2, 1999, the five most highly compensated 
employees in management positions at each home office and each segment 
of the contractor, whether or not the home office or segment reports 
directly to the contractor's headquarters.
    (iii) Fiscal year means the fiscal year established by the 
contractor for accounting purposes.
    (iv) Contractor's headquarters means the highest organizational 
level from which executive compensation costs are allocated to 
Government contracts.
    (q) Employee stock ownership plans (ESOP). (1) An ESOP is a stock 
bonus plan designed to invest primarily in the stock of the employer 
corporation. The contractor's contributions to an Employee Stock 
Ownership Trust (ESOT) may be in the form of cash, stock, or property.
    (2) Costs of ESOPs are allowable subject to the following 
conditions:
    (i) The contractor measures, assigns, and allocates costs in 
accordance with 48 CFR 9904.415.
    (ii) Contributions by the contractor in any one year that exceed the 
deductibility limits of the Internal Revenue Code for that year are 
unallowable.
    (iii) When the contribution is in the form of stock, the value of 
the stock contribution is limited to the fair market value of the stock 
on the date that title is effectively transferred to the trust.
    (iv) When the contribution is in the form of cash--
    (A) Stock purchases by the ESOT in excess of fair market value are 
unallowable; and
    (B) When stock purchases are in excess of fair market value, the 
contractor shall credit the amount of the excess to the same indirect 
cost pools that were charged for the ESOP contributions in the year in 
which the stock purchase occurs. However, when the trust purchases the 
stock with borrowed funds which will be repaid over a period of years by 
cash contributions from the contractor to the trust, the contractor 
shall credit the excess price over fair market value to the indirect 
cost pools pro rata over the period of years during which the contractor 
contributes the cash used by the trust to repay the loan.
    (v) When the fair market value of unissued stock or stock of a 
closely held corporation is not readily determinable, the valuation will 
be made on a case-by-case basis taking into consideration the guidelines 
for valuation used by the IRS.

[48 FR 42301, Sept. 19, 1983]

    Editorial Note: For Federal Register citations affecting section 
31.205-6, see the List

[[Page 692]]

of CFR Sections Affected which appears in the Finding Aids section of 
the printed volume and at www.fdsys.gov.



Sec. 31.205-7  Contingencies.

    (a) Contingency, as used in this subpart, means a possible future 
event or condition arising from presently known or unknown causes, the 
outcome of which is indeterminable at the present time.
    (b) Costs for contingencies are generally unallowable for historical 
costing purposes because such costing deals with costs incurred and 
recorded on the contractor's books. However, in some cases, as for 
example, terminations, a contingency factor may be recognized when it is 
applicable to a past period to give recognition to minor unsettled 
factors in the interest of expediting settlement.
    (c) In connection with estimates of future costs, contingencies fall 
into two categories:
    (1) Those that may arise from presently known and existing 
conditions, the effects of which are foreseeable within reasonable 
limits of accuracy; e.g., anticipated costs of rejects and defective 
work. Contingencies of this category are to be included in the estimates 
of future costs so as to provide the best estimate of performance cost.
    (2) Those that may arise from presently known or unknown conditions, 
the effect of which cannot be measured so precisely as to provide 
equitable results to the contractor and to the Government; e.g., results 
of pending litigation. Contingencies of this category are to be excluded 
from cost estimates under the several items of cost, but should be 
disclosed separately (including the basis upon which the contingency is 
computed) to facilitate the negotiation of appropriate contractual 
coverage. (See, for example, 31.205-6(g) and 31.205-19.)

[69 FR 34243, June 18, 2004]



Sec. 31.205-8  Contributions or donations.

    Contributions or donations, including cash, property and services, 
regardless of recipient, are unallowable, except as provided in 31.205-
1(e)(3).

[51 FR 12300, Apr. 9, 1986]



Sec. 31.205-9  [Reserved]



Sec. 31.205-10  Cost of money.

    (a) General. Cost of money--
    (1) Is an imputed cost that is not a form of interest on borrowings 
(see 31.205-20);
    (2) Is an ``incurred cost'' for cost-reimbursement purposes under 
applicable cost-reimbursement contracts and for progress payment 
purposes under fixed-price contracts; and
    (3) Refers to--
    (i) Facilities capital cost of money (48 CFR 9904.414); and
    (ii) Cost of money as an element of the cost of capital assets under 
construction (48 CFR 9904.417).
    (b) Cost of money is allowable, provided--
    (1) It is measured, assigned, and allocated to contracts in 
accordance with 48 CFR 9904.414 or measured and added to the cost of 
capital assets under construction in accordance with 48 CFR 9904.417, as 
applicable;
    (2) The requirements of 31.205-52, which limit the allowability of 
cost of money, are followed; and
    (3) The estimated facilities capital cost of money is specifically 
identified and proposed in cost proposals relating to the contract under 
which the cost is to be claimed.
    (c) Actual interest cost in lieu of the calculated imputed cost of 
money is unallowable.

[68 FR 28091, May 22, 2003]



Sec. 31.205-11  Depreciation.

    (a) Depreciation on a contractor's plant, equipment, and other 
capital facilities is an allowable contract cost, subject to the 
limitations contained in this cost principle. For tangible personal 
property, only estimated residual values that exceed 10 percent of the 
capitalized cost of the asset need be used in establishing depreciable 
costs. Where either the declining balance method of depreciation or the 
class life asset depreciation range system is used, the residual value 
need not be deducted from capitalized cost to determine depreciable 
costs. Depreciation cost that would significantly reduce the book value 
of a tangible capital asset below its residual value is unallowable.

[[Page 693]]

    (b) Contractors having contracts subject to 48 CFR 9904.409, 
Depreciation of Tangible Capital Assets, shall adhere to the requirement 
of that standard for all fully CAS-covered contracts and may elect to 
adopt the standard for all other contracts. All requirements of 48 CFR 
9904.409 are applicable if the election is made, and contractors must 
continue to follow it until notification of final acceptance of all 
deliverable items on all open negotiated Government contracts.
    (c) For contracts to which 48 CFR 9904.409 is not applied, except as 
indicated in paragraphs (g) and (h) of this subsection, allowable 
depreciation shall not exceed the amount used for financial accounting 
purposes, and shall be determined in a manner consistent with the 
depreciation policies and procedures followed in the same segment on 
non-Government business.
    (d) Depreciation, rental, or use charges are unallowable on property 
acquired from the Government at no cost by the contractor or by any 
division, subsidiary, or affiliate of the contractor under common 
control.
    (e) The depreciation on any item which meets the criteria for 
allowance at price under 31.205-26(e) may be based on that price, 
provided the same policies and procedures are used for costing all 
business of the using division, subsidiary, or organization under common 
control.
    (f) No depreciation or rental is allowed on property fully 
depreciated by the contractor or by any division, subsidiary, or 
affiliate of the contractor under common control. However, a reasonable 
charge for using fully depreciated property may be agreed upon and 
allowed (but, see 31.109(h)(2)). In determining the charge, 
consideration shall be given to cost, total estimated useful life at the 
time of negotiations, effect of any increased maintenance charges or 
decreased efficiency due to age, and the amount of depreciation 
previously charged to Government contracts or subcontracts.
    (g) Whether or not the contract is otherwise subject to CAS the 
following apply:
    (1) The requirements of 31.205-52 shall be observed.
    (2) In the event of a write-down from carrying value to fair value 
as a result of impairments caused by events or changes in circumstances, 
allowable depreciation of the impaired assets is limited to the amounts 
that would have been allowed had the assets not been written down (see 
31.205-16(g)). However, this does not preclude a change in depreciation 
resulting from other causes such as permissible changes in estimates of 
service life, consumption of services, or residual value.
    (3)(i) In the event the contractor reacquires property involved in a 
sale and leaseback arrangement, allowable depreciation of reacquired 
property shall be based on the net book value of the asset as of the 
date the contractor originally became a lessee of the property in the 
sale and leaseback arrangement--
    (A) Adjusted for any allowable gain or loss determined in accordance 
with 31.205-16(b); and
    (B) Less any amount of depreciation expense included in the 
calculation of the amount that would have been allowed had the 
contractor retained title under 31.205-11(h)(1) and 31.205-36(b)(2).
    (ii) As used in this paragraph (g)(3), reacquired property is 
property that generated either any depreciation expense or any cost of 
money considered in the calculation of the limitations under 31.205-
11(h)(1) and 31.205-36(b)(2) during the most recent accounting period 
prior to the date of reacquisition.
    (h) A ``capital lease,'' as defined in Financial Accounting 
Standards Board's Accounting Standards Codification (FASB ASC) 840, 
Leases, is subject to the requirements of this cost principle. (See 
31.205-36 for Operating Leases.) FASB ASC 840 requires that capital 
leases be treated as purchased assets, i.e., be capitalized, and the 
capitalized value of such assets be distributed over their useful lives 
as depreciation charges or over the leased life as amortization charges, 
as appropriate, except that--
    (1) Lease costs under a sale and leaseback arrangement are allowable 
only up to the amount that would be allowed if the contractor retained 
title, computed based on the net book value of the asset on the date the 
contractor

[[Page 694]]

becomes a lessee of the property adjusted for any gain or loss 
recognized in accordance with 31.205-16(b); and
    (2) If it is determined that the terms of the capital lease have 
been significantly affected by the fact that the lessee and lessor are 
related, depreciation charges are not allowable in excess of those that 
would have occurred if the lease contained terms consistent with those 
found in a lease between unrelated parties.

[68 FR 69247, Dec. 11, 2003, as amended at 70 FR 33675, June 8, 2005; 71 
FR 36940, June 28, 2006; 77 FR 203, Jan. 3, 2012]



Sec. 31.205-12  Economic planning costs.

    Economic planning costs are the costs of general long-range 
management planning that is concerned with the future overall 
development of the contractor's business and that may take into account 
the eventual possibility of economic dislocations or fundamental 
alterations in those markets in which the contractor currently does 
business. Economic planning costs are allowable. Economic planning costs 
do not include organization or reorganization costs covered by 31.205-
27. See 31.205-38 for market planning costs other than economic planning 
costs.

[68 FR 56688, Oct. 1, 2003]



Sec. 31.205-13  Employee morale, health, welfare, food service, and 
          dormitory costs and credits.

    (a) Aggregate costs incurred on activities designed to improve 
working conditions, employer-employee relations, employee morale, and 
employee performance (less income generated by these activities) are 
allowable, subject to the limitations contained in this subsection. Some 
examples of allowable activities are--
    (1) House publications;
    (2) Health clinics;
    (3) Wellness/fitness centers;
    (4) Employee counseling services; and
    (5) Food and dormitory services for the contractor's employees at or 
near the contractor's facilities. These services include--
    (i) Operating or furnishing facilities for cafeterias, dining rooms, 
canteens, lunch wagons, vending machines, living accommodations; and
    (ii) Similar types of services.
    (b) Costs of gifts are unallowable. (Gifts do not include awards for 
performance made pursuant to 31.205-6(f) or awards made in recognition 
of employee achievements pursuant to an established contractor plan or 
policy.)
    (c) Costs of recreation are unallowable, except for the costs of 
employees' participation in company sponsored sports teams or employee 
organizations designed to improve company loyalty, team work, or 
physical fitness.
    (d)(1) The allowability of food and dormitory losses are determined 
by the following factors:
    (i) Losses from operating food and dormitory services are allowable 
only if the contractor's objective is to operate such services on a 
break-even basis.
    (ii) Losses sustained because food services or lodging 
accommodations are furnished without charge or at prices or rates which 
obviously would not be conducive to the accomplishment of the objective 
in paragraph (d)(1)(i) of this subsection are not allowable, except as 
described in paragraph (d)(1)(iii) of this subsection.
    (iii) A loss may be allowed to the extent that the contractor can 
demonstrate that unusual circumstances exist such that even with 
efficient management, operating the services on a break-even basis would 
require charging inordinately high prices, or prices or rates higher 
than those charged by commercial establishments offering the same 
services in the same geographical areas. The following are examples of 
unusual circumstances:
    (A) The contractor must provide food or dormitory services at remote 
locations where adequate commercial facilities are not reasonably 
available.
    (B) The contractor's charged (but unproductive) labor costs would be 
excessive if the services were not available.
    (C) If cessation or reduction of food or dormitory operations will 
not otherwise yield net cost savings.
    (2) Costs of food and dormitory services shall include an allocable 
share of indirect expenses pertaining to these activities.
    (e) When the contractor has an arrangement authorizing an employee 
association to provide or operate a service, such as vending machines in 
the

[[Page 695]]

contractor's plant, and retain the profits, such profits shall be 
treated in the same manner as if the contractor were providing the 
service (but see paragraph (f) of this subsection).
    (f) Contributions by the contractor to an employee organization, 
including funds from vending machine receipts or similar sources, are 
allowable only to the extent that the contractor demonstrates that an 
equivalent amount of the costs incurred by the employee organization 
would be allowable if directly incurred by the contractor.

[60 FR 42662, Aug. 16, 1995, as amended at 68 FR 56688, Oct. 1, 2003]



Sec. 31.205-14  Entertainment costs.

    Costs of amusement, diversions, social activities, and any directly 
associated costs such as tickets to shows or sports events, meals, 
lodging, rentals, transportation, and gratuities are unallowable. Costs 
made specifically unallowable under this cost principle are not 
allowable under any other cost principle. Costs of membership in social, 
dining, or country clubs or other organizations having the same purposes 
are also unallowable, regardless of whether the cost is reported as 
taxable income to the employees.

[60 FR 42663, Aug. 16, 1995]



Sec. 31.205-15  Fines, penalties, and mischarging costs.

    (a) Costs of fines and penalties resulting from violations of, or 
failure of the contractor to comply with, Federal, State, local, or 
foreign laws and regulations, are unallowable except when incurred as a 
result of compliance with specific terms and conditions of the contract 
or written instructions from the contracting officer.
    (b) Costs incurred in connection with, or related to, the 
mischarging of costs on Government contracts are unallowable when the 
costs are caused by, or result from, alteration or destruction of 
records, or other false or improper charging or recording of costs. Such 
costs include those incurred to measure or otherwise determine the 
magnitude of the improper charging, and costs incurred to remedy or 
correct the mischarging, such as costs to rescreen and reconstruct 
records.

[51 FR 12301, Apr. 9, 1986, as amended at 54 FR 13024, Mar. 29, 1989; 55 
FR 52793, Dec. 21, 1990]



Sec. 31.205-16  Gains and losses on disposition or impairment of 
          depreciable property or other capital assets.

    (a) Gains and losses from the sale, retirement, or other disposition 
(but see 31.205-19) of depreciable property shall be included in the 
year in which they occur as credits or charges to the cost grouping(s) 
in which the depreciation or amortization applicable to those assets was 
included (but see paragraph (f) of this subsection). However, no gain or 
loss shall be recognized as a result of the transfer of assets in a 
business combination (see 31.205-52).
    (b) Notwithstanding the provisions in paragraph (c) of this 
subsection, when costs of depreciable property are subject to the sale 
and leaseback limitations in 31.205-11(h)(1) or 31.205-36(b)(2)--
    (1) The gain or loss is the difference between the net amount 
realized and the undepreciated balance of the asset on the date the 
contractor becomes a lessee; and
    (2) When the application of (b)(1) of this subsection results in a 
loss--
    (i) The allowable portion of the loss is zero if the fair market 
value exceeds the undepreciated balance of the asset on the date the 
contractor becomes a lessee; and
    (ii) The allowable portion of the loss is limited to the difference 
between the fair market value and the undepreciated balance of the asset 
on the date the contractor becomes a lessee if the fair market value is 
less than the undepreciated balance of the asset on the date the 
contractor becomes a lessee.
    (c) Gains and losses on disposition of tangible capital assets, 
including those acquired under capital leases (see 31.205-11(h), shall 
be considered as adjustments of depreciation costs previously 
recognized. The gain or loss for each asset disposed of is the 
difference between the net amount realized, including insurance proceeds 
from involuntary conversions, and its undepreciated balance.

[[Page 696]]

    (d) The gain recognized for contract costing purposes shall be 
limited to the difference between the acquisition cost (or for assets 
acquired under a capital lease, the value at which the leased asset is 
capitalized) of the asset and its undepreciated balance (except see 
paragraphs (e)(2)(i) or (ii) of this subsection).
    (e) Special considerations apply to an involuntary conversion which 
occurs when a contractor's property is destroyed by events over which 
the owner has no control, such as fire, windstorm, flood, accident, 
theft, etc., and an insurance award is recovered. The following govern 
involuntary conversions:
    (1) When there is a cash award and the converted asset is not 
replaced, gain or loss shall be recognized in the period of disposition. 
The gain recognized for contract costing purposes shall be limited to 
the difference between the acquisition cost of the asset and its 
undepreciated balance.
    (2) When the converted asset is replaced, the contractor shall 
either--
    (i) Adjust the depreciable basis of the new asset by the amount of 
the total realized gain or loss; or
    (ii) Recognize the gain or loss in the period of disposition, in 
which case the Government shall participate to the same extent as 
outlined in paragraph (e)(1) of this subsection.
    (f) Gains and losses on the disposition of depreciable property 
shall not be recognized as a separate charge or credit when--
    (1) Gains and losses are processed through the depreciation reserve 
account and reflected in the depreciation allowable under 31.205-11; or
    (2) The property is exchanged as part of the purchase price of a 
similar item, and the gain or loss is taken into consideration in the 
depreciation cost basis of the new item.
    (g) Gains and losses arising from mass or extraordinary sales, 
retirements, or other disposition other than through business 
combinations shall be considered on a case-by-case basis.
    (h) Gains and losses of any nature arising from the sale or exchange 
of capital assets other than depreciable property shall be excluded in 
computing contract costs.
    (i) With respect to long-lived tangible and identifiable intangible 
assets held for use, no loss shall be allowed for a write-down from 
carrying value to fair value as a result of impairments caused by events 
or changes in circumstances (e.g., environmental damage, idle facilities 
arising from a declining business base, etc.). If depreciable property 
or other capital assets have been written down from carrying value to 
fair value due to impairments, gains or losses upon disposition shall be 
the amounts that would have been allowed had the assets not been written 
down.

[48 FR 42301, Sept. 19, 1983, as amended at 55 FR 25530, June 21, 1990; 
60 FR 64255, Dec. 14, 1995; 61 FR 67424, Dec. 20, 1996; 68 FR 69248, 
Dec. 11, 2003; 70 FR 33675, June 8, 2005; 71 FR 36941, June 28, 2006; 75 
FR 34291, June 16, 2010]



Sec. 31.205-17  Idle facilities and idle capacity costs.

    (a) Definitions. As used in this subsection--
    Costs of idle facilities or idle capacity means costs such as 
maintenance, repair, housing, rent, and other related costs; e.g., 
property taxes, insurance, and depreciation.
    Facilities means plant or any portion thereof (including land 
integral to the operation), equipment, individually or collectively, or 
any other tangible capital asset, wherever located, and whether owned or 
leased by the contractor.
    Idle capacity means the unused capacity of partially used 
facilities. It is the difference between that which a facility could 
achieve under 100 percent operating time on a one-shift basis, less 
operating interruptions resulting from time lost for repairs, setups, 
unsatisfactory materials, and other normal delays, and the extent to 
which the facility was actually used to meet demands during the 
accounting period. A multiple-shift basis may be used in the calculation 
instead of a one-shift basis if it can be shown that this amount of 
usage could normally be expected for the type of facility involved.
    Idle facilities means completely unused facilities that are excess 
to the contractor's current needs.
    (b) The costs of idle facilities are unallowable unless the 
facilities--

[[Page 697]]

    (1) Are necessary to meet fluctuations in workload; or
    (2) Were necessary when acquired and are now idle because of changes 
in requirements, production economies, reorganization, termination, or 
other causes which could not have been reasonably foreseen. (Costs of 
idle facilities are allowable for a reasonable period, ordinarily not to 
exceed 1 year, depending upon the initiative taken to use, lease, or 
dispose of the idle facilities (but see 31.205-42)).
    (c) Costs of idle capacity are costs of doing business and are a 
factor in the normal fluctuations of usage or overhead rates from period 
to period. Such costs are allowable provided the capacity is necessary 
or was originally reasonable and is not subject to reduction or 
elimination by subletting, renting, or sale, in accordance with sound 
business, economics, or security practices. Widespread idle capacity 
throughout an entire plant or among a group of assets having 
substantially the same function may be idle facilities.
    (d) Any costs to be paid directly by the Government for idle 
facilities or idle capacity reserved for defense mobilization production 
shall be the subject of a separate agreement.

[48 FR 42301, Sept. 19, 1983, as amended at 66 FR 2131, Jan. 10, 2001; 
67 FR 6120, Feb. 8, 2002]



Sec. 31.205-18  Independent research and development and bid and 
          proposal costs.

    (a) Definitions. As used in this subsection--
    Applied research means that effort which (1) normally follows basic 
research, but may not be severable from the related basic research, (2) 
attempts to determine and exploit the potential of scientific 
discoveries or improvements in technology, materials, processes, 
methods, devices, or techniques, and (3) attempts to advance the state 
of the art. Applied research does not include efforts whose principal 
aim is design, development, or test of specific items or services to be 
considered for sale; these efforts are within the definition of the term 
development, defined in this subsection.
    Basic research, (See 2.101).
    Bid and proposal (B&P) costs means the costs incurred in preparing, 
submitting, and supporting bids and proposals (whether or not solicited) 
on potential Government or non-Government contracts. The term does not 
include the costs of effort sponsored by a grant or cooperative 
agreement, or required in the performance of a contract.
    Company means all divisions, subsidiaries, and affiliates of the 
contractor under common control.
    Development means the systematic use, under whatever name, of 
scientific and technical knowledge in the design, development, test, or 
evaluation of a potential new product or service (or of an improvement 
in an existing product or service) for the purpose of meeting specific 
performance requirements or objectives. Development includes the 
functions of design engineering, prototyping, and engineering testing. 
Development excludes: (1) Subcontracted technical effort which is for 
the sole purpose of developing an additional source for an existing 
product, or (2) development effort for manufacturing or production 
materials, systems, processes, methods, equipment, tools, and techniques 
not intended for sale.
    Independent research and development (IR&D) means a contractor's 
IR&D cost that consists of projects falling within the four following 
areas: (1) Basis research, (2) applied research, (3) development, and 
(4) systems and other concept formulation studies. The term does not 
include the costs of effort sponsored by a grant or required in the 
performance of a contract. IR&D effort shall not include technical 
effort expended in developing and preparing technical data specifically 
to support submitting a bid or proposal.
    Systems and other concept formulation studies means analyses and 
study efforts either related to specific IR&D efforts or directed toward 
identifying desirable new systems, equipment or components, or 
modifications and improvements to existing systems, equipment, or 
components.
    (b) Composition and allocation of costs. The requirements of 48 CFR 
9904.420, Accounting for independent research and development costs and 
bid and proposal costs, are incorporated in their entirety and shall 
apply as follows--

[[Page 698]]

    (1) Fully-CAS-covered contracts. Contracts that are fully-CAS-
covered shall be subject to all requirements of 48 CFR 9904.420.
    (2) Modified CAS-covered and non-CAS-covered contracts. Contracts 
that are not CAS-covered or that contain terms or conditions requiring 
modified CAS coverage shall be subject to all requirements of 48 CFR 
9904.420 except 48 CFR 9904.420-50(e)(2) and 48 CFR 9904.420-50(f)(2), 
which are not then applicable. However, non-CAS-covered or modified CAS-
covered contracts awarded at a time the contractor has CAS-covered 
contracts requiring compliance with 48 CFR 9904.420, shall be subject to 
all the requirements of 48 CFR 9904.420. When the requirements of 48 CFR 
9904.420-50(e)(2) and 48 CFR 9904.420-50(f)(2) are not applicable, the 
following apply:
    (i) IR&D and B&P costs shall be allocated to final cost objectives 
on the same basis of allocation used for the G&A expense grouping of the 
profit center (see 31.001) in which the costs are incurred. However, 
when IR&D and B&P costs clearly benefit other profit centers or benefit 
the entire company, those costs shall be allocated through the G&A of 
the other profit centers or through the corporate G&A, as appropriate.
    (ii) If allocations of IR&D or B&P through the G&A base do not 
provide equitable cost allocation, the contracting officer may approve 
use of a different base.
    (c) Allowability. Except as provided in paragraphs (d) and (e) of 
this subsection, or as provided in agency regulations, costs for IR&D 
and B&P are allowable as indirect expenses on contracts to the extent 
that those costs are allocable and reasonable.
    (d) Deferred IR&D costs. (1) IR&D costs that were incurred in 
previous accounting periods are unallowable, except when a contractor 
has developed a specific product at its own risk in anticipation of 
recovering the development costs in the sale price of the product 
provided that--
    (i) The total amount of IR&D costs applicable to the product can be 
identified;
    (ii) The proration of such costs to sales of the product is 
reasonable;
    (iii) The contractor had no Government business during the time that 
the costs were incurred or did not allocate IR&D costs to Government 
contracts except to prorate the cost of developing a specific product to 
the sales of that product; and
    (iv) No costs of current IR&D programs are allocated to Government 
work except to prorate the costs of developing a specific product to the 
sales of that product.
    (2) When deferred costs are recognized, the contract (except firm-
fixed-price and fixed-price with economic price adjustment) will include 
a specific provision setting forth the amount of deferred IR&D costs 
that are allocable to the contract. The negotiation memorandum will 
state the circumstances pertaining to the case and the reason for 
accepting the deferred costs.
    (e) Cooperative arrangements. (1) IR&D costs may be incurred by 
contractors working jointly with one or more non-Federal entities 
pursuant to a cooperative arrangement (for example, joint ventures, 
limited partnerships, teaming arrangements, and collaboration and 
consortium arrangements). IR&D costs also may include costs contributed 
by contractors in performing cooperative research and development 
agreements, or similar arrangements, entered into under--
    (i) Section 12 of the Stevenson-Wydler Technology Transfer Act of 
1980 (15 U.S.C. 3710(a));
    (ii) Sections 203(c) (5) and (6) of the National Aeronautics and 
Space Act of 1958, as amended (42 U.S.C. 2473(c) (5) and (6));
    (iii) 10 U.S.C. 2371 for the Defense Advanced Research Projects 
Agency; or
    (iv) Other equivalent authority.
    (2) IR&D costs incurred by a contractor pursuant to these types of 
cooperative arrangements should be considered as allowable IR&D costs if 
the work performed would have been allowed as contractor IR&D had there 
been no cooperative arrangement.
    (3) Costs incurred in preparing, submitting, and supporting offers 
on potential cooperative arrangements are

[[Page 699]]

allowable to the extent they are allocable, reasonable, and not 
otherwise unallowable.

[57 FR 44265, Sept. 24, 1992, as amended at 59 FR 11379, Mar. 10, 1994; 
62 FR 12705, Mar. 17, 1997; 62 FR 51271, Sept. 30, 1997; 62 FR 64932, 
Dec. 9, 1997; 66 FR 2131, Jan. 10, 2001]



Sec. 31.205-19  Insurance and indemnification.

    (a) Insurance by purchase or by self-insuring includes--
    (1) Coverage the contractor is required to carry or to have 
approved, under the terms of the contract; and
    (2) Any other coverage the contractor maintains in connection with 
the general conduct of its business.
    (b) For purposes of applying the provisions of this subsection, the 
Government considers insurance provided by captive insurers (insurers 
owned by or under control of the contractor) as self-insurance, and 
charges for it shall comply with the provisions applicable to self-
insurance costs in this subsection. However, if the captive insurer also 
sells insurance to the general public in substantial quantities and it 
can be demonstrated that the charge to the contractor is based on 
competitive market forces, the Government will consider the insurance as 
purchased insurance.
    (c) Whether or not the contract is subject to CAS, self-insurance 
charges are allowable subject to paragraph (e) of this subsection and 
the following limitations:
    (1) The contractor shall measure, assign, and allocate costs in 
accordance with 48 CFR 9904.416, Accounting for Insurance Costs.
    (2) The contractor shall comply with (48 CFR) part 28. However, 
approval of a contractor's insurance program in accordance with part 28 
does not constitute a determination as to the allowability of the 
program's cost.
    (3) If purchased insurance is available, any self-insurance charge 
plus insurance administration expenses in excess of the cost of 
comparable purchased insurance plus associated insurance administration 
expenses is unallowable.
    (4) Self-insurance charges for risks of catastrophic losses are 
unallowable (see 28.308(e)).
    (d) Purchased insurance costs are allowable, subject to paragraph 
(e) of this subsection and the following limitations:
    (1) For contracts subject to full CAS coverage, the contractor shall 
measure, assign, and allocate costs in accordance with 48 CFR 9904.416.
    (2) For all contracts, premiums for insurance purchased from 
fronting insurance companies (insurance companies not related to the 
contractor but who reinsure with a captive insurer of the contractor) 
are unallowable to the extent they exceed the sum of--
    (i) The amount that would have been allowed had the contractor 
insured directly with the captive insurer; and
    (ii) Reasonable fronting company charges for services rendered.
    (3) Actual losses are unallowable unless expressly provided for in 
the contract, except--
    (i) Losses incurred under the nominal deductible provisions of 
purchased insurance, in keeping with sound business practice, are 
allowable; and
    (ii) Minor losses, such as spoilage, breakage, and disappearance of 
small hand tools that occur in the ordinary course of business and that 
are not covered by insurance, are allowable.
    (e) Self-insurance and purchased insurance costs are subject to the 
cost limitations in the following paragraphs:
    (1) Costs of insurance required or approved pursuant to the contract 
are allowable.
    (2) Costs of insurance maintained by the contractor in connection 
with the general conduct of its business are allowable subject to the 
following limitations:
    (i) Types and extent of coverage shall follow sound business 
practice, and the rates and premiums shall be reasonable.
    (ii) Costs allowed for business interruption or other similar 
insurance shall be limited to exclude coverage of profit.
    (iii) The cost of property insurance premiums for insurance coverage 
in excess of the acquisition cost of the insured assets is allowable 
only when the contractor has a formal written policy assuring that in 
the event the insured property is involuntarily converted,

[[Page 700]]

the new asset shall be valued at the book value of the replaced asset 
plus or minus adjustments for differences between insurance proceeds and 
actual replacement cost. If the contractor does not have such a formal 
written policy, the cost of premiums for insurance coverage in excess of 
the acquisition cost of the insured asset is unallowable.
    (iv) Costs of insurance for the risk of loss of Government property 
are allowable to the extent that--
    (A) The contractor is liable for such loss;
    (B) The contracting officer has not revoked the Government's 
assumption of risk (see 45.104(b)); and
    (C) Such insurance does not cover loss of Government property that 
results from willful misconduct or lack of good faith on the part of any 
of the contractor's managerial personnel (as described in FAR 52.245-1 
(h)(1)(ii)).
    (v) Costs of insurance on the lives of officers, partners, 
proprietors, or employees are allowable only to the extent that the 
insurance represents additional compensation (see 31.205-6).
    (3) The cost of insurance to protect the contractor against the 
costs of correcting its own defects in materials and workmanship is 
unallowable. However, insurance costs to cover fortuitous or casualty 
losses resulting from defects in materials or workmanship are allowable 
as a normal business expense.
    (4) Premiums for retroactive or backdated insurance written to cover 
losses that have occurred and are known are unallowable.
    (5) The Government is obligated to indemnify the contractor only to 
the extent authorized by law, as expressly provided for in the contract, 
except as provided in paragraph (d)(3) of this subsection.
    (6) Late premium payment charges related to employee deferred 
compensation plan insurance incurred pursuant to section 4007 (29 U.S.C. 
1307) or section 4023 (29 U.S.C. 1323) of the Employee Retirement Income 
Security Act of 1974 are unallowable.

[68 FR 69256, Dec. 11, 2003, as amended at 72 FR 27384, May 15, 2007; 75 
FR 38679, July 2, 2010; 77 FR 12941, Mar. 2, 2012]



Sec. 31.205-20  Interest and other financial costs.

    Interest on borrowings (however represented), bond discounts, costs 
of financing and refinancing capital (net worth plus long-term 
liabilities), legal and professional fees paid in connection with 
preparing prospectuses, and costs of preparing and issuing stock rights 
are unallowable (but see 31.205-28). However, interest assessed by State 
or local taxing authorities under the conditions specified in 31.205-
41(a)(3) is allowable.

[64 FR 51844, Sept. 24, 1999]



Sec. 31.205-21  Labor relations costs.

    (a) Costs incurred in maintaining satisfactory relations between the 
contractor and its employees (other than those made unallowable in 
paragraph (b) of this section), including costs of shop stewards, labor 
management committees, employee publications, and other related 
activities, are allowable.
    (b) As required by Executive Order 13494, Economy in Government 
Contracting, costs of any activities undertaken to persuade employees, 
of any entity, to exercise or not to exercise, or concerning the manner 
of exercising, the right to organize and bargain collectively through 
representatives of the employees' own choosing are unallowable. Examples 
of unallowable costs under this paragraph include, but are not limited 
to, the costs of--
    (1) Preparing and distributing materials;
    (2) Hiring or consulting legal counsel or consultants;
    (3) Meetings (including paying the salaries of the attendees at 
meetings held for this purpose); and
    (4) Planning or conducting activities by managers, supervisors, or 
union representatives during work hours.

[76 FR 68043, Nov. 2, 2011]



Sec. 31.205-22  Lobbying and political activity costs.

    (a) Costs associated with the following activities are unallowable:
    (1) Attempts to influence the outcomes of any Federal, State, or 
local election, referendum, initiative, or similar procedure, through in 
kind or

[[Page 701]]

cash contributions, endorsements, publicity, or similar activities;
    (2) Establishing, administering, contributing to, or paying the 
expenses of a political party, campaign, political action committee, or 
other organization established for the purpose of influencing the 
outcomes of elections;
    (3) Any attempt to influence (i) the introduction of Federal, state, 
or local legislation, or (ii) the enactment or modification of any 
pending Federal, state, or local legislation through communication with 
any member or employee of the Congress or state legislature (including 
efforts to influence state or local officials to engage in similar 
lobbying activity), or with any government official or employee in 
connection with a decision to sign or veto enrolled legislation;
    (4) Any attempt to influence (i) the introduction of Federal, state, 
or local legislation, or (ii) the enactment or modification of any 
pending Federal, state, or local legislation by preparing, distributing 
or using publicity or propaganda, or by urging members of the general 
public or any segment thereof to contribute to or participate in any 
mass demonstration, march, rally, fund raising drive, lobbying campaign 
or letter writing or telephone campaign;
    (5) Legislative liaison activities, including attendance at 
legislative sessions or committee hearings, gathering information 
regarding legislation, and analyzing the effect of legislation, when 
such activities are carried on in support of or in knowing preparation 
for an effort to engage in unallowable activities; or
    (6) Costs incurred in attempting to improperly influence (see 
3.401), either directly or indirectly, an employee or officer of the 
Executive branch of the Federal Government to give consideration to or 
act regarding a regulatory or contract matter.
    (b) The following activities are excepted from the coverage of (a) 
above:
    (1) Providing a technical and factual presentation of information on 
a topic directly related to the performance of a contract through 
hearing testimony, statements or letters to the Congress or a state 
legislature, or subdivision, member, or cognizant staff member thereof, 
in response to a documented request (including a Congressional Record 
notice requesting testimony or statements for the record at a regularly 
scheduled hearing) made by the recipient member, legislative body or 
subdivision, or a cognizant staff member thereof; provided such 
information is readily obtainable and can be readily put in deliverable 
form; and further provided that costs under this section for 
transportation, lodging or meals are unallowable unless incurred for the 
purpose of offering testimony at a regularly scheduled Congressional 
hearing pursuant to a written request for such presentation made by the 
Chairman or Ranking Minority Member of the Committee or Subcommittee 
conducting such hearing.
    (2) Any lobbying made unallowable by paragraph (a)(3) of this 
subsection to influence state or local legislation in order to directly 
reduce contract cost, or to avoid material impairment of the 
contractor's authority to perform the contract.
    (3) Any activity specifically authorized by statute to be undertaken 
with funds from the contract.
    (c) When a contractor seeks reimbursement for indirect costs, total 
lobbying costs shall be separately identified in the indirect cost rate 
proposal, and thereafter treated as other unallowable activity costs.
    (d) Contractors shall maintain adequate records to demonstrate that 
the certification of costs as being allowable or unallowable (see 
42.703-2) pursuant to this subsection complies with the requirements of 
this subsection.
    (e) Existing procedures should be utilized to resolve in advance any 
significant questions or disagreements concerning the interpretation or 
application of this subsection.

[49 FR 18278, Apr. 27, 1984, as amended at 51 FR 12301, Apr. 9, 1986; 52 
FR 19804, May 27, 1987; 60 FR 42660, Aug. 16, 1995; 61 FR 31657, June 
20, 1996; 61 FR 67425, Dec. 20, 1996; 62 FR 237, Jan. 2, 1997]



Sec. 31.205-23  Losses on other contracts.

    An excess of costs over income under any other contract (including 
the contractor's contributed portion under cost-sharing contracts) is 
unallowable.

[[Page 702]]



Sec. 31.205-24  [Reserved]



Sec. 31.205-25  Manufacturing and production engineering costs.

    (a) The costs of manufacturing and production engineering effort as 
described in (1) through (4) below are all allowable:
    (1) Developing and deploying new or improved materials, systems, 
processes, methods, equipment, tools and techniques that are or are 
expected to be used in producing products or services;
    (2) Developing and deploying pilot production lines;
    (3) Improving current production functions, such as plant layout, 
production scheduling and control, methods and job analysis, equipment 
capabilities and capacities, inspection techniques, and tooling analysis 
(including tooling design and application improvements); and
    (4) Material and manufacturing producibility analysis for production 
suitability and to optimize manufacturing processes, methods, and 
techniques.
    (b) This cost principle does not cover:
    (1) Basic and applied research effort (as defined in 31.205-18(a)) 
related to new technology, materials, systems, processes, methods, 
equipment, tools and techniques. Such technical effort is governed by 
31.205-18, Independent research and development costs and bid and 
proposal costs; and
    (2) Development effort for manufacturing or production materials, 
systems, processes, methods, equipment, tools and techniques that are 
intended for sale is also governed by 31.205-18.
    (c) Where manufacturing or production development costs are 
capitalized or required to be capitalized under the contractor's 
capitalization policies, allowable cost will be determined in accordance 
with the requirements of 31.205-11, Depreciation.



Sec. 31.205-26  Material costs.

    (a) Material costs include the costs of such items as raw materials, 
parts, subassemblies, components, and manufacturing supplies, whether 
purchased or manufactured by the contractor, and may include such 
collateral items as inbound transportation and in-transit insurance. In 
computing material costs, the contractor shall consider reasonable 
overruns, spoilage, or defective work (unless otherwise provided in any 
contract provision relating to inspecting and correcting defective 
work).
    (b) The contractor shall--
    (1) Adjust the costs of material for income and other credits, 
including available trade discounts, refunds, rebates, allowances, and 
cash discounts, and credits for scrap, salvage, and material returned to 
vendors; and
    (2) Credit such income and other credits either directly to the cost 
of the material or allocate such income and other credits as a credit to 
indirect costs. When the contractor can demonstrate that failure to take 
cash discounts was reasonable, the contractor does not need to credit 
lost discounts.
    (c) Reasonable adjustments arising from differences between periodic 
physical inventories and book inventories may be included in arriving at 
costs; provided such adjustments relate to the period of contract 
performance.
    (d) When materials are purchased specifically for and are 
identifiable solely with performance under a contract, the actual 
purchase cost of those materials should be charged to the contract. If 
material is issued from stores, any generally recognized method of 
pricing such material is acceptable if that method is consistently 
applied and the results are equitable.
    (e) Allowance for all materials, supplies and services that are sold 
or transferred between any divisions, subdivisions, subsidiaries, or 
affiliates of the contractor under a common control shall be on the 
basis of cost incurred in accordance with this subpart. However, 
allowance may be at price when--
    (1) It is the established practice of the transferring organization 
to price interorganizational transfers at other than cost for commercial 
work of the contractor or any division, subsidiary or affiliate of the 
contractor under a common control; and
    (2) The item being transferred qualifies for an exception under 
15.403-1(b) and the contracting officer has not determined the price to 
be unreasonable.
    (f) When a commercial item under paragraph (e) of this subsection is

[[Page 703]]

transferred at a price based on a catalog or market price, the 
contractor--
    (1) Should adjust the price to reflect the quantities being 
acquired; and
    (2) May adjust the price to reflect the actual cost of any 
modifications necessary because of contract requirements.

[69 FR 34243, June 18, 2004]



Sec. 31.205-27  Organization costs.

    (a) Except as provided in paragraph (b) of this section, 
expenditures in connection with (1) planning or executing the 
organization or reorganization of the corporate structure of a business, 
including mergers and acquisitions, (2) resisting or planning to resist 
the reorganization of the corporate structure of a business or a change 
in the controlling interest in the ownership of a business, and (3) 
raising capital (net worth plus long-term liabilities), are unallowable. 
Such expenditures include but are not limited to incorporation fees and 
costs of attorneys, accountants, brokers, promoters and organizers, 
management consultants and investment counselors, whether or not 
employees of the contractor. Unallowable reorganization costs include 
the cost of any change in the contractor's financial structure, 
excluding administrative costs of short-term borrowings for working 
capital, resulting in alterations in the rights and interests of 
security holders, whether or not additional capital is raised.
    (b) The cost of activities primarily intended to provide 
compensation will not be considered organizational costs subject to this 
subsection, but will be governed by 31.205-6. These activities include 
acquiring stock for (1) executive bonuses, (2) employee savings plans, 
and (3) employee stock ownership plans.

[48 FR 42301, Sept. 19, 1983, as amended at 53 FR 10830, Apr. 1, 1988]



Sec. 31.205-28  Other business expenses.

    The following types of recurring costs are allowable
    (a) Registry and transfer charges resulting from changes in 
ownership of securities issued by the contractor.
    (b) Cost of shareholders' meetings.
    (c) Normal proxy solicitations.
    (d) Preparing and publishing reports to shareholders.
    (e) Preparing and submitting required reports and forms to taxing 
and other regulatory bodies.
    (f) Incidental costs of directors' and committee meetings.
    (g) Other similar costs.

[48 FR 42301, Sept. 19, 1983, as amended at 68 FR 28092, May 22, 2003]



Sec. 31.205-29  Plant protection costs.

    Costs of items such as (a) wages, uniforms, and equipment of 
personnel engaged in plant protection, (b) depreciation on plant 
protection capital assets, and (c) necessary expenses to comply with 
military requirements, are allowable.



Sec. 31.205-30  Patent costs.

    (a) The following patent costs are allowable to the extent that they 
are incurred as requirements of a Government contract (but see 31.205-
33):
    (1) Costs of preparing invention disclosures, reports, and other 
documents.
    (2) Costs for searching the art to the extent necessary to make the 
invention disclosures.
    (3) Other costs in connection with the filing and prosecution of a 
United States patent application where title or royalty-free license is 
to be conveyed to the Government.
    (b) General counseling services relating to patent matters, such as 
advice on patent laws, regulations, clauses, and employee agreements, 
are allowable (but see 31.205-33).
    (c) Other than those for general counseling services, patent costs 
not required by the contract are unallowable. (See also 31.205-37.)



Sec. 31.205-31  Plant reconversion costs.

    Plant reconversion costs are those incurred in restoring or 
rehabilitating the contractor's facilities to approximately the same 
condition existing immediately before the start of the Government 
contract, fair wear and tear excepted. Reconversion costs are 
unallowable except for the cost of removing Government property and the 
restoration or rehabilitation costs caused by such removal. However, in 
special circumstances where equity so dictates, additional costs may be 
allowed to the

[[Page 704]]

extent agreed upon before costs are incurred. Care should be exercised 
to avoid duplication through allowance as contingencies, additional 
profit or fee, or in other contracts.



Sec. 31.205-32  Precontract costs.

    Precontract costs means costs incurred before the effective date of 
the contract directly pursuant to the negotiation and in anticipation of 
the contract award when such incurrence is necessary to comply with the 
proposed contract delivery schedule. These costs are allowable to the 
extent that they would have been allowable if incurred after the date of 
the contract (see 31.109).

[48 FR 42301, Sept. 19, 1983, as amended at 66 FR 2131, Jan. 10, 2001]



Sec. 31.205-33  Professional and consultant service costs.

    (a) Definition. Professional and consultant services, as used in 
this subsection, means those services rendered by persons who are 
members of a particular profession or possess a special skill and who 
are not officers or employees of the contractor. Examples include those 
services acquired by contractors or subcontractors in order to enhance 
their legal, economic, financial, or technical positions. Professional 
and consultant services are generally acquired to obtain information, 
advice, opinions, alternatives, conclusions, recommendations, training, 
or direct assistance, such as studies, analyses, evaluations, liaison 
with Government officials, or other forms of representation.
    (b) Costs of professional and consultant services are allowable 
subject to this paragraph and paragraphs (c) through (f) of this 
subsection when reasonable in relation to the services rendered and when 
not contingent upon recovery of the costs from the Government (but see 
31.205-30 and 31.205-47).
    (c) Costs of professional and consultant services performed under 
any of the following circumstances are unallowable:
    (1) Services to improperly obtain, distribute, or use information or 
data protected by law or regulation (e.g., 52.215-1(e), Restriction on 
Disclosure and Use of Data).
    (2) Services that are intended to improperly influence the contents 
of solicitations, the evaluation of proposals or quotations, or the 
selection of sources for contract award, whether award is by the 
Government, or by a prime contractor or subcontractor.
    (3) Any other services obtained, performed, or otherwise resulting 
in violation of any statute or regulation prohibiting improper business 
practices or conflicts of interest.
    (4) Services performed which are not consistent with the purpose and 
scope of the services contracted for or otherwise agreed to.
    (d) In determining the allowability of costs (including retainer 
fees) in a particular case, no single factor or any special combination 
of factors is necessarily determinative. However, the contracting 
officer shall consider the following factors, among others:
    (1) The nature and scope of the service rendered in relation to the 
service required.
    (2) The necessity of contracting for the service, considering the 
contractor's capability in the particular area.
    (3) The past pattern of acquiring such services and their costs, 
particularly in the years prior to the award of Government contracts.
    (4) The impact of Government contracts on the contractor's business.
    (5) Whether the proportion of Government work to the contractor's 
total business is such as to influence the contractor in favor of 
incurring the cost, particularly when the services rendered are not of a 
continuing nature and have little relationship to work under Government 
contracts.
    (6) Whether the service can be performed more economically by 
employment rather than by contracting.
    (7) The qualifications of the individual or concern rendering the 
service and the customary fee charged, especially on non-Government 
contracts.
    (8) Adequacy of the contractual agreement for the service (e.g., 
description of the service, estimate of time required, rate of 
compensation, termination provisions).
    (e) Retainer fees, to be allowable, must be supported by evidence 
that--

[[Page 705]]

    (1) The services covered by the retainer agreement are necessary and 
customary;
    (2) The level of past services justifies the amount of the retainer 
fees (if no services were rendered, fees are not automatically 
unallowable);
    (3) The retainer fee is reasonable in comparison with maintaining an 
in-house capability to perform the covered services, when factors such 
as cost and level of expertise are considered; and
    (4) The actual services performed are documented in accordance with 
paragraph (f) of this subsection.
    (f) Fees for services rendered are allowable only when supported by 
evidence of the nature and scope of the service furnished (see also 
31.205-38(c)). However, retainer agreements generally are not based on 
specific statements of work. Evidence necessary to determine that work 
performed is proper and does not violate law or regulation shall 
include--
    (1) Details of all agreements (e.g., work requirements, rate of 
compensation, and nature and amount of other expenses, if any) with the 
individuals or organizations providing the services and details of 
actual services performed;
    (2) Invoices or billings submitted by consultants, including 
sufficient detail as to the time expended and nature of the actual 
services provided; and
    (3) Consultants' work products and related documents, such as trip 
reports indicating persons visited and subjects discussed, minutes of 
meetings, and collateral memoranda and reports.

[55 FR 52793, Dec. 21, 1990; 57 FR 60610, Dec. 21, 1992; 62 FR 51271, 
Sept. 30, 1997, as amended at 66 FR 2131; 68 FR 43872, July 24, 2003]



Sec. 31.205-34  Recruitment costs.

    (a) Subject to paragraph (b) of this subsection, the following costs 
are allowable:
    (1) Costs of help-wanted advertising.
    (2) Costs of operating an employment office needed to secure and 
maintain an adequate labor force.
    (3) Costs of operating an aptitude and educational testing program.
    (4) Travel costs of employees engaged in recuiting personnel.
    (5) Travel costs of applicants for interviews.
    (6) Costs for employment agencies, not in excess of standard 
commercial rates.
    (b) Help-wanted advertising costs are unallowable if the 
advertising--
    (1) Does not describe specific positions or classes of positions; or
    (2) Includes material that is not relevant for recruitment purposes, 
such as extensive illustrations or descriptions of the company's 
products or capabilities.

[48 FR 42301, Sept. 19, 1983, as amended at 64 FR 10547, Mar. 4, 1999]



Sec. 31.205-35  Relocation costs.

    (a) Relocation costs are costs incident to the permanent change of 
assigned work location (for a period of 12 months or more) of an 
existing employee or upon recruitment of a new employee. The following 
types of relocation costs are allowable as noted, subject to the 
limitations in paragraphs (b) and (f) of this subsection:
    (1) Costs of travel of the employee and members of the employee's 
immediate family (see 31.205-46) and transportation of the household and 
personal effects to the new location.
    (2) Costs of finding a new home, such as advance trips by the 
employee or the spouse, or both, to locate living quarters, and 
temporary lodging during the transition period for the employee and 
members of the employee's immediate family.
    (3) Closing costs incident to the disposition of the actual 
residence owned by the employee when notified of the transfer (e.g., 
brokerage fees, legal fees, appraisal fees, points, and finance 
charges), except that these costs, when added to the costs described in 
paragraph (a)(4) of this subsection, shall not exceed 14 percent of the 
sales price of the property sold.
    (4) Continuing costs of ownership of the vacant former actual 
residence being sold, such as maintenance of building and grounds 
(exclusive of fixing up expenses), utilities, taxes, property insurance, 
and mortgage interest, after the settlement date or lease date of a new 
permanent residence, except that these costs, when added to the costs 
described in paragraph (a)(3) of

[[Page 706]]

this subsection, shall not exceed 14 percent of the sales price of the 
property sold.
    (5) Other necessary and reasonable expenses normally incident to 
relocation, such as disconnecting and connecting household appliances; 
automobile registration; driver's license and use taxes; cutting and 
fitting rugs, draperies, and curtains; forfeited utility fees and 
deposits; and purchase of insurance against damage to or loss of 
personal property while in transit.
    (6) Costs incident to acquiring a home in the new work location, 
except that--
    (i) These costs are not allowable for existing employees or newly 
recruited employees who were not homeowners before the relocation; and
    (ii) The total costs shall not exceed 5 percent of the purchase 
price of the new home.
    (7) Mortgage interest differential payments, except that these costs 
are not allowable for existing or newly recruited employees who, before 
the relocation, were not homeowners and the total payments are limited 
to an amount determined as follows:
    (i) The difference between the mortgage interest rates of the old 
and new residences times the current balance of the old mortgage times 3 
years.
    (ii) When mortgage differential payments are made on a lump-sum 
basis and the employee leaves or is transferred again in less than 3 
years, the amount initially recognized shall be proportionately adjusted 
to reflect payments only for the actual time of the relocation.
    (8) Rental differential payments covering situations where relocated 
employees retain ownership of a vacated home in the old location and 
rent at the new location. The rented quarters at the new location must 
be comparable to those vacated, and the allowable differential payments 
may not exceed the actual rental costs for the new home, less the fair 
market rent for the vacated home times 3 years.
    (9) Costs of canceling an unexpired lease.
    (10) Payments for increased employee income or Federal Insurance 
Contributions Act (26 U.S.C. chapter 21) taxes incident to allowable 
reimbursed relocation costs.
    (11) Payments for spouse employment assistance.
    (b) The costs described in paragraph (a) of this subsection must 
also meet the following criteria to be considered allowable:
    (1) The move must be for the benefit of the employer.
    (2) Reimbursement must be in accordance with an established policy 
or practice that is consistently followed by the employer and is 
designed to motivate employees to relocate promptly and economically.
    (3) The costs must not be otherwise unallowable under subpart 31.2.
    (4) Amounts to be reimbursed shall not exceed the employee's actual 
expenses, except as provided for in paragraphs (b)(5) and (b)(6) of this 
subsection.
    (5) For miscellaneous costs of the type discussed in paragraph 
(a)(5) of this subsection, a lump-sum amount, not to exceed $5,000, may 
be allowed in lieu of actual costs.
    (6)(i) Reimbursement on a lump-sum basis may be allowed for any of 
the following relocation costs when adequately supported by data on the 
individual elements (e.g., transportation, lodging, and meals) 
comprising the build-up of the lump-sum amount to be paid based on the 
circumstances of the particular employee's relocation:
    (A) Costs of finding a new home, as discussed in paragraph (a)(2) of 
this subsection.
    (B) Costs of travel to the new location, as discussed in paragraph 
(a)(1) of this subsection (but not costs for the transportation of 
household goods).
    (C) Costs of temporary lodging, as discussed in paragraph (a)(2) of 
this subsection.
    (ii) When reimbursement on a lump-sum basis is used, any adjustments 
to reflect actual costs are unallowable.
    (c) The following types of costs are unallowable:
    (1) Loss on the sale of a home.
    (2) Costs incident to acquiring a home in the new location as 
follows:
    (i) Real estate brokers' fees and commissions.
    (ii) Costs of litigation.

[[Page 707]]

    (iii) Real and personal property insurance against damage or loss of 
property.
    (iv) Mortgage life insurance.
    (v) Owner's title policy insurance when such insurance was not 
previously carried by the employee on the old residence. (However, the 
cost of a mortgage title policy is allowable.)
    (vi) Property taxes and operating or maintenance costs.
    (3) Continuing mortgage principal payments on a residence being 
sold.
    (4) Costs incident to furnishing equity or nonequity loans to 
employees or making arrangements with lenders for employees to obtain 
lower-than-market rate mortgage loans.
    (d) If relocation costs for an employee have been allowed either as 
an allocable indirect or direct cost, and the employee resigns within 12 
months for reasons within the employee's control, the contractor shall 
refund or credit the relocation costs to the Government.
    (e) Subject to the requirements of paragraphs (a) through (d) above, 
the costs of family movements and of personnel movements of a special or 
mass nature are allowable. The cost, however, should be assigned on the 
basis of work (contracts) or time period benefited.
    (f) Relocation costs (both outgoing and return) of employees who are 
hired for performance on specific contracts or long-term field projects 
are allowable if--
    (1) The term of employment is 12 months or more;
    (2) The employment agreement specifically limits the duration of 
employment to the time spent on the contract or field project for which 
the employee is hired;
    (3) The employment agreement provides for return relocation to the 
employee's permanent and principal home immediately prior to the 
outgoing relocation, or other location of equal or lesser cost; and
    (4) The relocation costs are determined under the rules of 
paragraphs (a) through (d) above. However, the costs to return 
employees, who are released from employment upon completion of field 
assignments pursuant to their employment agreements, are not subject to 
the refund or credit requirement of paragraph (d).

[48 FR 42301, Sept. 19, 1983, as amended at 52 FR 9038, Mar. 20, 1987; 
67 FR 43519, June 27, 2002; 70 FR 57470, Sept. 30, 2005]



Sec. 31.205-36  Rental costs.

    (a) This subsection is applicable to the cost of renting or leasing 
real or personal property acquired under ``operating leases'' as defined 
in Financial Accounting Standards Board's Accounting Standards 
Codification (FASB ASC) 840, Leases. (See 31.205-11 for Capital Leases.)
    (b) The following costs are allowable:
    (1) Rental costs under operating leases, to the extent that the 
rates are reasonable at the time of the lease decision, after 
consideration of (i) rental costs of comparable property, if any; (ii) 
market conditions in the area; (iii) the type, life expectancy, 
condition, and value of the property leased; (iv) alternatives 
available; and (v) other provisions of the agreement.
    (2) Rental costs under a sale and leaseback arrangement only up to 
the amount the contractor would be allowed if the contractor retained 
title, computed based on the net book value of the asset on the date the 
contractor becomes a lessee of the property adjusted for any gain or 
loss recognized in accordance with 31.205-16(b).
    (3) Charges in the nature of rent for property between any 
divisions, subsidiaries, or organization under common control, to the 
extent that they do not exceed the normal costs of ownership, such as 
depreciation, taxes, insurance, facilities capital cost of money, and 
maintenance (excluding interest or other unallowable costs pursuant to 
part 31), provided that no part of such costs shall duplicate any other 
allowed cost. Rental cost of personal property leased from any division, 
subsidiary, or affiliate of the contractor under common control, that 
has an established practice of leasing the same or similar property to 
unaffiliated lessees shall be allowed in accordance with subparagraph 
(b)(1) above.
    (c) The allowability of rental costs under unexpired leases in 
connection

[[Page 708]]

with terminations is treated in 31.205-42(e).

[48 FR 42301, Sept. 19, 1983, as amended at 51 FR 2665, Jan. 17, 1986; 
61 FR 69288, Dec. 31, 1996; 68 FR 69248, Dec. 11, 2003; 70 FR 33676, 
June 8, 2005; 77 FR 203, Jan. 3, 2012]



Sec. 31.205-37  Royalties and other costs for use of patents.

    (a) Royalties on a patent or amortization of the cost of purchasing 
a patent or patent rights necessary for the proper performance of the 
contract and applicable to contract products or processes are allowable 
unless--
    (1) The Government has a license or the right to a free use of the 
patent;
    (2) The patent has been adjudicated to be invalid, or has been 
administratively determined to be invalid;
    (3) The patent is considered to be unenforceable; or
    (4) The patent is expired.
    (b) Care should be exercised in determining reasonableness when the 
royalties may have been arrived at as a result of less-than-arm's-length 
bargaining; e.g., royalties--
    (1) Paid to persons, including corporations, affiliated with the 
contractor;
    (2) Paid to unaffiliated parties, including corporations, under an 
agreement entered into in contemplation that a Government contract would 
be awarded; or
    (3) Paid under an agreement entered into after the contract award.
    (c) In any case involving a patent formerly owned by the contractor, 
the royalty amount allowed should not exceed the cost which would have 
been allowed had the contractor retained title.
    (d) See 31.109 regarding advance agreements.



Sec. 31.205-38  Selling costs.

    (a) ``Selling'' is a generic term encompassing all efforts to market 
the contractor's products or services, some of which are covered 
specifically in other subsections of 31.205. The costs of any selling 
efforts other than those addressed in this cost principle are 
unallowable.
    (b) Selling activity includes the following broad categories:
    (1) Advertising. Advertising is defined at 31.205-1(b), and 
advertising costs are subject to the allowability provisions of 31.205-
1(d) and (f).
    (2) Corporate image enhancement. Corporate image enhancement 
activities, including broadly targeted sales efforts, other than 
advertising, are included within the definition of public relations at 
31.205-1(a), and the costs of such efforts are subject to the 
allowability provisions at 31.205-1(e) and (f).
    (3) Bid and proposal costs. Bid and proposal costs are defined at 
31.205-18 and are subject to the allowability provisions of that 
subsection.
    (4) Market planning. Market planning involves market research and 
analysis and general management planning concerned with development of 
the contractor's business. Long-range market planning costs are subject 
to the allowability provisions of 31.205-12. Other market planning costs 
are allowable.
    (5) Direct selling. Direct selling efforts are those acts or actions 
to induce particular customers to purchase particular products or 
services of the contractor. Direct selling is characterized by person-
to-person contact and includes such efforts as familiarizing a potential 
customer with the contractor's products or services, conditions of sale, 
service capabilities, etc. It also includes negotiation, liaison between 
customer and contractor personnel, technical and consulting efforts, 
individual demonstrations, and any other efforts having as their purpose 
the application or adaptation of the contractor's products or services 
for a particular customer's use. The cost of direct selling efforts is 
allowable.
    (c) Notwithstanding any other provision of this subsection, sellers' 
or agents' compensation, fees, commissions, percentages, retainer or 
brokerage fees, whether or not contingent upon the award of contracts, 
are allowable only when paid to bona fide employees or established 
commercial or selling agencies maintained by the contractor for the 
purpose of securing business.

[68 FR 43872, July 24, 2003]



Sec. 31.205-39  Service and warranty costs.

    Service and warranty costs include those arising from fulfillment of 
any

[[Page 709]]

contractual obligation of a contractor to provide services such as 
installation, training, correcting defects in the products, replacing 
defective parts, and making refunds in the case of inadequate 
performance. When not inconsistent with the terms of the contract, 
service and warranty costs are allowable. However, care should be 
exercised to avoid duplication of the allowance as an element of both 
estimated product cost and risk.

[48 FR 42301, Sept. 19, 1983, as amended at 66 FR 2131, Jan. 10, 2001]



Sec. 31.205-40  Special tooling and special test equipment costs.

    (a) The terms special tooling and special test equipment are defined 
in 2.101(b).
    (b) The cost of special tooling and special test equipment used in 
performing one or more Government contracts is allowable and shall be 
allocated to the specific Government contract or contracts for which 
acquired, except that the cost of (1) items acquired by the contractor 
before the effective date of the contract (or replacement of such 
items), whether or not altered or adapted for use in performing the 
contract, and (2) items which the contract schedule specifically 
excludes, shall be allowable only as depreciation or amortization.
    (c) When items are disqualified as special tooling or special test 
equipment because with relatively minor expense they can be made 
suitable for general purpose use and have a value as such commensurate 
with their value as special tooling or special test equipment, the cost 
of adapting the items for use under the contract and the cost of 
returning them to their prior configuration are allowable.

[48 FR 42301, Sept. 19, 1983, as amended at 72 FR 27384, May 15, 2007]



Sec. 31.205-41  Taxes.

    (a) The following types of costs are allowable:
    (1) Federal, State, and local taxes (see part 29), except as 
otherwise provided in paragraph (b) below that are required to be and 
are paid or accrued in accordance with generally accepted accounting 
principles. Fines and penalties are not considered taxes.
    (2) Taxes otherwise allowable under subparagraph (a)(1) above, but 
upon which a claim of illegality or erroneous assessment exists; 
provided the contractor, before paying such taxes--
    (i) Promptly requests instructions from the contracting officer 
concerning such taxes; and
    (ii) Takes all action directed by the contracting officer arising 
out of subparagraph (2)(i) above or an independent decision of the 
Government as to the existence of a claim of illegality or erroneous 
assessment, to (A) determine the legality of the assessment or (B) 
secure a refund of such taxes.
    (3) Pursuant to subparagraph (a)(2) above, the reasonable costs of 
any action taken by the contractor at the direction or with the 
concurrence of the contracting officer. Interest or penalties incurred 
by the contractor for non-payment of any tax at the direction of the 
contracting officer or by reason of the failure of the contracting 
officer to ensure timely direction after a prompt request.
    (4) The Environmental Tax found at section 59A of the Internal 
Revenue Code, also called the ``Superfund Tax.''
    (b) The following types of costs are not allowable:
    (1) Federal income and excess profits taxes.
    (2) Taxes in connection with financing, refinancing, refunding 
operations, or reorganizations (see 31.205-20 and 31.205-27).
    (3) Taxes from which exemptions are available to the contractor 
directly, or available to the contractor based on an exemption afforded 
the Government, except when the contracting officer determines that the 
administrative burden incident to obtaining the exemption outweighs the 
corresponding benefits accruing to the Government. When partial 
exemption from a tax is attributable to Government contract activity, 
taxes charged to such work in excess of that amount resulting from 
application of the preferential treatment are unallowable. These 
provisions intend that tax preference attributable to Government 
contract activity be realized by the Government. The term exemption 
means freedom from taxation

[[Page 710]]

in whole or in part and includes a tax abatement or reduction resulting 
from mode of assessment, method of calculation, or otherwise.
    (4) Special assessments on land that represent capital improvements.
    (5) Taxes (including excises) on real or personal property, or on 
the value, use, possession or sale thereof, which is used solely in 
connection with work other than on Government contracts (see paragraph 
(c) below).
    (6) Any excise tax in subtitle D, chapter 43 of the Internal Revenue 
Code of 1986, as amended. That chapter includes excise taxes imposed in 
connection with qualified pension plans, welfare plans, deferred 
compensation plans, or other similar types of plans.
    (7) Income tax accruals designed to account for the tax effects of 
differences between taxable income and pretax income as reflected by the 
books of account and financial statements.
    (8) Any tax imposed under 26 U.S.C. 5000C.
    (c) Taxes on property (see subparagraph (b)(5) above) used solely in 
connection with either non-Government or Government work should be 
considered directly applicable to the respective category of work unless 
the amounts involved are insignificant or comparable results would 
otherwise be obtained; e.g., taxes on contractor-owned work-in-process 
which is used solely in connection with non-Government work should be 
allocated to such work; taxes on contractor-owned work-in-process 
inventory (and Government-owned work-in-process inventory when taxed) 
used solely in connection with Government work should be charged to such 
work. The cost of taxes incurred on property used in both Government and 
non-Government work shall be apportioned to all such work based upon the 
use of such property on the respective final cost objectives.
    (d) Any taxes, interest, or penalties that were allowed as contract 
costs and are refunded to the contractor shall be credited or paid to 
the Government in the manner it directs. If a contractor or 
subcontractor obtains a foreign tax credit that reduces its U.S. Federal 
income tax return because of the payment of any tax or duty allowed as 
contract costs, and if those costs were reimbursed by a foreign 
government, the amount of the reduction shall be paid to the Treasurer 
of the United States at the time the Federal income tax return is filed. 
However, any interest actually paid or credited to a contractor incident 
to a refund of tax, interest, or penalty shall be paid or credited to 
the Government only to the extent that such interest accrued over the 
period during which the contractor had been reimbursed by the Government 
for the taxes, interest, or penalties.

[48 FR 42301, Sept. 19, 1983, as amended at 55 FR 3884, Feb. 5, 1990; 55 
FR 52794, Dec. 21, 1990; 61 FR 2641, Jan. 26, 1996; 78 FR 6191, Jan. 29, 
2013]



Sec. 31.205-42  Termination costs.

    Contract terminations generally give rise to the incurrence of costs 
or the need for special treatment of costs that would not have arisen 
had the contract not been terminated. The following cost principles 
peculiar to termination situations are to be used in conjunction with 
the other cost principles in subpart 31.2:
    (a) Common items. The costs of items reasonably usable on the 
contractor's other work shall not be allowable unless the contractor 
submits evidence that the items could not be retained at cost without 
sustaining a loss. The contracting officer should consider the 
contractor's plans and orders for current and planned production when 
determining if items can reasonably be used on other work of the 
contractor. Contemporaneous purchases of common items by the contractor 
shall be regarded as evidence that such items are reasonably usable on 
the contractor's other work. Any acceptance of common items as allocable 
to the terminated portion of the contract should be limited to the 
extent that the quantities of such items on hand, in transit, and on 
order are in excess of the reasonable quantitative requirements of other 
work.
    (b) Costs continuing after termination. Despite all reasonable 
efforts by the contractor, costs which cannot be discontinued 
immediately after the effective date of termination are generally

[[Page 711]]

allowable. However, any costs continuing after the effective date of the 
termination due to the negligent or willful failure of the contractor to 
discontinue the costs shall be unallowable.
    (c) Initial costs. Initial costs, including starting load and 
preparatory costs, are allowable as follows:
    (1) Starting load costs not fully absorbed because of termination 
are nonrecurring labor, material, and related overhead costs incurred in 
the early part of production and result from factors such as--
    (i) Excessive spoilage due to inexperienced labor;
    (ii) Idle time and subnormal production due to testing and changing 
production methods;
    (iii) Training; and
    (iv) Lack of familiarity or experience with the product, materials, 
or manufacturing processes.
    (2) Preparatory costs incurred in preparing to perform the 
terminated contract include such costs as those incurred for initial 
plant rearrangement and alterations, management and personnel 
organization, and production planning. They do not include special 
machinery and equipment and starting load costs.
    (3) When initial costs are included in the settlement proposal as a 
direct charge, such costs shall not also be included in overhead. 
Initial costs attributable to only one contract shall not be allocated 
to other contracts.
    (4) If initial costs are claimed and have not been segregated on the 
contractor's books, they shall be segregated for settlement purposes 
from cost reports and schedules reflecting that high unit cost incurred 
during the early stages of the contract.
    (5) If the settlement proposal is on the inventory basis, initial 
costs should normally be allocated on the basis of total end items 
called for by the contract immediately before termination; however, if 
the contract includes end items of a diverse nature, some other 
equitable basis may be used, such as machine or labor hours.
    (d) Loss of useful value. Loss of useful value of special tooling, 
and special machinery and equipment is generally allowable, provided--
    (1) The special tooling, or special machinery and equipment is not 
reasonably capable of use in the other work of the contractor;
    (2) The Government's interest is protected by transfer of title or 
by other means deemed appropriate by the contracting officer; and
    (3) The loss of useful value for any one terminated contract is 
limited to that portion of the acquisition cost which bears the same 
ratio to the total acquisition cost as the terminated portion of the 
contract bears to the entire terminated contract and other Government 
contracts for which the special tooling, or special machinery and 
equipment was acquired.
    (e) Rental under unexpired leases. Rental costs under unexpired 
leases, less the residual value of such leases, are generally allowable 
when shown to have been reasonably necessary for the performance of the 
terminated contract, if--
    (1) The amount of rental claimed does not exceed the reasonable use 
value of the property leased for the period of the contract and such 
further period as may be reasonable; and
    (2) The contractor makes all reasonable efforts to terminate, 
assign, settle, or otherwise reduce the cost of such lease.
    (f) Alterations of leased property. The cost of alterations and 
reasonable restorations required by the lease may be allowed when the 
alterations were necessary for performing the contract.
    (g) Settlement expenses. (1) Settlement expenses, including the 
following, are generally allowable:
    (i) Accounting, legal, clerical, and similar costs reasonably 
necessary for--
    (A) The preparation and presentation, including supporting data, of 
settlement claims to the contracting officer; and
    (B) The termination and settlement of subcontracts.
    (ii) Reasonable costs for the storage, transportation, protection, 
and disposition of property acquired or produced for the contract.
    (iii) Indirect costs related to salary and wages incurred as 
settlement expenses in (i) and (ii); normally, such indirect costs shall 
be limited to payroll

[[Page 712]]

taxes, fringe benefits, occupancy costs, and immediate supervision 
costs.
    (2) If settlement expenses are significant, a cost account or work 
order shall be established to separately identify and accumulate them.
    (h) Subcontractor claims. Subcontractor claims, including the 
allocable portion of the claims common to the contract and to other work 
of the contractor, are generally allowable. An appropriate share of the 
contractor's indirect expense may be allocated to the amount of 
settlements with subcontractors; provided, that the amount allocated is 
reasonably proportionate to the relative benefits received and is 
otherwise consistent with 31.201-4 and 31.203(d). The indirect expense 
so allocated shall exclude the same and similar costs claimed directly 
or indirectly as settlement expenses.

[48 FR 42301, Sept. 19, 1983, as amended at 69 FR 17767, Apr. 5, 2004]



Sec. 31.205-43  Trade, business, technical, and professional activity 
          costs.

    The following types of costs are allowable:
    (a) Memberships in trade, business, technical, and professional 
organizations.
    (b) Subscriptions to trade, business, professional, or other 
technical periodicals.
    (c) When the principal purpose of a meeting, convention, conference, 
symposium, or seminar is the dissemination of trade, business, technical 
or professional information or the stimulation of production or improved 
productivity:
    (1) Costs of organizing, setting up, and sponsoring the meetings, 
conventions, symposia, etc., including rental of meeting facilities, 
transportation, subsistence, and incidental costs;
    (2) Costs of attendance by contractor employees, including travel 
costs (see 31.205-46); and
    (3) Costs of attendance by individuals who are not employees of the 
contractor, provided;
    (i) Such costs are not also reimbursed to the individual by the 
employing company or organization, and
    (ii) The individual's attendance is essential to achieve the purpose 
of the conference, meeting, convention, symposium, etc.

[48 FR 42301, Sept. 19, 1983, as amended at 53 FR 27467, July 20, 1988; 
60 FR 42660, Aug. 16, 1995]



Sec. 31.205-44  Training and education costs.

    Costs of training and education that are related to the field in 
which the employee is working or may reasonably be expected to work are 
allowable, except as follows:
    (a) Overtime compensation for training and education is unallowable.
    (b) The cost of salaries for attending undergraduate level classes 
or part-time graduate level classes during working hours is unallowable, 
except when unusual circumstances do not permit attendance at such 
classes outside of regular working hours.
    (c) Costs of tuition, fees, training materials and textbooks, 
subsistence, salary, and any other payments in connection with full-time 
graduate level education are unallowable for any portion of the program 
that exceeds two school years or the length of the degree program, 
whichever is less.
    (d) Grants to educational or training institutions, including the 
donation of facilities or other properties, scholarships, and 
fellowships are considered contributions and are unallowable.
    (e) Training or education costs for other than bona fide employees 
are unallowable, except that the costs incurred for educating employee 
dependents (primary and secondary level studies) when the employee is 
working in a foreign country where suitable public education is not 
available may be included in overseas differential pay.
    (f) Contractor contributions to college savings plans for employee 
dependents are unallowable.

[70 FR 57472, Sept. 30, 2005]



Sec. 31.205-45  [Reserved]



Sec. 31.205-46  Travel costs.

    (a) Costs for transportation, lodging, meals, and incidental 
expenses. (1) Costs incurred by contractor personnel on official company 
business are allowable, subject to the limitations contained in this 
subsection. Costs for transportation may be based on mileage rates,

[[Page 713]]

actual costs incurred, or on a combination thereof, provided the method 
used results in a reasonable charge. Costs for lodging, meals, and 
incidental expenses may be based on per diem, actual expenses, or a 
combination thereof, provided the method used results in a reasonable 
charge.
    (2) Except as provided in paragraph (a)(3) of this section, costs 
incurred for lodging, meals, and incidental expenses (as defined in the 
regulations cited in (a)(2) (i) through (iii) of this paragraph) shall 
be considered to be reasonable and allowable only to the extent that 
they do not exceed on a daily basis the maximum per diem rates in effect 
at the time of travel as set forth in the--
    (i) Federal Travel Regulation, prescribed by the General Services 
Administration, for travel in the contiguous United States, available on 
a subscription basis from the Superintendent of Documents, U.S. 
Government Printing Office, Washington, DC 20402, Stock No. 922-002-
00000-2;
    (ii) Joint Travel Regulations, Volume 2, DoD Civilian Personnel, 
Appendix A, prescribed by the Department of Defense, for travel in 
Alaska, Hawaii, and outlying areas of the United States, available on a 
subscription basis from the Superintendent of Documents, U.S. Government 
Printing Office, Washington, DC 20402, Stock No. 908-010-00000-1; or
    (iii) Standarized Regulations (Government Civilians, Foreign Areas), 
section 925, Maximum Travel Per Diem Allowances of Foreign Areas, 
prescribed by the Department of State, for travel in areas not covered 
in (a)(2) (i) and (ii) of this paragraph, available on a subscription 
basis from the Superintendent of Documents, U.S. Government Printing 
Office, Washington, DC 20402, Stock No. 744-088-00000-0.
    (3) In special or unusual situations, actual costs in excess of the 
above-referenced maximum per diem rates are allowable provided that such 
amounts do not exceed the higher amounts authorized for Federal civilian 
employees as permitted in the regulations referenced in (a)(2) (i), 
(ii), or (iii) or this section. For such higher amounts to be allowable, 
all of the following conditions must be met:
    (i) One of the conditions warranting approval of the actual expense 
method, as set forth in the regulations referred in (a)(2) (i), (ii), or 
(iii) of this section, must exist.
    (ii) A written justification for use of the higher amounts must be 
approved by an officer of the contractor's organization or designee to 
ensure that the authority is properly administered and controlled to 
prevent abuse.
    (iii) If it becomes necessary to exercise the authority to use the 
higher actual expense method repetitively or on a continuing basis in a 
particular area, the contractor must obtain advance approval from the 
contracting officer.
    (iv) Documentation to support actual costs incurred shall be in 
accordance with the contractor's established practices, subject to 
paragraph (a)(7) of this subsection, and provided that a receipt is 
required for each expenditure of $75.00 or more. The approved 
justification required by paragraph (a)(3)(ii) and, if applicable, 
paragraph (a)(3)(iii) of this subsection must be retained.
    (4) Subparagraphs (a)(2) and (a)(3) of this subsection do not 
incorporate the regulations cited in subdivisions (a)(2)(i), (ii), and 
(iii) of this subsection in their entirety. Only the maximum per diem 
rates, the definitions of lodging, meals, and incidental expenses, and 
the regulatory coverage dealing with special or unusual situations are 
incorporated herein.
    (5) An advance agreement (see 31.109) with respect to compliance 
with paragraphs (a)(2) and (a)(3) of this section may be useful and 
desirable.
    (6) The maximum per diem rates referenced in subparagraph (a)(2) of 
this subsection generally would not constitute a reasonable daily 
charge--
    (i) When no lodging costs are incurred; and/or
    (ii) On partial travel days (e.g., day of departure and return).
    Appropriate downward adjustments from the maximum per diem rates 
would normally be required under these circumstances. While these 
adjustments need not be calculated in accordance with the Federal Travel 
Regulation or Joint Travel Regulations, they must result in a reasonable 
charge.

[[Page 714]]

    (7) Costs shall be allowable only if the following information is 
documented:
    (i) Date and place (city, town, or other similar designation) of the 
expenses;
    (ii) Purpose of the trip; and
    (iii) Name of person on trip and that person's title or relationship 
to the contractor.
    (b) Airfare costs in excess of the lowest priced airfare available 
to the contractor during normal business hours are unallowable except 
when such accommodations require circuitous routing, require travel 
during unreasonable hours, excessively prolong travel, result in 
increased cost that would offset transportation savings, are not 
reasonably adequate for the physical or medical needs of the traveler, 
or are not reasonably available to meet mission requirements. However, 
in order for airfare costs in excess of the above airfare to be 
allowable, the applicable condition(s) set forth above must be 
documented and justified.
    (c)(1) Cost of travel by contractor-owned, -leased, or -chartered 
aircraft, as used in this subparagraph, includes the cost of lease, 
charter, operation (including personnel), maintenance, depreciation, 
insurance, and other related costs.
    (2) The costs of travel by contractor-owned, -leased, or -chartered 
aircraft are limited to the allowable airfare described in paragraph (b) 
of this subsection for the flight destination unless travel by such 
aircraft is specifically required by contract specification, term, or 
condition, or a higher amount is approved by the contracting officer. A 
higher amount may be agreed to when one or more of the circumstances for 
justifying higher than allowable airfare listed in paragraph (b) of this 
subsection are applicable, or when an advance agreement under paragraph 
(c)(3) of this subsection has been executed. In all cases, travel by 
contractor-owned, -leased, or -chartered aircraft must be fully 
documented and justified. For each contractor-owned, -leased, or -
chartered aircraft used for any business purpose which is charged or 
allocated, directly or indirectly, to a Government contract, the 
contractor must maintain and make available manifest/logs for all 
flights on such company aircraft. As a minimum, the manifest/log shall 
indicate--
    (i) Date, time, and points of departure;
    (ii) Destination, date, and time of arrival;
    (iii) Name of each passenger and relationship to the contractor;
    (iv) Authorization for trip; and
    (v) Purpose of trip.
    (3) Where an advance agreement is proposed (see 31.109), 
consideration may be given to the following:
    (i) Whether scheduled commercial airlines or other suitable, less 
costly, travel facilities are available at reasonable times, with 
reasonable frequency, and serve the required destinations conveniently.
    (ii) Whether increased flexibility in scheduling results in time 
savings and more effective use of personnel that would outweigh 
additional travel costs.
    (d) Costs of contractor-owned or leased automobiles, as used in this 
paragraph, include the costs of lease, operation (including personnel), 
maintenance, depreciation, insurance, etc. These costs are allowable, if 
reasonable, to the extent that the automobiles are used for company 
business. That portion of the cost of company-furnished automobiles that 
relates to personal use by employees (including transportation to and 
from work) is compensation for personal services and is unallowable as 
stated in 31.205-6(m)(2).

[48 FR 42301, Sept. 19, 1983, as amended at 51 FR 12301, Apr. 9, 1986; 
51 FR 27489, July 31, 1986; 51 FR 36972, Oct. 16, 1986; 56 FR 41739, 
Aug. 22, 1991; 57 FR 20377, May 12, 1992; 61 FR 31657, June 20, 1996; 62 
FR 40237, July 25, 1997; 62 FR 64933, Dec. 9, 1997; 68 FR 28083, May 22, 
2003; 68 FR 56688, Oct. 1, 2003; 74 FR 65614, Dec. 10, 2009]



Sec. 31.205-47  Costs related to legal and other proceedings.

    (a) Definitions. As used in this subpart--
    Costs include, but are not limited to, administrative and clerical 
expenses; the costs of legal services, whether performed by in-house or 
private counsel; the costs of the services of accountants, consultants, 
or others retained by

[[Page 715]]

the contractor to assist it; costs of employees, officers, and 
directors; and any similar costs incurred before, during, and after 
commencement of a judicial or administrative proceeding which bears a 
direct relationship to the proceedings.
    Fraud, as used in this subsection, means--
    (1) Acts of fraud or corruption or attempts to defraud the 
Government or to corrupt its agents;
    (2) Acts which constitute a cause for debarment or suspension under 
9.406-2(a) and 9.407-2(a); and
    (3) Acts which violate the False Claims Act, 31 U.S.C., sections 
3729-3731, or the Anti-Kickback Act, 41 U.S.C., sections 51 and 54.
    Penalty, does not include restitution, reimbursement, or 
compensatory damages.
    Proceeding, includes an investigation.
    (b) In accordance with 41 U.S.C. 4310 and 10 U.S.C. 2324(k), costs 
incurred in connection with any proceeding brought by a Federal, State, 
local, or foreign government, or by a contractor or subcontractor 
employee submitting a whistleblower complaint of reprisal in accordance 
with 41 U.S.C. 4712 or 10 U.S.C. 2409, for violation of, or a failure to 
comply with, law or regulation by the contractor (including its agents 
or employees), or costs incurred in connection with any proceeding 
brought by a third party in the name of the United States under the 
False Claims Act, 31 U.S.C. 3730, are unallowable if the result is--
    (1) In a criminal proceeding, a conviction;
    (2) In a civil or administrative proceeding, either a finding of 
contractor liability where the proceeding involves an allegation of 
fraud or similar misconduct; or imposition of a monetary penalty, or an 
order issued by the agency head to the contractor or subcontractor to 
take corrective action under 41 U.S.C. 4712 or 10 U.S.C. 2409, where the 
proceeding does not involve an allegation of fraud or similar 
misconduct;
    (3) A final decision by an appropriate official of an executive 
agency to:
    (i) Debar or suspend the contractor;
    (ii) Rescind or void a contract; or
    (iii) Terminate a contract for default by reason of a violation or 
failure to comply with a law or regulation;
    (4) Disposition of the matter by consent or compromise if the 
proceeding could have led to any of the outcomes listed in subparagraphs 
(b) (1) through (3) of this subsection (but see paragraphs (c) and (d) 
of this subsection); or
    (5) Not covered by subparagraphs (b) (1) through (4) of this 
subsection, but where the underlying alleged contractor misconduct was 
the same as that which led to a different proceeding whose costs are 
unallowable by reason of subparagraphs (b) (1) through (4) of this 
subsection.
    (c)(1) To the extent they are not otherwise unallowable, costs 
incurred in connection with any proceeding under paragraph (b) of this 
subsection commenced by the United States that is resolved by consent or 
compromise pursuant to an agreement entered into between the contractor 
and the United States, and which are unallowable solely because of 
paragraph (b) of this subsection, may be allowed to the extent 
specifically provided in such agreement.
    (2) In the event of a settlement of any proceeding brought by a 
third party under the False Claims Act in which the United States did 
not intervene, reasonable costs incurred by the contractor in connection 
with such a proceeding, that are not otherwise unallowable by regulation 
or by separate agreement with the United States, may be allowed if the 
contracting officer, in consultation with his or her legal advisor, 
determines that there was very little likelihood that the third party 
would have been successful on the merits.
    (d) To the extent that they are not otherwise unallowable, costs 
incurred in connection with any proceeding under paragraph (b) of this 
subsection commenced by a State, local, or foreign government may be 
allowable when the contracting officer (or other official specified in 
agency procedures) determines, that the costs were incurred either:
    (1) As a direct result of a specific term or condition of a Federal 
contract; or

[[Page 716]]

    (2) As a result of compliance with specific written direction of the 
cognizant contracting officer.
    (e) Costs incurred in connection with proceedings described in 
paragraph (b) of this subsection, but which are not made unallowable by 
that paragraph, may be allowable to the extent that:
    (1) The costs are reasonable in relation to the activities required 
to deal with the proceeding and the underlying cause of action;
    (2) The costs are not otherwise recovered from the Federal 
Government or a third party, either directly as a result of the 
proceeding or otherwise; and
    (3) The percentage of costs allowed does not exceed the percentage 
determined to be appropriate considering the complexity of procurement 
litigation, generally accepted principles governing the award of legal 
fees in civil actions involving the United States as a party, and such 
other factors as may be appropriate. Such percentage shall not exceed 80 
percent. Agreements reached under paragraph (c) of this subsection shall 
be subject to this limitation. If, however, an agreement described in 
paragraph (c)(1) of this subsection explicitly states the amount of 
otherwise allowable incurred legal fees and limits the allowable 
recovery to 80 percent or less of the stated legal fees, no additional 
limitation need be applied. The amount of reimbursement allowed for 
legal costs in connection with any proceeding described in paragraph 
(c)(2) of this subsection shall be determined by the cognizant 
contracting officer, but shall not exceed 80 percent of otherwise 
allowable legal costs incurred.
    (f) Costs not covered elsewhere in this subsection are unallowable 
if incurred in connection with--
    (1) Defense against Federal Government claims or appeals or the 
prosecution of claims or appeals against the Federal Government (see 
2.101).
    (2) Organization, reorganization, (including mergers and 
acquisitions) or resisting mergers and acquisitions (see also 31.205-
27).
    (3) Defense of antitrust suits.
    (4) Defense of suits brought by employees or ex-employees of the 
contractor under section 2 of the Major Fraud Act of 1988 where the 
contractor was found liable or settled.
    (5) Costs of legal, accounting, and consultant services and directly 
associated costs incurred in connection with the defense or prosecution 
of lawsuits or appeals between contractors arising from either (i) an 
agreement or contract concerning a teaming arrangement, a joint venture, 
or similar arrangement of shared interest; or (ii) dual sourcing, 
coproduction, or similar programs, are unallowable, except when (A) 
incurred as a result of compliance with specific terms and conditions of 
the contract or written instructions from the contracting officer, or 
(B) when agreed to in writing by the contracting officer.
    (6) Patent infringement litigation, unless otherwise provided for in 
the contract.
    (7) Representation of, or assistance to, individuals, groups, or 
legal entities which the contractor is not legally bound to provide, 
arising from an action where the participant was convicted of violation 
of a law or regulation or was found liable in a civil or administrative 
proceeding.
    (8) Protests of Federal Government solicitations or contract awards, 
or the defense against protests of such solicitations or contract 
awards, unless the costs of defending against a protest are incurred 
pursuant to a written request from the cognizant contracting officer.
    (g) Costs which may be unallowable under 31.205-47, including 
directly associated costs, shall be segregated and accounted for by the 
contractor separately. During the pendency of any proceeding covered by 
paragraph (b) and subparagraphs (f)(4) and (f)(7) of this subsection, 
the contracting officer shall generally withhold payment of such costs. 
However, if in the best interests of the Government, the contracting 
officer may provide for conditional payment upon provision of adequate 
security, or other adequate assurance, and agreement by the contractor 
to repay all unallowable costs,

[[Page 717]]

plus interest, if the costs are subsequently determined to be 
unallowable.

[48 FR 42301, Sept. 19, 1983, as amended at 51 FR 12302, Apr. 9, 1986; 
54 FR 13024, Mar. 29, 1989; 55 FR 52794, Dec. 21, 1990; 61 FR 41477, 
Aug. 8, 1996; 63 FR 58600, Oct. 30, 1998; 65 FR 80265, Dec. 20, 2000; 66 
FR 17754, 17756, Apr. 3, 2001; at 66 FR 2131, Jan. 10, 2001; 66 FR 
17756, Apr. 3, 2001; 66 FR 66986, 66990, Dec. 27, 2001; 67 FR 43514, 
June 27, 2002; 78 FR 60172, Sept. 30, 2013]



Sec. 31.205-48  Research and development costs.

    Research and development, as used in this subsection, means the type 
of technical effort described in 31.205-18 but sponsored by a grant or 
required in the performance of a contract. When costs are incurred in 
excess of either the price of a contract or amount of a grant for 
research and development effort, the excess is unallowable under any 
other Government contract.

[65 FR 46072, July 26, 2000, as amended at 68 FR 28092, May 22, 2003]



Sec. 31.205-49  Goodwill.

    Goodwill, an unidentifiable intangible asset, originates under the 
purchase method of accounting for a business combination when the price 
paid by the acquiring company exceeds the sum of the identifiable 
individual assets acquired less liabilities assumed, based upon their 
fair values. The excess is commonly referred to as goodwill. Goodwill 
may arise from the acquisition of a company as a whole or a portion 
thereof. Any costs for amortization, expensing, write-off, or write-down 
of goodwill (however represented) are unallowable.

[49 FR 26743, June 29, 1984]



Sec. 31.205-50  [Reserved]



Sec. 31.205-51  Costs of alcoholic beverages.

    Costs of alcoholic beverages are unallowable.

[51 FR 12302, Apr. 9, 1986]



Sec. 31.205-52  Asset valuations resulting from business combinations.

    (a) For tangible capital assets, when the purchase method of 
accounting for a business combination is used, whether or not the 
contract or subcontract is subject to CAS, the allowable depreciation 
and cost of money shall be based on the capitalized asset values 
measured and assigned in accordance with 48 CFR 9904.404-50(d), if 
allocable, reasonable, and not otherwise unallowable.
    (b) For intangible capital assets, when the purchase method of 
accounting for a business combination is used, allowable amortization 
and cost of money shall be limited to the total of the amounts that 
would have been allowed had the combination not taken place.

[63 FR 9068, Feb. 23, 1998]

          Subpart 31.3_Contracts With Educational Institutions



Sec. 31.301  Purpose.

    This subpart provides the principles for determining the cost of 
research and development, training, and other work performed by 
educational institutions under contracts with the Government.



Sec. 31.302  General.

    Office of Management and Budget (OMB) Circular No. A-21, Cost 
Principles for Educational Institutions, revised, provides principles 
for determining the costs applicable to research and development, 
training, and other work performed by educational institutions under 
contracts with the Government.



Sec. 31.303  Requirements.

    (a) Contracts that refer to this subpart 31.3 for determining 
allowable costs under contracts with educational institutions shall be 
deemed to refer to, and shall have the allowability of costs determined 
by the contracting officer in accordance with, the revision of OMB 
Circular A-21 in effect on the date of the contract.
    (b) Agencies are not expected to place additional restrictions on 
individual items of cost.

Subparts 31.4-31.5 [Reserved]

[[Page 718]]

   Subpart 31.6_Contracts With State, Local, and Federally Recognized 
                        Indian Tribal Governments



Sec. 31.601  Purpose.

    This subpart provides the principles for determining allowable cost 
of contracts and subcontracts with State, local, and federally 
recognized Indian tribal governments.



Sec. 31.602  General.

    Office of Management and Budget (OMB) Circular No. A-87, Cost 
Principles for State and Local Governments, Revised, sets forth the 
principles for determining the allowable costs of contracts and 
subcontracts with State, local, and federally recognized Indian tribal 
governments. These principles are for cost determination and are not 
intended to identify the circumstances or dictate the extent of Federal 
and State or local participation in financing a particular contract.



Sec. 31.603  Requirements.

    (a) Contracts that refer to this subpart 31.6 for determining 
allowable costs under contracts with State, local and Indian tribal 
governments shall be deemed to refer to, and shall have the allowability 
of costs determined by the contracting officer in accordance with, the 
revision of OMB Circular A-87 which is in effect on the date of the 
contract.
    (b) Agencies are not expected to place additional restrictions on 
individual items of cost. However, under 10 U.S.C. 2324(e) and 41 U.S.C. 
256(e), the following costs are unallowable:
    (1) Costs of entertainment, including amusement, diversion, and 
social activities, and any costs directly associated with such costs 
(such as tickets to shows or sports events, meals, lodging, rentals, 
transportation, and gratuities).
    (2) Costs incurred to influence (directly or indirectly) legislative 
action on any matter pending before Congress, a State legislature, or a 
legislative body of a political subdivision of a State.
    (3) Costs incurred in defense of any civil or criminal fraud 
proceeding or similar proceeding (including filing of any false 
certification) brought by the United States where the contractor is 
found liable or has pleaded nolo contendere to a charge of fraud or 
similar proceeding (including filing of a false certification).
    (4) Payments of fines and penalties resulting from violations of, or 
failure to comply with, Federal, state, local, or foreign laws and 
regulations, except when incurred as a result of compliance with 
specific terms and conditions of the contract or specific written 
instructions from the contracting officer authorizing in advance such 
payments in accordance with applicable regulations in the FAR or an 
executive agency supplement to the FAR.
    (5) Costs of any membership in any social, dining, or country club 
or organization.
    (6) Costs of alcoholic beverages.
    (7) Contributions or donations, regardless of the recipient.
    (8) Costs of advertising designed to promote the contractor or its 
products.
    (9) Costs of promotional items and memorabilia, including models, 
gifts, and souvenirs.
    (10) Costs for travel by commercial aircraft which exceed the amount 
of the standard commercial fare.
    (11) Costs incurred in making any payment (commonly known as a 
``golden parachute payment'') which is--
    (i) In an amount in excess of the normal severance pay paid by the 
contractor to an employee upon termination of employment; and
    (ii) Is paid to the employee contingent upon, and following, a 
change in management control over, or ownership of, the contractor or a 
substantial portion of the contractor's assets.
    (12) Costs of commercial insurance that protects against the costs 
of the contractor for correction of the contractor's own defects in 
materials or workmanship.
    (13) Costs of severance pay paid by the contractor to foreign 
nationals employed by the contractor under a service contract performed 
outside the United States, to the extent that the amount of the 
severance pay paid in any case exceeds the amount paid in

[[Page 719]]

the industry involved under the customary or prevailing practice for 
firms in that industry providing similar services in the United States, 
as determined by regulations in the FAR or in an executive agency 
supplement to the FAR.
    (14) Costs of severance pay paid by the contractor to a foreign 
national employed by the contractor under a service contract performed 
in a foreign country if the termination of the employment of the foreign 
national is the result of the closing of, or curtailment of activities 
at, a United States facility in that country at the request of the 
government of that country.
    (15) Costs incurred by a contractor in connection with any criminal, 
civil, or administrative proceedings commenced by the United States or a 
State, to the extent provided in 10 U.S.C. 2324(k) or 41 U.S.C. 256(k).

[48 FR 42301, Sept. 19, 1983, as amended at 42660, Aug. 16, 1995]

           Subpart 31.7_Contracts With Nonprofit Organizations



Sec. 31.701  Purpose.

    This subpart provides the principles for determining the cost 
applicable to work performed by nonprofit organizations under contracts 
with the Government. A nonprofit organization, for purpose of 
identification, is defined as a business entity organized and operated 
exclusively for charitable, scientific, or educational purposes, of 
which no part of the net earnings inure to the benefit of any private 
shareholder or individual, of which no substantial part of the 
activities is carrying on propaganda or otherwise attempting to 
influence legislation or participating in any political campaign on 
behalf of any candidate for public office, and which are exempt from 
federal income taxation under section 501 of the Internal Revenue Code.



Sec. 31.702  General.

    Office of Management and Budget (OMB) Circular No. A-122, Cost 
Principles for Nonprofit Organizations, sets forth principles for 
determining the costs applicable to work performed by nonprofit 
organizations under contracts (also applies to grants and other 
agreements) with the Government.



Sec. 31.703  Requirements.

    (a) Contracts which refer to this subpart 31.7 for determining 
allowable costs shall be deemed to refer to, and shall have the 
allowability of costs determined by the contracting officer in 
accordance with, the revision of OMB Circular A-122 in effect on the 
date of the contract.
    (b) Agencies are not expected to place additional restrictions on 
individual items of cost. However, under 10 U.S.C. 2324(e) and 41 U.S.C. 
256(e), the costs cited in 31.603(b) are unallowable.

[48 FR 42301, Sept. 19, 1983, as amended at 60 FR 42661, Aug. 16, 1995]

                       PART 32_CONTRACT FINANCING

Sec.

Sec. 32.000 Scope of part.

Sec. 32.001 Definitions.

Sec. 32.002 Applicability of subparts.

Sec. 32.003 Simplified acquisition procedures financing.

Sec. 32.004 Contract performance in foreign countries.

Sec. 32.005 Consideration for contract financing.

Sec. 32.006 Reduction or suspension of contract payments upon finding of 
          fraud.

Sec. 32.006-1 General.

Sec. 32.006-2 Definition.

Sec. 32.006-3 Responsibilities.

Sec. 32.006-4 Procedures.

Sec. 32.006-5 Reporting.

Sec. 32.007 Contract financing payments.

Sec. 32.008 Notification of overpayment.

           Subpart 32.1_Non-Commercial Item Purchase Financing


Sec. 32.100 Scope of subpart.

Sec. 32.101 Authority.

Sec. 32.102 Description of contract financing methods.

Sec. 32.103 Progress payments under construction contracts.

Sec. 32.104 Providing contract financing.

Sec. 32.105 Uses of contract financing.

Sec. 32.106 Order of preference.

Sec. 32.107 Need for contract financing not a deterrent.

Sec. 32.108 Financial consultation.

Sec. 32.109 Termination financing.

Sec. 32.110 Payment of subcontractors under cost-reimbursement prime 
          contracts.

Sec. 32.111 Contract clauses for noncommercial purchases.

Sec. 32.112 Nonpayment of subcontractors under contracts for 
          noncommercial items.

[[Page 720]]


Sec. 32.112-1 Subcontractor assertions of nonpayment.

Sec. 32.112-2 Subcontractor requests for information.

Sec. 32.113 Customary contract financing.

Sec. 32.114 Unusual contract financing.

             Subpart 32.2_Commercial Item Purchase Financing


Sec. 32.200 Scope of subpart.

Sec. 32.201 Statutory authority.

Sec. 32.202 General.

Sec. 32.202-1 Policy.

Sec. 32.202-2 Types of payments for commercial item purchases.

Sec. 32.202-3 Conducting market research about financing terms.

Sec. 32.202-4 Security for Government financing.

Sec. 32.203 Determining contract financing terms.

Sec. 32.204 Procedures for contracting officer-specified commercial 
          contract financing.

Sec. 32.205 Procedures for offeror-proposed commercial contract 
          financing.

Sec. 32.206 Solicitation provisions and contract clauses.

Sec. 32.207 Administration and payment of commercial financing payments.

           Subpart 32.3_Loan Guarantees for Defense Production


Sec. 32.300 Scope of subpart.

Sec. 32.301 Definitions.

Sec. 32.302 Authority.

Sec. 32.303 General.

Sec. 32.304 Procedures.

Sec. 32.304-1 Application for guarantee.

Sec. 32.304-2 Certificate of eligibility.

Sec. 32.304-3 Asset formula.

Sec. 32.304-4 Guarantee amount and maturity.

Sec. 32.304-5 Assignment of claims under contracts.

Sec. 32.304-6 Other collateral security.

Sec. 32.304-7 Contract surety bonds and loan guarantees.

Sec. 32.304-8 Other borrowing.

Sec. 32.305 Loan guarantees for terminated contracts.

Sec. 32.306 Loan guarantees for subcontracts.

         Subpart 32.4_Advance Payments for Non-Commercial Items


Sec. 32.400 Scope of subpart.

Sec. 32.401 Statutory authority.

Sec. 32.402 General.

Sec. 32.403 Applicability.

Sec. 32.404 Exclusions.

Sec. 32.405 Applying Pub. L. 85-804 to advance payments under sealed bid 
          contracts.

Sec. 32.406 Letters of credit.

Sec. 32.407 Interest.

Sec. 32.408 Application for advance payments.

Sec. 32.409 Contracting officer action.

Sec. 32.409-1 Recommendation for approval.

Sec. 32.409-2 Recommendation for disapproval.

Sec. 32.409-3 Security, supervision, and covenants.

Sec. 32.410 Findings, determination, and authorization.

Sec. 32.411 Agreement for special account at a financial institution.

Sec. 32.412 Contract clause.

              Subpart 32.5_Progress Payments Based on Costs


Sec. 32.500 Scope of subpart.

Sec. 32.501 General.

Sec. 32.501-1 Customary progress payment rates.

Sec. 32.501-2 Unusual progress payments.

Sec. 32.501-3 Contract price.

Sec. 32.501-4 [Reserved]

Sec. 32.501-5 Other protective terms.

Sec. 32.502 Preaward matters.

Sec. 32.502-1 Use of customary progress payments.

Sec. 32.502-2 Contract finance office clearance.

Sec. 32.502-3 Solicitation provisions.

Sec. 32.502-4 Contract clauses.

Sec. 32.503 Postaward matters.

Sec. 32.503-1 [Reserved]

Sec. 32.503-2 Supervision of progress payments.

Sec. 32.503-3 Initiation of progress payments and review of accounting 
          system.

Sec. 32.503-4 Approval of progress payment requests.

Sec. 32.503-5 Administration of progress payments.

Sec. 32.503-6 Suspension or reduction of payments.

Sec. 32.503-7 [Reserved]

Sec. 32.503-8 Liquidation rates--ordinary method.

Sec. 32.503-9 Liquidation rates--alternate method.

Sec. 32.503-10 Establishing alternate liquidation rates.

Sec. 32.503-11 Adjustments for price reduction.

Sec. 32.503-12 Maximum unliquidated amount.

Sec. 32.503-13 [Reserved]

Sec. 32.503-14 Protection of Government title.

Sec. 32.503-15 Application of Government title terms.

Sec. 32.503-16 Risk of loss.

Sec. 32.504 Subcontracts under prime contracts providing progress 
          payments.

                       Subpart 32.6_Contract Debts


Sec. 32.600 Scope of subpart.

Sec. 32.601 General.

Sec. 32.602 Responsibilities.

Sec. 32.603 Debt determination.

Sec. 32.604 Demand for payment.

Sec. 32.605 Final decisions.

Sec. 32.606 Debt collection.

Sec. 32.607 Installment payments and deferment of collection.

Sec. 32.607-1 Installment payments.

Sec. 32.607-2 Deferment of collection.

Sec. 32.608 Interest.

[[Page 721]]


Sec. 32.608-1 Interest charges.

Sec. 32.608-2 Interest credits.

Sec. 32.609 Delays in receipt of notices or demands.

Sec. 32.610 Compromising debts.

Sec. 32.611 Contract clause.

                      Subpart 32.7_Contract Funding


Sec. 32.700 Scope of subpart.

Sec. 32.701 [Reserved]

Sec. 32.702 Policy.

Sec. 32.703 Contract funding requirements.

Sec. 32.703-1 General.

Sec. 32.703-2 Contracts conditioned upon availability of funds.

Sec. 32.703-3 Contracts crossing fiscal years.

Sec. 32.704 Limitation of cost or funds.

Sec. 32.705 Unenforceability of unauthorized obligations.

Sec. 32.706 Contract clauses.

Sec. 32.706-1 Clauses for contracting in advance of funds.

Sec. 32.706-2 Clauses for limitation of cost or funds.

Sec. 32.706-3 Clause for unenforceability of unauthorized obligations.

                    Subpart 32.8_Assignment of Claims


Sec. 32.800 Scope of subpart.

Sec. 32.801 Definitions.

Sec. 32.802 Conditions.

Sec. 32.803 Policies.

Sec. 32.804 Extent of assignee's protection.

Sec. 32.805 Procedure.

Sec. 32.806 Contract clauses.

                       Subpart 32.9_Prompt Payment


Sec. 32.900 Scope of subpart.

Sec. 32.901 Applicability.

Sec. 32.902 Definitions.

Sec. 32.903 Responsibilities.

Sec. 32.904 Determining payment due dates.

Sec. 32.905 Payment documentation and process.

Sec. 32.906 Making payments.

Sec. 32.907 Interest penalties.

Sec. 32.908 Contract clauses.

Sec. 32.909 Contractor inquiries.

                Subpart 32.10_Performance-Based Payments


Sec. 32.1000 Scope of subpart.

Sec. 32.1001 Policy.

Sec. 32.1002 Bases for performance-based payments.

Sec. 32.1003 Criteria for use.

Sec. 32.1004 Procedures.

Sec. 32.1005 Solicitation provision and contract clause.

Sec. 32.1006 [Reserved]

Sec. 32.1007 Administration and payment of performance-based payments.

Sec. 32.1008 Suspension or reduction of performance-based payments.

Sec. 32.1009 Title.

Sec. 32.1010 Risk of loss.

                 Subpart 32.11_Electronic Funds Transfer


Sec. 32.1100 Scope of subpart.

Sec. 32.1101 Statutory requirements.

Sec. 32.1102 Definitions.

Sec. 32.1103 Applicability.

Sec. 32.1104 Protection of EFT information.

Sec. 32.1105 Assignment of claims.

Sec. 32.1106 EFT mechanisms.

Sec. 32.1107 Payment information.

Sec. 32.1108 Payment by Governmentwide commercial purchase card.

Sec. 32.1109 EFT information submitted by offerors.

Sec. 32.1110 Solicitation provision and contract clauses.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 
20113.

    Source: 48 FR 42328, Sept. 19, 1983, unless otherwise noted.



Sec. 32.000  Scope of part.

    This part prescribes policies and procedures for contract financing 
and other payment matters. This part addresses--
    (a) Payment methods, including partial payments and progress 
payments based on percentage or stage of completion;
    (b) Loan guarantees, advance payments, and progress payments based 
on costs;
    (c) Administration of debts to the Government arising out of 
contracts;
    (d) Contract funding, including the use of contract clauses limiting 
costs or funds;
    (e) Assignment of claims to aid in private financing;
    (f) Selected payment clauses;
    (g) Financing of purchases of commercial items;
    (h) Performance-based payments; and
    (i) Electronic funds transfer payments.

[48 FR 42328, Sept. 19, 1983, as amended at 60 FR 49710, Sept. 26, 1995; 
61 FR 45772, Aug. 29, 1996; 67 FR 13054, Mar. 20, 2002]



Sec. 32.001  Definitions.

    As used in this part--
    Commercial interim payment means any payment that is not a 
commercial advance payment or a delivery payment. These payments are 
contract financing payments for prompt payment purposes (i.e., not 
subject to the interest penalty provisions of the Prompt

[[Page 722]]

Payment Act in accordance with subpart 32.9). A commercial interim 
payment is given to the contractor after some work has been done, 
whereas a commercial advance payment is given to the contractor when no 
work has been done.
    Contract action means an action resulting in a contract, as defined 
in subpart 2.1, including actions for additional supplies or services 
outside the existing contract scope, but not including actions that are 
within the scope and under the terms of the existing contract, such as 
contract modifications issued pursuant to the Changes clause, or funding 
and other administrative changes.
    Contract financing payment means an authorized Government 
disbursement of monies to a contractor prior to acceptance of supplies 
or services by the Government.
    (1) Contract financing payments include--
    (i) Advance payments;
    (ii) Performance-based payments;
    (iii) Commercial advance and interim payments;
    (iv) Progress payments based on cost under the clause at 52.232-16, 
Progress Payments;
    (v) Progress payments based on a percentage or stage of completion 
(see 32.102(e)), except those made under the clause at 52.232-5, 
Payments Under Fixed-Price Construction Contracts, or the clause at 
52.232-10, Payments Under Fixed-Price Architect-Engineer Contracts; and
    (vi) Interim payments under a cost reimbursement contract, except 
for a cost reimbursement contract for services when Alternate I of the 
clause at 52.232-25, Prompt Payment, is used.
    (2) Contract financing payments do not include--
    (i) Invoice payments;
    (ii) Payments for partial deliveries; or
    (iii) Lease and rental payments.
    Customary contract financing means that financing deemed by an 
agency to be available for routine use by contracting officers. Most 
customary contract financing arrangements should be usable by 
contracting officers without specific reviews or approvals by higher 
management.
    Delivery payment means a payment for accepted supplies or services, 
including payments for accepted partial deliveries. Commercial financing 
payments are liquidated by deduction from these payments. Delivery 
payments are invoice payments for prompt payment purposes.
    Designated billing office means the office or person (governmental 
or nongovernmental) designated in the contract where the contractor 
first submits invoices and contract financing requests. The contract 
might designate different offices to receive invoices and contract 
financing requests. The designated billing office might be--
    (1) The Government disbursing office;
    (2) The contract administration office;
    (3) The office accepting the supplies delivered or services 
performed by the contractor;
    (4) The contract audit office; or
    (5) A nongovernmental agent.
    Designated payment office means the office designated in the 
contract to make invoice payments or contract financing payments. 
Normally, this will be the Government disbursing office.
    Due date means the date on which payment should be made.
    Invoice payment means a Government disbursement of monies to a 
contractor under a contract or other authorization for supplies or 
services accepted by the Government.
    (1) Invoice payments include--
    (i) Payments for partial deliveries that have been accepted by the 
Government;
    (ii) Final cost or fee payments where amounts owed have been settled 
between the Government and the contractor;
    (iii) For purposes of subpart 32.9 only, all payments made under the 
clause at 52.232-5, Payments Under Fixed-Price Construction Contracts, 
and the clause at 52.232-10, Payments Under Fixed-Price Architect-
Engineer Contracts; and
    (iv) Interim payments under a cost-reimbursement contract for 
services when Alternate I of the clause at 52.232-25, Prompt Payment, is 
used.
    (2) Invoice payments do not include contract financing payments.

[[Page 723]]

    Liquidate means to decrease a payment for an accepted supply item or 
service under a contract for the purpose of recouping financing payments 
previously paid to the contractor.
    Unusual contract financing means any financing not deemed customary 
contract financing by the agency. Unusual contract financing is 
financing that is legal and proper under applicable laws, but that the 
agency has not authorized contracting officers to use without specific 
reviews or approvals by higher management.

[52 FR 30077, Aug. 12, 1987, as amended at 60 FR 49710, Sept. 26, 1995; 
66 FR 2131, Jan. 10, 2001; 66 FR 65354, Dec. 18, 2001; 67 FR 13054, Mar. 
20, 2002; 74 FR 28431, June 15, 2009]



Sec. 32.002  Applicability of subparts.

    (a) The following sections and subparts of this part are applicable 
to all purchases subject to part 32:
    (1) Sections 32.000 through 32.005.
    (2) Subpart 32.3, Loan Guarantees for Defense Production.
    (3) Subpart 32.6, Contract Debts.
    (4) Subpart 32.7, Contract Funding.
    (5) Subpart 32.8, Assignment of Claims.
    (6) Subpart 32.9, Prompt Payment.
    (7) Subpart 32.11, Electronic Funds Transfer.
    (b) Subpart 32.2, Commercial Item Purchase Financing, is applicable 
only to purchases of commercial items under authority of part 12.
    (c) The following subparts of this part are applicable to all 
purchases made under any authority other than part 12:
    (1) Subpart 32.1, Non-Commercial Item Purchase Financing.
    (2) Subpart 32.4, Advance Payments For Non-Commercial Items.
    (3) Subpart 32.5, Progress Payments Based on Costs.
    (4) Subpart 32.10, Performance-Based Payments.

[60 FR 49710, Sept. 26, 1995, as amended at 61 FR 45772, Aug. 29, 1996]



Sec. 32.003  Simplified acquisition procedures financing.

    Unless agency regulations otherwise permit, contract financing shall 
not be provided for purchases made under the authority of part 13.

[60 FR 49710, Sept. 26, 1995]



Sec. 32.004  Contract performance in foreign countries.

    The enforceability of contract provisions for security of Government 
financing in a foreign jurisdiction is dependent upon local law and 
procedure. Prior to providing contract financing where foreign 
jurisdictions may become involved, the contracting officer shall ensure 
the Government's security is enforceable. This may require the provision 
of additional or different security than that normally provided for in 
the standard contract clauses.

[60 FR 49710, Sept. 26, 1995]



Sec. 32.005  Consideration for contract financing.

    (a) Requirement. When a contract financing clause is included at the 
inception of a contract, there shall be no separate consideration for 
the contract financing clause. The value of the contract financing to 
the contractor is expected to be reflected in either
    (1) A bid or negotiated price that will be lower than such price 
would have been in the absence of the contract financing, or
    (2) Contract terms and conditions, other than price, that are more 
beneficial to the Government than they would have been in the absence of 
the contract financing. Adequate new consideration is required for 
changes to, or the addition of, contract financing after award.
    (b) Amount of new consideration. The contractor may provide new 
consideration by monetary or nonmonetary means, provided the value is 
adequate. The fair and reasonable consideration should approximate the 
amount by which the price would have been less had the contract 
financing terms been contained in the initial contract. In the absence 
of definite information on this point, the contracting officer should 
apply the following criteria in evaluating whether the proposed new 
consideration is adequate:
    (1) The value to the contractor of the anticipated amount and 
duration of the

[[Page 724]]

contract financing at the imputed financial costs of the equivalent 
working capital.
    (2) The estimated profit rate to be earned through contract 
performance.
    (c) Interest. Except as provided in subpart 32.4, Advance Payments 
for Non-Commercial Items, the contract shall not provide for any other 
type of specific charges, such as interest, for contract financing.

[60 FR 49710, Sept. 26, 1995]



Sec. 32.006  Reduction or suspension of contract payments upon finding 
          of fraud.



Sec. 32.006-1  General.

    (a) Under Title 10 of the United States Code, the statutory 
authority implemented by this section is available to the Department of 
Defense and the National Aeronautics and Space Administration; this 
statutory authority is not available to the United States Coast Guard. 
Under the Federal Property and Administrative Services Act (41 U.S.C. 
255), this statutory authority is available to all agencies subject to 
that Act.
    (b) 10 U.S.C. 2307(i)(2) and 41 U.S.C. 255, as amended by the 
Federal Acquisition Streamlining Act of 1994, Public Law 103-355, 
provide for a reduction or suspension of further payments to a 
contractor when the agency head determines there is substantial evidence 
that the contractor's request for advance, partial, or progress payments 
is based on fraud. This authority does not apply to commercial interim 
payments under subpart 32.2, or performance-based payments under subpart 
32.10.
    (c) The agency head may not delegate his or her responsibilities 
under these statutes below Level IV of the Executive Schedule.
    (d) Authority to reduce or suspend payments under these statutes is 
in addition to other Government rights, remedies, and procedures.
    (e) In accordance with these statutes, agency head determinations 
and decisions under this section may be made for an individual contract 
or any group of contracts affected by the fraud.

[60 FR 49728, Sept. 26, 1995, as amended at 72 FR 46363, Aug. 17, 2007]



Sec. 32.006-2  Definition.

    Remedy coordination official, as used in this section, means the 
person or entity in the agency who coordinates within that agency the 
administration of criminal, civil, administrative, and contractual 
remedies resulting from investigations of fraud or corruption related to 
procurement activities. (See 10 U.S.C. 2307(i)(10) and 41 U.S.C. 
255(g)(9).)

[60 FR 49729, Sept. 26, 1995, as amended at 66 FR 2132, Jan. 10, 2001; 
72 FR 46363, Aug. 17, 2007]



Sec. 32.006-3  Responsibilities.

    (a) Agencies shall establish appropriate procedures to implement the 
policies and procedures of this section.
    (b) Government personnel shall report suspected fraud related to 
advance, partial, or progress payments in accordance with agency 
regulations.

[60 FR 49729, Sept. 26, 1995]



Sec. 32.006-4  Procedures.

    (a) In any case in which an agency's remedy coordination official 
finds substantial evidence that a contractor's request for advance, 
partial, or progress payments under a contract awarded by that agency is 
based on fraud, the remedy coordination official shall recommend that 
the agency head reduce or suspend further payments to the contractor. 
The remedy coordination official shall submit to the agency head a 
written report setting forth the remedy coordination official's findings 
that support each recommendation.
    (b) Upon receiving a recommendation from the remedy coordination 
official under paragraph (a) of this subsection, the agency head shall 
determine whether substantial evidence exists that the request for 
payment under a contract is based on fraud.
    (c) If the agency head determines that substantial evidence exists, 
the agency head may reduce or suspend further payments to the contractor 
under the affected contract(s). Such reduction or suspension shall be 
reasonably commensurate with the anticipated loss to the Government 
resulting from the fraud.
    (d) In determining whether to reduce or suspend further payment(s), 
as a

[[Page 725]]

minimum, the agency head shall consider--
    (1) A recommendation from investigating officers that disclosure of 
the allegations of fraud to the contractor may compromise an ongoing 
investigation;
    (2) The anticipated loss to the Government as a result of the fraud;
    (3) The contractor's overall financial condition and ability to 
continue performance if payments are reduced or suspended;
    (4) The contractor's essentiality to the national defense, or to the 
execution of the agency's official business; and
    (5) Assessment of all documentation concerning the alleged fraud, 
including documentation submitted by the contractor in its response to 
the notice required by paragraph (e) of this subsection.
    (e) Before making a decision to reduce or suspend further payments, 
the agency head shall, in accordance with agency procedures--
    (1) Notify the contractor in writing of the action proposed by the 
remedy coordination official and the reasons therefor (such notice must 
be sufficiently specific to permit the contractor to collect and present 
evidence addressing the aforesaid reasons); and
    (2) Provide the contractor an opportunity to submit information 
within a reasonable time, in response to the action proposed by the 
remedy coordination official.
    (f) When more than one agency has contracts affected by the fraud, 
the agencies shall consider designating one agency as the lead agency 
for making the determination and decision.
    (g) The agency shall retain in its files the written justification 
for each--
    (1) Decision of the agency head whether to reduce or suspend further 
payments; and
    (2) Recommendation received by an agency head in connection with 
such decision.
    (h) Not later than 180 calendar days after the date of the reduction 
or suspension action, the remedy coordination official shall--
    (1) Review the agency head's determination on which the reduction or 
suspension decision is based; and
    (2) Transmit a recommendation to the agency head as to whether the 
reduction or suspension should continue.

[60 FR 49729, Sept. 26, 1995]



Sec. 32.006-5  Reporting.

    (a) In accordance with 41 U.S.C. 255, the head of an agency, other 
than the Department of Defense, shall prepare a report for each fiscal 
year in which a recommendation has been received pursuant to 32.006-
4(a). Reports within the Department of Defense shall be prepared in 
accordance with 10 U.S.C. 2307.
    (b) In accordance with 41 U.S.C. 255 and 10 U.S.C. 2307, each report 
shall contain--
    (1) Each recommendation made by the remedy coordination official;
    (2) The actions taken on the recommendation(s), with reasons for 
such actions; and
    (3) An assessment of the effects of each action on the Government.

[60 FR 49729, Sept. 26, 1995]



Sec. 32.007  Contract financing payments.

    (a)(1) Unless otherwise prescribed in agency policies and procedures 
or otherwise specified in paragraph (b) of this section, the due date 
for making contract financing payments by the designated payment office 
is the 30th day after the designated billing office receives a proper 
contract financing request.
    (2) If 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 specified due date.
    (3) Agency heads may prescribe shorter periods for payment based on 
contract pricing or administrative considerations. For example, a 
shorter period may be justified by an agency if the nature and extent of 
contract financing arrangements are integrated with agency contract 
pricing policies.
    (4) Agency heads must not prescribe a period shorter than 7 days or 
longer than 30 days.
    (b) For advance payments, loans, or other arrangements that do not 
involve

[[Page 726]]

recurrent submission of contract financing requests, the designated 
payment office will make payment in accordance with the applicable 
contract financing terms or as directed by the contracting officer.
    (c) A proper contract financing request must comply with the terms 
and conditions specified by the contract. The contractor must correct 
any defects in requests submitted in the manner specified in the 
contract or as directed by the contracting officer.
    (d) The designated billing office and designated payment office must 
annotate each contract financing request with the date their respective 
offices received the request.
    (e) The Government will not pay an interest penalty to the 
contractor as a result of delayed contract financing payments.

[66 FR 65355, Dec. 18, 2001]



Sec. 32.008  Notification of overpayment.

    If the contractor notifies the contracting officer of a duplicate 
payment or that the Government has otherwise overpaid, the contracting 
officer shall follow the procedures at 32.604.

[73 FR 54002, Sept. 17, 2008]

           Subpart 32.1_Non-Commercial Item Purchase Financing



Sec. 32.100  Scope of subpart.

    This subpart provides policies and procedures applicable to contract 
financing and payment for any purchases other than purchases of 
commercial items in accordance with part 12.

[60 FR 49710, Sept. 26, 1995]



Sec. 32.101  Authority.

    The basic authority for the contract financing described in this 
part is contained in section 305 of the Federal Property and 
Administrative Services Act of 1949 (41 U.S.C. 255), section 2307 of the 
Armed Services Procurement Act (10 U.S.C. 2307), and Title III of the 
Defense Production Act of 1950 (50 U.S.C. App. 2091), as amended.

[48 FR 42328, Sept. 19, 1983, as amended at 60 FR 49710, Sept. 26, 1995]



Sec. 32.102  Description of contract financing methods.

    (a) Advance payments are advances of money by the Government to a 
prime contractor before, in anticipation of, and for the purpose of 
complete performance under one or more contracts. They are expected to 
be liquidated from payments due to the contractor incident to 
performance of the contracts. Since they are not measured by 
performance, they differ from partial, progress, or other payments based 
on the performance or partial performance of a contract. Advance 
payments may be made to prime contractors for the purpose of making 
advances to subcontractors.
    (b) Progress payments based on costs are made on the basis of costs 
incurred by the contractor as work progresses under the contract. This 
form of contract financing does not include--
    (1) Payments based on the percentage or stage of completion 
accomplished;
    (2) Payments for partial deliveries accepted by the Government;
    (3) Partial payments for a contract termination proposal; or
    (4) Performance-based payments.
    (c) Loan guarantees are made by Federal Reserve banks, on behalf of 
designated guaranteeing agencies, to enable contractors to obtain 
financing from private sources under contracts for the acquisition of 
supplies or services for the national defense.
    (d) Payments for accepted supplies and services that are only a part 
of the contract requirements (i.e., partial deliveries) are authorized 
under 41 U.S.C. 255 and 10 U.S.C. 2307. In accordance with 5 CFR 
1315.4(k), agencies must pay for partial delivery of supplies or partial 
performance of services unless specifically prohibited by the contract. 
Although payments for partial deliveries generally are treated as a 
method of payment and not as a method of contract financing, using 
partial delivery payments can assist contractors to participate in 
contracts without, or with minimal, contract financing. When 
appropriate, contract statements of work and pricing arrangements must 
permit acceptance and payment for discrete portions of the work, as soon 
as accepted (see 32.906(c)).

[[Page 727]]

    (e)(1) Progress payments based on a percentage or stage of 
completion are authorized by the statutes cited in 32.101.
    (2) This type of progress payment may be used as a payment method 
under agency procedures. Agency procedures must ensure that payments are 
commensurate with work accomplished, which meets the quality standards 
established under the contract. Furthermore, progress payments may not 
exceed 80 percent of the eligible costs of work accomplished on 
undefinitized contract actions.
    (f) Performance-based payments are contract financing payments made 
on the basis of--
    (1) Performance measured by objective, quantifiable methods;
    (2) Accomplishment of defined events; or
    (3) Other quantifiable measures of results.

[48 FR 42328, Sept. 19, 1987, as amended at 52 FR 30077, Aug. 12, 1987; 
60 FR 49711, Sept. 26, 1995; 62 FR 12706, Mar. 17, 1997; 66 FR 65355, 
Dec. 18, 2001]



Sec. 32.103  Progress payments under construction contracts.

    When satisfactory progress has not been achieved by a contractor 
during any period for which a progress payment is to be made, a 
percentage of the progress payment may be retained. Retainage should not 
be used as a substitute for good contract management, and the 
contracting officer should not withhold funds without cause. 
Determinations to retain and the specific amount to be withheld shall be 
made by the contracting officer on a case-by-case basis. Such decisions 
will be based on the contracting officer's assessment of past 
performance and the likelihood that such performance will continue. The 
amount of retainage withheld shall not exceed 10 percent of the approved 
estimated amount in accordance with the terms of the contract and may be 
adjusted as the contract approaches completion to recognize better than 
expected performance, the ability to rely on alternative safeguards, and 
other factors. Upon completion of all contract requirements, retained 
amounts shall be paid promptly.

[51 FR 19716, May 30, 1986, as amended at 60 FR 49711, Sept. 26, 1995]



Sec. 32.104  Providing contract financing.

    (a) Prudent contract financing can be a useful working tool in 
Government acquisition by expediting the performance of essential 
contracts. Contracting officers must consider the criteria in this part 
in determining whether to include contract financing in solicitations 
and contracts. Resolve reasonable doubts by including contract financing 
in the solicitation. The contracting officer must--
    (1) Provide Government financing only to the extent actually needed 
for prompt and efficient performance, considering the availability of 
private financing and the probable impact on working capital of the 
predelivery expenditures and production lead-times associated with the 
contract, or groups of contracts or orders (e.g., issued under 
indefinite-delivery contracts, basic ordering agreements, or their 
equivalent);
    (2) Administer contract financing so as to aid, not impede, the 
acquisition;
    (3) Avoid any undue risk of monetary loss to the Government through 
the financing;
    (4) Include the form of contract financing deemed to be in the 
Government's best interest in the solicitation (see 32.106 and 32.113); 
and
    (5) Monitor the contractor's use of the contract financing provided 
and the contractor's financial status.
    (b) If the contractor is a small business concern, the contracting 
officer must give special attention to meeting the contractor's contract 
financing need. However, a contractor's receipt of a certificate of 
competency from the Small Business Administration has no bearing on the 
contractor's need for or entitlement to contract financing.
    (c) Subject to specific agency regulations and paragraph (d) of this 
section, the contracting officer--
    (1) May provide customary contract financing in accordance with 
32.113; and
    (2) Must not provide unusual contract financing except as authorized 
in 32.114.

[[Page 728]]

    (d) Unless otherwise authorized by agency procedures, the 
contracting officer may provide contract financing in the form of 
performance-based payments (see subpart 32.10) or customary progress 
payments (see subpart 32.5) if the following conditions are met:
    (1) The contractor--
    (i) Will not be able to bill for the first delivery of products for 
a substantial time after work must begin (normally 4 months or more for 
small business concerns, and 6 months or more for others), and will make 
expenditures for contract performance during the predelivery period that 
have a significant impact on the contractor's working capital; or
    (ii) Demonstrates actual financial need or the unavailability of 
private financing.
    (2) If the contractor is not a small business concern--
    (i) For an individual contract, the contract price is $2.5 million 
or more; or
    (ii) For an indefinite-delivery contract, a basic ordering agreement 
or a similar ordering instrument, the contracting officer expects the 
aggregate value of orders or contracts that individually exceed the 
simplified acquisition threshold to have a total value of $2.5 million 
or more. The contracting officer must limit financing to those orders or 
contracts that exceed the simplified acquisition threshold.
    (3) If the contractor is a small business concern--
    (i) For an individual contract, the contract price exceeds the 
simplified acquisition threshold; or
    (ii) For an indefinite-delivery contract, a basic ordering agreement 
or a similar ordering instrument, the contracting officer expects the 
aggregate value of orders or contracts to exceed the simplified 
acquisition threshold.

[65 FR 16278, Mar. 27, 2000, as amended at 71 FR 57368, Sept. 28, 2006]



Sec. 32.105  Uses of contract financing.

    (a) Contract financing methods covered in this part are intended to 
be self-liquidating through contract performance. Consequently, agencies 
shall only use the methods for financing of contractor working capital, 
not for the expansion of contractor-owned facilities or the acquisition 
of fixed assets. However, under loan guarantees, exceptions may be made 
for--
    (1) Facilities expansion of a minor or incidental nature, if a 
relatively small part of the guaranteed loan is used for the expansion 
and the contractor's repayment would not be delayed or impaired; or
    (2) Other instances of facilities expansion for which contract 
financing is appropriate under agency procedures.
    (b) The limitations in this section do not apply to contracts under 
which facilities are being acquired for Government ownership.



Sec. 32.106  Order of preference.

    The contracting officer must consider the following order of 
preference when a contractor requests contract financing, unless an 
exception would be in the Government's best interest in a specific case:
    (a) Private financing without Government guarantee. It is not 
intended, however, that the contracting officer require the contractor 
to obtain private financing--
    (1) At unreasonable terms; or
    (2) From other agencies.
    (b) Customary contract financing other than loan guarantees and 
certain advance payments (see 32.113).
    (c) Loan guarantees.
    (d) Unusual contract financing (see 32.114).
    (e) Advance payments (see exceptions in 32.402(b)).

[48 FR 42328, Sept. 19, 1983, as amended at 60 FR 49711, Sept. 26, 1995; 
65 FR 16279, Mar. 27, 2000]



Sec. 32.107  Need for contract financing not a deterrent.

    (a) If the contractor or offeror meets the standards prescribed for 
responsible prospective contractors at 9.104, the contracting officer 
shall not treat the contractor's need for contract financing as a 
handicap for a contract award; e.g., as a responsibility factor or 
evaluation criterion.
    (b) The contractor should not be disqualified from contract 
financing solely because the contractor failed to indicate a need for 
contract financing before the contract was awarded.

[[Page 729]]



Sec. 32.108  Financial consultation.

    Each contracting office should have available and use the services 
of contract financing personnel competent to evaluate credit and 
financial problems. In resolving any questions concerning (a) the 
financial capability of an offeror or contractor to perform a contract 
or (b) what form of contract financing is appropriate in a given case, 
the contracting officer should consult the appropriate contract 
financing office.



Sec. 32.109  Termination financing.

    To encourage contractors to invest their own funds in performance 
despite the susceptibility of the contract to termination for the 
convenience of the Government, the contract financing procedures under 
this part may be applied to the financing of terminations either in 
connection with or independently of financing for contract performance 
(see 49.112-1).



Sec. 32.110  Payment of subcontractors under cost-reimbursement prime 
          contracts.

    If the contractor makes financing payments to a subcontractor under 
a cost-reimbursement prime contract, the contracting officer should 
accept the financing payments as reimbursable costs of the prime 
contract only under the following conditions:
    (a) The payments are made under the criteria in subpart 32.5 for 
customary progress payments based on costs, 32.202-1 for commercial item 
purchase financing, or 32.1003 for performance-based payments, as 
applicable.
    (b) If customary progress payments are made, the payments do not 
exceed the progress payment rate in 32.501-1, unless unusual progress 
payments to the subcontractor have been approved in accordance with 
32.501-2.
    (c) If customary progress payments are made, the subcontractor 
complies with the liquidation principles of 32.503-8, 32.503-9, and 
32.503-10.
    (d) If performance-based payments are made, the subcontractor 
complies with the liquidation principles of 32.1004(d).
    (e) The subcontract contains financing payments terms as prescribed 
in this part.

[65 FR 16279, Mar. 27, 2000]



Sec. 32.111  Contract clauses for noncommercial purchases.

    (a) The contracting officer shall insert the following clauses, 
appropriately modified with respect to payment due dates, in accordance 
with agency regulations--
    (1) The clause at 52.232-1, Payments, in solicitations and contracts 
when a fixed-price supply contract, a fixed-price service contract, or a 
contract for nonregulated communication services is contemplated;
    (2) The clause at 52.232-2, Payment under Fixed-Price Research and 
Development Contracts, in solicitations and contracts when a fixed-price 
research and development contract is contemplated;
    (3) The clause at 52.232-3, Payments under Personal Services 
Contracts, in solicitations and contracts for personal services;
    (4) The clause at 52.232-4, Payments under Transportation Contracts 
and Transportation-Related Services Contracts, in solicitations and 
contracts for transportation or transportation-related services;
    (5) The clause at 52.232-5, Payments under Fixed-Price Construction 
Contracts, in solicitations and contracts for construction when a fixed-
price contract is contemplated;
    (6) The clause at 52.232-6, Payments under Communication Service 
Contracts with Common Carriers, in solicitations and contracts for 
regulated communication services by common carriers; and
    (7) The clause at 52.232-7, Payments under Time-and-Materials and 
Labor-Hour Contracts, in solicitations and contracts when a time-and-
materials or labor-hour contract is contemplated. If the contracting 
officer determines that it is necessary to withhold payment to protect 
the Government's interests, paragraph (a)(7) of the clause permits the 
contracting officer to unilaterally issue a modification requiring the 
contractor to withhold 5 percent of amounts due, up to a maximum of

[[Page 730]]

$50,000 under the contract. The contracting officer shall ensure that 
the modification specifies the percentage and total amount of the 
withheld payment. Normally, there should be no need to withhold payment 
for a contractor with a record of timely submittal of the release 
discharging the Government from all liabilities, obligations, and 
claims, as required by paragraph (g) of the clause.
    (b) The contracting officer shall insert the following clauses, 
appropriately modified with respect to payment due dates in accordance 
with agency regulations:
    (1) The clause at 52.232-8, Discounts for Prompt Payment, in 
solicitations and contracts when a fixed-price supply contract or fixed-
price service contract is contemplated.
    (2) A clause, substantially the same as the clause at 52.232-9, 
Limitation on Withholding of Payments, in solicitations and contracts 
when a supply contract, research and development contract, service 
contract, time-and-materials contract, or labor-hour contract is 
contemplated that includes two or more terms authorizing the temporary 
withholding of amounts otherwise payable to the contractor for supplies 
delivered or services performed.
    (c) The contracting officer shall insert the following clauses, 
appropriately modified with respect to payments due dates in accordance 
with agency regulations:
    (1) The clause at 52.232-10, Payments under Fixed-Price Architect-
Engineer Contracts, in fixed-price architect-engineer contracts.
    (2) The clause at 52.232-11, Extras, in solicitations and contracts 
when a fixed-price supply contract, fixed-price service contract, or a 
transportation contract is contemplated.

[48 FR 42328, Sept. 19, 1983, as amended at 51 FR 2665, Jan. 17, 1986; 
60 FR 49711, Sept. 26, 1995; 70 FR 43581, July 27, 2005; 71 FR 74665, 
Dec. 12, 2006; 72 FR 6882, Feb. 13, 2007; 77 FR 44061, July 26, 2012]



Sec. 32.112  Nonpayment of subcontractors under contracts for 
          noncommercial items.



Sec. 32.112-1  Subcontractor assertions of nonpayment.

    (a) In accordance with Section 806(a)(4) of Pub. L. 102-190, as 
amended by Sections 2091 and 8105 of Pub. L. 103-355, upon the assertion 
by a subcontractor or supplier of a Federal contractor that the 
subcontractor or supplier has not been paid in accordance with the 
payment terms of the subcontract, purchase order, or other agreement 
with the prime contractor, the contracting officer may determine--
    (1) For a construction contract, whether the contractor has made--
    (i) Progress payments to the subcontractor or supplier in compliance 
with Chapter 39 of Title 31, United States Code (Prompt Payment Act); or
    (ii) Final payment to the subcontractor or supplier in compliance 
with the terms of the subcontract, purchase order, or other agreement 
with the prime contractor;
    (2) For a contract other than construction, whether the contractor 
has made progress payments, final payments, or other payments to the 
subcontractor or supplier in compliance with the terms of the 
subcontract, purchase order, or other agreement with the prime 
contractor; or
    (3) For any contract, whether the contractor's certification of 
payment of a subcontractor or supplier accompanying its payment request 
to the Government is accurate.
    (b) If, in making the determination in paragraphs (a)(1) and (2) of 
this section, the contracting officer finds the prime contractor is not 
in compliance, the contracting officer may--
    (1) Encourage the contractor to make timely payment to the 
subcontractor or supplier; or
    (2) If authorized by the applicable payment clauses, reduce or 
suspend progress payments to the contractor.
    (c) If the contracting officer determines that a certification 
referred to in paragraph (a)(3) of this section is inaccurate in any 
material respect, the

[[Page 731]]

contracting officer shall initiate administrative or other remedial 
action.

[60 FR 48274, Sept. 18, 1995]



Sec. 32.112-2  Subcontractor requests for information.

    (a) In accordance with Section 806(a)(1) of Pub. L. 102-190, as 
amended by Sections 2091 and 8105 of Pub. L. 103-355, upon the request 
of a subcontractor or supplier under a Federal contract for a non-
commercial item, the contracting officer shall promptly advise the 
subcontractor or supplier as to--
    (1) Whether the prime contractor has submitted requests for progress 
payments or other payments to the Federal Government under the contract; 
and
    (2) Whether final payment under the contract has been made by the 
Federal Government to the prime contractor.
    (b) In accordance with 5 U.S.C. 552(b)(1), this subsection does not 
apply to matters that are--
    (1) Specifically authorized under criteria established by an 
Executive order to be kept classified in the interest of national 
defense or foreign policy; and
    (2) Properly classified pursuant to such Executive order.

[60 FR 48274, Sept. 18, 1995]



Sec. 32.113  Customary contract financing.

    The solicitation must specify the customary contract financing 
offerors may propose. The following are customary contract financing 
when provided in accordance with this part and agency regulations:
    (a) Financing of shipbuilding, or ship conversion, alteration, or 
repair, when agency regulations provide for progress payments based on a 
percentage or stage of completion.
    (b) Financing of construction or architect-engineer services 
purchased under the authority of part 36.
    (c) Financing of contracts for supplies or services awarded under 
the sealed bid method of procurement in accordance with part 14 through 
progress payments based on costs in accordance with subpart 32.5.
    (d) Financing of contracts for supplies or services awarded under 
the competitive negotiation method of procurement in accordance with 
part 15, through either progress payments based on costs in accordance 
with subpart 32.5, or performance-based payments in accordance with 
subpart 32.10 (but not both).
    (e) Financing of contracts for supplies or services awarded under a 
sole-source acquisition as defined in 2.101 and using the procedures of 
part 15, through either progress payments based on costs in accordance 
with subpart 32.5, or performance-based payments in accordance with 
subpart 32.10 (but not both).
    (f) Financing of contracts for supplies or services through advance 
payments in accordance with subpart 32.4.
    (g) Financing of contracts for supplies or services through 
guaranteed loans in accordance with subpart 32.3.
    (h) Financing of contracts for supplies or services through any 
appropriate combination of advance payments, guaranteed loans, and 
either performance-based payments or progress payments (but not both) in 
accordance with their respective subparts.

[65 FR 16279, Mar. 27, 2000, as amended at 66 FR 2132, Jan. 10, 2001]



Sec. 32.114  Unusual contract financing.

    Any contract financing arrangement that deviates from this part is 
unusual contract financing. Unusual contract financing shall be 
authorized only after approval by the head of the agency or as provided 
for in agency regulations.

[60 FR 49711, Sept. 26, 1995]

             Subpart 32.2_Commercial Item Purchase Financing

    Source: 60 FR 49711, Sept. 26, 1995, unless otherwise noted.



Sec. 32.200  Scope of subpart.

    This subpart provides policies and procedures for commercial 
financing arrangements under commercial purchases pursuant to Part 12.



Sec. 32.201  Statutory authority.

    10 U.S.C. 2307(f) and 41 U.S.C. 255(f) provide that payment for 
commercial items may be made under such terms

[[Page 732]]

and conditions as the head of the agency determines are appropriate or 
customary in the commercial marketplace and are in the best interest of 
the United States.



Sec. 32.202  General.



Sec. 32.202-1  Policy.

    (a) Use of financing in contracts. It is the responsibility of the 
contractor to provide all resources needed for performance of the 
contract. Thus, for purchases of commercial items, financing of the 
contract is normally the contractor's responsibility. However, in some 
markets the provision of financing by the buyer is a commercial 
practice. In these circumstances, the contracting officer may include 
appropriate financing terms in contracts for commercial purchases when 
doing so will be in the best interest of the Government.
    (b) Authorization. Commercial interim payments and commercial 
advance payments may be made under the following circumstances--
    (1) The contract item financed is a commercial supply or service;
    (2) The contract price exceeds the simplified acquisition threshold;
    (3) The contracting officer determines that it is appropriate or 
customary in the commercial marketplace to make financing payments for 
the item;
    (4) Authorizing this form of contract financing is in the best 
interest of the Government (see paragraph (e) of this subsection);
    (5) Adequate security is obtained (see 32.202-4);
    (6) Prior to any performance of work under the contract, the 
aggregate of commercial advance payments shall not exceed 15 percent of 
the contract price;
    (7) The contract is awarded on the basis of competitive procedures 
or, if only one offer is solicited, adequate consideration is obtained 
(based on the time value of the additional financing to be provided) if 
the financing is expected to be substantially more advantageous to the 
offeror than the offeror's normal method of customer financing; and
    (8) The contracting officer obtains concurrence from the payment 
office concerning liquidation provisions when required by 32.206(e).
    (c) Difference from non-commercial financing. Government financing 
of commercial purchases under this subpart is expected to be different 
from that used for non-commercial purchases under subpart 32.1 and its 
related subparts. While the contracting officer may adapt techniques and 
procedures from the non-commercial subparts for use in implementing 
commercial contract financing arrangements, the contracting officer must 
have a full understanding of effects of the differing contract 
environments and of what is needed to protect the interests of the 
Government in commercial contract financing.
    (d) Unusual contract financing. Any contract financing arrangement 
not in accord with the requirements of agency regulations or this part 
is unusual contract financing and requires advance approval in 
accordance with agency procedures. If not otherwise specified, such 
unusual contract financing shall be approved by the head of the 
contracting activity.
    (e) Best interest of the Government. The statutes cited in 32.201 do 
not allow contract financing by the Government unless it is in the best 
interest of the United States. Agencies may establish standards to 
determine whether contract financing is in the best interest of the 
Government. These standards may be for certain types of procurements, 
certain types of items, or certain dollar levels of procurements.

[60 FR 49711, Sept. 26, 1995, as amended at 61 FR 39190, July 26, 1996]



Sec. 32.202-2  Types of payments for commercial item purchases.

    These definitions incorporate the requirements of the statutory 
commercial financing authority and the implementation of the Prompt 
Payment Act.
    Commercial advance payment, as used in this subsection, means a 
payment made before any performance of work under the contract. The 
aggregate of these payments shall not exceed 15 percent of the contract 
price. These payments are contract financing payments for prompt payment 
purposes (i.e., not

[[Page 733]]

subject to the interest penalty provisions of the Prompt Payment Act in 
accordance with subpart 32.9). These payments are not subject to subpart 
32.4, Advance Payments for Non-Commercial Items.
    Commercial interim payment (See 32.001.)
    Delivery payment (See 32.001).

[60 FR 49711, Sept. 26, 1995, as amended at 66 FR 2132, Jan. 10, 2001]



Sec. 32.202-3  Conducting market research about financing terms.

    Contract financing may be a subject included in the market research 
conducted in accordance with part 10. If market research for contract 
financing is conducted, the contracting officer should consider--
    (a) The extent to which other buyers provide contract financing for 
purchases in that market;
    (b) The overall level of financing normally provided;
    (c) The amount or percentages of any payments equivalent to 
commercial advance payments (see 32.202-2);
    (d) The basis for any payments equivalent to commercial interim 
payments (see 32.001), as well as the frequency, and amounts or 
percentages; and
    (e) Methods of liquidation of contract financing payments and any 
special or unusual payment terms applicable to delivery payments (see 
32.001).

[60 FR 49711, Sept. 26, 1995, as amended at 66 FR 2132, Jan. 10, 2001]



Sec. 32.202-4  Security for Government financing.

    (a) Policy. (1) 10 U.S.C. 2307(f) and 41 U.S.C. 255(f) require the 
Government to obtain adequate security for Government financing. The 
contracting officer shall specify in the solicitation the type of 
security the Government will accept. If the Government is willing to 
accept more than one form of security, the offeror shall be required to 
specify the form of security it will provide. If acceptable to the 
contracting officer, the resulting contract shall specify the security 
(see 32.206(b)(1)(iv)).
    (2) Subject to agency regulations, the contracting officer may 
determine the offeror's financial condition to be adequate security, 
provided the offeror agrees to provide additional security should that 
financial condition become inadequate as security (see paragraph (c) of 
the clause at 52.232-29, Terms for Financing of Purchases of Commercial 
Items). Assessment of the contractor's financial condition shall 
consider both net worth and liquidity. If the contracting officer finds 
the offeror's financial condition is not adequate security, the 
contracting officer shall require other adequate security. Paragraphs 
(b), (c), and (d) of this subsection list other (but not all) forms of 
security that the contracting officer may find acceptable.
    (3) The value of the security must be at least equal to the maximum 
unliquidated amount of contract financing payments to be made to the 
contractor. The value of security may be adjusted periodically during 
contract performance, as long as it is always equal to or greater than 
the amount of unliquidated financing.
    (b) Paramount lien. (1) The statutes cited in 32.201 provide that if 
the Government's security is in the form of a lien, such lien is 
paramount to all other liens and is effective immediately upon the first 
payment, without filing, notice, or other action by the United States.
    (2) When the Government's security is in the form of a lien, the 
contract shall specify what the lien is upon, e.g., the work in process, 
the contractor's plant, or the contractor's inventory. Contracting 
officers may be flexible in the choice of assets. The contract must also 
give the Government a right to verify the existence and value of the 
assets.
    (3) Provision of Government financing shall be conditioned upon a 
contractor certification that the assets subject to the lien are free 
from any prior encumbrances. Prior liens may result from such things as 
capital equipment loans, installment purchases, working capital loans, 
various lines of credit, and revolving credit arrangements.
    (c) Other assets as security. Contracting officers may consider the 
guidance at 28.203-2, 28.203-3, and 28.204 in determining which types of 
assets may be acceptable as security. For the purpose of applying the 
guidance in part 28 to this subsection, the term

[[Page 734]]

``surety'' and/or ``individual surety'' should be interpreted to mean 
``offeror'' and/or ``contractor.''
    (d) Other forms of security. Other acceptable forms of security 
include--
    (1) An irrevocable letter of credit from a federally insured 
financial institution;
    (2) A bond from a surety, acceptable in accordance with part 28 
(note that the bond must guarantee repayment of the unliquidated 
contract financing);
    (3) A guarantee of repayment from a person or corporation of 
demonstrated liquid net worth, connected by significant ownership to the 
contractor; or
    (4) Title to identified contractor assets of adequate worth.
    (e) Management of risk and security. In establishing contract 
financing terms, the contracting officer must be aware of certain risks. 
For example, very high amounts of financing early in the contract 
(front-end loading) may unduly increase the risk to the Government. The 
security and the amounts and timing of financing payments must be 
analyzed as a whole to determine whether the arrangement will be in the 
best interest of the Government.



Sec. 32.203  Determining contract financing terms.

    When the criteria in 32.202-1(b) are met, the contracting officer 
may either specify the financing terms in the solicitation (see 32.204) 
or permit each offeror to propose its own customary financing terms (see 
32.205). When the contracting officer has sufficient information on 
financing terms that are customary in the commercial marketplace for the 
item, those terms may be specified in the solicitation.



Sec. 32.204  Procedures for contracting officer-specified commercial 
          contract financing.

    The financing terms shall be included in the solicitation. Contract 
financing shall not be a factor in the evaluation of resulting 
proposals, and proposals of alternative financing terms shall not be 
accepted (but see 14.208 and 15.206 concerning amendments of 
solicitations). However, an offer stating that the contracting officer-
specified contract financing terms will not be used by the offeror does 
not alter the evaluation of the offer, nor does it render the offer 
nonresponsive or otherwise unacceptable. In the event of award to an 
offeror who declined the proposed contract financing, the contract 
financing provisions shall not be included in the resulting contract. 
Contract financing shall not be a basis for adjusting offerors' proposed 
prices, because the effect of contract financing is reflected in each 
offeror's proposed prices.

[60 FR 49711, Sept. 26, 1995, as amended at 62 FR 51271, Sept. 30, 1997]



Sec. 32.205  Procedures for offeror-proposed commercial contract 
          financing.

    (a) Under this procedure, each offeror may propose financing terms. 
The contracting officer must then determine which offer is in the best 
interests of the United States.
    (b) Solicitations. The contracting officer must include in the 
solicitation the provision at 52.232-31, Invitation to Propose Financing 
Terms. The contracting officer must also--
    (1) Specify the delivery payment (invoice) dates that will be used 
in the evaluation of financing proposals; and
    (2) Specify the interest rate to be used in the evaluation of 
financing proposals (see paragraph (c)(4) of this section).
    (c) Evaluation of proposals. (1) When contract financing terms vary 
among offerors, the contracting officer must adjust each proposed price 
for evaluation purposes to reflect the cost of providing the proposed 
financing in order to determine the total cost to the Government of that 
particular combination of price and financing.
    (2) Contract financing results in the Government making payments 
earlier than it otherwise would. In order to determine the cost to the 
Government of making payments earlier, the contracting officer must 
compute the imputed cost of those financing payments and add it to the 
proposed price to determine the evaluated price for each offeror.
    (3) The imputed cost of a single financing payment is the amount of 
the payment multiplied by the annual interest rate, multiplied by the 
number of years, or fraction thereof, between

[[Page 735]]

the date of the financing payment and the date the amount would have 
been paid as a delivery payment. The imputed cost of financing is the 
sum of the imputed costs of each of the financing payments.
    (4) The contracting officer must calculate the time value of 
proposal-specified contract financing arrangements using as the interest 
rate the nominal discount rate specified in Appendix C of the Office of 
Management and Budget (OMB) Circular A-94, ``Guidelines and Discount 
Rates for Benefit-Cost Analysis of Federal Programs'', appropriate to 
the period of contract financing. Where the period of proposed financing 
does not match the periods in the OMB Circular, the interest rate for 
the period closest to the finance period shall be used. Appendix C is 
updated yearly, and is available from the Office of Economic Policy in 
the Office of Management and Budget (OMB).

[60 FR 49711, Sept. 26, 1995, as amended at 65 FR 16279, Mar. 27, 2000]



Sec. 32.206  Solicitation provisions and contract clauses.

    (a) The contract shall contain the paragraph entitled ``Payment'' of 
the clause at 52.212-4, Contract Terms and Conditions--Commercial Items. 
If the contract will provide for contract financing, the contracting 
officer shall construct a solicitation provision and contract clause. 
This solicitation provision shall be constructed in accordance with 
32.204 or 32.205. If the procedure at 32.205 is used, the solicitation 
provision at 52.232-31, Invitation to Propose Financing Terms, shall be 
included. The contract clause shall be constructed in accordance with 
the requirements of this subpart and any agency regulations.
    (b) Each contract financing clause shall include:
    (1) A description of the--
    (i) Computation of the financing payment amounts (see paragraph (c) 
of this section);
    (ii) Specific conditions of contractor entitlement to those 
financing payments (see paragraph (c) of this section);
    (iii) Liquidation of those financing payments by delivery payments 
(see paragraph (e) of this section);
    (iv) Security the contractor will provide for financing payments and 
any terms or conditions specifically applicable thereto (see 32.202-4); 
and
    (v) Frequency, form, and any additional content of the contractor's 
request for financing payment (in addition to the requirements of the 
clause at 52.232-29, Terms for Financing of Purchases of Commercial 
Items; and
    (2) Unless agency regulations authorize alterations, the unaltered 
text of the clause at 52.232-29, Terms for Financing of Purchases of 
Commercial Items.
    (c) Computation of amounts, and contractor entitlement provisions. 
(1) Contracts shall provide that delivery payments shall be made only 
for completed supplies and services accepted by the Government in 
accordance with the terms of the contract. Contracts may provide for 
commercial advance and commercial interim payments based upon a wide 
variety of bases, including (but not limited to) achievement or 
occurrence of specified events, the passage of time, or specified times 
prior to the delivery date(s). The basis for payment must be objectively 
determinable. The clause written by the contracting officer shall 
specify, to the extent access is necessary, the information and/or 
facilities to which the Government shall have access for the purpose of 
verifying the contractor's entitlement to payment of contract financing.
    (2) If the contract is awarded using the offeror-proposed procedure 
at 32.205, the clause constructed by the contracting officer under 
paragraph (b)(1) of this section shall contain the following:
    (i) A statement that the offeror's proposed listing of earliest 
times and greatest amounts of projected financing payments submitted in 
accordance with paragraph (d)(2) of the provision at 52.232-31, 
Invitation to Propose Financing Terms, is incorporated into the 
contract, and
    (ii) A statement that financing payments shall be made in the lesser 
amount and on the later of the date due in accordance with the financing 
terms of the contract, or in the amount and on the date projected in the 
listing

[[Page 736]]

of earliest times and greatest amounts incorporated in the contract.
    (3) If the security accepted by the contracting officer is the 
contractor's financial condition, the contracting officer shall 
incorporate in the clause constructed under paragraph (b)(1) of this 
section the following--
    (i) A statement that the contractor's financial condition has been 
accepted as adequate security for commercial financing payments; and
    (ii) A statement that the contracting officer may exercise the 
Government's rights to require other security under paragraph (c), 
Security for Government Financing, of the clause at 52.232-29, Terms for 
Financing of Purchases of Commercial Items, in the event the 
contractor's financial condition changes and is found not to be adequate 
security.
    (d) Instructions for multiple appropriations. If contract financing 
is to be computed for the contract as a whole, and if there is more than 
one appropriation account (or subaccount) funding payments under the 
contract, the contracting officer shall include, in the contract, 
instructions for distribution of financing payments to the respective 
funds accounts. Distribution instructions and contract liquidation 
instructions must be mutually consistent.
    (e) Liquidation. Liquidation of contract financing payments shall be 
on the same basis as the computation of contract financing payments; 
that is, financing payments computed on a whole contract basis shall be 
liquidated on a whole contract basis; and a payment computed on a line 
item basis shall be liquidated against that line item. If liquidation is 
on a whole contract basis, the contracting officer shall use a uniform 
liquidation percentage as the liquidation method, unless the contracting 
officer obtains the concurrence of the cognizant payment office that the 
proposed liquidation provisions can be executed by that office, or 
unless agency regulations provide alternative liquidation methods.
    (f) Prompt payment for commercial purchase payments. The provisions 
of subpart 32.9, Prompt Payment, apply to contract financing and invoice 
payments for commercial purchases in the same manner they apply to non-
commercial purchases. The contracting officer is responsible for 
including in the contract all the information necessary to implement 
prompt payment. In particular, contracting officers must be careful to 
clearly differentiate in the contract between contract financing and 
invoice payments and between items having different prompt payment 
times.
    (g) Installment payment financing for commercial items. Contracting 
officers may insert the clause at 52.232-30, Installment Payments for 
Commercial Items, in solicitations and contracts in lieu of constructing 
a specific clause in accordance with paragraphs (b) through (e) of this 
section, if the contract action qualifies under the criteria at 32.202-
1(b) and installment payments for the item are either customary or are 
authorized in accordance with agency procedures.
    (1) Description. Installment payment financing is payment by the 
Government to a contractor of a fixed number of equal interim financing 
payments prior to delivery and acceptance of a contract item. The 
installment payment arrangement is designed to reduce administrative 
costs. However, if a contract will have a large number of deliveries, 
the administrative costs may increase to the point where installment 
payments are not in the best interests of the Government.
    (2) Authorized types of installment payment financing and rates. 
Installment payments may be made using the clause at 52.232-30, 
Installment Payments for Commercial Items, either at the 70 percent 
financing rate cited in the clause or at a lower rate in accordance with 
agency procedures.
    (3) Calculating the amount of installment financing payments. The 
contracting officer shall identify in the contract schedule those items 
for which installment payment financing is authorized. Monthly 
installment payment amounts are to be calculated by the contractor 
pursuant to the instructions in the contract clause only for items 
authorized to receive installment payment financing.
    (4) Liquidating installment payments. If installment payments have 
been made for an item, the amount paid to the contractor upon acceptance 
of the item

[[Page 737]]

by the Government shall be reduced by the amount of installment payments 
made for the item. The contractor's request for final payment for each 
item is required to show this calculation.



Sec. 32.207  Administration and payment of commercial financing 
          payments.

    (a) Responsibility. The contracting officer responsible for 
administration of the contract shall be responsible for review and 
approval of contract financing requests.
    (b) Approval of financing requests. Unless otherwise provided in 
agency regulations, or by agreement with the appropriate payment 
official--
    (1) The contracting officer shall be responsible for receiving, 
approving, and transmitting all contract financing requests to the 
appropriate payment office; and
    (2) Each approval shall specify the amount to be paid, necessary 
contractual information, and the account(s) (see 32.206(d)) to be 
charged for the payment.
    (c) Management of security. After contract award, the contracting 
officer responsible for approving requests for financing payments shall 
be responsible for determining that the security continues to be 
adequate. If the contractor's financial condition is the Government's 
security, this contracting officer is also responsible for monitoring 
the contractor's financial condition.

           Subpart 32.3_Loan Guarantees for Defense Production



Sec. 32.300  Scope of subpart.

    This subpart prescribes policies and procedures for designated 
agencies' guarantees of loans made by private financial institutions to 
borrowers performing contracts related to national defense (see 30.102).



Sec. 32.301  Definitions.

    As used in this subpart--
    Borrower means a contractor, subcontractor (at any tier), or other 
supplier who receives a guaranteed loan.
    Federal Reserve Board means the Board of Governors of the Federal 
Reserve System.
    Guaranteed loan or V loan means a loan, revolving credit fund, or 
other financial arrangement made pursuant to Regulation V of the Federal 
Reserve Board, under which the guaranteeing agency is obligated, on 
demand of the lender, to purchase a stated percentage of the loan and to 
share any losses in the amount of the guaranteed percentage.
    Guaranteeing agency means any agency that the President has 
authorized to guarantee loans, through Federal Reserve Banks, for 
expediting national defense production.

[48 FR 42328, Sept. 19, 1983, as amended at 66 FR 2132, Jan. 10, 2001]



Sec. 32.302  Authority.

    Congress has authorized Federal Reserve Banks to act, on behalf of 
guaranteeing agencies, as fiscal agents of the United States in the 
making of loan guarantees for defense production (Section 301, Defense 
Production Act of 1950 (50 U.S.C. App. 2091)). By Executive Order 10480, 
August 14, 1953 (3 CFR 1949-53), as amended, the President has 
designated the following agencies as guaranteeing agencies:
    (a) Department of Defense.
    (b) Department of Energy.
    (c) Department of Commerce.
    (d) Department of the Interior.
    (e) Department of Agriculture.
    (f) General Services Administration.
    (g) National Aeronautics and Space Administration.



Sec. 32.303  General.

    (a) Section 301 of the Defense Production Act authorizes loan 
guarantees for contract performance or other operations related to 
national defense, subject to amounts annually authorized by Congress on 
the maximum obligation of any guaranteeing agency under any loan, 
discount, advance, or commitment in connection therewith, entered into 
under section 301. (See 50 U.S.C. App. 2091 for statutory limitations 
and exceptions concerning the authorization of loan guarantee amounts 
and the use of loan guarantees for the prevention of insolvency or 
bankruptcy.)
    (b) The guarantee shall be for less than 100 percent of the loan 
unless the agency determines that--
    (1) The circumstances are exceptional;

[[Page 738]]

    (2) The operations of the contractor are vital to the national 
defense; and
    (3) No other suitable means of financing are available.
    (c) Loan guarantees are not issued to other agencies of the 
Government.
    (d) Guaranteed loans are essentially the same as conventional loans 
made by private financial institutions, except that the guaranteeing 
agency is obligated, on demand of the lender, to purchase a stated 
percentage of the loan and to share any losses in the amount of the 
guaranteed percentage. It is the responsibility of the private financial 
institution to disburse and collect funds and to administer the loan. 
Under Regulation V of the Federal Reserve Board (12 CFR 245), any 
private financing institution may submit an application to the Federal 
Reserve Bank of its district for guarantee of a loan or credit.
    (e) Federal Reserve Banks will make the loan guarantee agreements on 
behalf of the guaranteeing agencies.
    (f) Under Section 302(c) of Executive Order 10480, August 14, 1953 
(3 CFR 1949-53), as amended, all actions and operations of Federal 
Reserve Banks, as fiscal agents, are subject to the supervision of the 
Federal Reserve Board. The Federal Reserve Board is authorized to 
prescribe the following, after consultation with the heads of 
guaranteeing agencies:
    (1) Regulations governing the actions and operations of fiscal 
agents.
    (2) Rates of interest, guarantee and commitment fees, and other 
charges that may be made for loans, discounts, advances, or commitments 
guaranteed by the guaranteeing agencies through the Federal Reserve 
Banks. These prescriptions may be in the form of specific rates or 
limits, or in other forms.
    (3) Uniform forms and procedures to be used in connection with the 
guarantees.
    (g) The guaranteeing agency is responsible for certifying 
eligibility for the guarantee and fixing the maximum dollar amount and 
maturity date of the guaranteed loan to meet the contractor's 
requirement for financing performance of the defense production contract 
on hand at the time the guarantee application is submitted.



Sec. 32.304  Procedures.



Sec. 32.304-1  Application for guarantee.

    (a) A contractor, subcontractor, or supplier that needs operating 
funds to perform a contract related to national defense may apply to a 
financing institution for a loan. If the financing institution is 
willing to extend credit, but considers a Government guarantee 
necessary, the institution may apply to the Federal Reserve Bank of its 
district for the guarantee. Application forms and guidance are available 
at all Federal Reserve Banks.
    (b) The Federal Reserve Bank will promptly send a copy of the 
application, including a list of the relevant defense contracts held by 
the contractor, to the Federal Reserve Board. The Board will transmit 
the application and the list of contracts to the interested guaranteeing 
agency, so that the agency can determine the eligibility of the 
contractor.
    (c) To expedite the process, the Federal Reserve Bank may, pursuant 
to instructions of a guaranteeing agency, submit lists of the defense 
contracts to the interested contracting officers.
    (d) While eligibility is being determined, the Federal Reserve Bank 
will make any necessary credit investigations to supplement the 
information furnished by the applicant financing institution in order 
to--
    (1) Expedite necessary defense financing; and
    (2) Protect the Government against monetary loss.
    (e) The Federal Reserve Bank will send its report and recommendation 
to the Federal Reserve Board. The Board will transmit them to the 
interested guaranteeing agency.



Sec. 32.304-2  Certificate of eligibility.

    (a) The contracting officer shall prepare the certificate of 
eligibility for a contract that the contracting officer deems to be of 
material consequence, when--
    (1) The contract financing office requests it;
    (2) Another interested agency requests it; or

[[Page 739]]

    (3) The application for a loan guarantee relates to a contract or 
subcontract within the cognizance of the contracting officer.
    (b) The agency shall evaluate the relevant data, including the 
certificate of eligibility, the accompanying data, and any other 
relevant information on the contractor's financial status and 
performance, to determine whether authorization of a loan guarantee 
would be in the Government's interest.
    (c) If the contractor has several major national defense contracts, 
it is normally not necessary to evaluate the eligibility of relatively 
minor contracts. The determination of eligibility should be processed, 
without delay, based on the preponderance of the amount of the 
contracts.
    (d) The certificate of eligibility shall include the following 
determinations:
    (1) The supplies or services to be acquired are essential to the 
national defense.
    (2) The contractor has the facilities and the technical and 
management ability required for contract performance.
    (3) There is no practicable alternate source for the acquisition 
without prejudice to the national defense. (This statement shall not be 
included if the contractor is a small business concern.)
    (e) The contracting officer shall consider the following factors in 
determining if a practicable alternate source exists:
    (1) Prejudice to the national defense, because reletting of a 
contract with another source would conflict with a major policy on 
defense acquisition; e.g., policies relating to the mobilization base.
    (2) The urgency of contract performance schedules.
    (3) The technical ability and facilities of other potential sources.
    (4) The extent to which other sources would need contract financing 
to perform.
    (5) The willingness of other sources to enter into contracts.
    (6) The time and expense involved in repurchasing for contracts or 
parts of contracts. This may include potential claims under a 
termination for convenience or delays incident to default at a later 
date.
    (7) The comparative prices available from other sources.
    (8) The disruption of established subcontracting arrangements.
    (9) Other pertinent factors.
    (f) The contracting officer shall attach sufficient data to the 
certificate of eligibility to support the determinations made. Available 
pertinent information shall be included on--
    (1) The contractor's past performance;
    (2) The relationship of the contractor's operations to performance 
schedules; and
    (3) Other factors listed in paragraph (e) above, if relevant to the 
case under consideration.
    (g) If the contracting officer determines that a certificate of 
eligibility is not justified, the facts and reasons supporting that 
conclusion shall be documented and furnished to the agency contract 
finance office.
    (h) The guaranteeing agency shall review the proposed guarantee 
terms and conditions. If they are considered appropriate, the 
guaranteeing agency shall complete a standard form of authorization as 
prescribed by the Federal Reserve Board. The agency shall transmit the 
authorization through the Federal Reserve Board to the Federal Reserve 
Bank. The Bank is authorized to execute and deliver to the financing 
institution a standard form of guarantee agreement, with the terms and 
conditions approved for the particular case. The financing institution 
will then make the loan.
    (i) Substantially the same procedure may be followed for the 
application of an offeror who is actively negotiating or bidding for a 
defense contract, except that the guarantee shall not be authorized 
until the contract has been executed.
    (j) The contracting officer shall report to the agency contract 
finance office any information about the contractor that would have a 
potentially adverse impact on a pending guarantee application. The 
contracting officer is not required, however, to initiate any special 
investigation for this purpose.
    (k) With regard to existing contracts, the agency shall not consider 
the percentage of guarantee requested by the

[[Page 740]]

financing institution in determining the contractor's eligibility.



Sec. 32.304-3  Asset formula.

    (a) Under guaranteed loans made primarily for working capital 
purposes, the agency shall normally limit the guarantee, by use of an 
asset formula, to an amount that does not exceed a specified percentage 
(90 percent or less) of the contractor's investment (e.g., payrolls and 
inventories) in defense production contracts. The asset formula may 
include all items under defense contracts for which the contractor would 
be entitled to payment on performance or termination. The formula shall 
exclude--
    (1) Amounts for which the contractor has not done any work or made 
any expenditure;
    (2) Amounts that would become due as the result of later performance 
under the contracts; and
    (3) Cash collateral or bank deposit balances.
    (b) Progress payments are deducted from the asset formula.
    (c) The agency may relax the asset formula to an appropriate extent 
for the time actually necessary for contract performance, if the 
contractor's working capital and credit are inadequate.



Sec. 32.304-4  Guarantee amount and maturity.

    The agency may change the guarantee amount or maturity date, within 
the limitations at 32.304-3, as follows:
    (a) If the contractor enters into additional defense production 
contracts after the application for, but before authorization of, a 
guarantee, the agency may adjust the loan guarantee amount or maturity 
date to meet any significant increase in financing need.
    (b) If the contractor enters into defense production contracts 
during the term of the guaranteed loan, the parties may adjust the 
existing guarantee agreement to provide for financing the new contracts. 
Pertinent information and the Federal Reserve Bank reports will be 
submitted to the guaranteeing agency under the procedures for the 
original guarantee application, described in 32.304-1. Normally, a new 
certificate of eligibility is required.



Sec. 32.304-5  Assignment of claims under contracts.

    (a) The agency shall generally require a contractor that is provided 
a guaranteed loan to execute an assignment of claims under defense 
production contracts (including any contracts entered into during the 
term of the guaranteed loan that are eligible for financing under the 
loan); however, the agency need not require assignment if any of the 
following conditions are present:
    (1) The contractor's financial condition is so strong that the 
protection to the Government provided by an assignment of claims is 
unnecessary.
    (2) In connection with the assignment of claims under a major 
contract, the increased protection of the loan that would be provided by 
the assignments under additional, relatively smaller contracts is not 
considered necessary by the agency.
    (3) The assignment of claims would create an administrative burden 
disproportionate to the protection required; e.g., if the contractor has 
a large number of contracts with individually small dollar amounts.
    (b) The contractor shall also execute an assignment of claims if 
requested to do so by the guarantor or the financing institution.
    (c) A subcontract or purchase order issued to a subcontractor shall 
not be considered eligible for financing under guaranteed loans when the 
issuer of the subcontract or purchase order reserves (1) the privilege 
of making payments directly to the assignor or to the assignor and 
assignee jointly, after notice of the assignment, or (2) the right to 
reduce or set off assigned proceeds under defense production contracts 
by reason of claims against the borrower arising after notice of 
assignment and independently of defense production contracts under which 
the borrower is the seller.



Sec. 32.304-6  Other collateral security.

    The following are examples of other forms of security that, although 
seldom invoked under guaranteed loans, may be required when considered 
necessary for protection of the Government interest:
    (a) Mortgages on fixed assets.

[[Page 741]]

    (b) Liens against inventories.
    (c) Endorsements.
    (d) Guarantees.
    (e) Subordinations or standbys of other indebtedness.



Sec. 32.304-7  Contract surety bonds and loan guarantees.

    (a) Contract surety bonds are incompatible with the Government's 
interests under guaranteed loans, unless the interests of the surety are 
subordinated to the guaranteed loan.
    (b) If a substantial share of the contractor's defense contracts are 
covered by surety bonds, or the amount of the bond is substantial in 
relation to the contractor's net worth, the agency shall not authorize 
the guarantee of a loan on a bonded contract unless the surety enters 
into an agreement with the financing institution to subordinate the 
surety's rights and claims in favor of the guaranteed loan.
    (c) The agency approval of a guarantee for a loan involving 
relatively substantial subcontracts covered by surety bonds shall also 
depend on the establishment of a reasonable allocation agreement between 
the sureties and the financing institution. The agreement should give 
the financing institution the benefit, with regard to payments to be 
made on the contract, of the portion of its loans fairly attributable to 
expenditures made under the bonded subcontracts before notice of 
default.



Sec. 32.304-8  Other borrowing.

    (a) Because of the limitations under guaranteed loans, some 
contractors seek to supplement the loan by other borrowing (outside the 
guarantee) from the financing institution or other sources. It has been 
recognized in practice that, while prohibition of borrowings outside the 
guaranteed loan is preferable when practicable in a given V-loan case, 
such other borrowings should be permitted when necessary.
    (b) If the agency consents to the contractor obtaining other 
borrowing during the guaranteed loan period, the agency shall apply the 
following restrictions:
    (1) A reasonable limit on the amount of other borrowing.
    (2) If guaranteed and unguaranteed loans are made by the same 
financing institution, a requirement that any collateral security 
requested by the institution under the unguaranteed loan is also to be 
secondary collateral for the guaranteed loan.
    (3) A requirement that the contractor provide appropriate 
documentation to the guaranteeing agency, at intervals not longer than 
30 days, to disclose outstanding unguaranteed borrowings.

[48 FR 42328, Sept. 19, 1983, as amended at 62 FR 237, Jan. 2, 1997]



Sec. 32.305  Loan guarantees for terminated contracts.

    (a) The purpose of guaranteed loans; i.e., to provide for financing 
based on the borrower's recoverable investment in defense production 
contracts, may also apply to contracts that have been terminated 
(partially or totally) for the convenience of the Government. Guaranteed 
loans also may be made before such termination if it is known that 
termination of particular contracts for the convenience of the 
Government is about to occur. These loans are expected to provide 
necessary financing pending termination settlements and payments. They 
may also finance continuing performance of defense production contracts 
that are eligible for guaranteed loans.
    (b) The procedure for such guarantees is substantially the same as 
that outlined in 32.304, except that certificates of eligibility are not 
required for (1) contracts that have been totally terminated or (2) the 
terminated portion of contracts that have been partially terminated. The 
agency shall take precautions necessary to avoid Government losses and 
to ensure the loans will be self-liquidating from the proceeds of 
defense production contracts.
    (c) Loan guarantees for contract termination financing shall not be 
provided before specific contract terminations are certain.



Sec. 32.306  Loan guarantees for subcontracts.

    If the request for a loan guarantee concerns a subcontractor that is 
financially weak in comparison with its contractor, the Government's 
interests may be fostered by the contractor

[[Page 742]]

making progress payments to the subcontractor. If so, the agency shall 
try to arrange for the contractor to provide the progress payments. As a 
result, the need for the loan guarantee may be reduced or eliminated and 
the contractor would bear part or all of the risk of loss arising from 
the selection of the subcontractor.

         Subpart 32.4_Advance Payments for Non-Commercial Items



Sec. 32.400  Scope of subpart.

    This subpart provides policies and procedures for advance payments 
on prime contracts and subcontracts. It does not include policies and 
procedures for advance payments for the types of transactions listed in 
32.404. This subpart does not apply to commercial advance payments, 
which are subject to subpart 32.2.

[48 FR 42328, Sept. 19, 1983, as amended at 60 FR 49714, Sept. 26, 1995]



Sec. 32.401  Statutory authority.

    The agency may authorize advance payments in negotiated and sealed 
bid contracts if the action is appropriate under
    (a) section 305 of the Federal Property and Administrative Services 
Act of 1949 (41 U.S.C. 255),
    (b) the Armed Services Procurement Act (10 U.S.C. 2307), or
    (c) Pub. L. 85-804 (50 U.S.C. 1431-1435) and Executive Order 10789, 
November 14, 1958 (3 CFR 1958 Supp. pp. 72-74) (see Subpart 50.1 for 
other applications of this statute).

[48 FR 42328, Sept. 19, 1983, as amended at 50 FR 1744, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 72 FR 63030, Nov. 7, 2007]



Sec. 32.402  General.

    (a) A limitation on authority to grant advance payments under Pub. 
L. 85-804 (50 U.S.C. 1431-1435) is described at 50.102-3(b)(4).
    (b) Advance payments may be provided on any type of contract; 
however, the agency shall authorize advance payments sparingly. Except 
for the contracts described in 32.403(a) and (b), advance payment is the 
least preferred method of contract financing (see 32.106) and generally 
they should not be authorized if other types of financing are reasonably 
available to the contractor in adequate amounts. Loans and credit at 
excessive interest rates or other exorbitant charges, or loans from 
other Government agencies, are not considered reasonably available 
financing.
    (c) If statutory requirements and standards for advance payment 
determinations are met, the contracting officer shall generally 
recommend that the agency authorize advance payments.
    (1) The statutory requirements are that--
    (i) The contractor gives adequate security;
    (ii) The advance payments will not exceed the unpaid contract price 
(see 32.410(b), subparagraph (a)(2)); and
    (iii) The agency head or designee determines, based on written 
findings, that the advance payment--
    (A) Is in the public interest (under 32.401(a) or (b)); or
    (B) Facilitates the national defense (under 32.401(c)).
    (2) The standards for advance payment determinations are that--
    (i) The advance payments will not exceed the contractor's interim 
cash needs based on--
    (A) Analysis of the cash flow required for contract performance;
    (B) Consideration of the reimbursement or other payment cycle; and
    (C) To the extent possible, employment of the contractor's own 
working capital;
    (ii) The advance payments are necessary to supplement other funds or 
credit available to a contractor;
    (iii) The recipient is otherwise qualified as a responsible 
contractor;
    (iv) The Government will benefit from performance prospects or there 
are other practical advantages; and
    (v) The case fits one or more of the categories described in 32.403.
    (d) If necessary, the agency may authorize advance payments in 
addition to progress or partial payments on the same contract (see 
32.501-1(c)).
    (e) Each agency that provides advance payments shall--
    (1) Place the responsibility for making findings and determinations, 
and

[[Page 743]]

for approval of contract terms concerning advance payments (see 32.410), 
at an organizational level high enough to ensure uniform application of 
this subpart (see the limitation at 50.102-1(b) which also applies to 
advance payments authorized under Pub. L. 85-804 (50 U.S.C. 1431-1435)); 
and
    (2) Establish procedures for coordination, before advance payment 
authorization, with the activity that provides contract financing 
support.
    (f) If the contract provides for advance payments under Pub. L. 85-
804, the contracting officer shall ensure conformance with the 
requirements of 50.103-7.

[48 FR 42328, Sept. 19, 1983, as amended at 59 FR 67047, Dec. 28, 1994; 
72 FR 63030, Nov. 7, 2007]



Sec. 32.403  Applicability.

    Advance payments may be considered useful and appropriate for the 
following:
    (a) Contracts for experimental, research, or development work with 
nonprofit educational or research institutions.
    (b) Contracts solely for the management and operation of Government-
owned plants.
    (c) Contracts for acquisition, at cost, of property for Government 
ownership.
    (d) Contracts of such a highly classified nature that the agency 
considers it undesirable for national security to permit assignment of 
claims under the contract.
    (e) Contracts entered into with financially weak contractors whose 
technical ability is considered essential to the agency. In these cases, 
the agency shall closely monitor the contractor's performance and 
financial controls to reduce the Government's financial risk.
    (f) Contracts for which a loan by a private financial institution is 
not practicable, whether or not a loan guarantee under this part is 
issued; for example, if--
    (1) Financing institutions will not assume a reasonable portion of 
the risk under a guaranteed loan;
    (2) Loans with reasonable interest rates or finance charges are not 
available to the contractor; or
    (3) Contracts involve operations so remote from a financial 
institution that the institution could not be expected to suitably 
administer a guaranteed loan.
    (g) Contracts with small business concerns, under which 
circumstances that make advance payments appropriate often occur (but 
see 32.104(b)).
    (h) Contracts under which exceptional circumstances make advance 
payments the most advantageous contract financing method for both the 
Government and the contractor.

[48 FR 42328, Sept. 19, 1983, as amended at 72 FR 27384, May 15, 2007]



Sec. 32.404  Exclusions.

    (a) This subpart does not apply to advance payments authorized by 
law for--
    (1) Rent;
    (2) Tuition;
    (3) Insurance premiums;
    (4) Expenses of investigations in foreign countries;
    (5) Extension or connection of public utilities for Government 
buildings or installations;
    (6) Subscriptions to publications;
    (7) Purchases of supplies or services in foreign countries, if--
    (i) The purchase price does not exceed $15,000 (or equivalent amount 
of the applicable foreign currency); and
    (ii) The advance payment is required by the laws or government 
regulations of the foreign country concerned;
    (8) Enforcement of the customs or narcotics laws; or
    (9) Other types of transactions excluded by agency procedures under 
statutory authority.
    (b) Agencies may issue their own instructions to deal with advance 
payment items in paragraph (a) above authorized under statutes relevant 
to their agencies.

[48 FR 42328, Sept. 19, 1983, as amended at 75 FR 53134, Aug. 30, 2010]



Sec. 32.405  Applying Pub. L. 85-804 to advance payments under sealed 
          bid contracts.

    (a) Actions that designated agencies may take to facilitate the 
national defense without regard to other provisions of law relating to 
contracts, as explained in 50.101-1(a), also include

[[Page 744]]

making advance payments. These advance payments may be made at or after 
award of sealed bid contracts as well as negotiated contracts.
    (b) Bidders may request advance payments before or after award, even 
if the invitation for bids does not contain an advance payment 
provision. However, the contracting officer shall reject any bid 
requiring that advance payments be provided as a basis for acceptance.
    (c) When advance payments are requested, the agency may--
    (1) Enter into the contract and provide for advance payments 
conforming to this part 32;
    (2) Enter into the contract without providing for advance payments 
if the contractor does not actually need advance payments; or
    (3) Deny award of the contract if the request for advance payments 
has been disapproved under 32.409-2 and funds adequate for performance 
are not otherwise available to the offeror.

[48 FR 42328, Sept. 19, 1983, as amended at 50 FR 1744, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 72 FR 63030, Nov. 7, 2007]



Sec. 32.406  Letters of credit.

    (a) The Department of the Treasury (Treasury) prescribes regulations 
and instructions covering the use of letters of credit for advance 
payments under contracts. See Treasury Department Circular 1075 (31 CFR 
part 205), and the implementing instructions in the Treasury Financial 
Manual, available in offices providing financial advice and assistance.
    (b) If agencies provide advance payments to contractors, use of the 
following methods is required unless the agency has obtained a waiver 
from the Treasury Department:
    (1) By letter of credit if the contracting agency expects to have a 
continuing relationship with the contractor for a year or more, with 
advances totaling at least $120,000 a year.
    (2) By direct Treasury check if the circumstances do not meet the 
criteria in subparagraph (1) above.
    (c) If the agency has entered into multiple contracts (or a 
combination of contract(s) and assistance agreement(s)) involving 
eligibility of a contractor for more than one letter of credit, the 
agency shall follow arrangements made under Treasury procedures for (1) 
consolidating funding to the same contractor under one letter of credit 
or (2) replacing multiple letters of credit with a single letter of 
credit.
    (d) The letter of credit enables the contractor to withdraw 
Government funds in amounts needed to cover its own disbursements of 
cash for contract performance. Whenever feasible, the agency shall, 
under the direction and approval of the Department of the Treasury, use 
a letter of credit method that requires the contractor not to withdraw 
the Government funds until the contractor's checks have been (1) 
forwarded to the payees (delay of drawdown technique), or (2) presented 
to the contractor's bank for payment (checks paid technique) (see 31 CFR 
205.3 and 205.4(d)).
    (e) The Treasury regulations provide for terminating the advance 
financing arrangement if the contractor is unwilling or unable to 
minimize the elapsed time between receipt of the advance and 
disbursement of the funds. In such cases, if reversion to normal payment 
methods is not feasible, the Treasury regulation provides for use of a 
working capital method of advance; i.e., for limiting advances to (1) 
only the estimated disbursements for a given initial period and (2) 
subsequently, for only actual cash disbursements (31 CFR 205.3(k) and 
205.7).

[48 FR 42328, Sept. 19, 1983, as amended at 52 FR 19805, May 27, 1987]



Sec. 32.407  Interest.

    (a) Except as provided in paragraph (d) below, the contracting 
officer shall charge interest on the daily unliquidated balance of all 
advance payments at the higher of--
    (1) The published prime rate of the financial institution 
(depository) in which the special account (see 32.409-3) is established; 
or
    (2) The rate established by the Secretary of the Treasury under 50 
U.S.C. App. 1215(b)(2).
    (b) The interest rate for advance payments shall be adjusted for 
changes in the prime rate of the depository and the semiannual 
determination by the Secretary of the Treasury under 50 U.S.C. App. 
1215(b)(2). The contracting

[[Page 745]]

officer shall obtain data from the depository on changes in the interest 
rate during the month. Interest shall be computed at the end of each 
month on the daily unliquidated balance of advance payments at the 
applicable daily interest rate.
    (c) Interest shall be required on contracts that are for 
acquisition, at cost, of property for Government ownership, if the 
contracts are awarded in combination with, or in contemplation of, 
supply contracts or subcontracts.
    (d) The agency head or designee may authorize advance payments 
without interest under the following types of contracts, if in the 
Government's interest:
    (1) Contracts for experimental, research, or development work 
(including studies, surveys, and demonstrations in socio-economic areas) 
with nonprofit education or research institutions.
    (2) Contracts solely for the management and operation of Government-
owned plants.
    (3) Cost-reimbursement contracts with governments, including State 
or local governments, or their instrumentalities.
    (4) Other classes of contracts, or unusual cases, for which the 
exclusion of interest on advances is specifically authorized by agency 
procedures.
    (e) If a contract provides for interest-free advance payments, the 
contracting officer may require the contractor to charge interest on 
advances or downpayments to subcontractors and credit the Government for 
the proceeds from the interest charges. Interest rates shall be 
determined as described in paragraphs (a) and (b) above. The contracting 
officer need not require the contractor to charge interest on an advance 
to a subcontractor that is an institution of the kind described in 
paragraph (d)(1).
    (f) The contracting officer shall not allow interest charges, 
required by this 32.407, as reimbursable costs under cost-reimbursement 
contracts, whether the interest charge was incurred by the prime 
contractor or a subcontractor.

[48 FR 42328, Sept. 19, 1983, as amended at 66 FR 2138, Jan. 10, 2001; 
72 FR 27384, May 15, 2007]



Sec. 32.408  Application for advance payments.

    (a) A contractor may apply for advance payments before or after the 
award of a contract.
    (b) The contractor shall submit any advance payment request in 
writing to the contracting officer and provide the following 
information:
    (1) A reference to the contract if the request concerns an existing 
contract, or a reference to the solicitation if the request concerns a 
proposed contract.
    (2) A cash flow forecast showing estimated disbursements and 
receipts for the period of contract performance. If the application 
pertains to a type of contract described in 32.403(a) or (b), the 
contractor shall limit the forecast to the contract to be financed by 
advance payments.
    (3) The proposed total amount of advance payments.
    (4) The name and address of the financial institution at which the 
contractor expects to establish a special account as depository for the 
advance payments. If advance payments in the form of a letter of credit 
are anticipated, the contractor shall identify the specific account at 
the financial institution to be used. This subparagraph (4) is not 
applicable if an alternate method is used under agency procedures.
    (5) A description of the contractor's efforts to obtain unguaranteed 
private financing or a V-loan (see 32.301) under eligible contracts. 
This requirement is not applicable to the contract types described in 
32.403(a) or (b).
    (6) Other information appropriate to an understanding of (i) the 
contractor's financial condition and need, (ii) the contractor's ability 
to perform the contract without loss to the Government, and (iii) 
financial safeguards needed to protect the Government's interest. 
Ordinarily, if the contract is a type described in 32.403(a) or (b), the 
contractor may limit the response to this subparagraph (6) to 
information on the contractor's reliability, technical ability, and 
accounting system and controls.

[48 FR 42328, Sept. 19, 1983, as amended at 66 FR 2138, Jan. 10, 2001]

[[Page 746]]



Sec. 32.409  Contracting officer action.

    After analysis of the contractor's application and any appropriate 
investigation, the contracting officer shall recommend approval or 
disapproval and transmit the request and recommendation to the approving 
authority designated under 32.402(e).



Sec. 32.409-1  Recommendation for approval.

    If recommending approval, the contracting officer shall transmit the 
following, under agency procedures, to the approving authority:
    (a) Contract data, including--
    (1) Identification and date of the award;
    (2) Citation of the appropriation;
    (3) Type and dollar amount of the contract;
    (4) Items to be supplied, schedule of deliveries or performance, and 
status of any deliveries or performance;
    (5) The contract fee or profit contemplated; and
    (6) A copy of the contract, if available.
    (b) The contractor's request and supporting information.
    (c) A report on the contractor's past performance, responsibility, 
technical ability, and plant capacity.
    (d) Comments on (1) the contractor's need for advance payments and 
(2) potential Government benefits from the contract performance.
    (e) Proposed advance payment contract terms, including proposed 
security requirements.
    (f) The findings, determination, and authorization (see 32.410).
    (g) The recommendation for approval of the advance payment request.
    (h) Justification of any proposal for waiver of interest charges 
(see 32.407).



Sec. 32.409-2  Recommendation for disapproval.

    If recommending disapproval, the contracting officer shall, under 
agency procedures, transmit--
    (a) The items prescribed in 32.409-1(a), (b), and (c); and
    (b) The recommendation for disapproval and the reasons.



Sec. 32.409-3  Security, supervision, and covenants.

    (a) If advance payments are approved, the contracting officer shall 
enter into an agreement with the contractor covering special accounts 
and suitable covenants protecting the Government's interest (see 
32.411). This requirement generally applies under all statutory 
authorities, but modified requirements applicable to certain specific 
cases are prescribed in paragraphs (e) through (g) below.
    (b) The agency shall (1) ensure that the amount of advance payments 
does not exceed the contractor's financial needs, and (2) closely 
supervise the contractor's withdrawal of funds from special accounts in 
which the advance payments are deposited.
    (c) In the terms of the agreement, the contracting officer should 
provide for a paramount lien in favor of the Government. This lien may 
supplement or replace other security requirements. The lien should 
cover--
    (1) Supplies being acquired;
    (2) Any credit balance in the special account in which advance 
payments are deposited; and
    (3) All property that the contractor acquires for performing the 
contract, except to the extent to which the Government otherwise has 
valid title to the property.
    (d) Security requirements vary to fit the circumstances of different 
cases. Minimum security requirements are covered by the clauses 
prescribed in the contract. The contracting officer may supplement these 
as necessary in each case for protection of the Government's interest. 
Examples of additional security terms are--
    (1) Personal or corporate endorsements or guarantees;
    (2) Pledges of collateral;
    (3) Subordination or standby of other indebtedness;
    (4) Controls or limitations on profit distributions, salaries, 
bonuses or commissions, rentals and royalties, capital expenditures, 
creation of liens, retirement of stock or debt, and creation of 
additional obligations; and
    (5) Advance payment bonds (rarely required).

[[Page 747]]

    (e) In an advance payment agreement with an instrumentality of the 
Government, a State, a local government, or an agency or instrumentality 
of a State or local government, the contracting officer may omit the 
requirement for deposit of the advances in a special account, if the 
official approving the advance determines that other adequate security 
exists to protect the Government's interest.
    (f) The requirements of this 32.409-3 do not apply when using 
letters of credit if an agency's procedures provide for--
    (1) The use under a cost-reimbursement contract of Federal funds 
deposited in the contractor's account at a financial institution 
(without the contractor acquiring title to the funds); and
    (2) The security of such deposit of public moneys in accordance with 
governing regulations of the Treasury Department.
    (g) If a separate special account is not required; e.g., advance 
payment by a letter of credit, an agency may require a special account 
for an individual case, or classes of cases, if the circumstances 
warrant.

[48 FR 42328, Sept. 19, 1983, as amended at 66 FR 2138, Jan. 10, 2001]



Sec. 32.410  Findings, determination, and authorization.

    (a) Each determination concerning advance payments shall be 
supported by written findings (see 32.402(c)(1)(iii)).
    (b) The following is an example of the format and text of findings, 
determination, and authorization with alternative words, phrases, and 
paragraphs to be selected to conform to the circumstances involved:

     Findings, Determination, and Authorization for Advance Payments

                                findings

    (a) The undersigned hereby finds that:
    (1) The -------- [insert the name of the contracting activity] and 
-------- [insert the name of the contractor] (have entered) (propose to 
enter) into (negotiated) (sealed bid) Contract No. ----, dated ------
    [Summarize the specific facts and significant circumstances 
concerning the contract and the contractor, that, together with the 
other findings, will clearly support the determination below.]
    (2) Advance payments (in an amount not to exceed $------ at any time 
outstanding) (in an aggregate amount not exceeding $------, less the 
aggregate amounts repaid, or withdrawn by the Government) are required 
by the Contractor to perform under the contract. The amount does not 
exceed the unpaid contract price or the estimated interim cash needs 
arising during the reimbursement cycle.
    (3) The advance payments are necessary for prompt, efficient 
contract performance that will benefit the Government.
    (4) The proposed advance payment clause provides for security for 
the protection of the Government. The clause requires that all payments 
will be desposited in a special account at the Contractor's financial 
institution and that the Government will have a paramount lien on (i) 
the credit balance in the special account, (ii) any supplies contracted 
for, and (iii) any material or other property acquired for performance 
of the contract. [Insert the following, if applicable (The Contractor's 
financial management system provides for effective control over and 
accountability for all Federal funds under governing regulations of the 
Treasury Department.) (An advance payment bond is required.)] This 
security is considered adequate.
    (5) Advance payments are the only adequate means of financing 
available to the Contractor, and the amount designated in (2) above is 
based, to the extent possible, on the use of the Contractor's own 
working capital in performing the contract.
    [Insert paragraph (6), (7), or (8), as applicable].
    (6) The Contractor is a nonprofit (educational) (and) (research) 
institution, and the contract is for (experimental) (,) (research and 
development) work.
    (7) The contract is solely for the management and operation of a 
Government-owned plant.
    (8) The following unusual facts and circumstances favor making 
advance payments to the Contractor without interest:
    [List the pertinent facts and circumstances.]

                              Determination

    (b) Based on the findings in (a) above, the undersigned determined 
that the making of the proposed advance payments, (with interest at the 
rate of ---- [Insert the interest rate computed in accordance with 
32.407] percent on the daily unliquidated balance of the advance 
payments,) (without interest, except as provided by the proposed advance 
payment clause,) (is in the public interest) (will facilitate the 
national defense).

[[Page 748]]

                              Authorization

    (c) The advance payments, of which (the amount at any time 
outstanding) (the aggregate amount, less the aggregate amounts repaid, 
or withdrawn by the Government), shall not exceed $----, are hereby 
authorized under (section 305 of the Federal Property and Administrative 
Services Act of 1949 (41 U.S.C. 255)) (the Armed Services Procurement 
Act (10 U.S.C. 2307)) (the Extraordinary Contracting Authority of 
Government Agencies in Connection with National Defense Functions (50 
U.S.C. 1431-1435) and Executive Order No. 10789 of November 14, 1958 (3 
CFR 1958 Supp. pp. 72-74)) [or, if other, cite appropriate authority] on 
(terms substantially as contained in the proposed advance payment 
clause, a copy (an outline) of which is annexed to this authorization) 
(the following terms:) [Insert the appropriate terms.]
    (All prior authorizations for advance payments under Contract No. --
---- are superseded.)

________________________________________________________________________
                                                             (Signature)
________________________________________________________________________
                                                            (Name typed)
________________________________________________________________________
                                          (Title of authorized official)

    [Each Findings, Determination, and Authorization shall be 
individually prepared to fit the particular circumstances at hand. 
Subparagraphs (a)(1), (2), (3) and (4) and paragraphs (b) and (c) shall 
be used in each case. If the contract is (a) for experimental, 
developmental, or research work and with a nonprofit educational or 
research institution, or (b) only for management and operation of a 
Government-owned plant, subparagraph (a)(5) should not be included. If 
the advance payment is to be made without interest to the contractor, 
include subparagraph (a)(6), (7), or (8). If any advance payments have 
previously been authorized for the contract, include the final sentence 
of paragraph (c). The alternate parenthetical wording or other 
modifications may be used as appropriate. The paragraphs actually used 
shall be renumbered sequentially].

[48 FR 42328, Sept. 19, 1983, as amended at 50 FR 1744, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 66 FR 2138, Jan. 10, 2001]



Sec. 32.411  Agreement for special account at a financial institution.

    The contracting officer must use substantially the following form of 
agreement for a special account for advance payments:

                      Agreement for Special Account

    This agreement is entered into this ---- day of ------------, 20----
, between the United States of America (the Government), represented by 
the Contracting Officer executing this agreement, -------- [Insert the 
name of the Contractor], a -------- [Insert the name of the State of 
incorporation] corporation (the Contractor), and --------, a financial 
institution operating under the laws of --------, located at -------- 
(the financial institution).

                                Recitals

    (a) Under date of --------, 20----, the Government and the 
Contractor entered into Contract No. ----, or a related supplemental 
agreement, providing for advance payments to the Contractor. A copy of 
the advance payment terms was furnished to the financial institution.
    (b) The contract or supplemental agreement requires that amounts 
advanced to the Contractor be deposited separate from the Contractor's 
general or other funds, in a Special Account at a member bank of the 
Federal Reserve System, any ``insured'' bank within the meaning of the 
Act creating the Federal Deposit Insurance Corporation (12 U.S.C. 1811), 
or a credit union insured by the National Credit Union Administration. 
The parties agree to deposit the amounts with the financial institution, 
which meets the requirement.
    (c) This Special Account is designated ``-------- [Insert the 
Contractor's name], -------- [Insert the name of the Government agency] 
Special Account.''

                                Covenants

    In consideration of the foregoing, and for other good and valuable 
considerations, the parties agree to the following conditions:
    (a) The Government shall have a lien on the credit balance in the 
account to secure the repayment of all advance payments made to the 
Contractor. The lien is paramount to any lien or claim of the financial 
institution regarding the account.
    (b) The financial institution is bound by the terms of the contract 
relating to the deposit and withdrawal of funds in the Special Account, 
but is not responsible for the application of funds withdrawn from the 
account. The financial institution shall act on written directions from 
the Contracting Officer, the administering office, or a duly authorized 
representative of either. The financial institution is not liable to any 
party to this agreement for any action that complies with the written 
directions. Any written directions received by the financial institution 
through the Contracting Officer on -------- [Insert the name of the 
agency] stationery and purporting to be signed by, or by the direction 
of -------- or duly authorized representative, shall be, as far as the 
rights, duties, and liabilities of the financial institution are 
concerned, considered as being properly

[[Page 749]]

issued and filed with the financial institution by the -------- [Insert 
the name of the agency].
    (c) The Government, or its authorized representatives, shall have 
access to the books and records maintained by the financial institution 
regarding the Special Account at all reasonable times and for all 
reasonable purposes, including (but not limited to), the inspection or 
copying of the books and records and any and all pertinent memoranda, 
checks, correspondence, or documents. The financial institution shall 
preserve the books and records for a period of 6 years after the closing 
of this Special Account.
    (d) In the event of the service of any writ of attachment, levy of 
execution, or commencement of garnishment proceedings regarding the 
Special Account, the financial institution will promptly notify -------- 
[Insert the name of the administering office].
    (e) While this Special Account exists, the financial institution 
shall inform the Government each month of the financial institution's 
published prime interest rate and changes to the rate during the month. 
The financial institution shall give this information to the Contracting 
Officer on the last business day of the month. [This covenant will not 
be included in the Special Account Agreements covering interest-free 
advance payments.]
    Each of the parties to this agreement has executed the agreement on 
--------------, 20----.

________________________________________________________________________
________________________________________________________________________
[Signatures and Official Titles]

[66 FR 2138, Jan. 10, 2001]



Sec. 32.412  Contract clause.

    (a) The contracting officer shall insert the clause at 52.232-12, 
Advance Payments, in solicitations and contracts under which the 
Government will provide advance payments, except as provided in 
32.412(b).
    (b) If the agency desires to waive the countersignature requirement 
because of the contractor's financial strength, good performance record, 
and favorable experience concerning cost disallowances, the contracting 
officer shall use the clause with its Alternate I.
    (c) If a cost-reimbursement contract is contemplated, the 
contracting officer shall use the clause with its Alternate II.
    (d) If the agency considers a more rapid liquidation appropriate, 
the contracting officer shall use the clause with its Alternate III.
    (e) If the agency provides advance payments under the contract at no 
interest to the prime contractor, the contracting officer shall use the 
clause with its Alternate IV.
    (f) If the requirement for a special account is eliminated in 
accordance with 32.409-3 (e) or (g), the contracting officer shall 
insert in the solicitation or contract the clause set forth in Alternate 
V of 52.232-12, Advance Payments, instead of the basic clause.

[48 FR 42328, Sept. 19, 1983, as amended at 55 FR 25530, June 21, 1990; 
66 FR 2138, Jan. 10, 2001]

              Subpart 32.5_Progress Payments Based on Costs



Sec. 32.500  Scope of subpart.

    This subpart prescribes policies, procedures, forms, solicitation 
provisions, and contract clauses for providing contract financing 
through progress payments based on costs. This subpart does not apply 
to--
    (a) Payments under cost-reimbursement contracts, but see 32.110 for 
progress payments made to subcontractors under cost-reimbursement prime 
contracts; or
    (b) Contracts for construction or for shipbuilding or ship 
conversion, alteration, or repair, when the contracts provide for 
progress payments based on a percentage or stage of completion.

[48 FR 42328, Sept. 19, 1983, as amended at 65 FR 16279, Mar. 27, 2000]



Sec. 32.501  General.

    Progress payments may be customary or unusual. Customary progress 
payments are those made under the general guidance in this subpart, 
using the customary progress payment rate, the cost base, and frequency 
of payment established in the Progress Payments clause, and either the 
ordinary liquidation method or the alternate method as provided in 
subsections 32.503-8 and 32.503-9. Any other progress payments are 
considered unusual, and may be used only in exceptional cases when 
authorized in accordance with subsection 32.501-2.

[[Page 750]]



Sec. 32.501-1  Customary progress payment rates.

    (a) The customary progress payment rate is 80 percent, applicable to 
the total costs of performing the contract. The customary rate for 
contracts with small business concerns is 85 percent.
    (b) The contracting officer must--
    (1) Consider any rate higher than those permitted in paragraph (a) 
of this section an unusual progress payment; and
    (2) Not include a higher rate in a contract unless advance agency 
approval is obtained as prescribed in 32.501-2.
    (c) When advance payments and progress payments are authorized under 
the same contract, the contracting officer must not authorize a progress 
payment rate higher than the customary rate.
    (d) In accordance with 10 U.S.C. 2307(e)(2) and 41 U.S.C. 255, the 
limit for progress payments is 80 percent on work accomplished under 
undefinitized contract actions. The contracting officer must not 
authorize a higher rate under unusual progress payments or other 
customary progress payments for the undefinitized actions.

[65 FR 16279, Mar. 27, 2000]



Sec. 32.501-2  Unusual progress payments.

    (a) The contracting officer may provide unusual progress payments 
only if--
    (1) The contract necessitates predelivery expenditures that are 
large in relation to contract price and in relation to the contractor's 
working capital and credit;
    (2) The contractor fully documents an actual need to supplement any 
private financing available, including guaranteed loans; and
    (3) The contractor's request is approved by the head of the 
contracting activity or a designee. In addition, see 32.502-2.
    (b) The excess of the unusual progress payment rate approved over 
the customary progress payment rate should be the lowest amount possible 
under the circumstances.
    (c) Progress payments will not be considered unusual merely because 
they are on letter contracts or the definitive contracts that supersede 
letter contracts.



Sec. 32.501-3  Contract price.

    (a) For the purpose of making progress payments and determining the 
limitation on progress payments, the contract price shall be as follows:
    (1) Under firm-fixed price contracts, the contract price is the 
current amount fixed by the contract plus the not-to-exceed amount for 
any unpriced modifications.
    (2) If the contract is redeterminable or subject to economic price 
adjustment, the contract price is the initial price until modified.
    (3) Under a fixed-price incentive contract, the contract price is 
the target price plus the not-to-exceed amount of unpriced 
modifications. However, if the contractor's properly incurred costs 
exceed the target price, the contracting officer may provisionally 
increase the price up to the ceiling or maximum price.
    (4) Under a letter contract, the contract price is the maximum 
amount obligated by the contract as modified.
    (5) Under an unpriced order issued against a basic ordering 
agreement, the contract price is the maximum amount obligated by the 
order, as modified.
    (6) Any portion of the contract specifically providing for 
reimbursement of costs only shall be excluded from the contract price.
    (b) The contracting officer shall not make progress payments or 
increase the contract price beyond the funds obligated under the 
contract, as amended.

[48 FR 42328, Sept. 19, 1983, as amended at 74 FR 28431, June 15, 2009]



Sec. 32.501-4  [Reserved]



Sec. 32.501-5  Other protective terms.

    If the contracting officer considers it necessary for protection of 
the Government's interest, protective terms such as the following may be 
used in addition to the Progress Payments clause of the contract:
    (a) Personal or corporate guarantees.
    (b) Subordinations or standbys of indebtedness.
    (c) Special bank accounts.

[[Page 751]]

    (d) Protective covenants of the kinds in paragraph (p) of the clause 
at 52.232-12, Advance Payments.
    (e) A provision, included in the solicitation and resultant contract 
when first article testing is required (see subpart 9.3), limiting 
progress payments on first article work by a stated amount or 
percentage.

[48 FR 42328, Sept. 19, 1983, as amended at 55 FR 52794, Dec. 21, 1990]



Sec. 32.502  Preaward matters.

    This section covers matters that generally are relevant only before 
contract award. This does not preclude taking actions discussed here 
after award, if appropriate; e.g., postaward addition of a Progress 
Payments clause for consideration.



Sec. 32.502-1  Use of customary progress payments.

    The contracting officer may use a Progress Payments clause in 
solicitations and contracts, in accordance with this subpart. The 
contracting officer must reject as nonresponsive bids conditioned on 
progress payments when the solicitation did not provide for progress 
payments.

[65 FR 16280, Mar. 27, 2000]



Sec. 32.502-2  Contract finance office clearance.

    The contracting officer shall obtain the approval of the contract 
finance office or other offices designated under agency procedures 
before taking any of the following actions:
    (a) Providing a progress payment rate higher than the customary rate 
(see 32.501-1).
    (b) Deviating from the progress payments terms prescribed in this 
part.
    (c) Providing progress payments to a contractor--
    (1) Whose financial condition is in doubt;
    (2) Who has had an advance payment request or loan guarantee denied 
for financial reasons (or approved but withdrawn or lapsed) within the 
previous 12 months; or
    (3) Who is named in the consolidated list of contractors indebted to 
the United States (known commonly as the Hold-up List).



Sec. 32.502-3  Solicitation provisions.

    (a) The contracting officer shall insert the provision at 52.232-13, 
Notice of Progress Payments, in invitations for bids and requests for 
proposals that include a Progress Payments clause.
    (b)(1) Under the authority of the statutes cited in 32.101, an 
invitation for bids may restrict the availability of progress payments 
to small business concerns only.
    (2) The contracting officer shall insert the provision at 52.232-14, 
Notice of Availability of Progress Payments Exclusively for Small 
Business Concerns, in invitations for bids if it is anticipated that (1) 
both small business concerns and others may submit bids in response to 
the same invitation and (2) only the small business bidders would need 
progress payments.
    (c) The contracting officer shall insert the provision at 52.232-15, 
Progress Payments Not Included, in invitations for bids if the 
solicitation will not contain one of the provisions prescribed in 
paragraphs (a) and (b) above.



Sec. 32.502-4  Contract clauses.

    (a)(1) Insert the clause at 52.232-16, Progress Payments, in--
    (i) Solicitations that may result in contracts providing for 
progress payments based on costs; and
    (ii) Fixed-price contracts under which the Government will provide 
progress payments based on costs.
    (2) If advance agency approval has been given in accordance with 
32.501-1, the contracting officer may substitute a different customary 
rate for other than small business concerns for the progress payment and 
liquidation rate indicated.
    (3) If an unusual progress payment rate is approved for the prime 
contractor (see 32.501-2), substitute the approved rate for the 
customary rate in paragraphs (a)(1), (a)(6), and (b) of the clause.
    (4) If the liquidation rate is changed from the customary progress 
payment rate (see 32.503-8 and 32.503-9), substitute the new rate for 
the rate in paragraphs (a)(1), (a)(6), and (b) of the clause.
    (5) If an unusual progress payment rate is approved for a 
subcontract (see

[[Page 752]]

32.504(c) and 32.501-2), modify paragraph (j)(6) of the clause to 
specify the new rate, the name of the subcontractor, and that the new 
rate shall be used for that subcontractor in lieu of the customary rate.
    (b) If the contractor is a small business concern, use the clause 
with its Alternate I.
    (c) If the contract is a letter contract, use the clause with its 
Alternate II.
    (d) If the contractor is not a small business concern, and progress 
payments are authorized under an indefinite-delivery contract, basic 
ordering agreement, or their equivalent, use the clause with its 
Alternate III.
    (e) If the nature of the contract necessitates separate progress 
payment rates for portions of work that are clearly severable and 
accounting segregation would be maintained (e.g., annual production 
requirements), describe the application of separate progress payment 
rates in a supplementary special provision within the contract. The 
contractor must submit separate progress payment requests and subsequent 
invoices for the severable portions of work in order to maintain 
accounting integrity.

[65 FR 16280, Mar. 27, 2000, as amended at 65 FR 24325, Apr. 25, 2000]



Sec. 32.503  Postaward matters.

    This section covers matters that are generally relevant only after 
award of a contract. This does not preclude taking actions discussed 
here before award, if appropriate; e.g., preaward review of accounting 
systems and controls.



Sec. 32.503-1  [Reserved]



Sec. 32.503-2  Supervision of progress payments.

    (a) The extent of progress payments supervision, by prepayment 
review or periodic review, should vary inversely with the contractor's 
experience, performance record, reliability, quality of management, and 
financial strength, and with the adequacy of the contractor's accounting 
system and controls. Supervision shall be of a kind and degree 
sufficient to provide timely knowledge of the need for, and timely 
opportunity for, any actions necessary to protect Government interests.
    (b) The administering office must keep itself informed of the 
contractor's overall operations and financial condition, since 
difficulties encountered and losses suffered in operations outside the 
particular progress payment contract may affect adversely the 
performance of that contract and the liquidation of the progress 
payments.
    (c) For contracts with contractors (1) whose financial condition is 
doubtful or not strong in relation to progress payments outstanding or 
to be outstanding, (2) with management of doubtful capacity, (3) whose 
accounting controls are found by experience to be weak, or (4) 
experiencing substantial difficulties in performance, full information 
on progress under the contract involved (including the status of 
subcontracts) and on the contractor's other operations and overall 
financial condition should be obtained and analyzed frequently, with a 
view to protecting the Government's interests better and taking such 
action as may be proper to make contract performance more certain.
    (d) So far as practicable, all cost problems, particularly those 
involving indirect costs, that are likely to create disagreements in 
future administration of the contract should be identified and resolved 
at the inception of the contract (see 31.109).



Sec. 32.503-3  Initiation of progress payments and review of accounting 
          system.

    (a) For contractors that the administrative contracting officer 
(ACO) has found by previous experience or recent audit review (within 
the last 12 months) to be (1) reliable, competent, and capable of 
satisfactory performance, (2) possessed of an adequate accounting system 
and controls, and (3) in sound financial condition, progress payments in 
amounts requested by the contractor should be approved as a matter of 
course.
    (b) For all other contractors, the ACO shall not approve progress 
payments before determining (1) that (i) the contractor will be capable 
of liquidating any progress payments or (ii) the Government is otherwise 
protected

[[Page 753]]

against loss by additional protective provisions, and (2) that the 
contractor's accounting system and controls are adequate for proper 
administration of progress payments. The services of the responsible 
audit agency or office should be used to the greatest extent 
practicable. However, if the auditor so advises, a complete audit may 
not be necessary.

[48 FR 42328, Sept. 19, 1983, as amended at 63 FR 9061, Feb. 23, 1998]



Sec. 32.503-4  Approval of progress payment requests.

    (a) When the reliability of the contractor and the adequacy of the 
contractor's accounting system and controls have been established (see 
32.503-3 above) the ACO may, in approving any particular progress 
payment request (including initial requests on new contracts), rely upon 
that accounting system and upon the contractor's certification, without 
requiring audit or review of the request before payment.
    (b) The ACO should not routinely ask for audits of progress payment 
requests. However, when there is reason to (1) question the reliability 
or accuracy of the contractor's certification or (2) believe that the 
contract will involve a loss, the ACO should ask for a review or audit 
of the request before payment is approved or the request is otherwise 
disposed of.
    (c) When there is reason to doubt the amount of a progress payment 
request, only the doubtful amount should be withheld, subject to later 
adjustment after review or audit; any clearly proper and due amounts 
should be paid without awaiting resolution of the differences.



Sec. 32.503-5  Administration of progress payments.

    (a) While the ACO may, in approving progress payment requests under 
32.503-3 above, rely on the contractor's accounting system and 
certification without prepayment review, postpayment reviews (including 
audits when considered necessary) shall be made periodically, or when 
considered desirable by the ACO to determine the validity of progress 
payments already made and expected to be made.
    (b) These postpayment reviews or audits shall, as a minimum, include 
a determination of whether or not--
    (1) The unliquidated progress payments are fairly supported by the 
value of the work accomplished on the undelivered portion of the 
contract;
    (2) The applicable limitation on progress payments in the Progress 
Payments clause has been exceeded;
    (3)(i) The unpaid balance of the contract price will be adequate to 
cover the anticipated cost of completion, or
    (ii) The contractor has adequate resources to complete the contract; 
and
    (4) There is reason to doubt the adequacy and reliability of the 
contractor's accounting system and controls and certification.
    (c) Under indefinite-delivery contracts, the contracting officer 
should administer progress payments made under each individual order as 
if the order constituted a separate contract, unless agency procedures 
provide otherwise. When the contract will be administered by an agency 
other than the awarding agency, the contracting officer shall coordinate 
with the contract administration office if the awarding agency wants the 
administration of progress payments to be on a basis other than order-
by-order.

[48 FR 42328, Sept. 19, 1983, as amended at 65 FR 16280, Mar. 27, 2000; 
68 FR 13208, Mar. 18, 2003]



Sec. 32.503-6  Suspension or reduction of payments.

    (a) General. The Progress Payments clause provides a Government 
right to reduce or suspend progress payments, or to increase the 
liquidation rate, under specified conditions. These conditions and 
actions are discussed in paragraphs (b) through (g) below.
    (1) The contracting officer shall take these actions only in 
accordance with the contract terms and never precipitately or 
arbitrarily. These actions should be taken only after--
    (i) Notifying the contractor of the intended action and providing an 
opportunity for discussion;
    (ii) Evaluating the effect of the action on the contractor's 
operations, based on the contractor's financial condition, projected 
cash requirements,

[[Page 754]]

and the existing or available credit arrangements; and
    (iii) Considering the general equities of the particular situation.
    (2) The contracting officer shall take immediate unilateral action 
only if warranted by circumstances such as overpayments or 
unsatisfactory contract performance.
    (3) In all cases, the contracting officer shall--
    (i) Act fairly and reasonably;
    (ii) Base decisions on substantial evidence; and
    (iii) Document the contract file. Findings made under paragraph (c) 
of the Progress Payments clause shall be in writing.
    (b) Contractor noncompliance. (1) The contractor must comply with 
all material requirements of the contract. This includes the requirement 
to maintain an efficient and reliable accounting system and controls, 
adequate for the proper administration of progress payments. If the 
system or controls are deemed inadequate, progress payments shall be 
suspended (or the portion of progress payments associated with the 
unacceptable portion of the contractor's accounting system shall be 
suspended) until the necessary changes have been made.
    (2) If the contractor fails to comply with the contract without 
fault or negligence, the contracting officer will not take action 
permitted by paragraph (c)(1) of the Progress Payments clause, other 
than to correct overpayments and collect amounts due from the 
contractor.
    (c) Unsatisfactory financial condition. (1) If the contracting 
officer finds that contract performance (including full liquidation of 
progress payments) is endangered by the contractor's financial 
condition, or by a failure to make progress, the contracting officer 
shall require the contractor to make additional operating or financial 
arrangements adequate for completing the contract without loss to the 
Government.
    (2) If the contracting officer concludes that further progress 
payments would increase the probable loss to the Government, the 
contracting officer shall suspend progress payments and all other 
payments until the unliquidated balance of progress payments is 
eliminated.
    (d) Excessive inventory. If the inventory allocated to the contract 
exceeds reasonable requirements (including a reasonable accumulation of 
inventory for continuity of operations), the contracting officer should, 
in addition to requiring the transfer of excessive inventory from the 
contract, take one or more of the following actions, as necessary, to 
avoid or correct overpayment:
    (1) Eliminate the costs of the excessive inventory from the costs 
eligible for progress payments, with appropriate reduction in progress 
payments outstanding.
    (2) Apply additional deductions to billings for deliveries (increase 
liquidation).
    (e) Delinquency in payment of costs of performance. (1) If the 
contractor is delinquent in paying the costs of contract performance in 
the ordinary course of business, the contracting officer shall evaluate 
whether the delinquency is caused by an unsatisfactory financial 
condition and, if so, shall apply the guidance in paragraph (c) above. 
If the contractor's financial condition is satisfactory, the contracting 
officer shall not deny progress payments if the contractor agrees to--
    (i) Cure the payment delinquencies;
    (ii) Avoid further delinquencies; and
    (iii) Make additional arrangements adequate for completing the 
contract without loss to the Government.
    (2) If the contractor has, in good faith, disputed amounts claimed 
by subcontractors, suppliers, or others, the contracting officer shall 
not consider the payments delinquent until the amounts due are 
established by the parties through litigation or arbitration. However, 
the amounts shall be excluded from costs eligible for progress payments 
so long as they are disputed.
    (3) Determinations of delinquency in making contributions under 
employee pension, profit sharing, or stock ownership plans, and 
exclusion of costs for such contributions from progress payment 
requests, shall be in accordance with paragraph (a)(3) of the clause at 
52.232-16, Progress Payments, without regard to the provisions of 
32.503-6.

[[Page 755]]

    (f) Fair value of undelivered work. Progress payments must be 
commensurate with the fair value of work accomplished in accordance with 
contract requirements. The contracting officer must adjust progress 
payments when necessary to ensure that the fair value of undelivered 
work equals or exceeds the amount of unliquidated progress payments. On 
loss contracts, the application of a loss ratio as provided at paragraph 
(g) of this subsection constitutes this adjustment.
    (g) Loss contracts. (1) If the sum of the total costs incurred under 
a contract plus the estimated costs to complete the performance are 
likely to exceed the contract price, the contracting officer shall 
compute a loss ratio factor and adjust future progress payments to 
exclude the element of loss. The loss ratio factor is computed as 
follows:
    (i) Revise the current contract price used in progress payment 
computations (the current ceiling price under fixed-price incentive 
contracts) to include the not-to-exceed amount for any pending change 
orders and unpriced orders.
    (ii) Divide the revised contract price by the sum of the total costs 
incurred to date plus the estimated additional costs of completing the 
contract performance.
    (2) If the contracting officer believes a loss is probable, future 
progress payment requests shall be modified as follows:
    (i) The contract price shall be the revised amount computed under 
subparagraph (1)(i) above.
    (ii) The total costs eligible for progress payments shall be the 
product of (A) the sum of paid costs eligible for progress payments 
times (B) the loss ratio factor computed under subparagraph (1)(ii) 
above.
    (iii) The costs applicable to items delivered, invoiced, and 
accepted shall not include costs in excess of the contract price of the 
items.
    (3) The contracting officer may use audit assistance, technical 
services, management reports, and other sources of pertinent data to 
evaluate progress payment requests. If the contracting officer concludes 
that the contractor's figures in the contractor's progress payment 
request are not correct, the contracting officer shall--
    (i) In the manner prescribed in paragraph (4) below, prepare a 
supplementary analysis to be attached to the contractor's request;
    (ii) Advise the contractor in writing of the differences; and
    (iii) Adjust all further progress payments in accordance with 
paragraph (1) above, using the contracting officer's figures, until the 
difference is resolved.
    (4) The following is an example of the supplementary analysis 
required in paragraph (g)(3) of this subsection:

                               Section I
Contract price..........................................      $2,850,000
Change orders and unpriced orders (to extent funds have          150,000
 been obligated)........................................
Revised contract price..................................       3,000,000
 
                               Section II
 
Total costs incurred to date............................       2,700,000
Estimated additional costs to complete..................         900,000
Total costs to complete.................................       3,600,000
                                                          ..............
 
       [GRAPHIC] [TIFF OMITTED] TR27MR00.000
                                                          

Total costs eligible for progress payments..............       2,700,000
Loss ratio factor.......................................          x83.3%
Recognized costs for progress payments..................       2,249,100
Progress payment rate...................................          x80.0%
Alternate amount to be used.............................       1,799,280
 
                               Section III
 
Factored costs of items delivered*......................         750,000
Recognized costs applicable to undelivered items              1,499,100
 ($2,249,100-750,000)...................................
 
* This amount must be the same as the contract price of the items
  delivered.


[48 FR 42328, Sept. 19, 1983, as amended at 52 FR 30077, Aug. 12, 1987; 
54 FR 5056, Jan. 31, 1989; 54 FR 48989, Nov. 28, 1989; 64 FR 72451, Dec. 
27, 1999; 65 FR 16280, Mar. 27, 2000; 74 FR 28431, June 15, 2009]

[[Page 756]]



Sec. 32.503-7  [Reserved]



Sec. 32.503-8  Liquidation rates--ordinary method.

    The Government recoups progress payments through the deduction of 
liquidations from payments that would otherwise be due to the contractor 
for completed contract items. To determine the amount of the 
liquidation, the contracting officer applies a liquidation rate to the 
contract price of contract items delivered and accepted. The ordinary 
method is that the liquidation rate is the same as the progress payment 
rate. At the beginning of a contract, the contracting officer must use 
this method.

[65 FR 16280, Mar. 27, 2000]



Sec. 32.503-9  Liquidation rates--alternate method.

    (a) The liquidation rate determined under 32.503-8 shall apply 
throughout the period of contract performance unless the contracting 
officer adjusts the liquidation rate under the alternate method in this 
32.503-9. The objective of the alternate liquidation rate method is to 
permit the contractor to retain the earned profit element of the 
contract prices for completed items in the liquidation process. The 
contracting officer may reduce the liquidation rate if--
    (1) The contractor requests a reduction in the rate;
    (2) The rate has not been reduced in the preceding 12 months;
    (3) The contract delivery schedule extends at least 18 months from 
the contract award date;
    (4) Data on actual costs are available (i) for the products 
delivered, or (ii) if no deliveries have been made, for a performance 
period of at least 12 months;
    (5) The reduced liquidation rate would result in the Government 
recouping under each invoice the full extent of the progress payments 
applicable to the costs allocable to that invoice;
    (6) The contractor would not be paid for more than the costs of 
items delivered and accepted (less allocable progress payments) and the 
earned profit on those items;
    (7) The unliquidated progress payments would not exceed the limit 
prescribed in paragraph (a)(5) of the Progress Payments clause;
    (8) The parties agree on an appropriate rate; and
    (9) The contractor agrees to certify annually, or more often if 
requested by the contracting officer, that the alternate rate continues 
to meet the conditions of subsections 5, 6, and 7 above. The certificate 
must be accompanied by adequate supporting information.
    (b) The contracting officer shall change the liquidation rate in the 
following circumstances:
    (1) The rate shall be increased for both previous and subsequent 
transactions, if the contractor experiences a lower profit rate than the 
rate anticipated at the time the liquidation rate was established. 
Accordingly, the contracting officer shall adjust the progress payments 
associated with contract items already delivered, as well as subsequent 
progress payments.
    (2) The rate shall be increased or decreased in keeping with the 
successive changes to the contract price or target profit when--
    (i) The target profit is changed under a fixed-price incentive 
contract with successive targets; or
    (ii) A redetermined price involves a change in the profit element 
under a contract with prospective price redetermination at stated 
intervals.
    (c) Whenever the liquidation rate is changed, the contracting 
officer shall issue a contract modification to specify the new rate in 
the Progress Payments clause. Adequate consideration for these contract 
modifications is provided by the consideration included in the initial 
contract. The parties shall promptly make the payment or liquidation 
required in the circumstances.

[48 FR 42328, Sept. 19, 1983, as amended at 74 FR 40468, Aug. 11, 2009]



Sec. 32.503-10  Establishing alternate liquidation rates.

    (a) The contracting officer must ensure that the liquidation rate 
is--
    (1) High enough to result in Government recoupment of the applicable 
progress payments on each billing; and
    (2) Supported by documentation included in the administration office 
contract file.

[[Page 757]]

    (b) The minimum liquidation rate is the expected progress payments 
divided by the contract price. Each of these factors is discussed below:
    (1) The contracting officer must compute the expected progress 
payments by multiplying the estimated cost of performing the contract by 
the progress payment rate.
    (2) For purposes of computing the liquidation rate, the contracting 
officer may adjust the estimated cost and the contract price to include 
the estimated value of any work authorized but not yet priced and any 
projected economic adjustments; however, the contracting officer's 
adjustment must not exceed the Government's estimate of the price of all 
authorized work or the funds obligated for the contract.
    (3) The following are examples of the computation. Assuming an 
estimated price of $2,200,000 and total estimated costs eligible for 
progress payments of $2,000,000:
    (i) If the progress payment rate is 80 percent, the minimum 
liquidation rate should be 72.7 percent, computed as follows:
[GRAPHIC] [TIFF OMITTED] TR27MR00.001

    (ii) If the progress payment rate is 85 percent, the minimum 
liquidation rate should be 77.3 percent, computed as follows:
[GRAPHIC] [TIFF OMITTED] TR27MR00.002

    (4) Minimum liquidation rates will generally be expressed to tenths 
of a percent. Decimals between tenths will be rounded up to the next 
highest tenth (not necessarily the nearest tenth), since rounding down 
would produce a rate below the minimum rate calculated.

[48 FR 42328, Sept. 19, 1983, as amended 52 FR 30077, Aug. 12, 1987; 65 
FR 16281, Mar. 27, 2000]



Sec. 32.503-11  Adjustments for price reduction.

    (a) If a retroactive downward price reduction occurs under a 
redeterminable contract that provides for progress payments, the 
contracting officer shall--
    (1) Determine the refund due and obtain repayment from the 
contractor for the excess of payments made for delivered items over 
amounts due as recomputed at the reduced prices; and
    (2) Increase the unliquidated progress payments amount for 
overdeductions made from the contractor's billings for items delivered.
    (b) The contracting officer shall also increase the unliquidated 
progress payments amount if the contractor makes an interim or voluntary 
price reduction under a redeterminable or incentive contract.



Sec. 32.503-12  Maximum unliquidated amount.

    (a) The contracting officer shall ensure that any excess of the 
unliquidated progress payments over the contractual limitation in 
paragraph (a) of the Progress Payments clause in the contract is 
promptly corrected through one or more of the following actions:
    (1) Increasing the liquidation rate.
    (2) Reducing the progress payment rate.
    (3) Suspending progress payments.
    (b) The excess described in paragraph (a) above is most likely to 
arise under the following circumstances:
    (1) The costs of performance exceed the contract price.
    (2) The alternate method of liquidation (see 32.503-9) is used and 
the actual costs of performance exceed the cost estimates used to 
establish the liquidation rate.
    (3) The rate of progress or the quality of contract performance is 
unsatisfactory.
    (4) The rate of rejections, waste, or spoilage is excessive.
    (c) As required, the services of the responsible audit agency or 
office should be fully utilized, along with the services of qualified 
cost analysis and engineering personnel.

[48 FR 42328, Sept. 19, 1983, as amended at 63 FR 9061, Feb. 23, 1998]



Sec. 32.503-13  [Reserved]



Sec. 32.503-14  Protection of Government title.

    (a) Since the Progress Payments clause gives the Government title to 
all of the materials, work-in-process,

[[Page 758]]

finished goods, and other items of property described in paragraph (d) 
of the Progress Payments clause, under the contract under which progress 
payments have been made, the ACO must ensure that the Government title 
to these inventories is not compromised by other encumbrances. 
Ordinarily, the ACO, in the absence of reason to believe otherwise, may 
rely upon the contractor's certification contained in the progress 
payment request.
    (b) If the ACO becomes aware of any arrangement or condition that 
would impair the Government's title to the property affected by progress 
payment, the ACO shall require additional protective provisions (see 
32.501-5) to establish and protect the Government's title.
    (c) The existence of any such encumbrance is a violation of the 
contractor's obligations under the contract, and the ACO may, if 
necessary, suspend or reduce progress payments under the terms of the 
Progress Payments clause covering failure to comply with any material 
requirement of the contract. In addition, if the contractor fails to 
disclose an existing encumbrance in the progress payments certification, 
the ACO should consult with legal counsel concerning possible violation 
of 31 U.S.C. 3729, the False Claims Act.

[48 FR 42328, Sept. 19, 1983, as amended at 51 FR 2665, Jan. 17, 1986]



Sec. 32.503-15  Application of Government title terms.

    (a) Property to which the Government obtains title by operation of 
the Progress Payments clause solely is not, as a consequence, 
Government-furnished property.
    (b) Although property title is vested in the Government under the 
Progress Payments clause, the acquisition, handling, and disposition of 
certain types of property are governed by--
    (1) The clause at 52.245-1, Government Property; and
    (2) The termination clauses at 52.249, for termination inventory.
    (c) The contractor may sell or otherwise dispose of current 
production scrap in the ordinary course of business on its own volition, 
even if title has vested in the Government under the Progress Payments 
clause. The contracting officer shall require the contractor to credit 
the costs of the contract performance with the proceeds of the scrap 
disposition.
    (d) When the title to materials or other inventories is vested in 
the Government under the Progress Payments clause, the contractor may 
transfer the inventory items from the contract for its own use or other 
disposition only if, and on terms, approved by the contracting officer. 
The contractor shall (1) eliminate the costs allocable to the 
transferred property from the costs of contract performance, and (2) 
repay or credit to the Government an amount equal to the unliquidated 
progress payments, allocable to the transferred property.
    (e) If excess property remains after the contract performance is 
complete and all contractor obligations under the contract are 
satisfied, including full liquidation of progress payments, the excess 
property is outside the scope of the Progress Payments clause. 
Therefore, the contractor holds title to it.

[48 FR 42328, Sept. 19, 1983, as amended at 72 FR 27384, May 15, 2007]



Sec. 32.503-16  Risk of loss.

    (a) Under the Progress Payments clause, and except for normal 
spoilage, the contractor bears the risk of loss for Government property 
under the clause, even though title is vested in the Government, unless 
the Government has expressly assumed this risk. The clauses prescribed 
in this regulation related to progress payments, default, and 
terminations do not constitute a Government assumption of this risk.
    (b) If a loss occurs in connection with property for which the 
contractor bears the risk, the contractor is obligated to repay to the 
Government the amount of unliquidated progress payments based on costs 
allocable to the property.
    (c) The contractor is not obligated to pay for the loss of property 
for which the Government has assumed the risk of loss. However, a 
serious loss may impede the satisfactory progress of contract 
performance, so that the contracting officer may need to act under

[[Page 759]]

paragraph (c)(5) of the Progress Payments clause.

[48 FR 42328, Sept. 19, 1983, as amended at 75 FR 38680, July 2, 2010; 
77 FR 12941, Mar. 2, 2012]



Sec. 32.504  Subcontracts under prime contracts providing progress 
          payments.

    (a) Subcontracts may include either performance-based payments, 
provided they meet the criteria in 32.1003, or progress payments, 
provided they meet the criteria in subpart 32.5 for customary progress 
payments, but not both. Subcontracts for commercial purchases may 
include commercial item purchase financing terms, provided they meet the 
criteria in 32.202-1.
    (b) The contractor's requests for progress payments may include the 
full amount of commercial item purchase financing payments, performance-
based payments, or progress payments to a subcontractor, whether paid or 
unpaid, provided that unpaid amounts are limited to amounts determined 
due and that the contractor will pay--
    (1) In accordance with the terms and conditions of a subcontract or 
invoice; and
    (2) Ordinarily within 30 days of the submission of the contractor's 
progress payment request to the Government.
    (c) If the contractor is considering making unusual progress 
payments to a subcontractor, the parties will be guided by the policies 
in 32.501-2. If the Government approves unusual progress payments for 
the subcontract, the contracting officer must issue a contract 
modification to specify the new rate in paragraph (j)(6) of the clause 
at 52.232-16, Progress Payments, in the prime contract. This will allow 
the contractor to include the progress payments to the subcontractor in 
the cost basis for progress payments by the Government. This 
modification is not a deviation and does not require the clearance 
prescribed in 32.502-2(b).
    (d) The contractor has a duty to ensure that financing payments to 
subcontractors conform to the standards and principles prescribed in 
paragraph (j) of the Progress Payments clause in the prime contract. 
Although the contracting officer should, to the extent appropriate, 
review the subcontract as part of the overall administration of progress 
payments in the prime contract, there is no special requirement for 
contracting officer review or consent merely because the subcontract 
includes financing payments, except as provided in paragraph (c) of this 
section. However, the contracting officer must ensure that the 
contractor has installed the necessary management control systems, 
including internal audit procedures.
    (e) When financing payments are in the form of progress payments, 
the Progress Payments clause at 52.232-16 requires that the subcontract 
include the substance of the Progress Payments clause in the prime 
contract, modified to indicate that the contractor, not the Government, 
awards the subcontract and administers the progress payments. The 
following exceptions apply to wording modifications:
    (1) The subcontract terms on title to property under progress 
payments shall provide for vesting of title in the Government, not the 
contractor, as in paragraph (d) of the Progress Payments clause in the 
prime contract. A reference to the contractor may, however, be 
substituted for ``Government'' in paragraph (d)(2)(iv) of the clause.
    (2) In the subcontract terms on reports and access to records, the 
contractor shall not delete the references to ``Contracting Officer'' 
and ``Government'' in adapting paragraph (g) of the Progress Payments 
clause in the contract, but may expand the terms as follows:
    (i) The term ``Contracting Officer'' may be changed to ``Contracting 
Officer or Prime Contractor.''
    (ii) The term ``the Government'' may be changed to ``the Government 
or Prime Contractor.''
    (3) The subcontract special terms regarding default shall include 
paragraph (h) of the Progress Payments clause in the contract through 
its subdivision (i). The rest of paragraph (h) is optional.
    (f) When financing payments are in the form of performance-based 
payments, the Performance-Based Payments clause at 52.232-32 requires 
that the subcontract terms include the substance of the Performance-
Based Payments clause, modified to indicate that

[[Page 760]]

the contractor, not the Government, awards the subcontract and 
administers the performance-based payments, and include appropriately 
worded modifications similar to those noted in paragraph (e) of this 
section.
    (g) When financing payments are in the form of commercial item 
purchase financing, the subcontract must include a contract financing 
clause structured in accordance with 32.206.

[65 FR 16281, Mar. 27, 2000, as amended at 67 FR 70521, Nov. 22, 2002]

                       Subpart 32.6_Contract Debts

    Source: 73 FR 54002, Sept. 17, 2008, unless otherwise noted.



Sec. 32.600  Scope of subpart.

    This subpart prescribes policies and procedures for identifying, 
collecting, and deferring collection of contract debts (including 
interest, if applicable). Sections 32.607, 32.608, and 32.610 of this 
subpart do not apply to claims against common carriers for 
transportation overcharges and freight and cargo losses (31 U.S.C. 
3726).



Sec. 32.601  General.

    (a) Contract debts are amounts that--
    (1) Have been paid to a contractor to which the contractor is not 
currently entitled under the terms and conditions of the contract; or
    (2) Are otherwise due from the contractor under the terms and 
conditions of the contract.
    (b) Contract debts include, but are not limited to, the following:
    (1) Billing and price reductions resulting from contract terms for 
price redetermination or for determination of prices under incentive 
type contracts.
    (2) Price or cost reductions for defective certified cost or pricing 
data.
    (3) Financing payments determined to be in excess of the contract 
limitations at 52.232-16(a)(7), Progress Payments, or 52.232-32(d)(2), 
Performance--Based Payments, or any contract clause for commercial item 
financing.
    (4) Increases to financing payment liquidation rates.
    (5) Overpayments disclosed by quarterly statements required under 
price redetermination or incentive contracts.
    (6) Price adjustments resulting from Cost Accounting Standards (CAS) 
noncompliances or changes in cost accounting practice.
    (7) Reinspection costs for nonconforming supplies or services.
    (8) Duplicate or erroneous payments.
    (9) Damages or excess costs related to defaults in performance.
    (10) Breach of contract obligations concerning progress payments, 
performance-based payments, advance payments, commercial item financing, 
or Government-furnished property.
    (11) Government expense of correcting defects.
    (12) Overpayments related to errors in quantity or billing or 
deficiencies in quality.
    (13) Delinquency in contractor payments due under agreements or 
arrangements for deferral or postponement of collections.
    (14) Reimbursement of amounts due under 33.102(b)(3) and 
33.104(h)(8).

[73 FR 54002, Sept. 17, 2008, as amended at 75 FR 53149, Aug. 30, 2010]



Sec. 32.602  Responsibilities.

    (a) The contracting officer has primary responsibility for 
identifying and demanding payment of contract debts except those 
resulting from errors made by the payment office. The contracting 
officer shall not collect contract debts or otherwise agree to liquidate 
contract debts (e.g., offset the amount of the debt against existing 
unpaid bills due the contractor, or allow contractors to retain contract 
debts to cover amounts that may become payable in future periods).
    (b) The payment office has primary responsibility for--
    (1) Collecting contract debts identified by contracting officers;
    (2) Identifying and collecting duplicate and erroneous payments; and
    (3) Authorizing the liquidation of contract debts in accordance with 
agency procedures.



Sec. 32.603  Debt determination.

    (a) If the contracting officer has any indication that a contractor 
owes

[[Page 761]]

money to the Government under a contract, the contracting officer shall 
determine promptly whether an actual debt is due and the amount. Any 
unnecessary delay may contribute to--
    (1) Loss of timely availability of the funds to the program for 
which the funds were initially provided;
    (2) Increased difficulty in collecting the debt; or
    (3) Actual monetary loss to the Government.
    (b) The amount of indebtedness determined by the contracting officer 
shall be an amount that--
    (1) Is based on the merits of the case; and
    (2) Is consistent with the contract terms.



Sec. 32.604  Demand for payment.

    (a) Except as provided in paragraph (c) of this section, the 
contracting officer shall take the following actions:
    (1) Issue the demand for payment as soon as the contracting officer 
has determined that an actual debt is due the Government and the amount.
    (2) Issue the demand for payment even if--
    (i) The debt is or will be the subject of a bilateral modification;
    (ii) The contractor is otherwise obligated to pay the money under 
the existing contract terms; or
    (iii) The contractor has agreed to repay the debt.
    (3) Issue the demand for payment as a part of the final decision, if 
a final decision is required by 32.605(a).
    (b) The demand for payment shall include the following:
    (1) A description of the debt, including the debt amount.
    (2) A distribution of the principal amount of the debt by line(s) of 
accounting subject to the following:
    (i) If the debt affects multiple lines of accounting, the 
contracting officer shall, to the maximum extent practicable, identify 
all affected lines of accounting. If it is not practicable to identify 
all affected lines of accounting, the contracting officer may select 
representative lines of accounting in accordance with paragraph 
(b)(2)(ii) of this section.
    (ii) In selecting representative lines of accounting, the 
contracting officer shall--
    (A) Consider the affected departments or agencies, years of 
appropriations, and the predominant types of appropriations; and
    (B) Not distribute to any line of accounting an amount of the 
principal in excess of the total obligation for the line of accounting; 
and
    (iii) Include the lines of accounting even if the associated funds 
are expired or cancelled. While cancelled funds will be deposited in a 
miscellaneous receipt account of the Treasury if collected, the funds 
are tracked under the closed year appropriation(s) to comply with the 
Anti-Deficiency Act.
    (iv) If the debt affects multiple contracts and the lines of 
accounting are not readily available, the contracting officer shall--
    (A) Issue the demand for payment without the distribution of the 
principal amount to the affected lines of accounting;
    (B) Include a statement in the demand for payment advising when the 
distribution will be provided; and
    (C) Provide the distribution by the date identified in the demand 
for payment.
    (3) The basis for and amount of any accrued interest or penalty.
    (4)(i) For debts resulting from specific contract terms (e.g., debts 
resulting from incentive clause provisions, Quarterly Limitation on 
Payments Statement, Cost Accounting Standards, price reduction for 
defective pricing), a notification stating that payment should be made 
promptly, and that interest is due in accordance with the terms of the 
contract. Interest shall be computed from the date specified in the 
applicable contract clause until repayment by the contractor. The 
interest rate shall be the rate specified in the applicable contract 
clause. In the case of a debt arising from a price reduction for 
defective pricing, or as specifically set forth in a Cost Accounting 
Standards (CAS) clause in the contract, interest is computed from the 
date of overpayment by the Government until repayment by the contractor 
at the underpayment rate established by the Secretary of the

[[Page 762]]

Treasury, for the periods affected, under 26 U.S.C. 6621(a)(2).
    (ii) For all other contract debts, a notification stating that any 
amounts not paid within 30 days from the date of the demand for payment 
will bear interest. Interest shall be computed from the date of the 
demand for payment until repayment by the contractor. The interest rate 
shall be the interest rate established by the Secretary of the Treasury, 
as provided in Section 611 of the Contract Disputes Act of 1978 (Public 
Law 95-563), which is applicable to the period in which the amount 
becomes due, and then at the rate applicable for each six-month period 
as established by the Secretary until the amount is paid.
    (5) A statement advising the contractor--
    (i) To contact the contracting officer if the contractor believes 
the debt is invalid or the amount is incorrect; and
    (ii) If the contractor agrees, to remit a check payable to the 
agency's payment office annotated with the contract number along with a 
copy of the demand for payment to the payment office identified in the 
contract or as otherwise specified in the demand letter in accordance 
with agency procedures.
    (6) Notification that the payment office may initiate procedures, in 
accordance with the applicable statutory and regulatory requirements, to 
offset the debt against any payments otherwise due the contractor.
    (7) Notification that the debt may be subject to administrative 
charges in accordance with the requirements of 31 U.S.C. 3717(e) and the 
Debt Collection Improvement Act of 1996.
    (8) Notification that the contractor may submit a request for 
installment payments or deferment of collection if immediate payment is 
not practicable or if the amount is disputed.
    (c) Except as provided in paragraph (d) of this section, the 
contracting officer should not issue a demand for payment if the 
contracting officer only becomes aware of the debt when the contractor--
    (1) Provides a lump sum payment or submits a credit invoice. (A 
credit invoice is a contractor's request to liquidate the debt against 
existing unpaid bills due the contractor); or
    (2) Notifies the contracting officer that the payment office 
overpaid on an invoice payment. When the contractor provides the 
notification, the contracting officer shall notify the payment office of 
the overpayment.
    (d) If a demand for payment was not issued as provided for in 
paragraph (c) of this section, the contracting officer shall issue a 
demand for payment no sooner than 30 days after the contracting officer 
becomes aware of the debt unless--
    (1) The contractor has liquidated the debt;
    (2) The contractor has requested an installment payment agreement; 
or
    (3) The payment office has issued a demand for payment.
    (e) The contracting officer shall--
    (1) Furnish a copy of the demand for payment to the contractor by 
certified mail, return receipt requested, or by any other method that 
provides evidence of receipt; and
    (2) Forward a copy of the demand to the payment office.



Sec. 32.605  Final decisions.

    (a) The contracting officer shall issue a final decision as required 
by 33.211 if--
    (1) The contracting officer and the contractor are unable to reach 
agreement on the existence or amount of a debt in a timely manner;
    (2) The contractor fails to liquidate a debt previously demanded by 
the contracting officer within the timeline specified in the demand for 
payment unless the amounts were not repaid because the contractor has 
requested an installment payment agreement; or
    (3) The contractor requests a deferment of collection on a debt 
previously demanded by the contracting officer (see 32.607-2).
    (b) If a demand for payment was previously issued for the debt, the 
demand for payment included in the final decision shall identify the 
same due date as the original demand for payment.
    (c) The contracting officer shall--

[[Page 763]]

    (1) Furnish the decision to the contractor by certified mail, return 
receipt requested, or by any other method that provides evidence of 
receipt; and
    (2) Forward a copy to the payment office identified in the contract.



Sec. 32.606  Debt collection.

    (a) If the contractor has not liquidated the debt within 30 days of 
the date due or requested installment payments or deferment of 
collection, the payment office shall initiate withholding of principal, 
interest, penalties, and administrative charges. In the event the 
contract is assigned under the Assignment of Claims Act of 1940 (31 
U.S.C. 3727 and 41 U.S.C. 15), the rights of the assignee will be 
scrupulously respected and withholding of payments shall be consistent 
with those rights. For additional information on assignment of claims, 
see Subpart 32.8.
    (b) As provided for in the Debt Collection Improvement Act of 1996 
(31 U.S.C. 3711(g)(1)), payment offices are required to transfer any 
debt that is delinquent more than 180 days to the Department of Treasury 
for collection.
    (c) The contracting officer shall periodically follow up with the 
payment office to determine whether the debt has been collected and 
credited to the correct appropriation(s).



Sec. 32.607  Installment payments and deferment of collection.

    (a) The contracting officer shall not approve or deny a contractor's 
request for installment payments or deferment of collections. The office 
designated in agency procedures is responsible for approving or denying 
requests for installment payments or deferment of collections.
    (b) If a contractor has not appealed the debt or filed an action 
under the Disputes clause of the contract and the contractor has 
submitted a proposal for debt deferment or installment payments--
    (1) The office designated in agency procedures may arrange for 
deferment/installment payments if the contractor is unable to pay at 
once in full or the contractor's operations under national defense 
contracts would be seriously impaired. The arrangement shall include 
appropriate covenants and securities and should be limited to the 
shortest practicable maturity; and
    (2) The deferment/installment agreement shall include a specific 
schedule or plan for payment. It should permit the Government to make 
periodic financial reviews of the contractor and to require payments 
earlier than required by the agreement if the Government considers the 
contractor's ability to pay improved. It should also provide for 
required stated or measurable payments on the occurrence of specific 
events or contingencies that improve the contractor's ability to pay.
    (c) If not already applicable under the contract terms, interest on 
contract debt shall be made an element of any agreement entered into for 
installment payments or deferment of collection.



Sec. 32.607-1  Installment payments.

    If a contractor requests an installment payment agreement, the 
contracting officer shall notify the contractor to send a written 
request for installment payments to the office designated in agency 
procedures.



Sec. 32.607-2  Deferment of collection.

    (a) All requests for deferment of collection must be submitted in 
writing to the contracting officer.
    (1) If the contractor has appealed the debt under the procedures of 
the Disputes clause of the contract, the information with the request 
for deferment may be limited to an explanation of the contractor's 
financial condition.
    (2) Actions filed by contractors under the Disputes Clause shall not 
suspend or delay collection.
    (3) If there is no appeal pending or action filed under the Disputes 
clause of the contract, the following information about the contractor 
should be submitted with the request:
    (i) Financial condition.
    (ii) Contract backlog.
    (iii) Projected cash receipts and requirements.
    (iv) The feasibility of immediate payment of the debt.
    (v) The probable effect on operations of immediate payment in full.

[[Page 764]]

    (b) Upon receipt of the contractor's written request, the 
contracting officer shall promptly provide a notification to the payment 
office and advise the payment office that the contractor's request is 
under consideration.
    (c)(1) The contracting officer should consider any information 
necessary to develop a recommendation on the deferment request.
    (2) The contracting officer shall forward the following to the 
office designated in agency procedures for a decision:
    (i) A copy of the contractor's request for a deferment of 
collection.
    (ii) A written recommendation on the request and the basis for the 
recommendation including the advisability of deferment to avoid possible 
overcollections.
    (iii) A statement as to whether the contractor has an appeal pending 
or action filed under the Disputes clause of the contract and the docket 
number if the appeal has been filed.
    (iv) A copy of the contracting officer's final decision (see 
32.605).
    (d) The office designated in agency procedures may authorize a 
deferment pending the resolution of appeal to avoid possible 
overcollections. The agency is required to use unexpired funds to pay 
interest on overcollections.
    (e) Deferments pending disposition of appeal may be granted to small 
business concerns and financially weak contractors, balancing the need 
for Government security against loss and undue hardship on the 
contractor.
    (f) The deferment agreement shall not provide that a claim of the 
Government will not become due and payable pending mutual agreement on 
the amount of the claim or, in the case of a dispute, until the decision 
is reached.
    (g) At a minimum, the deferment agreement shall contain the 
following:
    (1) A description of the debt.
    (2) The date of first demand for payment.
    (3) Notice of an interest charge, in conformity with 32.608 and the 
FAR clause at 52.232-17, Interest; or, in the case of a debt arising 
from a defective pricing or a CAS noncompliance overpayment, interest, 
as prescribed by the applicable Price Reduction for Defective Certified 
Cost or Pricing Data or CAS clause (see 32.607(c)).
    (4) Identification of the office to which the contractor is to send 
debt payments.
    (5) A requirement for the contractor to submit financial information 
requested by the Government and for reasonable access to the 
contractor's records and property by Government representatives.
    (6) Provision for the Government to terminate the deferment 
agreement and accelerate the maturity of the debt if the contractor 
defaults or if bankruptcy or insolvency proceedings are instituted by or 
against the contractor.
    (7) Protective requirements that are considered by the Government to 
be prudent and feasible in the specific circumstances. The coverage of 
protective terms at 32.409 and 32.501-5 may be used as a guide.
    (h) If a contractor appeal of the debt determination is pending, the 
deferment agreement shall also include a requirement that the contractor 
shall--
    (1) Diligently prosecute the appeal; and
    (2) Pay the debt in full when the appeal is decided, or when the 
parties reach agreement on the debt amount.
    (i) The deferment agreement may provide for the right to make early 
payments without prejudice, for refund of overpayments, and for 
crediting of interest.

[73 FR 54002, Sept. 17, 2008, as amended at 75 FR 53149, Aug. 30, 2010]



Sec. 32.608  Interest.



Sec. 32.608-1  Interest charges.

    Unless specified otherwise in the clause at 52.232-17, Interest, 
interest charges shall apply to any contract debt unpaid after 30 days 
from the issuance of a demand unless--
    (a) The contract is a kind excluded under 32.611; or
    (b) The contract or debt has been exempted from interest charges 
under agency procedures.



Sec. 32.608-2  Interest credits.

    (a) An equitable interest credit shall be applied under the 
following circumstances:

[[Page 765]]

    (1) When the amount of debt initially determined is subsequently 
reduced; e.g., through a successful appeal.
    (2) When any amount collected by the Government is in excess of the 
amount found to be due on appeal under the Disputes Clause of the 
contract.
    (3) When the collection procedures followed in a given case result 
in an overcollection of the debt due.
    (4) When the responsible official determines that the Government has 
unduly delayed payments to the contractor on the same contract at some 
time during the period to which the interest charge applied, provided an 
interest penalty was not paid for such late payment.
    (b) Any appropriate interest credits shall be computed under the 
following procedures:
    (1) Interest at the rate under 52.232-17 shall be charged on the 
reduced debt from the date of collection by the Government until the 
date the monies are remitted to the contractor.
    (2) Interest may not be reduced for any time between the due date 
under the demand and the period covered by a deferment of collection, 
unless the contract includes an interest clause; e.g., the clause 
prescribed in 32.611.
    (3) Interest shall not be credited in an amount that, when added to 
other amounts refunded or released to the contractor, exceeds the total 
amount that has been collected, or withheld for the purpose of 
collecting the debt. This limitation shall be further reduced by the 
amount of any limitation applicable under paragraph (b)(2) of this 
subsection.



Sec. 32.609  Delays in receipt of notices or demands.

    If interest is accrued based on the date of the demand letter and 
delivery of the demand letter is delayed by the Government (e.g., undue 
delay after dating at the originating office or delays in the mail), the 
date of the debt and accrual of interest shall be extended to a time 
that is fair and reasonable under the particular circumstances.



Sec. 32.610  Compromising debts.

    For debts under $100,000, excluding interest, the designated agency 
official may compromise the debt pursuant to the Federal Claims 
Collection Standards (31 CFR part 902) and agency regulations. Unless 
specifically authorized by agency procedures, contracting officers 
cannot compromise debts.



Sec. 32.611  Contract clause.

    (a) The contracting officer shall insert the clause at 52.232--17, 
Interest, in solicitations and contracts unless it is contemplated that 
the contract will be in one or more of the following categories:
    (1) Contracts at or below the simplified acquisition threshold.
    (2) Contracts with Government agencies.
    (3) Contracts with a State or local government or instrumentality.
    (4) Contracts with a foreign government or instrumentality.
    (5) Contracts without any provision for profit or fee with a 
nonprofit organization.
    (6) Contracts described in Subpart 5.5, Paid Advertisements.
    (7) Any other exceptions authorized under agency procedures.
    (b) The contracting officer may insert the FAR clause at 52.232-17, 
Interest, in solicitations and contracts when it is contemplated that 
the contract will be in any of the categories specified in 32.611(a).

                      Subpart 32.7_Contract Funding



Sec. 32.700  Scope of subpart.

    This subpart (a) describes basic requirements for contract funding 
and (b) prescribes procedures for using limitation of cost or limitation 
of funds clauses. Detailed acquisition funding requirements are 
contained in agency fiscal regulations.



Sec. 32.701  [Reserved]



Sec. 32.702  Policy.

    No officer or employee of the Government may create or authorize an 
obligation in excess of the funds available, or in advance of 
appropriations (Anti-Deficiency Act, 31 U.S.C. 1341), unless otherwise 
authorized by law. Before executing any contract, the contracting 
officer shall (a) obtain written

[[Page 766]]

assurance from responsible fiscal authority that adequate funds are 
available or (b) expressly condition the contract upon availability of 
funds in accordance with 32.703-2.

[48 FR 42328, Sept. 19, 1983, as amended at 51 FR 2665, Jan. 17, 1986]



Sec. 32.703  Contract funding requirements.



Sec. 32.703-1  General.

    (a) If the contract is fully funded, funds are obligated to cover 
the price or target price of a fixed-price contract or the estimated 
cost and any fee of a cost-reimbursement contract.
    (b) If the contract is incrementally funded, funds are obligated to 
cover the amount allotted and any corresponding increment of fee.



Sec. 32.703-2  Contracts conditioned upon availability of funds.

    (a) Fiscal year contracts. The contracting officer may initiate a 
contract action properly chargeable to funds of the new fiscal year 
before these funds are available, provided that the contract includes 
the clause at 52.232-18, Availability of Funds (see 32.706-1(a)). This 
authority may be used only for operation and maintenance and continuing 
services (e.g., rentals, utilities, and supply items not financed by 
stock funds) (1) necessary for normal operations and (2) for which 
Congress previously had consistently appropriated funds, unless specific 
statutory authority exists permitting applicability to other 
requirements.
    (b) Indefinite-quantity or requirements contracts. A one-year 
indefinite-quantity or requirements contract for services that is funded 
by annual appropriations may extend beyond the fiscal year in which it 
begins; provided, that (1) any specified minimum quantities are certain 
to be ordered in the initial fiscal year (see 37.106) and (2) the 
contract includes the clause at 52.232-19, Availability of Funds for the 
Next Fiscal Year (see 32.706-1(b)).
    (c) Acceptance of supplies or services. The Government shall not 
accept supplies or services under a contract conditioned upon the 
availability of funds until the contracting officer has given the 
contractor notice, to be confirmed in writing, that funds are available.

[48 FR 42328, Sept. 19, 1983, as amended at 67 FR 13054, Mar. 20, 2002; 
78 FR 37688, June 21, 2013]



Sec. 32.703-3  Contracts crossing fiscal years.

    (a) A contract that is funded by annual appropriations may not cross 
fiscal years, except in accordance with statutory authorization (e.g., 
41 U.S.C. 11a, 31 U.S.C. 1308, 42 U.S.C. 2459a, 42 U.S.C. 3515, and 
paragraph (b) of this subsection), or when the contract calls for an end 
product that cannot feasibly be subdivided for separate performance in 
each fiscal year (e.g., contracts for expert or consultant services).
    (b) The head of an executive agency, except NASA, may enter into a 
contract, exercise an option, or place an order under a contract for 
severable services for a period that begins in one fiscal year and ends 
in the next fiscal year if the period of the contract awarded, option 
exercised, or order placed does not exceed one year (10 U.S.C. 2410a and 
41 U.S.C. 253l). Funds made available for a fiscal year may be obligated 
for the total amount of an action entered into under this authority.

[63 FR 58601, Oct. 30, 1998]



Sec. 32.704  Limitation of cost or funds.

    (a)(1) When a contract contains the clause at 52.232-20, Limitation 
of Cost; or 52.232-22, Limitation of Funds, the contracting officer, 
upon learning that the contractor is approaching the estimated cost of 
the contract or the limit of the funds allotted, shall promptly obtain 
funding and programming information pertinent to the contract's 
continuation and notify the contractor in writing that--
    (i) Additional funds have been allotted, or the estimated cost has 
been increased, in a specified amount;
    (ii) The contract is not to be further funded and that the 
contractor should submit a proposal for an adjustment of fee, if any, 
based on the percentage of work completed in relation to the total work 
called for under the contract;
    (iii) The contract is to be terminated; or

[[Page 767]]

    (iv)(A) The Government is considering whether to allot additional 
funds or increase the estimated cost, (B) the contractor is entitled by 
the contract terms to stop work when the funding or cost limit is 
reached, and (C) any work beyond the funding or cost limit will be at 
the contractor's risk.
    (2) Upon learning that a partially funded contract containing any of 
the clauses referenced in subparagraph (1) above will receive no further 
funds, the contracting officer shall promptly give the contractor 
written notice of the decision not to provide funds.
    (b) Under a cost-reimbursement contract, the contracting officer may 
issue a change order, a direction to replace or repair defective items 
or work, or a termination notice without immediately increasing the 
funds available. Since a contractor is not obligated to incur costs in 
excess of the estimated cost in the contract, the contracting officer 
shall ensure availability of funds for directed actions. The contracting 
officer may direct that any increase in the estimated cost or amount 
allotted to a contract be used for the sole purpose of funding 
termination or other specified expenses.
    (c) Government personnel encouraging a contractor to continue work 
in the absence of funds will incur a violation of Revised Statutes 
Section 3679 (31 U.S.C. 1341) that may subject the violator to civil or 
criminal penalties.

[48 FR 42328, Sept. 19, 1983, as amended at 51 FR 2665, Jan. 17, 1986; 
72 FR 27384, May 15, 2007]



Sec. 32.705  Unenforceability of unauthorized obligations.

    Many supplies or services are acquired subject to supplier license 
agreements. These are particularly common in information technology 
acquisitions, but they may apply to any supply or service. For example, 
computer software and services delivered through the internet (web 
services) are often subject to license agreements, referred to as End 
User License Agreements (EULA), Terms of Service (TOS), or other similar 
legal instruments or agreements. Many of these agreements contain 
indemnification clauses that are inconsistent with Federal law and 
unenforceable, but which could create a violation of the Anti-Deficiency 
Act (31 U.S.C. 1341) if agreed to by the Government.

[78 FR 37688, June 21, 2013]



Sec. 32.706  Contract clauses.

[48 FR 42328, Sept. 19, 1983. Redesignated at 78 FR 37688, June 21, 
2013]



Sec. 32.706-1  Clauses for contracting in advance of funds.

    (a) Insert the clause at 52.232-18, Availability of Funds, in 
solicitations and contracts if the contract will be chargeable to funds 
of the new fiscal year and the contract action will be initiated before 
the funds are available.
    (b) The contracting officer shall insert the clause at 52.232-19, 
Availability of Funds for the Next Fiscal Year, in solicitations and 
contracts if a one-year indefinite-quantity or requirements contract for 
services is contemplated and the contract--
    (1) Is funded by annual appropriations; and
    (2) Is to extend beyond the initial fiscal year (see 32.703-2(b)).

[48 FR 42328, Sept. 19, 1983, as amended at 63 FR 58602, Oct. 30, 1998; 
67 FR 13054, Mar. 20, 2002. Redesignated at 78 FR 37688, June 21, 2013]



Sec. 32.706-2  Clauses for limitation of cost or funds.

    (a) The contracting officer shall insert the clause at 52.232-20, 
Limitation of Cost, in solicitations and contracts if a fully funded 
cost-reimbursement contract is contemplated, whether or not the contract 
provides for payment of a fee.
    (b) The contracting officer shall insert the clause at 52.232-22, 
Limitation of Funds, in solicitations and contracts if an incrementally 
funded cost-reimbursement contract is contemplated.

[48 FR 42328, Sept. 19, 1983, as amended at 72 FR 27385, May 15, 2007. 
Redesignated at 78 FR 37688, June 21, 2013]



Sec. 32.706-3  Clause for unenforceability of unauthorized obligations.

    The contracting officer shall insert the clause at 52.232-39, 
Unenforceability of Unauthorized Obligations in all solicitations and 
contracts.

[78 FR 37689, June 21, 2013]

[[Page 768]]

                    Subpart 32.8_Assignment of Claims



Sec. 32.800  Scope of subpart.

    This subpart prescribes policies and procedures for the assignment 
of claims under the Assignment of Claims Act of 1940, as amended, 31 
U.S.C. 3727 (hereafter referred to as the Act).

[48 FR 42328, Sept. 19, 1983, as amended at 51 FR 2665, Jan. 17, 1986]



Sec. 32.801  Definitions.

    Designated agency, as used in this subpart, means any department or 
agency of the executive branch of the United States Government (see 
32.803(d)).
    No-setoff commitment, as used in this subpart, means a contractual 
undertaking that, to the extent permitted by the Act, payments by the 
designated agency to the assignee under an assignment of claims will not 
be reduced to liquidate the indebtedness of the contractor to the 
Government.

[48 FR 42328, Sept. 19, 1983, as amended at 60 FR 49730, Sept. 26, 1995; 
66 FR 2132, Jan. 10, 2001]



Sec. 32.802  Conditions.

    Under the Assignment of Claims Act, a contractor may assign moneys 
due or to become due under a contract if all the following conditions 
are met:
    (a) The contract specifies payments aggregating $1,000 or more.
    (b) The assignment is made to a bank, trust company, or other 
financing institution, including any Federal lending agency.
    (c) The contract does not prohibit the assignment.
    (d) Unless otherwise expressly permitted in the contract, the 
assignment--
    (1) Covers all unpaid amounts payable under the contract;
    (2) Is made only to one party, except that any assignment may be 
made to one party as agent or trustee for two or more parties 
participating in the financing of the contract; and
    (3) Is not subject to further assignment.
    (e) The assignee sends a written notice of assignment together with 
a true copy of the assignment instrument to the--
    (1) Contracting officer or the agency head;
    (2) Surety on any bond applicable to the contract; and
    (3) Disbursing officer designated in the contract to make payment.



Sec. 32.803  Policies.

    (a) Any assignment of claims that has been made under the Act to any 
type of financing institution listed in 32.802(b) may thereafter be 
further assigned and reassigned to any such institution if the 
conditions in 32.802(d) and (e) continue to be met.
    (b) A contract may prohibit the assignment of claims if the agency 
determines the prohibition to be in the Government's interest.
    (c) Under a requirements or indefinite quantity type contract that 
authorizes ordering and payment by multiple Government activities, 
amounts due for individual orders for $1,000 or more may be assigned.
    (d) Any contract of a designated agency (see FAR 32.801), except a 
contract under which full payment has been made, may include a no-setoff 
commitment only when a determination of need is made by the head of the 
agency, in accordance with the Presidential delegation of authority 
dated October 3, 1995, and after such determination has been published 
in the Federal Register. The Presidential delegation makes such 
determinations of need subject to further guidance issued by the Office 
of Federal Procurement Policy. The following guidance has been provided: 
Use of the no-setoff provision may be appropriate to facilitate the 
national defense; in the event of a national emergency or natural 
disaster; or when the use of the no-setoff provision may facilitate 
private financing of contract performance. However, in the event an 
offeror is significantly indebted to the United States, the contracting 
officer should consider whether the inclusion of the no-setoff 
commitment in a particular contract is in the best interests of the 
United States. In such an event, the contracting officer should consult 
with the Government officer(s) responsible for collecting the debt(s).

[[Page 769]]

    (e) When an assigned contract does not include a no-setoff 
commitment, the Government may apply against payments to the assignee 
any liability of the contractor to the Government arising independently 
of the assigned contract if the liability existed at the time notice of 
the assignment was received even though that liability had not yet 
matured so as to be due and payable.

[48 FR 42328, Sept. 19, 1983, as amended at 60 FR 49730, Sept. 26, 1995; 
61 FR 18921, Apr. 29, 1996]



Sec. 32.804  Extent of assignee's protection.

    (a) No payments made by the Government to the assignee under any 
contract assigned in accordance with the Act may be recovered on account 
of any liability of the contractor to the Government. This immunity of 
the assignee is effective whether the contractor's liability arises from 
or independently of the assigned contract.
    (b) Except as provided in paragraph (c) below, the inclusion of a 
no-setoff commitment in an assigned contract entitles the assignee to 
receive contract payments free of reduction or setoff for--
    (1) Any liability of the contractor to the Government arising 
independently of the contract; and
    (2) Any of the following liabilities of the contractor to the 
Government arising from the assigned contract:
    (i) Renegotiation under any statute or contract clause.
    (ii) Fines.
    (iii) Penalties, exclusive of amounts that may be collected or 
witheld from the contractor under, or for failure to comply with, the 
terms of the contract.
    (iv) Taxes or social security contributions.
    (v) Withholding or nonwithholding of taxes or social security 
contributions.
    (c) In some circumstances, a setoff may be appropriate even though 
the assigned contract includes a no-setoff commitment, e.g.--
    (1) When the assignee has neither made a loan under the assignment 
nor made a commitment to do so; or
    (2) To the extent that the amount due on the contract exceeds the 
amount of any loans made or expected to be made under a firm commitment 
for financing.



Sec. 32.805  Procedure.

    (a) Assignments. (1) Assignments by corporations shall be--
    (i) Executed by an authorized representative;
    (ii) Attested by the secretary or the assistant secretary of the 
corporation; and
    (iii) Impressed with the corporate seal or accompanied by a true 
copy of the resolution of the corporation's board of directors 
authorizing the signing representative to execute the assignment.
    (2) Assignments by a partnership may be signed by one partner, if 
the assignment is accompanied by adequate evidence that the signer is a 
general partner of the partnership and is authorized to execute 
assignments on behalf of the partnership.
    (3) Assignments by an individual shall be signed by that individual 
and the signature acknowledged before a notary public or other person 
authorized to administer oaths.
    (b) Filing. The assignee shall forward to each party specified in 
32.802(e) an original and three copies of the notice of assignment, 
together with one true copy of the instrument of assignment. The true 
copy shall be a certified duplicate or photostat copy of the original 
assignment.
    (c) Format for notice of assignment. The following is a suggested 
format for use by an assignee in providing the notice of assignment 
required by 32.802(e).

                          Notice of Assignment

TO: ---------- [address to one of the parties specified in 32.802(e)].
    This has reference to Contract No. ------ dated ------, entered into 
between -------- [contractor's name and address] and -------- 
[government agency, name of office, and address], for -------- [describe 
nature of the contract].
    Moneys due or to become due under the contract described above have 
been assigned to the undersigned under the provisions of the Assignment 
of Claims Act of 1940, as amended, 31 U.S.C. 3727, 41 U.S.C. 15.
    A true copy of the instrument of assignment executed by the 
Contractor on -------- [date], is attached to the original notice.

[[Page 770]]

    Payments due or to become due under this contract should be made to 
the undersigned assignee.
    Please return to the undersigned the three enclosed copies of this 
notice with appropriate notations showing the date and hour of receipt, 
and signed by the person acknowledging receipt on behalf of the 
addressee.

                                                       Very truly yours,
________________________________________________________________________
                                                      [name of assignee]
By______________________________________________________________________
                                           [signature of signing officer
Title___________________________________________________________________
                                              [title of signing officer]
________________________________________________________________________
________________________________________________________________________
                                                   [address of assignee]

                             Acknowledgement

    Receipt is acknowledged of the above notice and of a copy of the 
instrument of assignment. They were received at ---- (a.m.) (p.m.) on --
------, 20----.

________________________________________________________________________
                                                             [signature]
________________________________________________________________________
                                                                 [title]
________________________________________________________________________

    On behalf of

________________________________________________________________________
                                      [name of addressee of this notice]

    (d) Examination by the Government. In examining and processing 
notices of assignment and before acknowleging their receipt, contracting 
officers should assure that the following conditions and any additional 
conditions specified in agency regulations, have been met:
    (1) The contract has been properly approved and executed.
    (2) The contract is one under which claims may be assigned.
    (3) The assignment covers only money due or to become due under the 
contract.
    (4) The assignee is registered separately in the System for Award 
Management unless one of the exceptions in 4.1102 applies.
    (e) Release of assignment. (1) A release of an assignment is 
required whenever--
    (i) There has been a further assignment or reassignment under the 
Act; or
    (ii) The contractor wishes to reestablish its right to receive 
further payments after the contractor's obligations to the assignee have 
been satisfied and a balance remains due under the contract.
    (2) The assignee, under a further assignment or reassignment, in 
order to establish a right to receive payment from the Government, must 
file with the addressees listed in 32.802(e) a--
    (i) Written notice of release of the contractor by the assigning 
financing institution;
    (ii) Copy of the release instrument;
    (iii) Written notice of the further assignment or reassignment; and
    (iv) Copy of the further assignment or reassignment instrument.
    (3) If the assignee releases the contractor from an assignment of 
claims under a contract, the contractor, in order to establish a right 
to receive payment of the balance due under the contract, must file a 
written notice of release together with a true copy of the release of 
assignment instrument with the addressees noted in 32.802(e).
    (4) The addressee of a notice of release of assignment or the 
official acting on behalf of that addressee shall acknowledge receipt of 
the notice.

[48 FR 42328, Sept. 19, 1983, as amended at 51 FR 2665, Jan. 17, 1986; 
52 FR 9039, Mar. 20, 1987; 62 FR 237, Jan. 2, 1997; 64 FR 10533, Mar. 4, 
1999; 65 FR 24325, Apr. 25, 2000; 68 FR 56673, Oct. 1, 2003; 78 FR 
37679, June 21, 2013]



Sec. 32.806  Contract clauses.

    (a)(1) The contracting officer shall insert the clause at 52.232-23, 
Assignment of Claims, in solicitations and contracts expected to exceed 
the micro-purchase threshold, unless the contract will prohibit the 
assignment of claims (see 32.803(b)). The use of the clause is not 
required for purchase orders. However, the clause may be used in 
purchase orders expected to exceed the micro-purchase threshold, that 
are accepted in writing by the contractor, if such use is consistent 
with agency policies and regulations.
    (2) If a no-setoff commitment has been authorized (see FAR 
32.803(d)), the contracting officer shall use the clause with its 
Alternate I.
    (b) The contracting officer shall insert the clause at 52.232-24, 
Prohibition of Assignment of Claims, in solicitations and contracts for 
which a determination has been made under agency

[[Page 771]]

regulations that the prohibition of assignment of claims is in the 
Government's interest.

[48 FR 42328, Sept. 19, 1983, as amended at 51 FR 2665, Jan. 17, 1986; 
60 FR 49730, Sept. 26, 1995; 61 FR 18921, Apr. 29, 1996]

                       Subpart 32.9_Prompt Payment

    Source: 66 FR 65355, Dec. 18, 2001, unless otherwise noted.



Sec. 32.900  Scope of subpart.

    This subpart prescribes policies, procedures, and clauses for 
implementing Office of Management and Budget (OMB) prompt payment 
regulations at 5 CFR part 1315.



Sec. 32.901  Applicability.

    (a) This subpart applies to invoice payments on all contracts, 
except contracts with payment terms and late payment penalties 
established by other governmental authority (e.g., tariffs).
    (b) This subpart does not apply to contract financing payments (see 
definition at 32.001).



Sec. 32.902  Definitions.

    As used in this subpart--
    Discount for prompt payment means an invoice payment reduction 
offered by the contractor for payment prior to the due date.
    Mixed invoice means an invoice that contains items with different 
payment due dates.
    Payment date means the date on which a check for payment is dated 
or, for an electronic funds transfer (EFT), the settlement date.
    Settlement date, as it applies to electronic funds transfer, means 
the date on which an electronic funds transfer payment is credited to 
the contractor's financial institution.



Sec. 32.903  Responsibilities.

    (a) Agency heads--
    (1) Must establish the policies and procedures necessary to 
implement this subpart;
    (2) May prescribe additional standards for establishing invoice 
payment due dates (see 32.904) necessary to support agency programs and 
foster prompt payment to contractors;
    (3) May adopt different payment procedures in order to accommodate 
unique circumstances, provided that such procedures are consistent with 
the policies in this subpart;
    (4) Must inform contractors of points of contact within their 
cognizant payment offices to enable contractors to obtain status of 
invoices; and
    (5) May authorize the use of the accelerated payment methods 
specified at 5 CFR 1315.5.
    (b) When drafting solicitations and contracts, contracting officers 
must identify for each contract line item number, subline item number, 
or exhibit line item number--
    (1) The applicable Prompt Payment clauses that apply to each item 
when the solicitation or contract contains items that will be subject to 
different payment terms; and
    (2) The applicable Prompt Payment food category (e.g., which item 
numbers are meat or meat food products, which are perishable 
agricultural commodities), when the solicitation or contract contains 
multiple payment terms for various classes of foods and edible products.



Sec. 32.904  Determining payment due dates.

    (a) General. Agency procedures must ensure that, when specifying due 
dates, contracting officers give full consideration to the time 
reasonably required by Government officials to fulfill their 
administrative responsibilities under the contract.
    (b) Payment due dates. Except as prescribed in paragraphs (c) 
through (f) of this section, or as authorized in 32.908(a)(2) or (c)(2), 
the due date for making an invoice payment is as follows:
    (1) The later of the following two events:
    (i) The 30th day after the designated billing office receives a 
proper invoice from the contractor (except as provided in paragraph 
(b)(3) of this section).
    (ii) The 30th day after Government acceptance of supplies delivered 
or services performed.
    (A) For a final invoice, when the payment amount is subject to 
contract settlement actions, acceptance is

[[Page 772]]

deemed to occur on the effective date of the contract settlement.
    (B) For the sole purpose of computing an interest penalty that might 
be due the contractor--
    (1) Government acceptance is deemed to occur constructively on the 
7th day after the contractor delivers supplies or performs 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 requirement;
    (2) If actual acceptance occurs within the constructive acceptance 
period, the Government must base the determination of an interest 
penalty on the actual date of acceptance;
    (3) The constructive acceptance requirement does not compel 
Government officials to accept supplies or services, perform contract 
administration functions, or make payment prior to fulfilling their 
responsibilities; and
    (4) Except for a contract for the purchase of a commercial item, 
including a brand-name commercial item for authorized resale (e.g., 
commissary items), the contracting officer may specify a longer period 
for constructive acceptance in the solicitation and resulting contract, 
if required to afford the Government a reasonable opportunity to inspect 
and test the supplies furnished or to evaluate the services performed. 
The contracting officer must document in the contract file the 
justification for extending the constructive acceptance period beyond 7 
days. Extended acceptance periods must not be a routine agency practice 
and must be used only when necessary to permit proper Government 
inspection and testing of the supplies delivered or services performed.
    (2) If the contract does not require submission of an invoice for 
payment (e.g., periodic lease payments), the contracting officer must 
specify the due date in the contract.
    (3) If the designated billing office fails to annotate the invoice 
with the actual date of receipt at the time of receipt, the invoice 
payment due date is the 30th day after the date of the contractor's 
invoice, provided the designated billing office receives a proper 
invoice and there is no disagreement over quantity, quality, or 
contractor compliance with contract requirements.
    (c) Architect-engineer contracts. (1) The due date for making 
payments on contracts that contain the clause at 52.232-10, Payments 
Under Fixed-Price Architect-Engineer Contracts, is as follows:
    (i) The due date for work or services completed by the contractor is 
the later of the following two events:
    (A) The 30th day after the designated billing office receives a 
proper invoice from the contractor.
    (B) The 30th day after Government acceptance of the work or services 
completed by the contractor.
    (1) For a final invoice, when the payment amount is subject to 
contract settlement actions (e.g., release of claims), acceptance is 
deemed to occur on the effective date of the settlement.
    (2) For the sole purpose of computing an interest penalty that might 
be due the contractor, Government acceptance is deemed to occur 
constructively on the 7th day after the contractor completes the work or 
services in accordance with the terms and conditions of the contract 
(see also paragraph (c)(2) of this section). If actual acceptance occurs 
within the constructive acceptance period, the Government must base the 
determination of an interest penalty on the actual date of acceptance.
    (ii) The due date for progress payments is the 30th day after 
Government approval of contractor estimates of work or services 
accomplished. For the sole purpose of computing an interest penalty that 
might be due the contractor--
    (A) Government approval is deemed to occur constructively on the 7th 
day after the designated billing office receives the contractor 
estimates (see also paragraph (c)(2) of this section).
    (B) If actual approval occurs within the constructive approval 
period, the Government must base the determination of an interest 
penalty on the actual date of approval.
    (iii) If the designated billing office fails to annotate the invoice 
or payment request with the actual date of receipt at the time of 
receipt, the payment due date is the 30th day after the

[[Page 773]]

date of the contractor's invoice or payment request, provided the 
designated billing office receives a proper invoice or payment request 
and there is no disagreement over quantity, quality, or contractor 
compliance with contract requirements.
    (2) The constructive acceptance and constructive approval 
requirements described in paragraphs (c)(1)(i) and (ii) of this section 
are conditioned upon receipt of a proper payment request and no 
disagreement over quantity, quality, contractor compliance with contract 
requirements, or the requested progress payment amount. These 
requirements do not compel Government officials to accept work or 
services, approve contractor estimates, perform contract administration 
functions, or make payment prior to fulfilling their responsibilities. 
The contracting officer may specify a longer period for constructive 
acceptance or constructive approval, if required to afford the 
Government a reasonable opportunity to inspect and test the supplies 
furnished or to evaluate the services performed. The contracting officer 
must document in the contract file the justification for extending the 
constructive acceptance or approval period beyond 7 days.
    (d) Construction contracts. (1) The due date for making payments on 
construction contracts is as follows:
    (i) The due date for making progress payments based on contracting 
officer approval of the estimated amount and value of work or services 
performed, including payments for reaching milestones in any project, is 
14 days after the designated billing office receives a proper payment 
request.
    (A) If the designated billing office fails to annotate the payment 
request with the actual date of receipt at the time of receipt, the 
payment due date is the 14th day after the date of the contractor's 
payment request, provided the designated billing office receives a 
proper payment request and there is no disagreement over quantity, 
quality, or contractor compliance with contract requirements.
    (B) The contracting officer may specify a longer period in the 
solicitation and resulting contract if required to afford the Government 
a reasonable opportunity to adequately inspect the work and to determine 
the adequacy of the contractor's performance under the contract. The 
contracting officer must document in the contract file the justification 
for extending the due date beyond 14 days.
    (C) The contracting officer must not approve progress payment 
requests unless the certification and substantiation of amounts 
requested are provided as required by the clause at 52.232-5, Payments 
Under Fixed-Price Construction Contracts.
    (ii) The due date for payment of any amounts retained by the 
contracting officer in accordance with the clause at 52.232-5, Payments 
Under Fixed-Price Construction Contracts, will be as specified in the 
contract or, if not specified, 30 days after approval by the contracting 
officer for release to the contractor. The contracting officer must base 
the release of retained amounts on the contracting officer's 
determination that satisfactory progress has been made.
    (iii) The due date for final payments based on completion and 
acceptance of all work (including any retained amounts), and payments 
for partial deliveries that have been accepted by the Government (e.g., 
each separate building, public work, or other division of the contract 
for which the price is stated separately in the contract) is as follows:
    (A) The later of the following two events:
    (1) The 30th day after the designated billing office receives a 
proper invoice from the contractor.
    (2) The 30th day after Government acceptance of the work or services 
completed by the contractor. For a final invoice, when the payment 
amount is subject to contract settlement actions (e.g., release of 
contractor claims), acceptance is deemed to occur on the effective date 
of the contract settlement.
    (B) If the designated billing office fails to annotate the invoice 
with the actual date of receipt at the time of receipt, the invoice 
payment due date is the 30th day after the date of the contractor's 
invoice, provided the designated billing office receives a proper 
invoice and there is no disagreement over quantity, quality, or 
contractor

[[Page 774]]

compliance with contract requirements.
    (2) For the sole purpose of computing an interest penalty that might 
be due the contractor for payments described in paragraph (d)(1)(iii) of 
this section--
    (i) Government acceptance or approval is deemed to occur 
constructively on the 7th day after the contractor completes the work or 
services in accordance with the terms and conditions of the contract, 
unless there is a disagreement over quantity, quality, contractor 
compliance with a contract requirement, or the requested amount;
    (ii) If actual acceptance occurs within the constructive acceptance 
period, the Government must base the determination of an interest 
penalty on the actual date of acceptance;
    (iii) The constructive acceptance requirement does not compel 
Government officials to accept work or services, approve contractor 
estimates, perform contract administration functions, or make payment 
prior to fulfilling their responsibilities; and
    (iv) The contracting officer may specify a longer period for 
constructive acceptance or constructive approval in the solicitation and 
resulting contract, if required to afford the Government a reasonable 
opportunity to adequately inspect the work and to determine the adequacy 
of the contractor's performance under the contract. The contracting 
officer must document in the contract file the justification for 
extending the constructive acceptance or approval beyond 7 days.
    (3) Construction contracts contain special provisions concerning 
contractor payments to subcontractors, along with special contractor 
certification requirements. The Office of Management and Budget has 
determined that these certifications must not be construed as final 
acceptance of the subcontractor's performance. The certification in 
52.232-5(c) implements this determination; however, certificates are 
still acceptable if the contractor deletes paragraph (c)(4) of 52.232-5 
from the certificate.
    (4)(i) Paragraph (d) of the clause at 52.232-5, Payments under 
Fixed-Price Construction Contracts, and paragraph (e)(6) of the clause 
at 52.232-27, Prompt Payment for Construction Contracts, provide for the 
contractor to pay interest on unearned amounts in certain circumstances. 
The Government must recover this interest from subsequent payments to 
the contractor. Therefore, contracting officers normally must make no 
demand for payment. Contracting officers must--
    (A) Compute the amount in accordance with the clause;
    (B) Provide the contractor with a final decision; and
    (C) Notify the payment office of the amount to be withheld.
    (ii) The payment office is responsible for making the deduction of 
interest. Amounts collected in accordance with these provisions revert 
to the United States Treasury.
    (e) Cost-reimbursement contracts for services. For purposes of 
computing late payment interest penalties that may apply, the due date 
for making interim payments on cost-reimbursement contracts for services 
is 30 days after the date of receipt of a proper invoice.
    (f) Food and specified items.

------------------------------------------------------------------------
                                               Payment must be made as
        If the items delivered are:           close as possible to, but
                                                   not later than:
------------------------------------------------------------------------
(1) Meat or meat food products. As defined   7th day after product
 in section 2(a)(3) of the Packers and        delivery.
 Stockyard Act of 1921 (7 U.S.C. 182(3)),
 and as further defined in Public Law 98-
 181, including any edible fresh or frozen
 poultry meat, any perishable poultry meat
 food product, fresh eggs, and any
 perishable egg product.
(2) Fresh or frozen fish. As defined in      7th day after product
 section 204(3) of the Fish and Seafood       delivery.
 Promotion Act of 1986 (16 U.S.C. 4003(3)).
(3) Perishable agricultural commodities. As  10th day after product
 defined in section 1(4) of the Perishable    delivery, unless another
 Agricultural Commodities Act of 1930 (7      date is specified in the
 U.S.C. 499a(4)).                             contract.

[[Page 775]]

 
(4) Dairy products. As defined in section    10th day after a proper
 111(e) of the Dairy Production               invoice has been received.
 Stabilization Act of 1983 (7 U.S.C.
 4502(e)), edible fats or oils, and food
 products prepared from edible fats or
 oils. Liquid milk, cheese, certain
 processed cheese products, butter, yogurt,
 ice cream, mayonnaise, salad dressings,
 and other similar products fall within
 this classification. Nothing in the Act
 limits this classification to refrigerated
 products. If questions arise regarding the
 proper classification of a specific
 product, the contracting officer must
 follow prevailing industry practices 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.
------------------------------------------------------------------------

    (g) Multiple payment due dates. Contracting officers may encourage, 
but not require, contractors to submit separate invoices for products 
with different payment due dates under the same contract or order. When 
an invoice contains items with different payment due dates (i.e., a 
mixed invoice), the payment office will, subject to agency policy--
    (1) Pay the entire invoice on the earliest due date; or
    (2) Split invoice payments, making payments by the applicable due 
dates.



Sec. 32.905  Payment documentation and process.

    (a) General. Payment will be based on receipt of a proper invoice 
and satisfactory contract performance.
    (b) Content of invoices. (1) A proper invoice must include the 
following items (except for interim payments on cost reimbursement 
contracts for services):
    (i) Name and address of the contractor.
    (ii) Invoice date and invoice number. (Contractors should date 
invoices as close as possible to the date of mailing or transmission.)
    (iii) Contract number or other authorization for supplies delivered 
or services performed (including order number and contract line item 
number).
    (iv) Description, quantity, unit of measure, unit price, and 
extended price of supplies delivered or services performed.
    (v) Shipping and payment terms (e.g., shipment number and date of 
shipment, discount for prompt payment terms). Bill of lading number and 
weight of shipment will be shown for shipments on Government bills of 
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 notify in the event of a defective invoice.
    (viii) Taxpayer Identification Number (TIN). The contractor must 
include its TIN on the invoice only if required by agency procedures. 
(See 4.9 TIN requirements.)
    (ix) Electronic funds transfer (EFT) banking information.
    (A) The contractor must include EFT banking information on the 
invoice only if required by agency procedures.
    (B) If EFT banking information is not required to be on the invoice, 
in order for the invoice to be a proper invoice, the contractor must 
have submitted correct EFT banking information in accordance with the 
applicable solicitation provision (e.g., 52.232-38, Submission of 
Electronic Funds Transfer Information with Offer), contract clause 
(e.g., 52.232-33, Payment by Electronic Funds Transfer--System for Award 
Management, or 52.232-34, Payment by Electronic Funds Transfer--Other 
Than System for Award Management), or applicable agency procedures.
    (C) EFT banking information is not required if the Government waived 
the requirement to pay by EFT.
    (x) Any other information or documentation required by the contract 
(e.g., evidence of shipment).
    (2) An interim payment request under a cost-reimbursement contract 
for services constitutes a proper invoice for purposes of this 
subsection if it includes all of the information required by the 
contract.

[[Page 776]]

    (3) If the invoice does not comply with these requirements, the 
designated billing office must return it within 7 days after receipt (3 
days on contracts for meat, meat food products, or fish; 5 days on 
contracts for perishable agricultural commodities, dairy products, 
edible fats or oils, and food products prepared from edible fats or 
oils), with the reasons why it is not a proper invoice. If such notice 
is not timely, then the designated billing office must adjust the due 
date for the purpose of determining an interest penalty, if any.
    (c) Authorization to pay. All invoice payments, with the exception 
of interim payments on cost-reimbursement contracts for services, must 
be supported by a receiving report or other Government documentation 
authorizing payment (e.g., Government certified voucher). The agency 
receiving official should forward the receiving report or other 
Government documentation to the designated payment office by the 5th 
working day after Government acceptance or approval, unless other 
arrangements have been made. This period of time does not extend the due 
dates prescribed in this section. Acceptance should be completed as 
expeditiously as possible. The receiving report or other Government 
documentation authorizing payment must, as a minimum, include the 
following:
    (1) Contract number or other authorization for supplies delivered or 
services performed.
    (2) Description of supplies delivered or services performed.
    (3) Quantities of supplies received and accepted or services 
performed, if applicable.
    (4) Date supplies delivered or services performed.
    (5) Date that the designated Government official--
    (i) Accepted the supplies or services; or
    (ii) Approved the progress payment request, if the request is being 
made under the clause at 52.232-5, Payments Under Fixed-Price 
Construction Contracts, or the clause at 52.232-10, Payments Under 
Fixed-Price Architect-Engineer Contracts.
    (6) Signature, printed name, title, mailing address, and telephone 
number of the designated Government official responsible for acceptance 
or approval functions.
    (d) Billing office. The designated billing office must immediately 
annotate each invoice with the actual date it receives the invoice.
    (e) Payment office. The designated payment office will annotate each 
invoice and receiving report with the actual date it receives the 
invoice.

[66 FR 65355, Dec. 18, 2001, as amended at 78 FR 37679, June 21, 2013]



Sec. 32.906  Making payments.

    (a) General. The Government will not make invoice payments earlier 
than 7 days prior to the due dates specified in the contract unless the 
agency head determines--
    (1) To make earlier payment on a case-by-case basis; or
    (2) That the use of accelerated payment methods are necessary (see 
32.903(a)(5)).
    (b) Payment office. The designated payment office--
    (1) Will mail checks on the same day they are dated;
    (2) For payments made by EFT, will specify a date on or before the 
established due date for settlement of the payment at a Federal Reserve 
Bank;
    (3) When the due date falls on a Saturday, Sunday, or legal holiday 
when Government offices are closed, may make payment on the following 
working day without incurring a late payment interest penalty.
    (4) When it is determined that the designated billing office 
erroneously rejected a proper invoice and upon resubmission of the 
invoice, will enter in the payment system the original date the invoice 
was received by the designated billing office for the purpose of 
calculating the correct payment due date and any interest penalties that 
may be due.
    (c) Partial deliveries. (1) Contracting officers must, where the 
nature of the work permits, write contract statements of work and 
pricing arrangements that allow contractors to deliver and receive 
invoice payments for discrete portions of the work as soon as

[[Page 777]]

completed and found acceptable by the Government (see 32.102(d)).
    (2) Unless specifically prohibited by the contract, the clause at 
52.232-1, Payments, provides that the contractor is entitled to payment 
for accepted partial deliveries of supplies or partial performance of 
services that comply with all applicable contract requirements and for 
which prices can be calculated from the contract terms.
    (d) Contractor identifier. Each payment or remittance advice will 
use the contractor invoice number in addition to any Government or 
contract information in describing any payment made.
    (e) Discounts. When a discount for prompt payment is taken, the 
designated payment office will make payment to the contractor as close 
as possible to, but not later than, the end of the discount period. The 
discount period is specified by the contractor and is calculated from 
the date of the contractor's proper invoice. If the contractor has not 
placed a date on the invoice, the due date is calculated from the date 
the designated billing office receives a proper invoice, provided the 
agency annotates such invoice with the date of receipt at the time of 
receipt. When the discount date falls on a Saturday, Sunday, or legal 
holiday when Government offices are closed, the designated payment 
office may make payment on the following working day and take a 
discount. Payment terms are specified in the clause at 52.232-8, 
Discounts for Prompt Payment.



Sec. 32.907  Interest penalties.

    (a) Late payment. The designated payment office will pay an interest 
penalty automatically, without request from the contractor, when all of 
the following conditions, if applicable, have been met:
    (1) The designated billing office received a proper invoice.
    (2) The Government processed a receiving report or other Government 
documentation authorizing payment, and there was no disagreement over 
quantity, quality, or contractor compliance with any contract 
requirement.
    (3) In the case of a final invoice, the payment amount is not 
subject to further contract settlement actions between the Government 
and the contractor.
    (4) The designated payment office paid the contractor after the due 
date.
    (5) In the case of interim payments on cost-reimbursement contracts 
for services, when payment is made more than 30 days after the 
designated billing office receives a proper invoice.
    (b) Improperly taken discount. The designated payment office will 
pay an interest penalty automatically, without request from the 
contractor, if the Government takes a discount for prompt payment 
improperly. The interest penalty is calculated 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.
    (c) Failure to pay interest. (1) The designated payment office will 
pay a penalty amount, in addition to the interest penalty amount, only 
if--
    (i) The Government owes an interest penalty of $1 or more;
    (ii) The designated payment office does not pay the interest penalty 
within 10 days after the date the invoice amount is paid; and
    (iii) The contractor makes a written demand to the designated 
payment office for additional penalty payment in accordance with 
paragraph (c)(2) of this section, postmarked not later than 40 days 
after the date the invoice amount is paid.
    (2)(i) Contractors must support written demands for additional 
penalty payments with the following data. The Government must not 
request additional data. Contractors must--
    (A) 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;
    (B) Attach a copy of the invoice on which the unpaid late payment 
interest is due; and
    (C) State that payment of the principal has been received, including 
the date of receipt.
    (ii) If there is no postmark or the postmark is illegible--
    (A) The designated payment office that receives the demand will 
annotate it with the date of receipt, provided the

[[Page 778]]

demand is received on or before the 40th day after payment was made; or
    (B) If the designated payment office fails to make the required 
annotation, the Government will determine the demand's validity based on 
the date the contractor has placed on the demand; provided such date is 
no later than the 40th day after payment was made.
    (d) Disagreements. (1) The payment office will not pay interest 
penalties if payment delays are due to disagreement between the 
Government and contractor concerning--
    (i) The payment amount;
    (ii) Contract compliance; or
    (iii) Amounts temporarily withheld or retained in accordance with 
the terms of the contract.
    (2) The Government and the contractor must resolve claims involving 
disputes, and any interest that may be payable in accordance with the 
Disputes clause.
    (e) Computation of interest penalties. The Government will compute 
interest penalties in accordance with OMB prompt payment regulations at 
5 CFR part 1315. These regulations are available via the Internet at 
http://www.fms.treas.gov/prompt/.
    (f) Unavailability of funds. The temporary unavailability of funds 
to make a timely payment does not relieve an agency from the obligation 
to pay interest penalties.



Sec. 32.908  Contract clauses.

    (a) Insert the clause at 52.232-26, Prompt Payment for Fixed-Price 
Architect-Engineer Contracts, in solicitations and contracts that 
contain the clause at 52.232-10, Payments Under Fixed-Price Architect-
Engineer Contracts.
    (1) As authorized in 32.904(c)(2), the contracting officer may 
modify the date in paragraph (a)(4)(i) of the clause to specify a period 
longer than 7 days for constructive acceptance or constructive approval, 
if required to afford the Government a practicable opportunity to 
inspect and test the supplies furnished or evaluate the services 
performed.
    (2) As provided in 32.903, agency policies and procedures may 
authorize amendment of paragraphs (a)(1)(i) and (ii) of the clause to 
insert a period shorter than 30 days (but not less than 7 days) for 
making contract invoice payments.
    (b) Insert the clause at 52.232-27, Prompt Payment for Construction 
Contracts, in all solicitations and contracts for construction (see part 
36).
    (1) As authorized in 32.904(d)(1)(i)(B), the contracting officer may 
modify the date in paragraph (a)(1)(i)(A) of the clause to specify a 
period longer than 14 days if required to afford the Government a 
reasonable opportunity to adequately inspect the work and to determine 
the adequacy of the Contractor's performance under the contract.
    (2) As authorized in 32.904(d)(2)(iv), the contracting officer may 
modify the date in paragraph (a)(4)(i) of the clause to specify a period 
longer than 7 days for constructive acceptance or constructive approval 
if required to afford the Government a reasonable opportunity to inspect 
and test the supplies furnished or evaluate the services performed.
    (c) Insert the clause at 52.232-25, Prompt Payment, in all other 
solicitations and contracts, except when the clause at 52.212-4, 
Contract Terms and Conditions--Commercial Items, applies, or when 
payment terms and late payment penalties are established by other 
governmental authority (e.g., tariffs).
    (1) As authorized in 32.904(b)(1)(ii)(B)(4), the contracting officer 
may modify the date in paragraph (a)(5)(i) of the clause to specify a 
period longer than 7 days for constructive acceptance, if required to 
afford the Government a reasonable opportunity to inspect and test the 
supplies furnished or to evaluate the services performed, except in the 
case of a contract for the purchase of a commercial item, including a 
brand-name commercial item for authorized resale (e.g., commissary 
items).
    (2) As provided in 32.903, agency policies and procedures may 
authorize amendment of paragraphs (a)(1)(i) and (ii) of the clause to 
insert a period shorter than 30 days (but not less than 7 days) for 
making contract invoice payments.
    (3) If the contract is a cost-reimbursement contract for services, 
use the clause with its Alternate I.

[[Page 779]]



Sec. 32.909  Contractor inquiries.

    (a) Direct questions involving--
    (1) Delinquent payments to the designated billing office or 
designated payment office; and
    (2) Disagreements in payment amount or timing to the contracting 
officer for resolution. The contracting officer must coordinate within 
appropriate contracting channels and seek the advice of other offices as 
necessary to resolve disagreements.
    (b) Small business concerns may contact the agency's local small 
business specialist or representative from the Office of Small and 
Disadvantaged Business Utilization to obtain additional assistance 
related to payment issues, late payment interest penalties, and 
information on the Prompt Payment Act.

                Subpart 32.10_Performance-Based Payments

    Source: 60 FR 49715, Sept. 26, 1995, unless otherwise noted.



Sec. 32.1000  Scope of subpart.

    This subpart provides policy and procedures for performance-based 
payments under noncommercial purchases pursuant to Subpart 32.1.

[72 FR 73220, Dec. 26, 2007]



Sec. 32.1001  Policy.

    (a) Performance-based payments are the preferred Government 
financing method when the contracting officer finds them practical, and 
the contractor agrees to their use.
    (b) Performance-based payments are contract financing payments that 
are not payment for accepted items.
    (c) Performance-based payments are fully recoverable, in the same 
manner as progress payments, in the event of default.
    (d) Performance-based payments are contract financing payments and, 
therefore, are not subject to the interest-penalty provisions of prompt 
payment (see Subpart 32.9). These payments shall be made in accordance 
with agency policy.
    (e) Performance-based payments shall not be used for--
    (1) Payments under cost-reimbursement line items;
    (2) Contracts for architect-engineer services or construction, or 
for shipbuilding or ship conversion, alteration, or repair, when the 
contracts provide for progress payments based upon a percentage or stage 
of completion; or
    (3) Contracts awarded through sealed bid procedures.

[72 FR 73220, Dec. 26, 2007]



Sec. 32.1002  Bases for performance-based payments.

    Performance-based payments may be made on any of the following 
bases:
    (a) Performance measured by objective, quantifiable methods.
    (b) Accomplishment of defined events.
    (c) Other quantifiable measures of results.

[72 FR 73220, Dec. 26, 2007]



Sec. 32.1003  Criteria for use.

    The contracting officer may use performance-based payments for 
individual orders and contracts provided--
    (a) The contracting officer and offeror agree on the performance-
based payment terms;
    (b) The contract, individual order, or line item is a fixed-price 
type;
    (c) For indefinite delivery contracts, the individual order does not 
provide for progress payments; and
    (d) For other than indefinite delivery contracts, the contract does 
not provide for progress payments.

[72 FR 73220, Dec. 26, 2007]



Sec. 32.1004  Procedures.

    Performance-based payments may be made either on a whole contract or 
on a deliverable item basis, unless otherwise prescribed by agency 
regulations. Financing payments to be made on a whole contract basis are 
applicable to the entire contract, and not to specific deliverable 
items. Financing payments to be made on a deliverable item basis are 
applicable to a specific individual deliverable item. (A deliverable 
item for these purposes is a separate item with a distinct unit price. 
Thus, a contract line item for 10 airplanes, with a unit price of 
$1,000,000 each, has 10 deliverable items-the separate planes. A

[[Page 780]]

contract line item for 1 lot of 10 airplanes, with a lot price of 
$10,000,000, has only one deliverable item-the lot.)
    (a) Establishing performance bases. (1) The basis for performance-
based payments may be either specifically described events (e.g., 
milestones) or some measurable criterion of performance. Each event or 
performance criterion that will trigger a finance payment shall be an 
integral and necessary part of contract performance and shall be 
identified in the contract, along with a description of what constitutes 
successful performance of the event or attainment of the performance 
criterion. The signing of contracts or modifications, the exercise of 
options, the passage of time, or other such occurrences do not represent 
meaningful efforts or actions and shall not be identified as events or 
criteria for performance-based payments. An event need not be a critical 
event in order to trigger a payment, but the Government must be able to 
readily verify successful performance of each such event or performance 
criterion.
    (2) Events or criteria may be either severable or cumulative. The 
successful completion of a severable event or criterion is independent 
of the accomplishment of any other event or criterion. Conversely, the 
successful accomplishment of a cumulative event or criterion is 
dependent upon the previous accomplishment of another event. A contract 
may provide for more than one series of severable and/or cumulative 
performance events or criteria performed in parallel. The contracting 
officer shall include the following in the contract:
    (i) The contract shall not permit payment for a cumulative event or 
criterion until the dependent event or criterion has been successfully 
completed.
    (ii) The contract shall specifically identify severable events or 
criteria.
    (iii) The contract shall specifically identify cumulative events or 
criteria and identify which events or criteria are preconditions for the 
successful achievement of each event or criterion.
    (iv) Because performance-based payments are contract financing, 
events or criteria shall not serve as a vehicle to reward the contractor 
for completion of performance levels over and above what is required for 
successful completion of the contract.
    (v) If payment of performance-based finance amounts is on a 
deliverable item basis, each event or performance criterion shall be 
part of the performance necessary for that deliverable item and shall be 
identified to a specific contract line item or subline item.
    (b) Establishing performance-based finance payment amounts. (1) The 
contracting officer shall establish a complete, fully defined schedule 
of events or performance criteria and payment amounts when negotiating 
contract terms. If a contract action significantly affects the price, or 
event or performance criterion, the contracting officer responsible for 
pricing the contract modification shall adjust the performance-based 
payment schedule appropriately.
    (2) Total performance-based payments shall--
    (i) Reflect prudent contract financing provided only to the extent 
needed for contract performance (see 32.104(a)); and
    (ii) Not exceed 90 percent of the contract price if on a whole 
contract basis, or 90 percent of the delivery item price if on a 
delivery item basis.
    (3) The contract shall specifically state the amount of each 
performance-based payment either as a dollar amount or as a percentage 
of a specifically identified price (e.g., contract price or unit price 
of the deliverable item). The payment of contract financing has a cost 
to the Government in terms of interest paid by the Treasury to borrow 
funds to make the payment. Because the contracting officer has wide 
discretion as to the timing and amount of the performance-based 
payments, the contracting officer shall ensure that--
    (i) The total contract price is fair and reasonable, all factors 
considered; and
    (ii) Performance-based payment amounts are commensurate with the 
value of the performance event or performance criterion and are not 
expected to result in an unreasonably low

[[Page 781]]

or negative level of contractor investment in the contract. To confirm 
sufficient investment, the contracting officer may request expenditure 
profile information from offerors, but only if other information in the 
proposal, or information otherwise available to the contracting officer, 
is expected to be insufficient.
    (4) Unless agency procedures prescribe the bases for establishing 
performance-based payment amounts, contracting officers may establish 
them on any rational basis, including (but not limited to)--
    (i) Engineering estimates of stages of completion;
    (ii) Engineering estimates of hours or other measures of effort to 
be expended in performance of an event or achievement of a performance 
criterion; or
    (iii) The estimated projected cost of performance of particular 
events.
    (5) When subsequent contract modifications are issued, the 
contracting officer shall adjust the performance-based payment schedule 
as necessary to reflect the actions required by those contract 
modifications.
    (c) Instructions for multiple appropriations. If there is more than 
one appropriation account (or subaccount) funding payments on the 
contract, the contracting officer shall provide instructions to the 
Government payment office for distribution of financing payments to the 
respective funds accounts. Distribution instructions shall be consistent 
with the contract's liquidation provisions.
    (d) Liquidating performance-based finance payments. Performance-
based amounts shall be liquidated by deducting a percentage or a 
designated dollar amount from the delivery payments. The contracting 
officer shall specify the liquidation rate or designated dollar amount 
in the contract. The method of liquidation shall ensure complete 
liquidation no later than final payment.
    (1) If the contracting officer establishes the performance-based 
payments on a delivery item basis, the liquidation amount for each line 
item is the percent of that delivery item price that was previously paid 
under performance-based finance payments or the designated dollar 
amount.
    (2) If the performance-based finance payments are on a whole 
contract basis, liquidation is by predesignated liquidation amounts or 
liquidation percentages.
    (e) Competitive negotiated solicitations. (1) If a solicitation 
requests offerors to propose performance-based payments, the 
solicitation shall specify--
    (i) What, if any, terms shall be included in all offers; and
    (ii) The extent to which and how offeror-proposed performance-based 
payment terms will be evaluated. Unless agencies prescribe other 
evaluation procedures, if the contracting officer anticipates that the 
cost of providing performance-based payments would have a significant 
impact on determining the best value offer, the solicitation should 
state that the evaluation of the offeror's proposed prices will include 
an adjustment to reflect the estimated cost to the Government of 
providing each offeror's proposed performance-based payments (see 
Alternate I to the provision at 52.232-28).
    (2) The contracting officer shall--
    (i) Review the proposed terms to ensure they comply with this 
section; and
    (ii) Use the adjustment method at 32.205(c) if the price is to be 
adjusted for evaluation purposes in accordance with paragraph (e)(1)(ii) 
of this section.

[72 FR 73220, Dec. 26, 2007]



Sec. 32.1005  Solicitation provision and contract clause.

    (a) Insert the clause at 52.232-32, Performance-Based Payments, in--
    (1) Solicitations that may result in contracts providing for 
performance-based payments; and
    (2) Fixed-price contracts under which the Government will provide 
performance-based payments.
    (b)(1) Insert the solicitation provision at 52.232-28, Invitation to 
Propose Performance-Based Payments, in negotiated solicitations that 
invite offerors to propose performance-based payments.
    (2) Use the provision with its Alternate I in competitive negotiated 
solicitations if the Government intends to adjust proposed prices for 
proposal evaluation purposes (see 32.1004(e)).

[72 FR 73222, Dec. 26, 2007]

[[Page 782]]



Sec. 32.1006  [Reserved]



Sec. 32.1007  Administration and payment of performance-based payments.

    (a) Responsibility. The contracting officer responsible for 
administering performance-based payments (see 42.302(a)(13)) for the 
contract shall review and approve all performance-based payments for 
that contract.
    (b) Approval of financing requests. Unless otherwise provided in 
agency regulations, or by agreement with the appropriate payment 
official--
    (1) The contracting officer shall be responsible for receiving, 
approving, and transmitting all performance-based payment requests to 
the appropriate payment office; and
    (2) Each approval shall specify the amount to be paid, necessary 
contractual information, and the appropriation account(s) (see 
32.1004(c)) to be charged for the payment.
    (c) Reviews. The contracting officer is responsible for determining 
what reviews are required for protection of the Government's interests. 
The contracting officer should consider the contractor's experience, 
performance record, reliability, financial strength, and the adequacy of 
controls established by the contractor for the administration of 
performance-based payments. Based upon the risk to the Government, post-
payment reviews and verifications should normally be arranged as 
considered appropriate by the contracting officer. If considered 
necessary by the contracting officer, pre-payment reviews may be 
required.
    (d) Incomplete performance. The contracting officer shall not 
approve a performance-based payment until the specified event or 
performance criterion has been successfully accomplished in accordance 
with the contract. If an event is cumulative, the contracting officer 
shall not approve the performance-based payment unless all identified 
preceding events or criteria are accomplished.
    (e) Government-caused delay. Entitlement to a performance-based 
payment is solely on the basis of successful performance of the 
specified events or performance criteria. However, if there is a 
Government-caused delay, the contracting officer may renegotiate the 
performance-based payment schedule to facilitate contractor billings for 
any successfully accomplished portions of the delayed event or 
criterion.

[72 FR 73222, Dec. 26, 2007, as amended at 76 FR 14547, Mar. 16, 2011]



Sec. 32.1008  Suspension or reduction of performance-based payments.

    The contracting officer shall apply the policy and procedures in 
paragraphs (a), (b), (c), and (e) of 32.503-6, Suspension or reduction 
of payments, whenever exercising the Government's rights to suspend or 
reduce performance-based payments in accordance with paragraph (e) of 
the clause at 52.232-32, Performance-Based Payments.



Sec. 32.1009  Title.

    (a) Since the clause at 52.232-32, Performance-Based Payments, gives 
the Government title to the property described in paragraph (f) of the 
clause, the contracting officer shall ensure that the Government title 
is not compromised by other encumbrances. Ordinarily, the contracting 
officer, in the absence of reason to believe otherwise, may rely upon 
the contractor's certification contained in the payment request.
    (b) If the contracting officer becomes aware of any arrangement or 
condition that would impair the Government's title to the property 
affected by the Performance-Based Payments clause, the contracting 
officer shall require additional protective provisions.
    (c) The existence of any such encumbrance is a violation of the 
contractor's obligations under the contract, and the contracting officer 
may, if necessary, suspend or reduce payments under the terms of the 
Performance-Based Payments clause covering failure to comply with a 
material requirement of the contract. In addition, if the contractor 
fails to disclose an existing encumbrance in the certification, the 
contracting officer should consult with legal counsel concerning 
possible violation of 31 U.S.C. 3729, the False Claims Act.

[64 FR 10540, Mar. 4, 1999, as amended at 72 FR 73222, Dec. 26, 2007]

[[Page 783]]



Sec. 32.1010  Risk of loss.

    (a) Under the clause at 52.232-32, Performance-Based Payments, and 
except for normal spoilage, the contractor bears the risk of loss for 
Government property, even though title is vested in the Government, 
unless the Government has expressly assumed this risk. The clauses 
prescribed in this regulation related to performance-based payments, 
default, and terminations do not constitute a Government assumption of 
risk.
    (b) If a loss occurs in connection with property for which the 
contractor bears the risk, and the property is needed for performance, 
the contractor is obligated to repay the Government the performance-
based payments related to the property.
    (c) The contractor is not obligated to pay for the loss of property 
for which the Government has assumed the risk of loss. However, a 
serious loss may impede the satisfactory progress of contract 
performance, so that the contracting officer may need to act under 
paragraph (e)(2) of the Performance-Based Payments clause. In addition, 
while the contractor is not required to repay previous performance-based 
payments in the event of a loss for which the Government has assumed the 
risk, such a loss may prevent the contractor from making the 
certification required by the Performance-Based Payments clause.

[64 FR 10540, Mar. 4, 1999, as amended at 75 FR 38680, July 2, 2010; 77 
FR 12941, Mar. 2, 2012]

                 Subpart 32.11_Electronic Funds Transfer

    Source: 64 FR 10540, Mar. 4, 1999, unless otherwise noted.



Sec. 32.1100  Scope of subpart.

    This subpart provides policy and procedures for contract financing 
and delivery payments to contractors by electronic funds transfer (EFT).



Sec. 32.1101  Statutory requirements.

    31 U.S.C. 3332 requires, subject to implementing regulations of the 
Secretary of the Treasury at 31 CFR part 208, that EFT be used to make 
all contract payments.



Sec. 32.1102  Definitions.

    As used in this subpart--
    Electron Funds Transfer information (EFT) means information 
necessary for making a payment by EFT through specified EFT mechanisms.
    Governmentwide commercial purchase card means a card that is similar 
in nature to a commercial credit card that is used to make financing and 
delivery payments for supplies and services. The purchase card is an EFT 
method and it may be used as a means to meet the requirement to pay by 
EFT, to the extent that purchase card limits do not preclude such 
payments.
    Payment information means the payment advice provided by the 
Government to the contractor that identifies what the payment is for, 
any computations or adjustments made by the Government, and any 
information required by the Prompt Payment Act.

[64 FR 10540, Mar. 4, 1999, as amended at 66 FR 2132, Jan. 10, 2001]



Sec. 32.1103  Applicability.

    The Government shall provide all contract payments through EFT 
except if--
    (a) The office making payment under a contract that requires payment 
by EFT, loses the ability to release payment by EFT. To the extent 
authorized by 31 CFR part 208, the payment office shall make necessary 
payments pursuant to paragraph (a)(2) of the clause at either 52.232-33 
or 52.232-34 until such time as it can make EFT payments;
    (b) The payment is to be received by or on behalf of the contractor 
outside the United States and Puerto Rico (but see 32.1106(b));
    (c) A contract is paid in other than United States currency (but see 
32.1106(b));
    (d) Payment by EFT under a classified contract could compromise the 
safeguarding of classified information or national security, or 
arrangements for appropriate EFT payments would be impractical due to 
security considerations;
    (e) A contract is awarded by a deployed contracting officer in the 
course of military operations, including, but

[[Page 784]]

not limited to, contingency operations as defined in 2.101, or a 
contract is awarded by any contracting officer in the conduct of 
emergency operations, such as responses to natural disasters or national 
or civil emergencies, if--
    (1) EFT is not known to be possible; or
    (2) EFT payment would not support the objectives of the operation;
    (f) The agency does not expect to make more than one payment to the 
same recipient within a one-year period;
    (g) An agency's need for supplies and services is of such unusual 
and compelling urgency that the Government would be seriously injured 
unless payment is made by a method other than EFT;
    (h) There is only one source for supplies and services and the 
Government would be seriously injured unless payment is made by a method 
other than EFT; or
    (i) Otherwise authorized by Department of the Treasury Regulations 
at 31 CFR part 208.

[64 FR 10540, Mar. 4, 1999, as amended at 67 FR 6114, Feb. 8, 2002; 68 
FR 13203, Mar. 18, 2003; 68 FR 56673, Oct. 1, 2003]



Sec. 32.1104  Protection of EFT information.

    The Government shall protect against improper disclosure of 
contractors' EFT information.



Sec. 32.1105  Assignment of claims.

    The use of EFT payment methods is not a substitute for a properly 
executed assignment of claims in accordance with Subpart 32.8. EFT 
information that shows the ultimate recipient of the transfer to be 
other than the contractor, in the absence of a proper assignment of 
claims, is considered to be incorrect EFT information within the meaning 
of the ``Suspension of Payment'' paragraphs of the EFT clauses at 
52.232-33 and 52.232-34.



Sec. 32.1106  EFT mechanisms.

    (a) Domestic EFT mechanisms. The EFT clauses at 52.232-33 and 
52.232-34 are designed for use with the domestic United States banking 
system, using United States currency, and only the specified mechanisms 
(U.S. Automated Clearing House, and Fedwire Transfer System) of EFT. 
However, the head of an agency may authorize the use of any other EFT 
mechanism for domestic EFT with the concurrence of the office or agency 
responsible for making payments.
    (b) Nondomestic EFT mechanisms and other than United States 
currency. The Government shall provide payment by other than EFT for 
payments received by or on behalf of the contractor outside the United 
States and Puerto Rico or for contracts paid in other than United States 
currency. However, the head of an agency may authorize appropriate use 
of EFT with the concurrence of the office or agency responsible for 
making payments if--
    (1) The political, financial, and communications infrastructure in a 
foreign country supports payment by EFT; or
    (2) Payments of other than United States currency may be made 
safely.



Sec. 32.1107  Payment information.

    The payment or disbursing office shall forward to the contractor 
available payment information that is suitable for transmission as of 
the date of release of the EFT instruction to the Federal Reserve 
System.



Sec. 32.1108  Payment by Governmentwide commercial purchase card.

    A Governmentwide commercial purchase card charge authorizes the 
third party (e.g., financial institution) that issued the purchase card 
to make immediate payment to the contractor. The Government reimburses 
the third party at a later date for the third party's payment to the 
contractor.
    (a) The clause at 52.232-36, Payment by Third Party, governs when a 
contractor submits a charge against the purchase card for contract 
payment. The clause provides that the contractor shall make such payment 
requests by a charge to a Government account with the third party at the 
time the payment clause(s) of the contract authorizes the contractor to 
submit a request for payment, and for the amount due in accordance with 
the terms of the contract. To the extent that such a payment would 
otherwise be approved, the charge against the purchase card should not 
be disputed

[[Page 785]]

when the charge is reported to the Government by the third party. To the 
extent that such payment would otherwise not have been approved, an 
authorized individual (see 1.603-3) shall take action to remove the 
charge, such as by disputing the charge with the third party or by 
requesting that the contractor credit the charge back to the Government 
under the contract.
    (b)(1) Written contracts to be paid by purchase card should include 
the clause at 52.232-36, Payment by Third Party, as prescribed by 
32.1110(d). However, payment by a purchase card also may be made under a 
contract that does not contain the clause to the extent the contractor 
agrees to accept that method of payment.
    (2)(i) When it is contemplated that the Governmentwide commercial 
purchase card will be used as the method of payment, and the contract or 
order is above the micro-purchase threshold, contracting officers are 
required to verify (by looking in the System for Award Management (SAM)) 
whether the contractor has any delinquent debt subject to collection 
under the Treasury Offset Program (TOP) at contract award and order 
placement. Information on TOP is available at http://fms.treas.gov/debt/
index.html.
    (ii) The contracting officer shall not authorize the Governmentwide 
commercial purchase card as a method of payment during any period the 
SAM indicates that the contractor has delinquent debt subject to 
collection under the TOP. In such cases, payments under the contract 
shall be made in accordance with the clause at 52.232-33, Payment by 
Electronic Funds Transfer--System for Award Management, or 52.232-34, 
Payment by Electronic Funds Transfer--Other Than System for Award 
Management, as appropriate (see FAR 32.1110(d)).
    (iii) Contracting officers shall not use the presence of the SAM 
debt flag indicator to exclude a contractor from receipt of the contract 
award or issuance or placement of an order.
    (iv) The contracting officer may take steps to authorize payment by 
Governmentwide commercial purchase card when a contractor alerts the 
contracting officer that the SAM debt flag indicator has been changed to 
no longer show a delinquent debt.
    (c) The clause at 52.232-36, Payment by Third Party, requires that 
the contract--
    (1) Identify the third party and the particular purchase card to be 
used; and
    (2) Not include the purchase card account number. The purchase card 
account number should be provided separately to the contractor.

[64 FR 10540, Mar. 4, 1999, as amended at 74 FR 65604, Dec. 10, 2009; 78 
FR 37679, June 21, 2013]



Sec. 32.1109  EFT information submitted by offerors.

    If offerors are required to submit EFT information prior to award, 
the successful offeror is not responsible for resubmitting this 
information after award of the contract except to make changes, or to 
place the information on invoices if required by agency procedures. 
Therefore, contracting officers shall forward EFT information provided 
by the successful offeror to the appropriate office.



Sec. 32.1110  Solicitation provision and contract clauses.

    (a) The contracting officer shall insert the clause at--
    (1) 52.232-33, Payment by Electronic Funds Transfer--System for 
Award Management, in solicitations and contracts that include the 
provision at 52.204-7 or an agency clause that requires a contractor to 
be registered in the System for Award Management (SAM) database and 
maintain registration until final payment, unless--
    (i) Payment will be made through a third party arrangement (see 
13.301 and paragraph (d) of this section); or
    (ii) An exception listed in 32.1103(a) through (i) applies.
    (2)(i) 52.232-34, Payment by Electronic Funds Transfer--Other than 
System for Award Management, in solicitations and contracts that require 
EFT as the method for payment but do not include the provision at 
52.204-7, System for Award Management, or a similar agency clause that 
requires the contractor to be registered in the SAM database.

[[Page 786]]

    (ii)(A) If permitted by agency procedures, the contracting officer 
may insert in paragraph (b)(1) of the clause, a particular time after 
award, such as a fixed number of days, or event such as the submission 
of the first request for payment.
    (B) If no agency procedures are prescribed, the time period inserted 
in paragraph (b)(1) of the clause shall be ``no later than 15 days prior 
to submission of the first request for payment.''
    (b) If the head of the agency has authorized, in accordance with 
32.1106, to use a nondomestic EFT mechanism, the contracting officer 
shall insert in solicitations and contracts a clause substantially the 
same as 52.232-33 or 52.232-34 that clearly addresses the nondomestic 
EFT mechanism.
    (c) If EFT information is to be submitted to other than the payment 
office in accordance with agency procedures, the contracting officer 
shall insert in solicitations and contracts the clause at 52.232-35, 
Designation of Office for Government Receipt of Electronic Funds 
Transfer Information, or a clause substantially the same as 52.232-35 
that clearly informs the contractor where to send the EFT information.
    (d) If payment under a written contract will be made by a charge to 
a Government account with a third party such as a Governmentwide 
commercial purchase card, then the contracting officer shall insert the 
clause at 52.232-36, Payment by Third Party, in solicitations and 
contracts. Payment by a purchase card may also be made under a contract 
that does not contain the clause at 52.232-36, to the extent the 
contractor agrees to accept that method of payment. When the clause at 
52.232-36 is included in a solicitation or contract, the contracting 
officer shall also insert the clause at 52.232-33, Payment by Electronic 
Funds Transfer--System for Award Management, or 52.232-34, Payment by 
Electronic Funds Transfer--Other Than System for Award Management, as 
appropriate.
    (e) If the contract or agreement provides for the use of delivery 
orders, and provides that the ordering office designate the method of 
payment for individual orders, the contracting officer shall insert, in 
the solicitation and contract or agreement, the clause at 52.232-37, 
Multiple Payment Arrangements, and, to the extent they are applicable, 
the clauses at--
    (1) 52.232-33, Payment by Electronic Funds Transfer--System for 
Award Management;
    (2) 52.232-34, Payment by Electronic Funds Transfer--Other than 
System for Award Management; and
    (3) 52.232-36, Payment by Third Party.
    (f) If more than one disbursing office will make payment under a 
contract or agreement, the contracting officer, or ordering office (if 
the contract provides for choices between EFT clauses on individual 
orders or classes of orders), shall include or identify the EFT clause 
appropriate for each office and shall identify the applicability by 
disbursing office and contract line item.
    (g) If the solicitation contains the clause at 52.232-34, Payment by 
Electronic Funds Transfer--Other than System for Award Management, and 
an offeror is required to submit EFT information prior to award--
    (1) The contracting officer shall insert in the solicitation the 
provision at 52.232-38, Submission of Electronic Funds Transfer 
Information with Offer, or a provision substantially the same; and
    (2) For sealed bid solicitations, the contracting officer shall 
amend 52.232-38 to ensure that a bidder's EFT information--
    (i) Is not a part of the bid to be opened at the public opening; and
    (ii) May not be released to members of the general public who 
request a copy of the bid.

[64 FR 10540, Mar. 4, 1999, as amended at 68 FR 56673, Oct. 1, 2003; 68 
FR 61866, Oct. 30, 2003; 74 FR 65605, Dec. 10, 2009; 77 FR 69718, Nov. 
20, 2012; 78 FR 37680, June 21, 2013]

                 PART 33_PROTESTS, DISPUTES, AND APPEALS

Sec.

Sec. 33.000 Scope of part.

Sec. 33.001 General.

                          Subpart 33.1_Protests


Sec. 33.101 Definitions.

Sec. 33.102 General.

Sec. 33.103 Protests to the agency.

[[Page 787]]


Sec. 33.104 Protests to GAO.

Sec. 33.105 Protests at the U.S. Court of Federal Claims.

Sec. 33.106 Solicitation provision and contract clause.

                    Subpart 33.2_Disputes and Appeals


Sec. 33.201 Definitions.

Sec. 33.202 Contract Disputes Act of 1978.

Sec. 33.203 Applicability.

Sec. 33.204 Policy.

Sec. 33.205 Relationship of the Act to Pub. L. 85-804.

Sec. 33.206 Initiation of a claim.

Sec. 33.207 Contractor certification.

Sec. 33.208 Interest on claims.

Sec. 33.209 Suspected fraudulent claims.

Sec. 33.210 Contracting officer's authority.

Sec. 33.211 Contracting officer's decision.

Sec. 33.212 Contracting officer's duties upon appeal.

Sec. 33.213 Obligation to continue performance.

Sec. 33.214 Alternative dispute resolution (ADR).

Sec. 33.215 Contract clauses.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 
20113.



Sec. 33.000  Scope of part.

    This part prescribes policies and procedures for filing protests and 
for processing contract disputes and appeals.

[50 FR 2270, Jan. 15, 1985]



Sec. 33.001  General.

    There are other Federal court-related protest authorities and 
dispute-appeal authorities that are not covered by this part of the FAR, 
e.g., 28 U.S.C. 1491 for Court of Federal Claims jurisdiction. 
Contracting officers should contact their designated legal advisor for 
additional information whenever they become aware of any litigation 
related to their contracts.

[77 FR 56743, Sept. 13, 2012]

                          Subpart 33.1_Protests



Sec. 33.101  Definitions.

    As used in this subpart--
    Day means a calendar day, unless otherwise specified. In the 
computation of any period--
    (1) The day of the act, event, or default from which the designated 
period of time begins to run is not included; and
    (2) The last day after the act, event, or default is included 
unless--
    (i) The last day is a Saturday, Sunday, or Federal holiday; or
    (ii) In the case of a filing of a paper at any appropriate 
administrative forum, the last day is a day on which weather or other 
conditions cause the closing of the forum for all or part of the day, in 
which event the next day on which the appropriate administrative forum 
is open is included.
    Filed means the complete receipt of any document by an agency before 
its close of business. Documents received after close of business are 
considered filed as of the next day. Unless otherwise stated, the agency 
close of business is presumed to be 4:30 p.m., local time.
    Interested Party for the purpose of filing a protest means an actual 
or prospective offeror whose direct economic interest would be affected 
by the award of a contract or by the failure to award a contract.
    Protest means a written objection by an interested party to any of 
the following:
    (1) A solicitation or other request by an agency for offers for a 
contract for the procurement of property or services.
    (2) The cancellation of the solicitation or other request.
    (3) An award or proposed award of the contract.
    (4) A termination or cancellation of an award of the contract, if 
the written objection contains an allegation that the termination or 
cancellation is based in whole or in part on improprieties concerning 
the award of the contract.
    Protest venue means protests filed with the agency, the Government 
Accountability Office, or the U.S. Court of Federal Claims. U.S. 
District Courts do not have any bid protest jurisdiction.

[50 FR 2270, Jan. 15, 1985, as amended at 53 FR 43391, Oct. 26, 1988; 54 
FR 19827, May 8, 1989; 60 FR 48225, Sept. 18, 1995; 62 FR 64933, Dec. 9, 
1997; 66 FR 2132, Jan. 10, 2001; 77 FR 56743, Sept. 13, 2012]



Sec. 33.102  General.

    (a) Without regard to the protest venue, contracting officers shall 
consider all protests and seek legal advice, whether protests are 
submitted before

[[Page 788]]

or after award and whether filed directly with the agency, the 
Government Accountability Office (GAO), or the U.S. Court of Federal 
Claims. (See 19.302 for protests of small business status, 19.305 for 
protests of disadvantaged business status, 19.306 for protests of 
HUBZone small business status, and 19.307 for protests of service-
disabled veteran-owned small business status, and 19.308 for protests of 
the status of an economically disadvantaged women-owned small business 
concern or of a women-owned small business concern eligible under the 
Women-Owned Small Business Program.)
    (b) If, in connection with a protest, the head of an agency 
determines that a solicitation, proposed award, or award does not comply 
with the requirements of law or regulation, the head of the agency may--
    (1) Take any action that could have been recommended by the 
Comptroller General had the protest been filed with the Government 
Accountability Office;
    (2) Pay appropriate costs as stated in 33.104(h);
    (3) Require the awardee to reimburse the Government's costs, as 
provided in this paragraph, where a postaward protest is sustained as 
the result of an awardee's intentional or negligent misstatement, 
misrepresentation, or miscertification. In addition to any other remedy 
available, and pursuant to the requirements of Subpart 32.6, the 
Government may collect this debt by offsetting the amount against any 
payment due the awardee under any contract between the awardee and the 
Government.
    (i) When a protest is sustained by GAO under circumstances that may 
allow the Government to seek reimbursement for protest costs, the 
contracting officer will determine whether the protest was sustained 
based on the awardee's negligent or intentional misrepresentation. If 
the protest was sustained on several issues, protest costs shall be 
apportioned according to the costs attributable to the awardee's 
actions.
    (ii) The contracting officer shall review the amount of the debt, 
degree of the awardee's fault, and costs of collection, to determine 
whether a demand for reimbursement ought to be made. If it is in the 
best interests of the Government to seek reimbursement, the contracting 
officer shall notify the contractor in writing of the nature and amount 
of the debt, and the intention to collect by offset if necessary. Prior 
to issuing a final decision, the contracting officer shall afford the 
contractor an opportunity to inspect and copy agency records pertaining 
to the debt to the extent permitted by statute and regulation, and to 
request review of the matter by the head of the contracting activity.
    (iii) When appropriate, the contracting officer shall also refer the 
matter to the agency debarment official for consideration under Subpart 
9.4.
    (c) In accordance with 31 U.S.C. 1558, with respect to any protest 
filed with the GAO, if the funds available to the agency for a contract 
at the time a protest is filed in connection with a solicitation for, 
proposed award of, or award of such a contract would otherwise expire, 
such funds shall remain available for obligation for 100 days after the 
date on which the final ruling is made on the protest. A ruling is 
considered final on the date on which the time allowed for filing an 
appeal or request for reconsideration has expired, or the date on which 
a decision is rendered on such appeal or request, whichever is later.
    (d) Protest likely after award. The contracting officer may stay 
performance of a contract within the time period contained in 
33.104(c)(1) if the contracting officer makes a written determination 
that--
    (1) A protest is likely to be filed; and
    (2) Delay of performance is, under the circumstances, in the best 
interests of the United States.
    (e) An interested party wishing to protest is encouraged to seek 
resolution within the agency (see 33.103) before filing a protest with 
the GAO, but may protest to the GAO in accordance with GAO regulations 
(4 CFR part 21).
    (f) No person may file a protest at GAO for a procurement integrity 
violation unless that person reported to the contracting officer the 
information constituting evidence of the violation within 14 days after 
the person first

[[Page 789]]

discovered the possible violation (41 U.S.C. 423(g)).

[50 FR 2270, Jan. 15, 1985, as amended at 55 FR 38517, Sept. 18, 1990; 
55 FR 52795, Dec. 21, 1990; 60 FR 48226, 48275, Sept. 18, 1995; 61 FR 
41470, Aug. 8, 1996; 61 FR 67411, Dec. 20, 1996; 62 FR 233, Jan. 2, 
1997; 63 FR 35724, June 30, 1998; 69 FR 25279, May 5, 2004; 71 FR 36941, 
June 28, 2006; 71 FR 57380, Sept. 28, 2006; 75 FR 77731, Dec. 13, 2010; 
76 FR 18312, Apr. 1, 2011; 77 FR 56743, Sept. 13, 2012]



Sec. 33.103  Protests to the agency.

    (a) Reference. Executive Order 12979, Agency Procurement Protests, 
establishes policy on agency procurement protests.
    (b) Prior to submission of an agency protest, all parties shall use 
their best efforts to resolve concerns raised by an interested party at 
the contracting officer level through open and frank discussions.
    (c) The agency should provide for inexpensive, informal, 
procedurally simple, and expeditious resolution of protests. Where 
appropriate, the use of alternative dispute resolution techniques, third 
party neutrals, and another agency's personnel are acceptable protest 
resolution methods.
    (d) The following procedures are established to resolve agency 
protests effectively, to build confidence in the Government's 
acquisition system, and to reduce protests outside of the agency:
    (1) Protests shall be concise and logically presented to facilitate 
review by the agency. Failure to substantially comply with any of the 
requirements of paragraph (d)(2) of this section may be grounds for 
dismissal of the protest.
    (2) Protests shall include the following information:
    (i) Name, address, and fax and telephone numbers 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.
    (3) All protests filed directly with the agency will be addressed to 
the contracting officer or other official designated to receive 
protests.
    (4) In accordance with agency procedures, interested parties may 
request an independent review of their protest at a level above the 
contracting officer; solicitations should advise potential bidders and 
offerors that this review is available. Agency procedures and/or 
solicitations shall notify potential bidders and offerors whether this 
independent review is available as an alternative to consideration by 
the contracting officer of a protest or is available as an appeal of a 
contracting officer decision on a protest. Agencies shall designate the 
official(s) who are to conduct this independent review, but the 
official(s) need not be within the contracting officer's supervisory 
chain. When practicable, officials designated to conduct the independent 
review should not have had previous personal involvement in the 
procurement. If there is an agency appellate review of the contracting 
officer's decision on the protest, it will not extend GAO's timeliness 
requirements. Therefore, any subsequent protest to the GAO must be filed 
within 10 days of knowledge of initial adverse agency action (4 CFR 
21.2(a)(3)).
    (e) Protests based on alleged apparent improprieties in a 
solicitation shall be filed before bid opening or the closing date for 
receipt of proposals. In all other cases, protests shall be filed no 
later than 10 days after the basis of protest is known or should have 
been known, whichever is earlier. The agency, for good cause shown, or 
where it determines that a protest raises issues significant to the 
agency's acquisition system, may consider the merits of any protest 
which is not timely filed.
    (f) Action upon receipt of protest. (1) Upon receipt of a protest 
before award, a contract may not be awarded, pending agency resolution 
of the protest, unless contract award is justified, in writing, for 
urgent and compelling reasons or is determined, in writing, to be in the 
best interest of the Government.

[[Page 790]]

Such justification or determination shall be approved at a level above 
the contracting officer, or by another official pursuant to agency 
procedures.
    (2) If award is withheld pending agency resolution of the protest, 
the contracting officer will inform the offerors whose offers might 
become eligible for award of the contract. If appropriate, the offerors 
should be requested, before expiration of the time for acceptance of 
their offers, to extend the time for acceptance to avoid the need for 
resolicitation. In the event of failure to obtain such extension of 
offers, consideration should be given to proceeding with award pursuant 
to paragraph (f)(1) of this section.
    (3) Upon receipt of a protest within 10 days after contract award or 
within 5 days after a debriefing date offered to the protester under a 
timely debriefing request in accordance with 15.505 or 15.506, whichever 
is later, the contracting officer shall immediately suspend performance, 
pending resolution of the protest within the agency, including any 
review by an independent higher level official, unless continued 
performance is justified, in writing, for urgent and compelling reasons 
or is determined, in writing, to be in the best interest of the 
Government. Such justification or determination shall be approved at a 
level above the contracting officer, or by another official pursuant to 
agency procedures.
    (4) Pursuing an agency protest does not extend the time for 
obtaining a stay at GAO. Agencies may include, as part of the agency 
protest process, a voluntary suspension period when agency protests are 
denied and the protester subsequently files at GAO.
    (g) Agencies shall make their best efforts to resolve agency 
protests within 35 days after the protest is filed. To the extent 
permitted by law and regulation, the parties may exchange relevant 
information.
    (h) Agency protest decisions shall be well-reasoned, and explain the 
agency position. The protest decision shall be provided to the protester 
using a method that provides evidence of receipt.

[61 FR 39219, July 29, 1996, as amended at 61 FR 69289, Dec. 31, 1996; 
62 FR 270, Jan. 2, 1997; 62 FR 10710, Mar. 10, 1997; 62 FR 51271, Sept. 
30, 1997]



Sec. 33.104  Protests to GAO.

    Procedures for protests to GAO are found at 4 CFR Part 21 (GAO Bid 
Protest Regulations). In the event guidance concerning GAO procedure in 
this section conflicts with 4 CFR part 21, 4 CFR part 21 governs.
    (a) General procedures. (1) A protester is required to furnish a 
copy of its complete protest to the official and location designated in 
the solicitation or, in the absence of such a designation, to the 
contracting officer, so it is received no later than 1 day after the 
protest is filed with the GAO. The GAO may dismiss the protest if the 
protester fails to furnish a complete copy of the protest within 1 day.
    (2) Immediately after receipt of the GAO's written notice that a 
protest has been filed, the agency shall give notice of the protest to 
the contractor if the award has been made, or, if no award has been 
made, to all parties who appear to have a reasonable prospect of 
receiving award if the protest is denied. The agency shall furnish 
copies of the protest submissions to such parties with instructions to 
(i) communicate directly with the GAO, and (ii) provide copies of any 
such communication to the agency and to other participating parties when 
they become known. However, if the protester has identified sensitive 
information and requests a protective order, then the contracting 
officer shall obtain a redacted version from the protester to furnish to 
other interested parties, if one has not already been provided.
    (3)(i) Upon notice that a protest has been filed with the GAO, the 
contracting officer shall immediately begin compiling the information 
necessary for a report to the GAO. The agency shall submit a complete 
report to the GAO within 30 days after the GAO notifies the agency by 
telephone that a protest has been filed, or within 20 days after receipt 
from the GAO of a determination to use the express option, unless the 
GAO--
    (A) Advises the agency that the protest has been dismissed; or
    (B) Authorizes a longer period in response to an agency's request 
for an extension. Any new date is documented in the agency's file.

[[Page 791]]

    (ii) When a protest is filed with the GAO, and an actual or 
prospective offeror so requests, the procuring agency shall, in 
accordance with any applicable protective orders, provide actual or 
prospective offerors reasonable access to the protest file. However, if 
the GAO dismisses the protest before the documents are submitted to the 
GAO, then no protest file need be made available. Information exempt 
from disclosure under 5 U.S.C. 552 may be redacted from the protest 
file. The protest file shall be made available to non-intervening actual 
or prospective offerors within a reasonable time after submittal of an 
agency report to the GAO. The protest file shall include an index and as 
appropriate--
    (A) The protest;
    (B) The offer submitted by the protester;
    (C) The offer being considered for award or being protested;
    (D) All relevant evaluation documents;
    (E) The solicitation, including the specifications or portions 
relevant to the protest;
    (F) The abstract of offers or relevant portions; and
    (G) Any other documents that the agency determines are relevant to 
the protest, including documents specifically requested by the 
protester.
    (iii) At least 5 days prior to the filing of the report, in cases in 
which the protester has filed a request for specific documents, the 
agency shall provide to all parties and the GAO a list of those 
documents, or portions of documents, that the agency has released to the 
protester or intends to produce in its report, and those documents that 
the agency intends to withhold from the protester and the reasons for 
the proposed withholding. Any objection to the scope of the agency's 
proposed disclosure or nondisclosure of the documents must be filed with 
the GAO and the other parties within 2 days after receipt of this list.
    (iv) The agency report to the GAO shall include--
    (A) A copy of the documents described in 33.104(a)(3)(ii);
    (B) The contracting officer's signed statement of relevant facts, 
including a best estimate of the contract value, and a memorandum of 
law. The contracting officer's statement shall set forth findings, 
actions, and recommendations, and any additional evidence or information 
not provided in the protest file that may be necessary to determine the 
merits of the protest; and
    (C) A list of parties being provided the documents.
    (4)(i) At the same time the agency submits its report to the GAO, 
the agency shall furnish copies of its report to the protester and any 
intervenors. A party shall receive all relevant documents, except--
    (A) Those that the agency has decided to withhold from that party 
for any reason, including those covered by a protective order issued by 
the GAO. Documents covered by a protective order shall be released only 
in accordance with the terms of the order. Examples of documents the 
agency may decide to exclude from a copy of the report include documents 
previously furnished to or prepared by a party; classified information; 
and information that would give the party a competitive advantage; and
    (B) Protester's documents which the agency determines, pursuant to 
law or regulation, to withhold from any interested party.
    (ii)(A) If the protester requests additional documents within 2 days 
after the protester knew the existence or relevance of additional 
documents, or should have known, the agency shall provide the requested 
documents to the GAO within 2 days of receipt of the request.
    (B) The additional documents shall also be provided to the protester 
and other interested parties within this 2-day period unless the agency 
has decided to withhold them for any reason (see subdivision (a)(4)(i) 
of this section). This includes any documents covered by a protective 
order issued by the GAO. Documents covered by a protective order shall 
be provided only in accordance with the terms of the order.
    (C) The agency shall notify the GAO of any documents withheld from 
the protester and other interested parties and shall state the reasons 
for withholding them.

[[Page 792]]

    (5) The GAO may issue protective orders which establish terms, 
conditions, and restrictions for the provision of any document to an 
interested party. Protective orders prohibit or restrict the disclosure 
by the party of procurement sensitive information, trade secrets or 
other proprietary or confidential research, development or commercial 
information that is contained in such document. Protective orders do not 
authorize withholding any documents or information from the United 
States Congress or an executive agency.
    (i) Requests for protective orders. Any party seeking issuance of a 
protective order shall file its request with the GAO as soon as 
practicable after the protest is filed, with copies furnished 
simultaneously to all parties.
    (ii) Exclusions and rebuttals. Within 2 days after receipt of a copy 
of the protective order request, any party may file with the GAO a 
request that particular documents be excluded from the coverage of the 
protective order, or that particular parties or individuals be included 
in or excluded from the protective order. Copies of the request shall be 
furnished simultaneously to all parties.
    (iii) Additional documents. If the existence or relevance of 
additional documents first becomes evident after a protective order has 
been issued, any party may request that these additional documents be 
covered by the protective order. Any party to the protective order also 
may request that individuals not already covered by the protective order 
be included in the order. Requests shall be filed with the GAO, with 
copies furnished simultaneously to all parties.
    (iv) Sanctions and remedies. The GAO may impose appropriate 
sanctions for any violation of the terms of the protective order. 
Improper disclosure of protected information will entitle the aggrieved 
party to all appropriate remedies under law or equity. The GAO may also 
take appropriate action against an agency which fails to provide 
documents designated in a protective order.
    (6) The protester and other interested parties are required to 
furnish a copy of any comments on the agency report directly to the GAO 
within 10 days, or 5 days if express option is used, after receipt of 
the report, with copies provided to the contracting officer and to other 
participating interested parties. If a hearing is held, these comments 
are due within 5 days after the hearing.
    (7) Agencies shall furnish the GAO with the name, title, and 
telephone number of one or more officials (in both field and 
headquarters offices, if desired) whom the GAO may contact who are 
knowledgeable about the subject matter of the protest. Each agency shall 
be responsible for promptly advising the GAO of any change in the 
designated officials.
    (b) Protests before award. (1) When the agency has received notice 
from the GAO of a protest filed directly with the GAO, a contract may 
not be awarded unless authorized, in accordance with agency procedures, 
by the head of the contracting activity, on a nondelegable basis, upon a 
written finding that--
    (i) Urgent and compelling circumstances which significantly affect 
the interest of the United States will not permit awaiting the decision 
of the GAO; and
    (ii) Award is likely to occur within 30 days of the written finding.
    (2) A contract award shall not be authorized until the agency has 
notified the GAO of the finding in subparagraph (b)(1) of this section.
    (3) When a protest against the making of an award is received and 
award will be withheld pending disposition of the protest, the 
contracting officer should inform the offerors whose offers might become 
eligible for award of the protest. If appropriate, those offerors should 
be requested, before expiration of the time for acceptance of their 
offer, to extend the time for acceptance to avoid the need for 
resolicitation. In the event of failure to obtain such extensions of 
offers, consideration should be given to proceeding under subparagraph 
(b)(1) of this section.
    (c) Protests after award. (1) When the agency receives notice of a 
protest from the GAO within 10 days after contract award or within 5 
days after a debriefing date offered to the protester for any debriefing 
that is required by 15.505 or 15.506, whichever is later, the 
contracting officer shall immediately

[[Page 793]]

suspend performance or terminate the awarded contract, except as 
provided in paragraphs (c) (2) and (3) of this section.
    (2) In accordance with agency procedures, the head of the 
contracting activity may, on a nondelegable basis, authorize contract 
performance, notwithstanding the protest, upon a written finding that--
    (i) Contract performance will be in the best interests of the United 
States; or
    (ii) Urgent and compelling circumstances that significantly affect 
the interests of the United States will not permit waiting for the GAO's 
decision.
    (3) Contract performance shall not be authorized until the agency 
has notified the GAO of the finding in subparagraph (c)(2) of this 
section.
    (4) When it is decided to suspend performance or terminate the 
awarded contract, the contracting officer should attempt to negotiate a 
mutual agreement on a no-cost basis.
    (5) When the agency receives notice of a protest filed with the GAO 
after the dates contained in subparagraph (c)(1), the contracting 
officer need not suspend contract performance or terminate the awarded 
contract unless the contracting officer believes that an award may be 
invalidated and a delay in receiving the supplies or services is not 
prejudicial to the Government's interest.
    (d) Findings and notice. If the decision is to proceed with contract 
award, or continue contract performance under paragraphs (b) or (c) of 
this section, the contracting officer shall include the written findings 
or other required documentation in the file. The contracting officer 
also shall give written notice of the decision to the protester and 
other interested parties.
    (e) Hearings. The GAO may hold a hearing at the request of the 
agency, a protester, or other interested party who has responded to the 
notice in paragraph (a)(2) of this section. A recording or transcription 
of the hearing will normally be made, and copies may be obtained from 
the GAO. All parties may file comments on the hearing and the agency 
report within 5 days of the hearing.
    (f) GAO decision time. GAO issues its recommendation on a protest 
within 100 days from the date of filing of the protest with the GAO, or 
within 65 days under the express option. The GAO attempts to issue its 
recommendation on an amended protest that adds a new ground of protest 
within the time limit of the initial protest. If an amended protest 
cannot be resolved within the initial time limit, the GAO may resolve 
the amended protest through an express option.
    (g) Notice to GAO. If the agency has not fully implemented the GAO 
recommendations with respect to a solicitation for a contract or an 
award or a proposed award of a contract within 60 days of receiving the 
GAO recommendations, the head of the contracting activity responsible 
for that contract shall report the failure to the GAO not later than 5 
days after the expiration of the 60-day period. The report shall explain 
the reasons why the GAO's recommendation, exclusive of costs, has not 
been followed by the agency.
    (h) Award of costs. (1) If the GAO determines that a solicitation 
for a contract, a proposed award, or an award of a contract does not 
comply with a statute or regulation, the GAO may recommend that the 
agency pay to an appropriate protester the cost, exclusive of profit, of 
filing and pursuing the protest, including reasonable attorney, 
consultant, and expert witness fees, and bid and proposal preparation 
costs. The agency shall use funds available for the procurement to pay 
the costs awarded.
    (2) The protester shall file its claim for costs with the 
contracting agency within 60 days after receipt of the GAO's 
recommendation that the agency pay the protester its costs. Failure to 
file the claim within that time may result in forfeiture of the 
protester's right to recover its costs.
    (3) The agency shall attempt to reach an agreement on the amount of 
costs to be paid. If the agency and the protester are unable to agree on 
the amount to be paid, the GAO may, upon request of the protester, 
recommend to the agency the amount of costs that the agency should pay.

[[Page 794]]

    (4) Within 60 days after the GAO recommends the amount of costs the 
agency should pay the protester, the agency shall notify the GAO of the 
action taken by the agency in response to the recommendation.
    (5) No agency shall pay a party, other than a small business concern 
within the meaning of section 3(a) of the Small Business Act (see 2.101, 
``Small business concern''), costs under paragraph (h)(2) of this 
section--
    (i) For consultant and expert witness fees that exceed the highest 
rate of compensation for expert witnesses paid by the Government 
pursuant to 5 U.S.C. 3109 and 5 CFR 304.105; or
    (ii) For attorney's fees that exceed $150 per hour, unless the 
agency determines, based on the recommendation of the Comptroller 
General on a case-by-case basis, that an increase in the cost of living 
or a special factor, such as the limited availability of qualified 
attorneys for the proceedings involved, justifies a higher fee. The cap 
placed on attorneys' fees for businesses, other than small businesses, 
constitutes a benchmark as to a ``reasonable'' level for attorney's fees 
for small businesses.
    (6) Before paying a recommended award of costs, agency personnel 
should consult legal counsel. Section 33.104(h) applies to all 
recommended awards of costs that have not yet been paid.
    (7) Any costs the contractor receives under this section shall not 
be the subject of subsequent proposals, billings, or claims against the 
Government, and those exclusions should be reflected in the cost 
agreement.
    (8) If the Government pays costs, as provided in paragraph (h)(1) of 
this section, where a postaward protest is sustained as the result of an 
awardee's intentional or negligent misstatement, misrepresentation, or 
miscertification, the Government may require the awardee to reimburse 
the Government the amount of such costs. In addition to any other remedy 
available, and pursuant to the requirements of subpart 32.6, the 
Government may collect this debt by offsetting the amount against any 
payment due the awardee under any contract between the awardee and the 
Government.

[57 FR 60585, Dec. 21, 1992, as amended at 60 FR 48227, 48275, Sept. 18, 
1995; 61 FR 41470, Aug. 8, 1996; 61 FR 69289, Dec. 31, 1996; 62 FR 
12718, Mar. 17, 1997; 62 FR 51271, Sept. 30, 1997; 62 FR 64933, Dec. 9, 
1997; 63 FR 1532, Jan. 9, 1998; 63 FR 58603, Oct. 30, 1998; 72 FR 63065, 
Nov. 7, 2007]



Sec. 33.105  Protests at the U.S. Court of Federal Claims.

    Procedures for protests at the U.S. Court of Federal Claims are set 
forth in the rules of the U.S. Court of Federal Claims. The rules may be 
found at http://www.uscfc.uscourts.gov/rules-and-forms.

[77 FR 56743, Sept. 13, 2012]



Sec. 33.106  Solicitation provision and contract clause.

    (a) The contracting officer shall insert the provision at 52.233-2, 
Service of Protest, in solicitations for contracts expected to exceed 
the simplified acquisition threshold.
    (b) The contracting officer shall insert the clause at 52.233-3, 
Protest After Award, in all solicitations and contracts. If a cost 
reimbursement contract is contemplated, the contracting officer shall 
use the clause with its Alternate I.

[50 FR 25681, June 20, 1985, as amended at 60 FR 34759, July 3, 1995]

                    Subpart 33.2_Disputes and Appeals

    Source: 48 FR 42349, Sept. 19, 1983, unless otherwise noted. 
Redesignated at 50 FR 2270, Jan. 15, 1985.



Sec. 33.201  Definitions.

    As used in this subpart--
    Accrual of a claim means the date when all events, that fix the 
alleged liability of either the Government or the contractor and permit 
assertion of the claim, were known or should have been known. For 
liability to be fixed, some injury must have occurred. However, monetary 
damages need not have been incurred.
    Alternative dispute resolution (ADR) means any type of procedure or 
combination of procedures voluntarily used

[[Page 795]]

to resolve issues in controversy. These procedures may include, but are 
not limited to, conciliation, facilitation, mediation, fact-finding, 
minitrials, arbitration, and use of ombudsmen.
    Defective certification means a certificate which alters or 
otherwise deviates from the language in 33.207(c) or which is not 
executed by a person duly authorized to bind the contractor with respect 
to the claim. Failure to certify shall not be deemed to be a defective 
certification.
    Issue in controversy means a material disagreement between the 
Government and the contractor that (1) may result in a claim or (2) is 
all or part of an existing claim.
    Misrepresentation of fact means a false statement of substantive 
fact, or any conduct which leads to the belief of a substantive fact 
material to proper understanding of the matter in hand, made with intent 
to deceive or mislead.

[48 FR 42349, Sept. 19, 1983. Redesignated and amended at 50 FR 2270, 
Jan. 15, 1985; 56 FR 67417, Dec. 30, 1991; 59 FR 11381, Mar. 10, 1994; 
60 FR 48230, Sept. 18, 1995; 63 FR 58594, Oct. 30, 1998; 66 FR 2132, 
Jan. 10, 2001; 67 FR 43514, June 27, 2002]



Sec. 33.202  Contract Disputes Act of 1978.

    The Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613) 
(the Act), establishes procedures and requirements for asserting and 
resolving claims subject to the Act. In addition, the Act provides for: 
(a) the payment of interest on contractor claims; (b) certification of 
contractor claims; and (c) a civil penalty for contractor claims that 
are fraudulent or based on a misrepresentation of fact.

[56 FR 67417, Dec. 30, 1991, as amended at 59 FR 11381, Mar. 10, 1994]



Sec. 33.203  Applicability.

    (a) Except as specified in paragraph (b) below, this part applies to 
any express or implied contract covered by the Federal Acquisition 
Regulation.
    (b) This subpart does not apply to any contract with (1) a foreign 
government or agency of that government, or (2) an international 
organization or a subsidiary body of that organization, if the agency 
head determines that the application of the Act to the contract would 
not be in the public interest.
    (c) This part applies to all disputes with respect to contracting 
officer decisions on matters arising under or relating to a contract. 
Agency Boards of Contract Appeals (BCA's) authorized under the Act 
continue to have all of the authority they possessed before the Act with 
respect to disputes arising under a contract, as well as authority to 
decide disputes relating to a contract. The clause at 52.233-1, 
Disputes, recognizes the all disputes authority established by the Act 
and states certain requirements and limitations of the Act for the 
guidance of contractors and contracting agencies. The clause is not 
intended to affect the rights and obligations of the parties as provided 
by the Act or to constrain the authority of the statutory agency BCA's 
in the handling and deciding of contractor appeals under the Act.

[48 FR 42349, Sept. 19, 1983. Redesignated and amended at 50 FR 2270, 
Jan. 15, 1985]



Sec. 33.204  Policy.

    The Government's policy is to try to resolve all contractual issues 
in controversy by mutual agreement at the contracting officer's level. 
Reasonable efforts should be made to resolve controversies prior to the 
submission of a claim. Agencies are encouraged to use ADR procedures to 
the maximum extent practicable. Certain factors, however, may make the 
use of ADR inappropriate (see 5 U.S.C. 572(b)). Except for arbitration 
conducted pursuant to the Administrative Dispute Resolution Act (ADRA), 
(5 U.S.C. 571, et seq.), agencies have authority which is separate from 
that provided by the ADRA to use ADR procedures to resolve issues in 
controversy. Agencies may also elect to proceed under the authority and 
requirements of the ADRA.

[59 FR 11381, Mar. 10, 1994, as amended at 63 FR 58595, Oct. 30, 1998]



Sec. 33.205  Relationship of the Act to Pub. L. 85-804.

    (a) Requests for relief under Pub. L. 85-804 (50 U.S.C. 1431-1435) 
are not claims within the Contract Disputes Act of 1978 or the Disputes 
clause at

[[Page 796]]

52.233-1, Disputes, and shall be processed under Subpart 50.1, 
Extraordinary Contractual Actions. However, relief formerly available 
only under Pub. L. 85-804; i.e., legal entitlement to rescission or 
reformation for mutual mistake, is now available within the authority of 
the contracting officer under the Contract Disputes Act of 1978 and the 
Disputes clause. In case of a question whether the contracting officer 
has authority to settle or decide specific types of claims, the 
contracting officer should seek legal advice.
    (b) A contractor's allegation that it is entitled to rescission or 
reformation of its contract in order to correct or mitigate the effect 
of a mistake shall be treated as a claim under the Act. A contract may 
be reformed or rescinded by the contracting officer if the contractor 
would be entitled to such remedy or relief under the law of Federal 
contracts. Due to the complex legal issues likely to be associated with 
allegations of legal entitlement, contracting officers shall make 
written decisions, prepared with the advice and assistance of legal 
counsel, either granting or denying relief in whole or in part.
    (c) A claim that is either denied or not approved in its entirety 
under paragraph (b) above may be cognizable as a request for relief 
under Pub. L. 85-804 as implemented by Subpart 50.1. However, the claim 
must first be submitted to the contracting officer for consideration 
under the Contract Disputes Act of 1978 because the claim is not 
cognizable under Public Law 85-804, as implemented by Subpart 50.1, 
unless other legal authority in the agency concerned is determined to be 
lacking or inadequate.

[48 FR 42349, Sept. 19, 1983, as amended at 72 FR 63030, Nov. 7, 2007]



Sec. 33.206  Initiation of a claim.

    (a) Contractor claims shall be submitted, in writing, to the 
contracting officer for a decision within 6 years after accrual of a 
claim, unless the contracting parties agreed to a shorter time period. 
This 6-year time period does not apply to contracts awarded prior to 
October 1, 1995. The contracting officer shall document the contract 
file with evidence of the date of receipt of any submission from the 
contractor deemed to be a claim by the contracting officer.
    (b) The contracting officer shall issue a written decision on any 
Government claim initiated against a contractor within 6 years after 
accrual of the claim, unless the contracting parties agreed to a shorter 
time period. The 6-year period shall not apply to contracts awarded 
prior to October 1, 1995, or to a Government claim based on a contractor 
claim involving fraud.

[60 FR 48230, Sept. 18, 1995]



Sec. 33.207  Contractor certification.

    (a) Contractors shall provide the certification specified in 
paragraph (c) of this section when submitting any claim exceeding 
$100,000.
    (b) The certification requirement does not apply to issues in 
controversy that have not been submitted as all or part of a claim.
    (c) The certification shall state as follows:

    I certify that the claim is made in good faith; that the supporting 
data are accurate and complete to the best of my knowledge and belief; 
that the amount requested accurately reflects the contract adjustment 
for which the contractor believes the Government is liable; and that I 
am duly authorized to certify the claim on behalf of the contractor.

    (d) The aggregate amount of both increased and decreased costs shall 
be used in determining when the dollar thresholds requiring 
certification are met (see example in 15.403-4(a)(1)(iii) regarding 
certified cost or pricing data).
    (e) The certification may be executed by any person duly authorized 
to bind the contractor with respect to the claim.
    (f) A defective certification shall not deprive a court or an agency 
BCA of jurisdiction over that claim. Prior to the entry of a final 
judgment by a court or a decision by an agency BCA, however, the court 
or agency BCA shall require a defective certification to be corrected.

[59 FR 11381, Mar. 10, 1994, as amended at 60 FR 48218, 48230, Sept. 18, 
1995; 62 FR 51271, Sept. 30, 1997; 63 FR 58595, Oct. 30, 1998; 75 FR 
53149, Aug. 30, 2010]

[[Page 797]]



Sec. 33.208  Interest on claims.

    (a) The Government shall pay interest on a contractor's claim on the 
amount found due and unpaid from the date that--
    (1) The contracting officer receives the claim (certified if 
required by 33.207(a)); or
    (2) Payment otherwise would be due, if that date is later, until the 
date of payment.
    (b) Simple interest on claims shall be paid at the rate, fixed by 
the Secretary of the Treasury as provided in the Act, which is 
applicable to the period during which the contracting officer receives 
the claim and then at the rate applicable for each 6-month period as 
fixed by the Treasury Secretary during the pendency of the claim. (See 
the clause at 52.232-17 for the right of the Government to collect 
interest on its claims against a contractor).
    (c) With regard to claims having defective certifications, interest 
shall be paid from either the date that the contracting officer 
initially receives the claim or October 29, 1992, whichever is later. 
However, if a contractor has provided a proper certificate prior to 
October 29, 1992, after submission of a defective certificate, interest 
shall be paid from the date of receipt by the Government of a proper 
certificate.

[59 FR 11381, Mar. 10, 1994, as amended at 60 FR 48230, Sept. 18, 1995; 
73 FR 54005, Sept. 17, 2008]



Sec. 33.209  Suspected fraudulent claims.

    If the contractor is unable to support any part of the claim and 
there is evidence that the inability is attributable to 
misrepresentation of fact or to fraud on the part of the contractor, the 
contracting officer shall refer the matter to the agency official 
responsible for investigating fraud.



Sec. 33.210  Contracting officer's authority.

    Except as provided in this section, contracting officers are 
authorized, within any specific limitations of their warrants, to decide 
or resolve all claims arising under or relating to a contract subject to 
the Act. In accordance with agency policies and 33.214, contracting 
officers are authorized to use ADR procedures to resolve claims. The 
authority to decide or resolve claims does not extend to--
    (a) A claim or dispute for penalties or forfeitures prescribed by 
statute or regulation that another Federal agency is specifically 
authorized to administer, settle, or determine; or
    (b) The settlement, compromise, payment or adjustment of any claim 
involving fraud.

[48 FR 42349, Sept. 19, 1983. Redesignated and amended at 50 FR 2270, 
Jan. 15, 1985; 51 FR 36972, Oct. 16, 1986; 59 FR 11381, Mar. 10, 1994]



Sec. 33.211  Contracting officer's decision.

    (a) When a claim by or against a contractor cannot be satisfied or 
settled by mutual agreement and a decision on the claim is necessary, 
the contracting officer shall--
    (1) Review the facts pertinent to the claim;
    (2) Secure assistance from legal and other advisors;
    (3) Coordinate with the contract administration officer or 
contracting office, as appropriate; and
    (4) Prepare a written decision that shall include--
    (i) A description of the claim or dispute;
    (ii) A reference to the pertinent contract terms;
    (iii) A statement of the factual areas of agreement and 
disagreement;
    (iv) A statement of the contracting officer's decision, with 
supporting rationale;
    (v) Paragraphs substantially as follows:
    ``This is the final decision of the Contracting Officer. You may 
appeal this decision to the agency board of contract appeals. If you 
decide to appeal, you must, within 90 days from the date you receive 
this decision, mail or otherwise furnish written notice to the agency 
board of contract appeals and provide a copy to the Contracting Officer 
from whose decision this appeal is taken. The notice shall indicate that 
an appeal is intended, reference this decision, and identify the 
contract by number.
    With regard to appeals to the agency board of contract appeals, you 
may, solely at your election, proceed under the board's--
    (1) Small claim procedure for claims of $50,000 or less or, in the 
case of a small business concern (as defined in the Small Business Act 
and regulations under that Act), $150,000 or less; or

[[Page 798]]

    (2) Accelerated procedure for claims of $100,000 or less.
    Instead of appealing to the agency board of contract appeals, you 
may bring an action directly in the United States Court of Federal 
Claims (except as provided in the Contract Disputes Act of 1978, 41 
U.S.C. 603, regarding Maritime Contracts) within 12 months of the date 
you receive this decision''
    (vi) Demand for payment prepared in accordance with 32.604 and 
32.605) in all cases where the decision results in a finding that the 
contractor is indebted to the Government.
    (b) The contracting officer shall furnish a copy of the decision to 
the contractor by certified mail, return receipt requested, or by any 
other method that provides evidence of receipt. This requirement shall 
apply to decisions on claims initiated by or against the contractor.
    (c) The contracting officer shall issue the decision within the 
following statutory time limitations:
    (1) For claims of $100,000 or less, 60 days after receiving a 
written request from the contractor that a decision be rendered within 
that period, or within a reasonable time after receipt of the claim if 
the contractor does not make such a request.
    (2) For claims over $100,000, 60 days after receiving a certified 
claim; provided, however, that if a decision will not be issued within 
60 days, the contracting officer shall notify the contractor, within 
that period, of the time within which a decision will be issued.
    (d) The contracting officer shall issue a decision within a 
reasonable time, taking into account--
    (1) The size and complexity of the claim;
    (2) The adequacy of the contractor's supporting data; and
    (3) Any other relevant factors.
    (e) The contracting officer shall have no obligation to render a 
final decision on any claim exceeding $100,000 which contains a 
defective certification, if within 60 days after receipt of the claim, 
the contracting officer notifies the contractor, in writing, of the 
reasons why any attempted certification was found to be defective.
    (f) In the event of undue delay by the contracting officer in 
rendering a decision on a claim, the contractor may request the tribunal 
concerned to direct the contracting officer to issue a decision in a 
specified time period determined by the tribunal.
    (g) Any failure of the contracting officer to issue a decision 
within the required time periods will be deemed a decision by the 
contracting officer denying the claim and will authorize the contractor 
to file an appeal or suit on the claim.
    (h) The amount determined payable under the decision, less any 
portion already paid, should be paid, if otherwise proper, without 
awaiting contractor action concerning appeal. Such payment shall be 
without prejudice to the rights of either party.

[48 FR 42349, Sept. 19, 1983. Redesignated at 50 FR 2270, Jan. 15, 1985, 
and amended at 54 FR 34755, Aug. 21, 1989; 59 FR 11382, Mar. 10, 1994; 
60 FR 48230, Sept. 18, 1995; 73 FR 21800, Apr. 22, 2008; 73 FR 54005, 
Sept. 17, 2008]



Sec. 33.212  Contracting officer's duties upon appeal.

    To the extent permitted by any agency procedures controlling 
contacts with agency BCA personnel, the contracting officer shall 
provide data, documentation, information, and support as may be required 
by the agency BCA for use on a pending appeal from the contracting 
officer's decision.



Sec. 33.213  Obligation to continue performance.

    (a) In general, before passage of the Act, the obligation to 
continue performance applied only to claims arising under a contract. 
However, the Act, at 41 U.S.C. 605(b), authorizes agencies to require a 
contractor to continue contract performance in accordance with the 
contracting officer's decision pending a final resolution of any claim 
arising under, or relating to, the contract. (A claim arising under a 
contract is a claim that can be resolved under a contract clause, other 
than the clause at 52.233-1, Disputes, that provides for the relief 
sought by the claimant; however, relief for such claim can also be 
sought under the clause at 52.233-1. A claim relating to a contract is a 
claim that cannot be resolved under a contract clause other than the 
clause at 52.233-1.) This distinction is

[[Page 799]]

recognized by the clause with its Alternate I (see 33.215).
    (b) In all contracts that include the clause at 52.233-1, Disputes, 
with its Alternate I, in the event of a dispute not arising under, but 
relating to, the contract, the contracting officer shall consider 
providing, through appropriate agency procedures, financing of the 
continued performance; provided, that the Government's interest is 
properly secured.

[48 FR 42349, Sept. 19, 1983. Redesignated at 50 FR 2270, Jan. 15, 1985, 
as amended at 64 FR 72451, Dec. 27, 1999; 67 FR 43514, June 27, 2002]



Sec. 33.214  Alternative dispute resolution (ADR).

    (a) The objective of using ADR procedures is to increase the 
opportunity for relatively inexpensive and expeditious resolution of 
issues in controversy. Essential elements of ADR include--
    (1) Existence of an issue in controversy;
    (2) A voluntary election by both parties to participate in the ADR 
process;
    (3) An agreement on alternative procedures and terms to be used in 
lieu of formal litigation; and
    (4) Participation in the process by officials of both parties who 
have the authority to resolve the issue in controversy.
    (b) If the contracting officer rejects a contractor's request for 
ADR proceedings, the contracting officer shall provide the contractor a 
written explanation citing one or more of the conditions in 5 U.S.C. 
572(b) or such other specific reasons that ADR procedures are 
inappropriate for the resolution of the dispute. In any case where a 
contractor rejects a request of an agency for ADR proceedings, the 
contractor shall inform the agency in writing of the contractor's 
specific reasons for rejecting the request.
    (c) ADR procedures may be used at any time that the contracting 
officer has authority to resolve the issue in controversy. If a claim 
has been submitted, ADR procedures may be applied to all or a portion of 
the claim. When ADR procedures are used subsequent to the issuance of a 
contracting officer's final decision, their use does not alter any of 
the time limitations or procedural requirements for filing an appeal of 
the contracting officer's final decision and does not constitute a 
reconsideration of the final decision.
    (d) When appropriate, a neutral person may be used to facilitate 
resolution of the issue in controversy using the procedures chosen by 
the parties.
    (e) The confidentiality of ADR proceedings shall be protected 
consistent with 5 U.S.C. 574.
    (f)(1) A solicitation shall not require arbitration as a condition 
of award, unless arbitration is otherwise required by law. Contracting 
officers should have flexibility to select the appropriate ADR procedure 
to resolve the issues in controversy as they arise.
    (2) An agreement to use arbitration shall be in writing and shall 
specify a maximum award that may be issued by the arbitrator, as well as 
any other conditions limiting the range of possible outcomes.
    (g) Binding arbitration, as an ADR procedure, may be agreed to only 
as specified in agency guidelines. Such guidelines shall provide advice 
on the appropriate use of binding arbitration and when an agency has 
authority to settle an issue in controversy through binding arbitration.

[56 FR 67417, Dec. 30, 1991, as amended at 59 FR 11382, Mar. 10, 1994; 
60 FR 48230, Sept. 18, 1995; 63 FR 58595, Oct. 30, 1998]



Sec. 33.215  Contract clauses.

    (a) Insert the clause at 52.233-1, Disputes, in solicitations and 
contracts, unless the conditions in 33.203(b) apply. If it is determined 
under agency procedures that continued performance is necessary pending 
resolution of any claim arising under or relating to the contract, the 
contracting officer shall use the clause with its Alternate I.
    (b) Insert the clause at 52.233-4 in all solicitations and 
contracts.

[69 FR 59700, Oct. 5, 2004]

[[Page 800]]

             SUBCHAPTER F_SPECIAL CATEGORIES OF CONTRACTING

                    PART 34_MAJOR SYSTEM ACQUISITION

                          Subpart 34.0_General

Sec.

Sec. 34.000 Scope of part.

Sec. 34.001 Definition.

Sec. 34.002 Policy.

Sec. 34.003 Responsibilities.

Sec. 34.004 Acquisition strategy.

Sec. 34.005 General requirements.

Sec. 34.005-1 Competition.

Sec. 34.005-2 Mission-oriented solicitation.

Sec. 34.005-3 Concept exploration contracts.

Sec. 34.005-4 Demonstration contracts.

Sec. 34.005-5 Full-scale development contracts.

Sec. 34.005-6 Full production.

  Subpart 34.1_Testing, Qualification and Use of Industrial Resources 
            Developed Under Title III, Defense Production Act


Sec. 34.100 Scope of subpart.

Sec. 34.101 Definitions.

Sec. 34.102 Policy.

Sec. 34.103 Testing and qualification.

Sec. 34.104 Contract clause.

               Subpart 34.2_Earned Value Management System


Sec. 34.201 Policy.

Sec. 34.202 Integrated Baseline Reviews.

Sec. 34.203 Solicitation provisions and contract clause.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 
2473(c).

    Source: 48 FR 42351, Sept. 19, 1983, unless otherwise noted.

                          Subpart 34.0_General



Sec. 34.000  Scope of part.

    This part describes acquisition policies and procedures for use in 
acquiring major systems consistent with OMB Circular No. A-109; and the 
use of an Earned Value Management System in acquisitions designated as 
major acquisitions consistent with OMB Circular A-11, Part 7.

[71 FR 38245, July 5, 2006]



Sec. 34.001  Definition.

    Effective competition, as used in this part, is a market condition 
that exists when two or more contractors, acting independently, actively 
contend for the Government's business in a manner that ensures that the 
Government will be offered the lowest cost or price alternative or best 
technical design meeting its minimum needs.

[50 FR 27562, July 3, 1985, as amended at 51 FR 52434, Dec. 23, 1985; 51 
FR 27116, July 29, 1986; 61 FR 41470, Aug. 8, 1996; 66 FR 2132, Jan. 10, 
2001]



Sec. 34.002  Policy.

    The policies of this part are designed to ensure that agencies 
acquire major systems in the most effective, economical, and timely 
manner. Agencies acquiring major systems shall--
    (a) Promote innovation and full and open competition as required by 
part 6 in the development of major system concepts by (1) expressing 
agency needs and major system acquisition program objectives in terms of 
the agency's mission and not in terms of specified systems to satisfy 
needs, and (2) focusing agency resources and special management 
attention on activities conducted in the initial stage of major 
programs; and
    (b) Sustain effective competition between alternative system 
concepts and sources for as long as it is beneficial.

[48 FR 42351, Sept. 19, 1983, as amended at 50 FR 52434, Dec. 23, 1985]



Sec. 34.003  Responsibilities.

    (a) As required by A-109, the agency head or designee shall 
establish written procedures for its implementation.
    (b) The agency procedures shall identify the key decision points of 
each major system acquisition and the agency official(s) for making 
those decisions.
    (c) Systems acquisitions normally designated as major are those 
programs that, as determined by the agency head, (1) are directed at and 
critical to fulfilling an agency mission need, (2) entail allocating 
relatively large resources for the particular agency, and (3) warrant 
special management attention, including specific agency-head decisions. 
The agency procedures may establish additional criteria, as specified

[[Page 801]]

in A-109, for designating major programs system acquisitions.



Sec. 34.004  Acquisition strategy.

    The program manager, as specified in agency procedures, shall 
develop an acquisition strategy tailored to the particular major system 
acquisition program. This strategy is the program manager's overall plan 
for satisfying the mission need in the most effective, economical, and 
timely manner. The strategy shall be in writing and prepared in 
accordance with the requirements of subpart 7.1, except where 
inconsistent with this part, and shall qualify as the acquisition plan 
for the major system acquisition, as required by that subpart.



Sec. 34.005  General requirements.



Sec. 34.005-1  Competition.

    (a) The program manager shall, throughout the acquisition process, 
promote full and open competition and sustain effective competition 
between alternative major system concepts and sources, as long as it is 
economically beneficial and practicable to do so. Notice of the proposed 
acquisition shall be given the broadest and most effective circulation 
practicable throughout the business, academic, and Government 
communities. Foreign contractors, technology, and equipment may be 
considered when it is feasible and permissible to do so.
    (b) The contracting officer should time solicitation issuance and 
contract award to maintain continuity of concept development during the 
transition from withdrawing concept proposer to new contractor.

[48 FR 42351, Sept. 19, 1983, as amended at 50 FR 1744, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985]



Sec. 34.005-2  Mission-oriented solicitation.

    (a) Before issuing the solicitation, whenever practicable and 
consistent with agency procedures, the contracting officer should take 
the actions outlined in subparagraphs (1) and (2):
    (1) Advance notification of the acquisition should be given the 
widest practicable dissemination, including publicizing through the 
Governmentwide point of entry (see subpart 5.2) and should be sent to as 
wide a selection of potential sources as practicable, including smaller 
and newer firms, Government laboratories, federally funded research and 
development centers, educational institutions and other not-for-profit 
organizations, and, if it would be beneficial and is not prohibited, 
foreign sources.
    (2) If appropriate, hold a presolicitation conference (see 15.201) 
and/or send copies of the proposed solicitation to all prospective 
offerors for their comments. After evaluation of these comments, the 
solicitation should be revised, if appropriate.
    (b) The contracting officer shall send the final solicitation to all 
prospective offerors. It shall--
    (1) Describe the nature of the need in terms of mission capabilities 
required, without reference to any specific systems to satisfy the need;
    (2) Indicate, and explain when appropriate, the schedule, 
capability, and cost objectives and any known constraints in the 
acquisition;
    (3) Provide, or indicate how access can be obtained to, all 
Government data related to the acquisition;
    (4) Include selection requirements consistent with the acquisition 
strategy; and
    (5) Clearly state that each offeror is free to propose its own 
technical approach, main design features, subsystems, and alternatives 
to schedule, cost, and capability goals.
    (6) Require the use of an Earned Value Management System that 
complies with the guidelines of ANSI/EIA Standard-748 (current version 
at time of solicitation). See 34.201 for earned value management systems 
and reporting requirements.
    (c) To the extent practicable, the solicitation shall not reference 
or mandate Government specifications or standards, unless the agency is 
mandating a subsystem or other component as approved under agency 
procedure.

[48 FR 42351, Sept. 19, 1983, as amended at 50 FR 1744, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 62 FR 51271, Sept. 30, 1997; 66 FR 27414, 
May 16, 2001; 71 FR 38245, July 5, 2006]

[[Page 802]]



Sec. 34.005-3  Concept exploration contracts.

    Whenever practicable, contracts to be performed during the concept 
exploration phase shall be for relatively short periods, at planned 
dollar levels. These contracts are to refine the proposed concept and to 
reduce the concept's technical uncertainties. The scope of work for this 
phase of the program shall be consistent with the Government's planned 
budget for the phase. Follow-on contracts for such tasks in the 
exploration phase shall be awarded as long as the concept approach 
remains promising, the contractor's progress is acceptable, and it is 
economically practicable to do so.



Sec. 34.005-4  Demonstration contracts.

    Whenever practicable, contracts for the demonstration phase should 
provide for contractors to submit, by the end of the phase, priced 
proposals, totally funded by the Government, for full-scale development. 
The contracting officer should provide contractors with operational test 
conditions, performance criteria, life cycle cost factors, and any other 
selection criteria necessary for the contractors to prepare their 
proposals.



Sec. 34.005-5  Full-scale development contracts.

    Whenever practicable, the full-scale development contracts should 
provide for the contractors to submit priced proposals for production 
that are based on the latest quantity, schedule, and logistics 
requirements and other considerations that will be used in making the 
production decision.



Sec. 34.005-6  Full production.

    Contracts for full production of successfully tested major systems 
selected from the full-scale development phase may be awarded if the 
agency head (a) reaffirms the mission need and program objectives and 
(b) grants approval to proceed with production.

  Subpart 34.1_Testing, Qualification and Use of Industrial Resources 
            Developed Under Title III, Defense Production Act

    Source: 59 FR 67048, Dec. 28, 1994, unless otherwise noted.



Sec. 34.100  Scope of subpart.

    This subpart prescribes policies and procedures for the testing, 
qualification, and use of industrial resources manufactured or developed 
with assistance provided under section 301, 302, or 303 of the Defense 
Production Act (50 U.S.C. App. 2091-2093). Title III of the Defense 
Production Act authorizes various forms of Government assistance to 
encourage expansion of production capacity and supply of industrial 
resources essential to national defense.



Sec. 34.101  Definitions.

    Item of supply, as used in this subpart, means any individual part, 
component, subassembly, assembly, or subsystem integral to a major 
system, and other property which may be replaced during the service life 
of the system. The term includes spare parts and replenishment parts, 
but does not include packaging or labeling associated with shipment or 
identification of an ``item.''

[48 FR 42351, Sept. 19, 1983, as amended at 66 FR 2132, Jan. 10, 2001]



Sec. 34.102  Policy.

    It is the policy of the Government, as required by section 126 of 
Public Law 102-558, to pay for any testing and qualification required 
for the use or incorporation of the industrial resources manufactured or 
developed with assistance provided under Title III of the Defense 
Production Act of 1950.



Sec. 34.103  Testing and qualification.

    (a) Contractors receiving requests from a Title III project 
contractor for testing and qualification of a Title III industrial 
resource shall refer such requests to the contracting officer. The 
contracting officer shall evaluate the request in accordance with agency 
procedures to determine whether: (1) the Title III industrial resource 
is being or

[[Page 803]]

potentially may be used in the development or manufacture of a major 
system or item of supply; and (2) for major systems in production, 
remaining quantities to be acquired are sufficient to justify incurring 
the cost of testing and qualification. In evaluating this request, the 
contracting officer shall consult with the Defense Production Act 
Office, Title III Program, located at Wright Patterson Air Force Base, 
Ohio 45433-7739.
    (b) If the determination at 34.103(a) is affirmative, the 
contracting officer shall modify the contract to require the contractor 
to test the Title III industrial resource for qualification.
    (c) The Defense Production Act Office, Title III Program, shall 
provide to the contractor the industrial resource produced by the Title 
III project contractor in sufficient amounts to meet testing needs.



Sec. 34.104  Contract clause.

    Insert the clause at 52.234-1, Industrial Resources Developed under 
Defense Production Act, Title III, in all contracts for major systems 
and items of supply.

               Subpart 34.2_Earned Value Management System

    Source: 71 FR 38245, July 5, 2006, unless otherwise noted.



Sec. 34.201  Policy.

    (a) An Earned Value Management System (EVMS) is required for major 
acquisitions for development, in accordance with OMB Circular A-11. The 
Government may also require an EVMS for other acquisitions, in 
accordance with agency procedures.
    (b) If the offeror proposes to use a system that has not been 
determined to be in compliance with the American National Standards 
Institute/Electronics Industries Alliance (ANSI/EIA) Standard-748, 
Earned Value Management Systems, the offeror shall submit a 
comprehensive plan for compliance with these EVMS standards. Offerors 
shall not be eliminated from consideration for contract award because 
they do not have an EVMS that complies with these standards.
    (c) As a minimum, contracting officers shall require contractors to 
submit EVMS monthly reports for those contracts for which an EVMS 
applies.
    (d) EVMS requirements will be applied to subcontractors using the 
same rules as applied to the prime contractor.
    (e) When an offeror is required to provide an EVMS plan as part of 
its proposal, the contracting officer will determine the adequacy of the 
proposed EVMS plan prior to contract award.



Sec. 34.202  Integrated Baseline Reviews.

    (a) When an EVMS is required, the Government will conduct an 
Integrated Baseline Review (IBR).
    (b) The purpose of the IBR is to verify the technical content and 
the realism of the related performance budgets, resources, and 
schedules. It should provide a mutual understanding of the inherent 
risks in offerors'/contractors' performance plans and the underlying 
management control systems, and it should formulate a plan to handle 
these risks.
    (c) The IBR is a joint assessment by the offeror or contractor, and 
the Government, of the--
    (1) Ability of the project's technical plan to achieve the 
objectives of the scope of work;
    (2) Adequacy of the time allocated for performing the defined tasks 
to successfully achieve the project schedule objectives;
    (3) Ability of the Performance Measurement Baseline (PMB) to 
successfully execute the project and attain cost objectives, recognizing 
the relationship between budget resources, funding, schedule, and scope 
of work;
    (4) Availability of personnel, facilities, and equipment when 
required, to perform the defined tasks needed to execute the program 
successfully; and
    (5) The degree to which the management process provides effective 
and integrated technical/schedule/cost planning and baseline control.
    (d) The timing and conduct of the IBR shall be in accordance with 
agency procedures. If a pre-award IBR will be conducted, the 
solicitation must include the procedures for conducting the IBR and 
address whether offerors will be reimbursed for the associated costs.

[[Page 804]]

If permitted, reimbursement of offerors' pre-award IBR costs is governed 
by the provisions of FAR Part 31.



Sec. 34.203  Solicitation provisions and contract clause.

    (a) The contracting officer shall insert a provision that is 
substantially the same as the provision at FAR 52.234-2, Notice of 
Earned Value Management System - Pre-Award IBR, in solicitations for 
contracts that require the contractor to use an Earned Value Management 
System (EVMS) and for which the Government requires an Integrated 
Baseline Review (IBR) prior to award.
    (b) The contracting officer shall insert a provision that is 
substantially the same as the provision at 52.234-3, Notice of Earned 
Value Management System - Post Award IBR, in solicitations for contracts 
that require the contractor to use an Earned Value Management System 
(EVMS) and for which the Government requires an Integrated Baseline 
Review (IBR) after contract award.
    (c) The contracting officer shall insert a clause that is 
substantially the same as the clause at FAR 52.234-4, Earned Value 
Management System, in solicitations and contracts that require a 
contractor to use an EVMS.

              PART 35_RESEARCH AND DEVELOPMENT CONTRACTING

Sec.

Sec. 35.000 Scope of part.

Sec. 35.001 Definitions.

Sec. 35.002 General.

Sec. 35.003 Policy.

Sec. 35.004 Publicizing requirements and expanding research and 
          development sources.

Sec. 35.005 Work statement.

Sec. 35.006 Contracting methods and contract type.

Sec. 35.007 Solicitations.

Sec. 35.008 Evaluation for award.

Sec. 35.009 Subcontracting research and development effort.

Sec. 35.010 Scientific and technical reports.

Sec. 35.011 Data.

Sec. 35.012 Patent rights.

Sec. 35.013 Insurance.

Sec. 35.014 Government property and title.

Sec. 35.015 Contracts for research with educational institutions and 
          nonprofit organizations.

Sec. 35.016 Broad agency announcement.

Sec. 35.017 Federally Funded Research and Development Centers.

Sec. 35.017-1 Sponsoring agreements.

Sec. 35.017-2 Establishing or changing an FFRDC.

Sec. 35.017-3 Using an FFRDC.

Sec. 35.017-4 Reviewing FFRDC's.

Sec. 35.017-5 Terminating FFRDC.

Sec. 35.017-6 Master list of FFRDC's.

Sec. 35.017-7 Limitation on the creation of new FFRDC'S.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 
2473(c).

    Source: 48 FR 42352, Sept. 19, 1983, unless otherwise noted.



Sec. 35.000  Scope of part.

    (a) This part prescribes policies and procedures of special 
application to research and development (R&D) contracting.
    (b) R&D integral to acquisition of major systems is covered in part 
34. Independent research and development (IR&D) is covered at 31.205-18.

[48 FR 42352, Sept. 19, 1983, as amended at 55 FR 3884, Feb. 5, 1990; 65 
FR 36014, June 6, 2000]



Sec. 35.001  Definitions.

    Applied research means the effort that (a) normally follows basic 
research, but may not be severable from the related basic research; (b) 
attempts to determine and exploit the potential of scientific 
discoveries or improvements in technology, materials, processes, 
methods, devices, or techniques; and (c) attempts to advance the state 
of the art. When being used by contractors in cost principle 
applications, this term does not include efforts whose principal aim is 
the design, development, or testing of specific items or services to be 
considered for sale; these efforts are within the definition of 
development, given below.
    Development, as used in this part, means the systematic use of 
scientific and technical knowledge in the design, development, testing, 
or evaluation of a potential new product or service (or of an 
improvement in an existing product or service) to meet specific 
performance requirements or objectives. It includes the functions of 
design engineering, prototyping, and engineering testing; it excludes 
subcontracted technical effort that is for the sole purpose of 
developing an additional source for an existing product.

[[Page 805]]

    Recoupment, as used in this part, means the recovery by the 
Government of Government-funded nonrecurring costs from contractors that 
sell, lease, or license the resulting products or technology to buyers 
other than the Federal Government.

[48 FR 42352, Sept. 19, 1983, as amended at 53 FR 27467, July 20, 1988; 
55 FR 3884, Feb. 5, 1990; 66 FR 2132, Jan. 10, 2001]



Sec. 35.002  General.

    The primary purpose of contracted R&D programs is to advance 
scientific and technical knowledge and apply that knowledge to the 
extent necessary to achieve agency and national goals. Unlike contracts 
for supplies and services, most R&D contracts are directed toward 
objectives for which the work or methods cannot be precisely described 
in advance. It is difficult to judge the probabilities of success or 
required effort for technical approaches, some of which offer little or 
no early assurance of full success. The contracting process shall be 
used to encourage the best sources from the scientific and industrial 
community to become involved in the program and must provide an 
environment in which the work can be pursued with reasonable flexibility 
and minimum administrative burden.



Sec. 35.003  Policy.

    (a) Use of contracts. Contracts shall be used only when the 
principal purpose is the acquisition of supplies or services for the 
direct benefit or use of the Federal Government. Grants or cooperative 
agreements should be used when the principal purpose of the transaction 
is to stimulate or support research and development for another public 
purpose.
    (b) Cost sharing. Cost sharing policies (which are not otherwise 
required by law) under Government contracts shall be in accordance with 
16.303, 42.707(a) and agency procedures.
    (c) Recoupment. Recoupment not otherwise required by law shall be in 
accordance with agency procedures.



Sec. 35.004  Publicizing requirements and expanding research and 
          development sources.

    (a) In order to obtain a broad base of the best contractor sources 
from the scientific and industrial community, agencies must, in addition 
to following the requirements of part 5, continually search for and 
develop information on sources (including small business concerns) 
competent to perform R&D work. These efforts should include--
    (1) Early identification and publication of agency R&D needs and 
requirements, including publicizing through the Governmentwide point of 
entry (GPE) (see part 5);
    (2) Cooperation among technical personnel, contracting officers, and 
Government small business personnel early in the acquisition process; 
and
    (3) Providing agency R&D points of contact for potential sources.
    (b) See subpart 9.7 for information regarding R&D pools and subpart 
9.6 for teaming arrangements.

[48 FR 42352, Sept. 19, 1983, as amended at 66 FR 27414, May 16, 2001]



Sec. 35.005  Work statement.

    (a) A clear and complete work statement concerning the area of 
exploration (for basic research) or the end objectives (for development 
and applied research) is essential. The work statement should allow 
contractors freedom to exercise innovation and creativity. Work 
statements must be individually tailored by technical and contracting 
personnel to attain the desired degree of flexibility for contractor 
creativity and the objectives of the R&D.
    (b) In basic research the emphasis is on achieving specified 
objectives and knowledge rather than on achieving predetermined end 
results prescribed in a statement of specific performance 
characteristics. This emphasis applies particularly during the early or 
conceptual phases of the R&D effort.
    (c) In reviewing work statements, contracting officers should ensure 
that language suitable for a level-of-effort approach, which requires 
the furnishing of technical effort and a report on the results, is not 
intermingled with language suitable for a task-completion approach, 
which often requires the

[[Page 806]]

development of a tangible end item designed to achieve specific 
performance characteristics. The wording of the work statement should 
also be consistent with the type and form of contract to be negotiated 
(see 16.207 and 16.306(d)). For example, the work statement for a cost-
reimbursement contract promising the contractor's best efforts for a 
fixed term would be phrased differently than a work statement for a 
cost-reimbursement completion contract promising the contractor's best 
efforts for a defined task. Differences between work statements for 
fixed-price contracts and cost-reimbursement contracts should be even 
clearer.
    (d) In preparing work statements, technical and contracting 
personnel shall consider and, as appropriate, provide in the 
solicitation--
    (1) A statement of the area of exploration, tasks to be performed, 
and objectives of the research or development effort;
    (2) Background information helpful to a clear understanding of the 
objective or requirement (e.g., any known phenomena, techniques, 
methodology, or results of related work);
    (3) Information on factors such as personnel, environment, and 
interfaces that may constrain the results of the effort;
    (4) Reporting requirements and information on any additional items 
that the contractor is required to furnish (at specified intervals) as 
the work progresses;
    (5) The type and form of contract contemplated by the Government 
and, for level-of-effort work statements, an estimate of applicable 
professional and technical effort involved; and
    (6) Any other considerations peculiar to the work to be performed; 
for example, any design-to-cost requirements.



Sec. 35.006  Contracting methods and contract type.

    (a) In R&D acquisitions, the precise specifications necessary for 
sealed bidding are generally not available, thus making negotiation 
necessary. However, the use of negotiation in R&D contracting does not 
change the obligation to comply with part 6.
    (b) Selecting the appropriate contract type is the responsibility of 
the contracting officer. However, because of the importance of technical 
considerations in R&D, the choice of contract type should be made after 
obtaining the recommendations of technical personnel. Although the 
Government ordinarily prefers fixed-price arrangements in contracting, 
this preference applies in R&D contracting only to the extent that 
goals, objectives, specifications, and cost estimates are sufficient to 
permit such a preference. The precision with which the goals, 
performance objectives, and specifications for the work can be defined 
will largely determine the type of contract employed. The contract type 
must be selected to fit the work required.
    (c) Because the absence of precise specifications and difficulties 
in estimating costs with accuracy (resulting in a lack of confidence in 
cost estimates) normally precludes using fixed-price contracting for 
R&D, the use of cost-reimbursement contracts is usually appropriate (see 
subpart 16.3). The nature of development work often requires a cost-
reimbursement completion arrangement (see 16.306(d)). When the use of 
cost and performance incentives is desirable and practicable, fixed-
price incentive and cost-plus-incentive-fee contracts should be 
considered in that order of preference.
    (d) When levels of effort can be specified in advance, a short-
duration fixed-price contract may be useful for developing system design 
concepts, resolving potential problems, and reducing Government risks. 
Fixed-price contracting may also be used in minor projects when the 
objectives of the research are well defined and there is sufficient 
confidence in the cost estimate for price negotiations. (See 16.207.)
    (e) Projects having production requirements as a follow-on to R&D 
efforts normally should progress from cost-reimbursement contracts to 
fixed-price contracts as designs become more firmly established, risks 
are reduced, and production tooling, equipment, and processes are 
developed and proven. When possible, a final commitment to undertake 
specific product development and testing should be avoided until (1) 
preliminary exploration and

[[Page 807]]

studies have indicated a high degree of probability that development is 
feasible and (2) the Government has determined both its minimum 
requirements and desired objectives for product performance and schedule 
completion.

[48 FR 42352, Sept. 19, 1983, as amended at 50 FR 1744, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985]



Sec. 35.007  Solicitations.

    (a) The submission and subsequent evaluation of an inordinate number 
of R&D proposals from sources lacking appropriate qualifications is 
costly and time-consuming to both industry and the Government. 
Therefore, contracting officers should initially distribute 
solicitations only to sources technically qualified to perform research 
or development in the specific field of science or technology involved. 
Cognizant technical personnel should recommend potential sources that 
appear qualified, as a result of--
    (1) Present and past performance of similar work;
    (2) Professional stature and reputation;
    (3) Relative position in a particular field of endeavor;
    (4) Ability to acquire and retain the professional and technical 
capability, including facilities, required to perform the work; and
    (5) Other relevant factors.
    (b) Proposals generally shall be solicited from technically 
qualified sources, including sources that become known as a result of 
synopses or other means of publicizing requirements. If it is not 
practicable to initially solicit all apparently qualified sources, only 
a reasonable number need be solicited. In the interest of competition, 
contracting officers shall furnish copies of the solicitation to other 
apparently qualified sources.
    (c) Solicitations shall require offerors to describe their technical 
and management approach, identify technical uncertainties, and make 
specific proposals for the resolution of any uncertainties. The 
solicitation should require offerors to include in the proposal any 
planned subcontracting of scientific or technical work (see 35.009).
    (d) Solicitations may require that proposals be organized so that 
the technical portions can be efficiently evaluated by technical 
personnel (see 15.204-5(b)). Solicitation and evaluation of proposals 
should be planned to minimize offerors' and Government expense.
    (e) R&D solicitations should contain evaluation factors to be used 
to determine the most technically competent (see 15.304), such as--
    (1) The offeror's understanding of the scope of the work;
    (2) The approach proposed to accomplish the scientific and technical 
objectives of the contract or the merit of the ideas or concepts 
proposed;
    (3) The availability and competence of experienced engineering, 
scientific, or other technical personnel;
    (4) The offeror's experience;
    (5) Pertinent novel ideas in the specific branch of science and 
technology involved; and
    (6) The availability, from any source, of necessary research, test, 
laboratory, or shop facilities.
    (f) In addition to evaluation factors for technical competence, the 
contracting officer shall consider, as appropriate, management 
capability (including cost management techniques), experience and past 
performance, subcontracting practices, and any other significant 
evaluation criteria (e.g., unrealistically low cost estimates in 
proposals for cost-reimbursement or fixed-price incentive contracts). 
Although cost or price is not normally the controlling factor in 
selecting a contractor to perform R&D, it should not be disregarded in 
arriving at a selection that best satisfies the Government's requirement 
at a fair and reasonable cost.
    (g) The contracting officer should ensure that potential offerors 
fully understand the details of the work, especially the Government 
interpretation of the work statement. If the effort is complex, the 
contracting officer should provide potential offerors an opportunity to 
comment on the details of the requirements as contained in the work 
statement, the contract Schedule, and any related specifications. This 
may be done at a preproposal conference (see 15.201).

[[Page 808]]

    (h) If it is appropriate to do so, solicitations should permit 
offerors to propose an alternative contract type (see 16.103).
    (i) In circumstances when a concern has a new idea or product to 
discuss that incorporates the results of independent R&D work funded by 
the concern in the private sector and is of interest to the Government, 
there should be no hesitancy to discuss it; however, the concern should 
be warned that the Government will not be obligated by the discussion. 
Under such circumstances, it may be appropriate to negotiate directly 
with the concern without competition. Also see subpart 15.6 concerning 
unsolicited proposals.
    (j) The Government may issue an exploratory request to determine the 
existence of ideas or prior work in a specific field of research. Any 
such request shall clearly state that it does not impose any obligation 
on the Government or signify a firm intention to enter into a contract.

[48 FR 42352, Sept. 19, 1983, as amended at 62 FR 5271, Sept. 30, 1997; 
67 FR 13056, Mar. 20, 2002]



Sec. 35.008  Evaluation for award.

    (a) Generally, an R&D contract should be awarded to that 
organization, including any educational institution, that proposes the 
best ideas or concepts and has the highest competence in the specific 
field of science or technology involved. However, an award should not be 
made to obtain capabilities that exceed those needed for successful 
performance of the work.
    (b) In R&D contracting, precise specifications are ordinarily not 
available. The contracting officer should therefore take special care in 
reviewing the solicitation evaluation factors to assure that they are 
properly presented and consistent with the solicitation.
    (c) When a small business concern would otherwise be selected for 
award but is considered not responsible, the SBA Certificate of 
Competency procedure shall be followed (see subpart 19.6).
    (d) The contracting officer should use the procedures in subpart 
15.5 to notify and debrief offerors.
    (e) It is important to evaluate a proposed contractor's cost or 
price estimate, not only to determine whether the estimate is reasonable 
but also to provide valuable insight into the offeror's understanding of 
the project, perception of risks, and ability to organize and perform 
the work. Cost or price analysis, as appropriate (see 15.404-1(c)), is a 
useful tool.

[48 FR 42352, Sept. 19, 1983, as amended at 62 FR 51271, Sept. 30, 1997]



Sec. 35.009  Subcontracting research and development effort.

    Since the selection of R&D contractors is substantially based on the 
best scientific and technological sources, it is important that the 
contractor not subcontract technical or scientific work without the 
contracting officer's advance knowledge. During the negotiation of a 
cost-reimbursement R&D contract, the contracting officer shall obtain 
complete information concerning the contractor's plans for 
subcontracting any portion of the experimental, research, or development 
effort (see also 35.007(c)). Also when negotiating a fixed-price 
contract, the contracting officer should evaluate this information and 
may obtain an agreement that protects the Government's interests. The 
clause at 52.244-2, Subcontracts, prescribed for certain types of 
contracts at 44.204(a), requires the contracting officer's prior 
approval for the placement of certain subcontracts.

[48 FR 42352, Sept. 19, 1983, as amended at 63 FR 34060, June 22, 1998]



Sec. 35.010  Scientific and technical reports.

    (a) R&D contracts shall require contractors to furnish scientific 
and technical reports, consistent with the objectives of the effort 
involved, as a permanent record of the work accomplished under the 
contract.
    (b) Agencies should make R&D contract results available to other 
Government activities and the private sector. Contracting officers shall 
follow agency regulations regarding such matters as national security, 
protection of data, and new-technology dissemination policy. Reports 
should be sent to the National Technical Information Service (NTIS), 
5285 Port Royal Road, Springfield, VA 22161. When agencies

[[Page 809]]

require that completed reports be covered by a report documentation 
page, Standard Form (SF) 298, Report Documentation Page, the contractor 
should submit a copy with the report.

[48 FR 42352, Sept. 19, 1983, as amended at 55 FR 3884, Feb. 5, 1990; 59 
FR 67049, Dec. 28, 1994]



Sec. 35.011  Data.

    (a) R&D contracts shall specify the technical data to be delivered 
under the contract, since the data clauses required by part 27 do not 
require the delivery of any such data.
    (b) In planning a developmental program when subsequent production 
contracts are contemplated, consideration should be given to the need 
and time required to obtain a technical package (plans, drawings, 
specifications, and other descriptive information) that can be used to 
achieve competition in production contracts. In some situations, the 
developmental contractor may be in the best position to produce such a 
technical package.



Sec. 35.012  Patent rights.

    For a discussion of patent rights, see agency regulations and part 
27.



Sec. 35.013  Insurance.

    Nonprofit, educational, or State institutions performing cost-
reimbursement contracts often do not carry insurance. They may claim 
immunity from liability for torts, or, as State institutions, they may 
be prohibited by State law from expending funds for insurance. When this 
is the case, see 28.311 for appropriate clause coverage.



Sec. 35.014  Government property and title.

    (a) The requirements in part 45 for establishing and maintaining 
control over Government property apply to all R&D contracts.
    (b) In implementing 31 U.S.C. 6306, and unless an agency head 
provides otherwise, the policies in subparagraphs (1) through (4) 
following, regarding title to equipment (and other tangible personal 
property) purchased by the contractor using Government funds provided 
for the conduct of basic or applied scientific research, apply to 
contracts with nonprofit institutions of higher education and nonprofit 
organizations whose primary purpose is the conduct of scientific 
research:
    (1) If the contractor obtains the contracting officer's advance 
approval, the contractor shall automatically acquire and retain title to 
any item of equipment costing less than $5,000 (or a lesser amount 
established by agency regulations) acquired on a reimbursable basis.
    (2) If purchased equipment costs $5,000 (or a lesser amount 
established by agency regulations) or more, and as the parties 
specifically agree in the contract, title may--
    (i) Vest in the contractor upon acquisition without further 
obligation to the Government;
    (ii) Vest in the contractor, subject to the Government's right to 
direct transfer of the title to the Government or to a third party 
within 12 months after the contract's completion or termination 
(transfer of title to the Government or third party shall not be the 
basis for any claim by the contractor); or
    (iii) Vest in the Government, if the contracting officer determines 
that vesting of title in the contractor would not further the objectives 
of the agency's research program.
    (3) If title to equipment is vested in the contractor, depreciation, 
amortization, or use charges are not allowable with respect to that 
equipment under any existing or future Government contract or 
subcontract.
    (4) If the contract is performed at a Government installation and 
there is a continuing need for the equipment following contract 
completion, title need not be transferred to the contractor.
    (c) The absence of an agreement covering title to equipment acquired 
by the contractor with Government funds that cost $1,000 or more does 
not limit an agency's right to act to vest title in a contractor as 
authorized by 31 U.S.C. 6306.
    (d)(1) Vesting title under paragraph (b) above is subject to civil 
rights legislation, 42 U.S.C. 2000d. Before title is vested, the 
contractor must agree that--

    ``No person in the United States or its outlying areas shall, on the 
ground of race, color, or national origin, be excluded from 
participation in, be denied the benefits of, or

[[Page 810]]

be otherwise subjected to discrimination under this contemplated 
financial assistance (title to equipment).''

    (2) By signing the contract, the contractor accepts and agrees to 
comply with this requirement.
    (e) The policies in paragraphs (b)(1) through (b)(3) and paragraph 
(d) of this section are implemented in the Government Property clauses.

[48 FR 42352, Sept. 19, 1983, as amended at 50 FR 26903, June 28, 1985; 
68 FR 28083, May 22, 2003; 72 FR 27385, May 15, 2007]



Sec. 35.015  Contracts for research with educational institutions and 
          nonprofit organizations.

    (a) General. (1) When the R&D work is not defined precisely and the 
contract states only a period during which work is conducted (that is, a 
specific time for achievement of results is not required), research 
contracts with educational institutions and nonprofit organizations 
shall--
    (i) State that the contractor bears primary responsibility for the 
research;
    (ii) Give (A) the name of the principal investigator (or project 
leader), if the decision to contract is based on that particular 
individual's research effort and management capabilities, and (B) the 
contractor's estimate of the amount of time that individual will devote 
to the work;
    (iii) Provide that the named individual shall be closely involved 
and continuously responsible for the conduct of the work;
    (iv) Provide that the contractor must obtain the contracting 
officer's approval to change the principal investigator (or project 
leader);
    (v) Require that the contractor advise the contracting officer if 
the principal investigator (or project leader) will, or plans to, devote 
substantially less effort to the work than anticipated; and
    (vi) Require that the contractor obtain the contracting officer's 
approval to change the phenomenon under study, the stated objectives of 
the research, or the methodology.
    (2) If a research contract does provide precise objectives or a 
specific date for achievement of results, the contracting officer may 
include in the contract the requirements set forth in subparagraph (1) 
above, if it is necessary for the Government to exercise oversight and 
approval over the avenues of approach, methods, or schedule of work.
    (b) Basic agreements. (1) A basic agreement should be negotiated if 
the number of contracts warrants such an agreement (see 16.702). Basic 
agreements should be reviewed and updated at least annually.
    (2) To promote uniformity and consistency in dealing with 
educational institutions and nonprofit organizations, agencies are 
encouraged to use basic agreements of other agencies.

[48 FR 42352, Sept. 19, 1983, as amended at 56 FR 15153, Apr. 15, 1991]



Sec. 35.016  Broad agency announcement.

    (a) General. This paragraph prescribes procedures for the use of the 
broad agency announcement (BAA) with Peer or Scientific Review (see 
6.102(d)(2)) for the acquisition of basic and applied research and that 
part of development not related to the development of a specific system 
or hardware procurement. BAA's may be used by agencies to fulfill their 
requirements for scientific study and experimentation directed toward 
advancing the state-of-the-art or increasing knowledge or understanding 
rather than focusing on a specific system or hardware solution. The BAA 
technique shall only be used when meaningful proposals with varying 
technical/scientific approaches can be reasonably anticipated.
    (b) The BAA, together with any supporting documents, shall--
    (1) Describe the agency's research interest, either for an 
individual program requirement or for broadly defined areas of interest 
covering the full range of the agency's requirements;
    (2) Describe the criteria for selecting the proposals, their 
relative importance and the method of evaluation;
    (3) Specify the period of time during which proposals submitted in 
response to the BAA will be accepted; and
    (4) Contain instructions for the preparation and submission of 
proposals.
    (c) The availability of the BAA must be publicized through the 
Governmentwide point of entry (GPE) and, if authorized pursuant to 
subpart 5.5, may also be published in noted scientific, technical, or 
engineering periodicals.

[[Page 811]]

The notice must be published no less frequently than annually.
    (d) Proposals received as a result of the BAA shall be evaluated in 
accordance with evaluation criteria specified therein through a peer or 
scientific review process. Written evaluation reports on individual 
proposals will be necessary but proposals need not be evaluated against 
each other since they are not submitted in accordance with a common work 
statement.
    (e) The primary basis for selecting proposals for acceptance shall 
be technical, importance to agency programs, and fund availability. Cost 
realism and reasonableness shall also be considered to the extent 
appropriate.
    (f) Synopsis under subpart 5.2, Synopses of Proposed Contract 
Actions, of individual contract actions based upon proposals received 
under the BAA is not required. The notice published pursuant to 
subparagraph (c), of this section, fulfills the synopsis requirement.

[53 FR 27467, July 20, 1988, as amended at 66 FR 27414, May 16, 2001; 68 
FR 56679, Oct. 1, 2003]



Sec. 35.017  Federally Funded Research and Development Centers.

    (a) Policy. (1) This section sets forth Federal policy regarding the 
establishment, use, review, and termination of Federally Funded Research 
and Development Centers (FFRDC's) and related sponsoring agreements.
    (2) An FFRDC meets some special long-term research or development 
need which cannot be met as effectively by existing in-house or 
contractor resources. FFRDC's enable agencies to use private sector 
resources to accomplish tasks that are integral to the mission and 
operation of the sponsoring agency. An FFRDC, in order to discharge its 
responsibilities to the sponsoring agency, has access, beyond that which 
is common to the normal contractual relationship, to Government and 
supplier data, including sensitive and proprietary data, and to 
employees and installations equipment and real property. The FFRDC is 
required to conduct its business in a manner befitting its special 
relationship with the Government, to operate in the public interest with 
objectivity and independence, to be free from organizational conflicts 
of interest, and to have full disclosure of its affairs to the 
sponsoring agency. It is not the Government's intent that an FFRDC use 
its privileged information or access to installations equipment and real 
property to compete with the private sector. However, an FFRDC may 
perform work for other than the sponsoring agency under the Economy Act, 
or other applicable legislation, when the work is not otherwise 
available from the private sector.
    (3) FFRDC's are operated, managed, and/or administered by either a 
university or consortium of universities, other not-for-profit or 
nonprofit organization, or an industrial firm, as an autonomous 
organization or as an identifiable separate operating unit of a parent 
organization.
    (4) Long-term relationships between the Government and FFRDC's are 
encouraged in order to provide the continuity that will attract high-
quality personnel to the FFRDC. This relationship should be of a type to 
encourage the FFRDC to maintain currency in its field(s) of expertise, 
maintain its objectivity and independence, preserve its familiarity with 
the needs of its sponsor(s), and provide a quick response capability.
    (b) Definitions. As used in this section--
    Nonsponsor means any other organization, in or outside of the 
Federal Government, which funds specific work to be performed by the 
FFRDC and is not a party to the sponsoring agreement.
    Primary sponsor means the lead agency responsible for managing, 
administering, or monitoring overall use of the FFRDC under a multiple 
sponsorship agreement.
    Sponsor means the executive agency which manages, administers, 
monitors, funds, and is responsible for the overall use of an FFRDC. 
Multiple agency sponsorship is possible as long a one agency agrees to 
act as the ``primary sponsor.'' In the event of multiple sponsors, 
``sponsor'' refers to the primary sponsor.

[55 FR 3885, Feb. 5, 1990 as amended at 66 FR 2132, Jan. 10, 2001; 72 FR 
27385, May 15, 2007]

[[Page 812]]



Sec. 35.017-1  Sponsoring agreements.

    (a) In order to facilitate a long-term relationship between the 
Government and an FFRDC, establish the FFRDC's mission, and ensure a 
periodic reevaluation of the FFRDC, a written agreement of sponsorship 
between the Government and the FFRDC shall be prepared when the FFRDC is 
established. The sponsoring agreement may take various forms; it may be 
included in a contract between the Government and the FFRDC, or in 
another legal instrument under which an FFRDC accomplishes effort, or it 
may be in a separate written agreement. Notwithstanding its form, the 
sponsoring agreement shall be clearly designated as such by the sponsor.
    (b) While the specific content of any sponsoring agreement will vary 
depending on the situation, the agreement shall contain, as a minimum, 
the requirements of paragraph (c) of this subsection. The requirements 
for, and the contents of, sponsoring agreements may be as further 
specified in sponsoring agencies' policies and procedures.
    (c) As a minimum, the following requirements must be addressed in 
either a sponsoring agreement or sponsoring agencies' policies and 
procedures:
    (1) A statement of the purpose and mission of the FFRDC.
    (2) Provisions for the orderly termination or nonrenewal of the 
agreement, disposal of assets, and settlement of liabilities. The 
responsibility for capitalization of an FFRDC must be defined in such a 
manner that ownership of assets may be readily and equitably determined 
upon termination of the FFRDC's relationship with its sponsor(s).
    (3) A provision for the identification of retained earnings 
(reserves) and the development of a plan for their use and disposition.
    (4) A prohibition against the FFRDC competing with any non-FFRDC 
concern in response to a Federal agency request for proposal for other 
than the operation of an FFRDC. This prohibition is not required to be 
applied to any parent organization or other subsidiary of the parent 
organization in its non-FFRDC operations. Requests for information, 
qualifications or capabilities can be answered unless otherwise 
restricted by the sponsor.
    (5) A delineation of whether or not the FFRDC may accept work from 
other than the sponsor(s). If nonsponsor work can be accepted, a 
delineation of the procedures to be followed, along with any limitations 
as to the nonsponsors form which work can be accepted (other Federal 
agencies, State or local governments, nonprofit or profit organizations, 
etc.).
    (d) The sponsoring agreement or sponsoring agencies' policies and 
procedures may also contain, as appropriate, other provisions, such as 
identification of--(1) Any cost elements which will require advance 
agreement if cost-type contracts are used; and
     (2) Considerations which will affect negotiation of fees where 
payment of fees is determined by the sponsor(s) to be appropriate.
    (e) The term of the agreement will not exceed 5 years, but can be 
renewed, as a result of periodic review, in increments not to exceed 5 
years.

[55 FR 3885, Feb. 5, 1990]



Sec. 35.017-2  Establishing or changing an FFRDC.

    To establish an FFRDC, or change its basic purpose and mission, the 
sponsor shall ensure the following:
    (a) Existing alternative sources for satisfying agency requirements 
cannot effectively meet the special research or development needs.
    (b) The notices required for publication (see 5.205(b)) are placed 
as required.
    (c) There is sufficient Government expertise available to adequately 
and objectively evaluate the work to be performed by the FFRDC.
    (d) The Executive Office of the President, Office of Science and 
Technology Policy, Washington, DC 20506, is notified.
    (e) Controls are established to ensure that the costs of the 
services being provided to the Government are reasonable.
    (f) The basic purpose and mission of the FFRDC is stated clearly 
enough to enable differentiation between work which should be performed 
by the FFRDC and that which should be performed by non-FFRDC's.

[[Page 813]]

    (g) A reasonable continuity in the level of support to the FFRDC is 
maintained, consistent with the agency's need for the FFRDC and the 
terms of the sponsoring agreement.
    (h) The FFRDC is operated, managed, or administered by an autonomous 
organization or as an identifiably separate operating unit of a parent 
organization, and is required to operate in the public interest, free 
from organizational conflict of interest, and to disclose its affairs 
(as an FFRDC) to the primary sponsor.
    (i) Quantity prodution or manufacturing is not performed unless 
authorized by legislation.
    (j) Approval is received from the head of the sponsoring agency.

[55 FR 3885, Feb. 5, 1990, as amended at 62 FR 12694, Mar. 17, 1997]



Sec. 35.017-3  Using an FFRDC.

    (a) All work placed with the FFRDC must be within the purpose, 
mission, general scope of effort, or special competency of the FFRDC.
    (b) Where the use of the FFRDC by a nonsponsor is permitted by the 
sponsor, the sponsor shall be responsible for compliance with paragraph 
(a) of this subsection.
    (1) The nonsponsoring agency shall prepare a determination in 
accordance with 17.502-1(a) and provide the documentation required by 
17.503(e) to the sponsoring agency.
    (2) When a D&F is required pursuant to 17.502-2(c), the 
nonsponsoring agency may incorporate the determination required by 
17.502-1(a) into the D&F and provide the documentation required by 
17.503(e) to the sponsoring agency.
    (3) When permitted by the sponsor, a Federal agency may contract 
directly with the FFRDC, in which case that Federal agency is 
responsible for compliance with part 6.

[55 FR 3886, Feb. 5, 1990, as amended at 75 FR 77737, Dec. 13, 2010; 77 
FR 186, Jan. 3, 2012]



Sec. 35.017-4  Reviewing FFRDC's.

    (a) The sponsor, prior to extending the contract or agreement with 
an FFRDC, shall conduct a comprehensive review of the use and need for 
the FFRDC. The review will be coordinated with any co-sponsors and may 
be performed in conjunction with the budget process. If the sponsor 
determines that its sponsorship is no longer appropriate, it shall 
apprise other agencies which use the FFRDC of the determination and 
afford them an opportunity to assume sponsorship.
    (b) Approval to continue or terminate the sponsorship shall rest 
with the head of the sponsoring agency. This determination shall be 
based upon the results of the review conducted in accordance with 
paragraph (c) of this subsection.
    (c) An FFRDC review should include the following:
    (1) An examination of the sponsor's special technical needs and 
mission requirements that are performed by the FFRDC to determine if and 
at what level they continue to exist.
    (2) Consideration of alternative sources to meet the sponsor's 
needs.
    (3) An assessment of the efficiency and effectiveness of the FFRDC 
in meeting the sponsor's needs, including the FFRDC's ability to 
maintain its objectivity, independence, quick response capability, 
currency in its field(s) of expertise, and familiarity with the needs of 
its sponsor.
    (4) An assessment of the adequacy of the FFRDC management in 
ensuring a cost-effective operation.
    (5) A determination that the criteria for establishing the FFRDC 
continue to be satisfied and that the sponsoring agreement is in 
compliance with 35.017-1.

[55 FR 3886, Feb. 5, 1990]



Sec. 35.017-5  Terminating FFRDC.

    When a sponsor's need for the FFRDC no longer exists, the 
sponsorship may be transferred to one or more Government agencies, if 
appropriately justified. If the FFRDC is not transferred to another 
Government agency, it shall be phased out.

[55 FR 3886, Feb. 5, 1990]



Sec. 35.017-6  Master list of FFRDC's.

    The National Science Foundation (NSF) maintains a master Government 
list of FFRDC's. Primary sponsors will provide information on each 
FFRDC,

[[Page 814]]

including sponsoring agreements, mission statements, funding data, and 
type of R&D being performed, to the NSF upon its request for such 
information.

[55 FR 3886, Feb. 5, 1990]



Sec. 35.017-7  Limitation on the creation of new FFRDC's.

    Pursuant to 10 U.S.C. 2367, the Secretary of Defense, the Secretary 
of the Army, the Secretary of the Navy, the Secretary of the Air Force, 
the Secretary of Transportation, and the Administrator of the National 
Aeronautics and Space Administration may not obligate or expend amounts 
appropriated to the Department of Defense for purposes of operating an 
FFRDC that was not in existence before June 2, 1986, until (a) the head 
of the agency submits to Congress a report with respect to such center 
that describes the purpose, mission, and general scope of effort of the 
center; and (b) a period of 60 days, beginning on the date such report 
is received by Congress, has elapsed.

[55 FR 3886, Feb. 5, 1990]

          PART 36_CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

Sec.

Sec. 36.000 Scope of part.

Sec. 36.001 Definitions.

                          Subpart 36.1_General


Sec. 36.101 Applicability.

Sec. 36.102 Definitions.

Sec. 36.103 Methods of contracting.

Sec. 36.104 Policy.

      Subpart 36.2_Special Aspects of Contracting for Construction


Sec. 36.201 Evaluation of contractor performance.

Sec. 36.202 Specifications.

Sec. 36.203 Government estimate of construction costs.

Sec. 36.204 Disclosure of the magnitude of construction projects.

Sec. 36.205 Statutory cost limitations.

Sec. 36.206 Liquidated damages.

Sec. 36.207 Pricing fixed-price construction contracts.

Sec. 36.208 Concurrent performance of firm-fixed-price and other types 
          of construction contracts.

Sec. 36.209 Construction contracts with architect-engineer firms.

Sec. 36.210 Inspection of site and examination of data.

Sec. 36.211 Distribution of advance notices and solicitations.

Sec. 36.212 Preconstruction orientation.

Sec. 36.213 Special procedures for sealed bidding in construction 
          contracting.

Sec. 36.213-1 General.

Sec. 36.213-2 Presolicitation notices.

Sec. 36.213-3 Invitations for bids.

Sec. 36.213-4 Notice of award.

Sec. 36.214 Special procedures for price negotiation in construction 
          contracting.

Sec. 36.215 Special procedures for cost-reimbursement contracts for 
          construction.

        Subpart 36.3_Two-Phase Design Build Selection Procedures


Sec. 36.300 Scope of subpart.

Sec. 36.301 Use of two-phase design-build selection procedures.

Sec. 36.302 Scope of work.

Sec. 36.303 Procedures.

Sec. 36.303-1 Phase One.

Sec. 36.303-2 Phase Two.

Subpart 36.4--Commercial Practices [Reserved]

                      Subpart 36.5_Contract Clauses


Sec. 36.500 Scope of subpart.

Sec. 36.501 Performance of work by the contractor.

Sec. 36.502 Differing site conditions.

Sec. 36.503 Site investigation and conditions affecting the work.

Sec. 36.504 Physical data.

Sec. 36.505 Material and workmanship.

Sec. 36.506 Superintendence by the contractor.

Sec. 36.507 Permits and responsibilities.

Sec. 36.508 Other contracts.

Sec. 36.509 Protection of existing vegetation, structures, equipment, 
          utilities, and improvements.

Sec. 36.510 Operations and storage areas.

Sec. 36.511 Use and possession prior to completion.

Sec. 36.512 Cleaning up.

Sec. 36.513 Accident prevention.

Sec. 36.514 Availability and use of utility services.

Sec. 36.515 Schedules for construction contracts.

Sec. 36.516 Quantity surveys.

Sec. 36.517 Layout of work.

Sec. 36.518 Work oversight in cost-reimbursement construction contracts.

Sec. 36.519 Organization and direction of the work.

Sec. 36.520 Contracting by negotiation.

Sec. 36.521 Specifications and drawings for construction.

Sec. 36.522 Preconstruction conference.

Sec. 36.523 Site visit.

[[Page 815]]

                Subpart 36.6_Architect-Engineer Services


Sec. 36.600 Scope of subpart.

Sec. 36.601 Policy.

Sec. 36.601-1 Public announcement.

Sec. 36.601-2 Competition.

Sec. 36.601-3 Applicable contracting procedures.

Sec. 36.601-4 Implementation.

Sec. 36.602 Selection of firms for architect-engineer contracts.

Sec. 36.602-1 Selection criteria.

Sec. 36.602-2 Evaluation boards.

Sec. 36.602-3 Evaluation board functions.

Sec. 36.602-4 Selection authority.

Sec. 36.602-5 Short selection process for contracts not to exceed the 
          simplified acquisition threshold.

Sec. 36.603 Collecting data on and appraising firms' qualifications.

Sec. 36.604 Performance evaluation.

Sec. 36.605 Government cost estimate for architect-engineer work.

Sec. 36.606 Negotiations.

Sec. 36.607 Release of information on firm selection.

Sec. 36.608 Liability for Government costs resulting from design errors 
          or deficiencies.

Sec. 36.609 Contract clauses.

Sec. 36.609-1 Design within funding limitations.

Sec. 36.609-2 Redesign responsibility for design errors or deficiencies.

Sec. 36.609-3 Work oversight in architect-engineer contracts.

Sec. 36.609-4 Requirements for registration of designers.

      Subpart 36.7_Standard and Optional Forms for Contracting for 
Construction, Architect-Engineer Services, and Dismantling, Demolition, 
                       or Removal of Improvements.


Sec. 36.700 Scope of subpart.

Sec. 36.701 Standard and optional forms for use in contracting for 
          construction or dismantling, demolition, or removal of 
          improvements.

Sec. 36.702 Forms for use in contracting for architect-engineer 
          services.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 
2473(c).

    Source: 48 FR 42356, Sept. 19, 1983, unless otherwise noted.



Sec. 36.000  Scope of part.

    This part prescribes policies and procedures peculiar to contracting 
for construction and architect-engineer services. It includes 
requirements for using certain clauses and standard forms that apply 
also to contracts for dismantling, demolition, or removal of 
improvements.



Sec. 36.001  Definitions.

    As used in this part--
    Construction and demolition materials and debris means materials and 
debris generated during construction, renovation, demolition, or 
dismantling of all structures and buildings and associated 
infrastructure.
    Diverting means redirecting materials that might otherwise be placed 
in the waste stream to recycling or recovery, excluding diversion to 
waste-to-energy facilities.

[76 FR 31401, May 31, 2011]

                          Subpart 36.1_General



Sec. 36.101  Applicability.

    (a) Construction and architect-engineer contracts are subject to the 
requirements in other parts of this regulation, which shall be followed 
when applicable.
    (b) When a requirement in this part is inconsistent with a 
requirement in another part of this regulation, this part 36 shall take 
precedence if the acquisition of construction or architect-engineer 
services is involved.
    (c) A contract for both construction and supplies or services shall 
include (1) clauses applicable to the predominant part of the work (see 
subpart 22.4), or (2) if the contract is divided into parts, the clauses 
applicable to each portion.

[48 FR 42356, Sept. 19, 1983, as amended at 57 FR 55471, Nov. 25, 1992; 
58 FR 12140, Mar. 2, 1993]



Sec. 36.102  Definitions.

    As used in this part--
    Contract is intended to refer to a contract for construction or a 
contract for architect-engineer services, unless another meaning is 
clearly intended.
    Design means defining the construction requirement (including the 
functional relationships and technical systems to be used, such as 
architectural, environmental, structural, electrical, mechanical, and 
fire protection), producing the technical specifications and drawings, 
and preparing the construction cost estimate.
    Design-bid-build means the traditional delivery method where design 
and construction are sequential and

[[Page 816]]

contracted for separately with two contracts and two contractors.
    Design-build means combining design and construction in a single 
contract with one contractor.
    Firm in conjunction with architect-engineer services, means any 
individual, partnership, corporation, association, or other legal entity 
permitted by law to practice the professions of architecture or 
engineering.
    Plans and specifications means drawings, specifications, and other 
data for and preliminary to the construction.
    Record drawings means drawings submitted by a contractor or 
subcontractor at any tier to show the construction of a particular 
structure or work as actually completed under the contract.
    Two-phase design-build selection procedures is a selection method in 
which a limited number of offerors (normally five or fewer) is selected 
during Phase One to submit detailed proposals for Phase Two (see subpart 
36.3).

[48 FR 42356, Sept. 19, 1983, as amended at 51 FR 36972, Oct. 16, 1986; 
54 FR 13336, Mar. 31, 1989; 54 FR 19827, May 8, 1989; 56 FR 29128, June 
25, 1991; 62 FR 272, Jan. 2, 1997; 64 FR 72432, Dec. 27, 1999; 66 FR 
2132, Jan. 10, 2001]



Sec. 36.103  Methods of contracting.

    (a) The contracting officer shall use sealed bid procedures for a 
construction contract if the conditions in 6.401(a) apply, unless the 
contract will be performed outside the United States and its outlying 
areas. (See 6.401(b)(2).)
    (b) Contracting officers shall acquire architect-engineer services 
by negotiation, and select sources in accordance with applicable law, 
subpart 36.6, and agency regulations.

[48 FR 42356, Sept. 19, 1983, as amended at 50 FR 1744, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 68 FR 28083, May 22, 2003]



Sec. 36.104  Policy.

    (a) Unless the traditional acquisition approach of design-bid-build 
established under the Brooks Architect-Engineers Act (40 U.S.C. 1101 et 
seq.) or another acquisition procedure authorized by law is used, the 
contracting officer shall use the two-phase selection procedures 
authorized by 10 U.S.C. 2305a or 41 U.S.C. 253m when entering into a 
contract for the design and construction of a public building, facility, 
or work, if the contracting officer makes a determination that the 
procedures are appropriate for use (see subpart 36.3). Other acquisition 
procedures authorized by law include the procedures established in this 
part and other parts of this chapter and, for DoD, the design-build 
process described in 10 U.S.C. 2862.
    (b) Agencies shall implement high-performance sustainable building 
design, construction, renovation, repair, commissioning, operation and 
maintenance, management, and deconstruction practices so as to--
    (1) Ensure that all new construction, major renovation, or repair 
and alteration of Federal buildings complies with the Guiding Principles 
for Federal Leadership in High-Performance and Sustainable Buildings 
(available at http://www.wbdg.org/pdfs/hpsb--guidance.pdf);
    (2) Pursue cost-effective, innovative strategies, such as highly 
reflective and vegetated roofs, to minimize consumption of energy, 
water, and materials;
    (3) Identify alternatives to renovation that reduce existing assets' 
deferred maintenance costs;
    (4) Ensure that rehabilitation of Federally-owned historic buildings 
utilizes best practices and technologies in retrofitting to promote 
long-term viability of the buildings; and
    (5) Ensure pollution prevention and eliminate waste by diverting at 
least 50 percent of construction and demolition materials and debris by 
the end of Fiscal Year 2015.

[76 FR 31401, May 31, 2011]

      Subpart 36.2_Special Aspects of Contracting for Construction



Sec. 36.201  Evaluation of contractor performance.

    See 42.1502(e) for the requirements for preparing past performance 
evaluations for construction contracts.

[74 FR 31560, July 1, 2009]



Sec. 36.202  Specifications.

    (a) Construction specifications shall conform to the requirements in 
part 11 of this regulation.

[[Page 817]]

    (b) Whenever possible, contracting officers shall ensure that 
references in specifications are to widely recognized standards or 
specifications promulgated by governments, industries, or technical 
societies.
    (c) When brand name or equal descriptions are necessary, 
specifications must clearly identify and describe the particular 
physical, functional, or other characteristics of the brand-name items 
which are considered essential to satisfying the requirement.

[48 FR 42356, Sept. 19, 1983, as amended at 60 FR 48249, Sept. 18, 1995; 
66 FR 27415, May 16, 2001; 74 FR 34207, July 14, 2009]



Sec. 36.203  Government estimate of construction costs.

    (a) An independent Government estimate of construction costs shall 
be prepared and furnished to the contracting officer at the earliest 
practicable time for each proposed contract and for each contract 
modification anticipated to exceed the simplified acquisition threshold. 
The contracting officer may require an estimate when the cost of 
required work is not anticipated to exceed the simplified acquisition 
threshold. The estimate shall be prepared in as much detail as though 
the Government were competing for award.
    (b) When two-step sealed bidding is used, the independent Government 
estimate shall be prepared when the contract requirements are 
definitized.
    (c) Access to information concerning the Government estimate shall 
be limited to Government personnel whose official duties require 
knowledge of the estimate. An exception to this rule may be made during 
contract negotiations to allow the contracting officer to identify a 
specialized task and disclose the associated cost breakdown figures in 
the Government estimate, but only to the extent deemed necessary to 
arrive at a fair and reasonable price. The overall amount of the 
Government's estimate shall not be disclosed except as permitted by 
agency regulations.

[48 FR 42356, Sept. 19, 1983, as amended at 50 FR 1744, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 62 FR 44829, Aug. 22, 1997; 71 FR 57368, 
Sept. 28, 2006]



Sec. 36.204  Disclosure of the magnitude of construction projects.

    Advance notices and solicitations shall state the magnitude of the 
requirement in terms of physical characteristics and estimated price 
range. In no event shall the statement of magnitude disclose the 
Government's estimate. Therefore, the estimated price should be 
described in terms of one of the following price ranges:
    (a) Less than $25,000.
    (b) Between $25,000 and $100,000.
    (c) Between $100,000 and $250,000.
    (d) Between $250,000 and $500,000.
    (e) Between $500,000 and $1,000,000.
    (f) Between $1,000,000 and $5,000,000.
    (g) Between $5,000,000 and $10,000,000.
    (h) More than $10,000,000.



Sec. 36.205  Statutory cost limitations.

    (a) Contracts for construction shall not be awarded at a cost to the 
Government--
    (1) In excess of statutory cost limitations, unless applicable 
limitations can be and are waived in writing for the particular 
contract; or
    (2) Which, with allowances for Government-imposed contingencies and 
overhead, exceeds the statutory authorization.
    (b) Solicitations containing one or more items subject to statutory 
cost limitations shall state (1) the applicable cost limitation for each 
affected item in a separate schedule; (2) that an offer which does not 
contain separately-priced schedules will not be considered; and (3) that 
the price on each schedule shall include an approximate apportionment of 
all estimated direct costs, allocable indirect costs, and profit.
    (c) The Government shall reject an offer if its prices exceed 
applicable statutory limitations, unless laws or agency procedures 
provide pertinent exemptions. However, if it is in the Government's 
interest, the contracting officer may include a provision in the 
solicitation which permits the award of separate contracts for 
individual items whose prices are within or not subject to applicable 
statutory limitations.

[[Page 818]]

    (d) The Government shall also reject an offer if its prices are 
within statutory limitations only because it is materially unbalanced. 
An offer is unbalanced if its prices are significantly less than cost 
for some work, and overstated for other work.

[48 FR 42356, Sept. 19, 1983, as amended at 50 FR 1744, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 62 FR 237, Jan. 2, 1997]



Sec. 36.206  Liquidated damages.

    The contracting officer must evaluate the need for liquidated 
damages in a construction contract in accordance with 11.502 and agency 
regulations.

[48 FR 42356, Sept. 19, 1983, as amended at 60 FR 48249, Sept. 18, 1995; 
65 FR 46066, July 26, 2000]



Sec. 36.207  Pricing fixed-price construction contracts.

    (a) Generally, firm-fixed-price contracts shall be used to acquire 
construction. They may be priced (1) on a lump-sum basis (when a lump 
sum is paid for the total work or defined parts of the work), (2) on a 
unit-price basis (when a unit price is paid for a specified quantity of 
work units), or (3) using a combination of the two methods.
    (b) Lump-sum pricing shall be used in preference to unit pricing 
except when--
    (1) Large quantities of work such as grading, paving, building 
outside utilities, or site preparation are involved;
    (2) Quantities of work, such as excavation, cannot be estimated with 
sufficient confidence to permit a lump-sum offer without a substantial 
contingency;
    (3) Estimated quantities of work required may change significantly 
during construction; or
    (4) Offerors would have to expend unusual effort to develop adequate 
estimates.
    (c) Fixed-price contracts with economic price adjustment may be used 
if such a provision is customary in contracts for the type of work being 
acquired, or when omission of an adjustment provision would preclude a 
significant number of firms from submitting offers or would result in 
offerors including unwarranted contingencies in proposed prices.



Sec. 36.208  Concurrent performance of firm-fixed-price and other types 
          of construction contracts.

    In view of potential labor and administrative problems, cost-plus-
fixed-fee, price-incentive, or other types of contracts with cost 
variation or cost adjustment features shall not be permitted 
concurrently, at the same work site, with firm-fixed-price, lump sum, or 
unit price contracts except with the prior approval of the head of the 
contracting activity.



Sec. 36.209  Construction contracts with architect-engineer firms.

    No contract for the construction of a project shall be awarded to 
the firm that designed the project or its subsidiaries or affiliates, 
except with the approval of the head of the agency or authorized 
representative.



Sec. 36.210  Inspection of site and examination of data.

    The contracting officer should make appropriate arrangements for 
prospective offerors to inspect the work site and to have the 
opportunity to examine data available to the Government which may 
provide information concerning the performance of the work, such as 
boring samples, original boring logs, and records and plans of previous 
construction. The data should be assembled in one place and made 
available for examination. The solicitation should notify offerors of 
the time and place for the site inspection and data examination. If it 
is not feasible for offerors to inspect the site or examine the data on 
their own, the solicitation should also designate an individual who will 
show the site or data to the offerors. Significant site information and 
the data should be made available to all offerors in the same manner, 
including information regarding any utilities to be furnished during 
construction. A record should be kept of the identity and affiliation of 
all offerors' representatives who inspect the site or examine the data.



Sec. 36.211  Distribution of advance notices and solicitations.

    Advance notices and solicitations should be distributed to reach as 
many prospective offerors as practicable.

[[Page 819]]

Contracting officers may send notices and solicitations to organizations 
that maintain, without charge to the public, display rooms for the 
benefit of prospective offerors, subcontractors, and material suppliers. 
If requested by such organizations, this may be done for all or a stated 
class of construction projects on an annual or semiannual basis. 
Contracting officers may determine the geographical extent of 
distribution of advance notices and solicitations on a case-by-case 
basis.



Sec. 36.212  Preconstruction orientation.

    (a) The contracting officer will inform the successful offeror of 
significant matters of interest, including--(1) statutory matters such 
as labor standards (subpart 22.4), and subcontracting plan requirements 
(subpart 19.7); and (2) other matters of significant interest, including 
who has authority to decide matters such as contractual, administrative 
(e.g., security, safety, and fire and environmental protection), and 
construction responsibilities.
    (b) As appropriate, the contracting officer may issue an explanatory 
letter or conduct a preconstruction conference.
    (c) If a preconstruction conference is to be held, the contracting 
officer shall--
    (1) Conduct the conference prior to the start of construction at the 
work site;
    (2) Notify the successful offeror of the date, time, and location of 
the conference (see 36.522); and
    (3) Inform the successful offeror of the proposed agenda and any 
need for attendance by subcontractors.

[59 FR 67049, Dec. 28, 1994]



Sec. 36.213  Special procedures for sealed bidding in construction 
          contracting.



Sec. 36.213-1  General.

    Contracting officers shall follow the procedures for sealed bidding 
in part 14, as modified and supplemented by the requirements in this 
subpart.

[48 FR 42356, Sept. 19, 1983, as amended at 50 FR 1744, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985. Redesignated at 62 FR 272, Jan. 2, 1997]



Sec. 36.213-2  Presolicitation notices.

    (a) Unless the requirement is waived by the head of the contracting 
activity or a designee, the contracting officer shall issue 
presolicitation notices on any construction requirement when the 
proposed contract is expected to exceed the simplified acquisition 
threshold. Presolicitation notices may also be used when the proposed 
contract is not expected to exceed the simplified acquisition threshold. 
These notices shall be issued sufficiently in advance of the invitation 
for bids to stimulate the interest of the greatest number of prospective 
bidders.
    (b) Presolicitation notices must--
    (1) Describe the proposed work in sufficient detail to disclose the 
nature and volume of work (in terms of physical characteristics and 
estimated price range)(see 36.204);
    (2) State the location of the work;
    (3) Include tentative dates for issuing invitations, opening bids, 
and completing contract performance;
    (4) State where plans will be available for inspection without 
charge;
    (5) Specify a date by which requests for the invitation for bids 
should be submitted;
    (6) State whether award is restricted to small businesses; and
    (7) Specify any amount to be charged for solicitation documents.
    (8) Be publicized through the Governmentwide point of entry in 
accordance with 5.204.

[48 FR 42356, Sept. 19, 1983, as amended at 50 FR 1744, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 51 FR 19716, May 30, 1986. Redesignated at 
62 FR 272, Jan. 2, 1997, as amended at 66 FR 27414, May 16, 2001; 69 FR 
59699, Oct. 5, 2004; 71 FR 57368, Sept. 28, 2006]



Sec. 36.213-3  Invitations for bids.

    (a) Invitations for bids for construction shall allow sufficient 
time for bid preparation (i.e., the period of time between the date 
invitations are distributed and the date set for opening of bids) (but 
see 5.203 and 14.202-1) to allow bidders an adequate opportunity to 
prepare and submit their bids, giving due regard to the construction 
season and the time necessary for bidders to inspect the site, obtain 
subcontract bids, examine data concerning the

[[Page 820]]

work, and prepare estimates based on plans and specifications.
    (b) Invitations for bids shall be prepared in accordance with 
subpart 14.2 and this section using the forms prescribed in part 53.
    (c) Contracting officers should assure that each invitation for bids 
includes the following information, when applicable:
    (1) The appropriate wage determination of the Secretary of Labor 
(see subpart 22.4), or, if the invitation for bids must be issued before 
the wage determination is received, a notice that the schedule of 
minimum wage rates to be paid under the contract will be issued as an 
amendment to the invitation for bids before the opening date for bids 
(see 14.208 and 22.404-3(b)).
    (2) The Performance of Work by the Contractor clause (see 36.501 and 
52.236-1).
    (3) The magnitude of the proposed construction project (see 36.204).
    (4) The period of performance (see subpart 11.4).
    (5) Arrangements made for bidders to inspect the site and examine 
the data concerning performance of the work (see 36.210).
    (6) Information concerning any facilities, such as utilities, office 
space, and warehouse space, to be furnished during construction.
    (7) Information concerning the prebid conference (see 14.207).
    (8) Any special qualifications or experience requirements that will 
be considered in determining the responsibility of bidders (see subpart 
9.1).
    (9) Any special instructions concerning bids, alternate bids, and 
award.
    (10) Any instructions concerning reporting requirements.
    (d) The contracting officer shall send invitations for bids to 
prospective bidders who requested them in response to the 
presolicitation notice, and should send them to other prospective 
bidders upon their specific request (see 5.102(a)).

[48 FR 42356, Sept. 19, 1983, as amended at 50 FR 1744, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 60 FR 48249, Sept. 18, 1995. Redesignated at 
62 FR 272, Jan. 2, 1997, as amended at 68 FR 43856, July 24, 2003]



Sec. 36.213-4  Notice of award.

    When a notice of award is issued, it shall be done in writing or 
electronically, shall contain information required by 14.408, and 
shall--
    (a) Identify the invitation for bids;
    (b) Identify the contractor's bid;
    (c) State the award price;
    (d) Advise the contractor that any required payment and performance 
bonds must be promptly executed and returned to the contracting officer;
    (e) Specify the date of commencement of work, or advise that a 
notice to proceed will be issued.

[48 FR 42356, Sept. 19, 1983, as amended at 60 FR 34739, July 3, 1995; 
60 FR 42657, Aug. 16, 1995. Redesignated at 62 FR 272, Jan. 2, 1997]



Sec. 36.214  Special procedures for price negotiation in construction 
          contracting.

    (a) Agencies shall follow the policies and procedures in part 15 
when negotiating prices for construction.
    (b) The contracting officer shall evaluate proposals and associated 
certified cost or pricing data and data other than certified cost or 
pricing data and shall compare them to the Government estimate.
    (1) When submission of certified cost or pricing data is not 
required (see 15.403-1 and 15.403-2), and any element of proposed cost 
differs significantly from the Government estimate, the contracting 
officer should request the offeror to submit cost information concerning 
that element (e.g., wage rates or fringe benefits, significant 
materials, equipment allowances, and subcontractor costs).
    (2) When a proposed price is significantly lower than the Government 
estimate, the contracting officer shall make sure both the offeror and 
the Government estimator completely understand the scope of the work. If 
negotiations reveal errors in the Government estimate, the estimate 
shall be corrected and the changes shall be documented in the contract 
file.
    (c) When appropriate, additional pricing tools may be used. For 
example, proposed prices may be compared to current prices for similar 
types of work, adjusted for differences in the work site and the 
specifications. Also, rough yardsticks may be developed and

[[Page 821]]

used, such as cost per cubic foot for structures, cost per linear foot 
for utilities, and cost per cubic yard for excavation or concrete.

[48 FR 42356, Sept. 19, 1983, as amended at 53 FR 34228, Sept. 2, 1988; 
60 FR 48218, Sept. 18, 1995. Redesignated at 62 FR 272, Jan. 2, 1997, as 
amended at 62 FR 51271, Sept. 30, 1997; 75 FR 53149, Aug. 30, 2010]



Sec. 36.215  Special procedures for cost-reimbursement contracts for 
          construction.

    Contracting officers may use a cost-reimbursement contract to 
acquire construction only when its use is consistent with subpart 16.3 
and part 15 (see 15.404(c)(4)(i) for fee limitation on cost-
reimbursement contracts).

[48 FR 42356, Sept. 19, 1983. Redesignated at 62 FR 272, Jan. 2, 1997; 
62 FR 51271, Sept. 30, 1997]

        Subpart 36.3_Two-Phase Design-Build Selection Procedures

    Source: 62 FR 272, Jan. 2, 1997, unless otherwise noted.



Sec. 36.300  Scope of subpart.

    This subpart prescribes policies and procedures for the use of the 
two-phase design-build selection procedures authorized by 10 U.S.C. 
2305a and 41 U.S.C. 253m.



Sec. 36.301  Use of two-phase design-build selection procedures.

    (a) During formal or informal acquisition planning (see part 7), if 
considering the use of two-phase design-build selection procedures, the 
contracting officer shall conduct the evaluation in paragraph (b) of 
this section.
    (b) The two-phase design-build selection procedures shall be used 
when the contracting officer determines that this method is appropriate, 
based on the following:
    (1) Three or more offers are anticipated.
    (2) Design work must be performed by offerors before developing 
price or cost proposals, and offerors will incur a substantial amount of 
expense in preparing offers.
    (3) The following criteria have been considered:
    (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 method.
    (v) The capability of the agency to manage the two-phase selection 
process.
    (vi) Other criteria established by the head of the contracting 
activity.



Sec. 36.302  Scope of work.

    The agency shall develop, either in-house or by contract, a scope of 
work that defines the project and states the Government's requirements. 
The scope of work may include criteria and preliminary design, budget 
parameters, and schedule or delivery requirements. If the agency 
contracts for development of the scope of work, the procedures in 
subpart 36.6 shall be used.



Sec. 36.303  Procedures.

    One solicitation may be issued covering both phases, or two 
solicitations may be issued in sequence. Proposals will be evaluated in 
Phase One to determine which offerors will submit proposals for Phase 
Two. One contract will be awarded using competitive negotiation.



Sec. 36.303-1  Phase One.

    (a) Phase One of the solicitation(s) shall include--
    (1) The scope of work;
    (2) The phase-one evaluation factors, including--
    (i) Technical approach (but not detailed design or technical 
information);
    (ii) Technical qualifications, such as--
    (A) Specialized experience and technical competence;
    (B) Capability to perform;
    (C) Past performance of the offeror's team (including the architect-
engineer and construction members); and
    (iii) Other appropriate factors (excluding cost or price related 
factors, which are not permitted in Phase One);
    (3) Phase-two evaluation factors (see 36.303-2); and

[[Page 822]]

    (4) A statement of the maximum number of offerors that will be 
selected to submit phase-two proposals. The maximum number specified 
shall not exceed five unless the contracting officer determines, for 
that particular solicitation, that a number greater than five is in the 
Government's interest and is consistent with the purposes and objectives 
of two-phase design-build contracting).
    (b) After evaluating phase-one proposals, the contracting officer 
shall select the most highly qualified offerors (not to exceed the 
maximum number specified in the solicitation in accordance with 36.303-
1(a)(4)) and request that only those offerors submit phase-two 
proposals.

[62 FR 272, Jan. 2, 1997; 62 FR 10710, Mar. 10, 1997]



Sec. 36.303-2  Phase Two.

    (a) Phase Two of the solicitation(s) shall be prepared in accordance 
with part 15, and include phase-two evaluation factors, developed in 
accordance with 15.304. Examples of potential phase-two technical 
evaluation factors include design concepts, management approach, key 
personnel, and proposed technical solutions.
    (b) Phase Two of the solicitation(s) shall require submission of 
technical and price proposals, which shall be evaluated separately, in 
accordance with part 15.

[62 FR 272, Jan. 2, 1997, as amended at 62 FR 51271, Sept. 30, 1997]

Subpart 36.4--Commercial Practices [Reserved]

                      Subpart 36.5_Contract Clauses



Sec. 36.500  Scope of subpart.

    This subpart prescribes clauses for insertion in solicitations and 
contracts for (a) construction and (b) dismantling, demolition, or 
removal of improvements contracts. Provisions and clauses prescribed 
elsewhere in the Federal Acquisition Regulation (FAR) shall also be used 
in such solicitations and contracts when the conditions specified in the 
prescriptions for the provisions and clauses are applicable.



Sec. 36.501  Performance of work by the contractor.

    (a) To assure adequate interest in and supervision of all work 
involved in larger projects, the contractor shall be required to perform 
a significant part of the contract work with its own forces. The 
contract shall express this requirement in terms of a percentage that 
reflects the minimum amount of work the contractor must perform with its 
own forces. This percentage is (1) as high as the contracting officer 
considers appropriate for the project, consistent with customary or 
necessary specialty subcontracting and the complexity and magnitude of 
the work, and (2) ordinarily not less than 12 percent unless a greater 
percentage is required by law or agency regulation. Specialties such as 
plumbing, heating, and electrical work are usually subcontracted, and 
should not normally be considered in establishing the amount of work 
required to be performed by the contractor.
    (b) The contracting officer shall insert the clause at 52.236-1, 
Performance of Work by the Contractor, in solicitations and contracts, 
except those awarded pursuant to subparts 19.5, 19.8, 19.11, 19.13, 
19.14, or 19.15 when a fixed-price construction contract is contemplated 
and the contract amount is expected to exceed $1.5 million. The 
contracting officer may insert the clause on solicitations and contracts 
when a fixed-price construction contract is contemplated and the 
contract amount is expected to be $1.5 million or less.

[48 FR 42356, Sept. 19, 1983, as amended at 53 FR 43392, Oct. 26, 1988; 
69 FR 25279, May 5, 2004; 75 FR 53134, Aug. 30, 2010; 76 FR 18313, Apr. 
1, 2011]



Sec. 36.502  Differing site conditions.

    The contracting officer shall insert the clause at 52.236-2, 
Differing Site Conditions, in solicitations and contracts when a fixed-
price construction contract or a fixed-price dismantling, demolition, or 
removal of improvements contract is contemplated and the contract amount 
is expected to exceed the simplified acquisition threshold. The 
contracting officer may insert the clause in solicitations and contracts 
when a fixed-price construction

[[Page 823]]

or a fixed-price contract for dismantling, demolition, or removal of 
improvements is contemplated and the contract amount is expected to be 
at or below the simplified acquisition threshold.

[48 FR 42356, Sept. 19, 1983, as amended at 60 FR 34759, July 3, 1995]



Sec. 36.503  Site investigation and conditions affecting the work.

    The contracting officer shall insert the clause at 52.236-3, Site 
Investigation and Conditions Affecting the Work, in solicitations and 
contracts when a fixed-price construction contract or a fixed-price 
dismantling, demolition, or removal of improvements contract is 
contemplated and the contract amount is expected to exceed the 
simplified acquisition threshold. The contracting officer may insert the 
clause in solicitations and contracts when a fixed-price construction or 
a fixed-price contract for dismantling, demolition, or removal of 
improvements is contemplated and the contract amount is expected to be 
at or below the simplified acquisition threshold.

[48 FR 42356, Sept. 19, 1983, as amended at 60 FR 34759, July 3, 1995]



Sec. 36.504  Physical data.

    The contracting officer shall insert the clause at 52.236-4, 
Physical Data, in solicitations and contracts when a fixed-price 
construction contract is contemplated and physical data (e.g., test 
borings, hydrographic data, weather conditions data) will be furnished 
or made available to offerors.



Sec. 36.505  Material and workmanship.

    The contracting officer shall insert the clause at 52.236-5, 
Material and Workmanship, in solicitations and contracts for 
construction contracts.

[54 FR 48989, Nov. 28, 1989]



Sec. 36.506  Superintendence by the contractor.

    The contracting officer shall insert the clause at 52.236-6, 
Superintendence by the Contractor, in solicitations and contracts when a 
fixed-price construction contract or a fixed-price dismantling, 
demolition, or removal of improvements contract is contemplated and the 
contract amount is expected to exceed the simplified acquisition 
threshold. The contracting officer may insert the clause in 
solicitations and contracts when a fixed-price construction or a fixed-
price contract for dismantling, demolition, or removal of improvements 
is contemplated and the contract amount is expected to be at or below 
the simplified acquisition threshold.

[48 FR 42356, Sept. 19, 1983, as amended at 60 FR 34759, July 3, 1995]



Sec. 36.507  Permits and responsibilities.

    The contracting officer shall insert the clause at 52.236-7, Permits 
and Responsibilities, in solicitations and contracts when a fixed-price 
or cost-reimbursement construction contract or a fixed-price 
dismantling, demolition, or removal of improvements contract is 
contemplated.

[54 FR 48989, Nov. 28, 1989]



Sec. 36.508  Other contracts.

    The contracting officer shall insert the clause at 52.236-8, Other 
Contracts, in solicitations and contracts when a fixed-price 
construction contract or a fixed-price dismantling, demolition, or 
removal of improvements contract is contemplated and the contract amount 
is expected to exceed the simplified acquisition threshold. The 
contracting officer may insert the clause in solicitations and contracts 
when a fixed-price construction or a fixed-price contract for 
dismantling, demolition, or removal of improvements is contemplated and 
the contract amount is expected to be at or below the simplified 
acquisition threshold.

[48 FR 42356, Sept. 19, 1983, as amended at 60 FR 34759, July 3, 1995]



Sec. 36.509  Protection of existing vegetation, structures, equipment, 
          utilities, and improvements.

    The contracting officer shall insert the clause at 52.236-9, 
Protection of Existing Vegetation, Structures, Equipment, Utilities, and 
Improvements, in solicitations and contracts when a fixed-price 
construction contract or a fixed-price dismantling, demolition, or 
removal of improvements contract is

[[Page 824]]

contemplated and the contract amount is expected to exceed the 
simplified acquisition threshold. The contracting officer may insert the 
clause in solicitations and contracts when a fixed-price construction or 
a fixed-price contract for dismantling, demolition, or removal of 
improvements is contemplated and the contract amount is expected to be 
at or below the simplified acquisition threshold.

[48 FR 42356, Sept. 19, 1983, as amended at 60 FR 34759, July 3, 1995]



Sec. 36.510  Operations and storage areas.

    The contracting officer shall insert the clause at 52.236-10, 
Operations ald Storage Areas, in solicitations and contracts when a 
fixed-price construction contract or a fixed-price dismantling, 
demolition, or removal of improvements contract is contemplated and the 
contract amount is expected to exceed the simplified acquisition 
threshold. The contracting officer may insert the clause in 
solicitations and contracts when a fixed-price construction or a fixed-
price contract for dismantling, demolition, or removal of improvements 
is contemplated and the contract amount is expected to be at or below 
the simplified acquisition threshold.

[48 FR 42356, Sept. 19, 1983, as amended at 60 FR 34759, July 3, 1995]



Sec. 36.511  Use and possession prior to completion.

    The contracting officer shall insert the clause at 52.236-11, Use 
and Possession Prior to Completion, in solicitations and contracts when 
a fixed-price construction contract is contemplated and the contract 
award amount is expected to exceed the simplified acquisition threshold. 
This clause may be inserted in solicitations and contracts when the 
contract amount is expected to be at or below the simplified acquisition 
threshold.

[48 FR 42356, Sept. 19, 1983, as amended at 60 FR 34759, July 3, 1995]



Sec. 36.512  Cleaning up.

    The contracting officer shall insert the clause at 52.236-12, 
Cleaning Up, in solicitations and contracts when a fixed-price 
construction contract or a fixed-price dismantling, demolition, or 
removal of improvements contract is contemplated and the contract amount 
is expected to exceed the simplified acquisition threshold. The 
contracting officer may insert the clause in solicitations and contracts 
when a fixed-price construction or a fixed-price contract for 
dismantling, demolition, or removal of improvements is contemplated and 
the contract amount is expected to be at or below the simplified 
acquisition threshold.

[48 FR 42356, Sept. 19, 1983, as amended at 60 FR 34759, July 3, 1995]



Sec. 36.513  Accident prevention.

    (a) The contracting officer shall insert the clause at 52.236-13, 
Accident Prevention, in solicitations and contracts when a fixed-price 
construction contract or a fixed-price dismantling, demolition, or 
removal of improvements contract is contemplated and the contract amount 
is expected to exceed the simplified acquisition threshold. The 
contracting officer may insert the clause in solicitations and contracts 
when a fixed-price construction or a fixed-price contract for 
dismantling, demolition, or removal of improvements is contemplated and 
the contract amount is expected to be at or below the simplified 
acquisition threshold. If the contract will involve work of a long 
duration or hazardous nature, the contracting officer shall use the 
clause with its Alternate I.
    (b) The contracting officer shall insert the clause or the clause 
with its Alternate I in solicitations and contracts when a contract for 
services to be performed at Government facilities (see FAR part 37) is 
contemplated, and technical representatives advise that special 
precautions are appropriate.
    (c) The contracting officer should inform the Occupational Safety 
and Health Administration (OSHA), or other cognizant Federal, State, or 
local officials, of instances where the contractor has been notified to 
take immediate action to correct serious or imminent dangers.

[48 FR 42356, Sept. 19, 1983, as amended at 56 FR 55375, Oct. 25, 1991; 
60 FR 34759, July 3, 1995]

[[Page 825]]



Sec. 36.514  Availability and use of utility services.

    The contracting officer shall insert the clause at 52.236-14, 
Availability and Use of Utility Services, in solicitations and contracts 
when a fixed-price construction contract or a fixed-price dismantling, 
demolition, or removal of improvements contract is contemplated, the 
contract is to be performed on Government sites, and the contracting 
officer decides (a) that the existing utility system(s) is adequate for 
the needs of both the Government and the contractor, and (b) furnishing 
it is in the Government's interest. When this clause is used, the 
contracting officer shall list the available utilities in the contract.



Sec. 36.515  Schedules for construction contracts.

    The contracting officer may insert the clause at 52.236-15, 
Schedules for Construction Contracts, in solicitations and contracts 
when a fixed-price construction contract is contemplated, the contract 
amount is expected to exceed the simplified acquisition threshold, and 
the period of actual work performance exceeds 60 days. This clause may 
also be inserted in such solicitations and contracts when work 
performance is expected to last less than 60 days and an unusual 
situation exists that warrants imposition of the requirements. This 
clause should not be used in the same contract with clauses covering 
other management approaches for ensuring that a contractor makes 
adequate progress.

[48 FR 42356, Sept. 19, 1983, as amended at 60 FR 34759, July 3, 1995]



Sec. 36.516  Quantity surveys.

    The contracting officer may insert the clause at 52.236-16, Quantity 
Surveys, in solicitations and contracts when a fixed-price construction 
contract providing for unit pricing of items and for payment based on 
quantity surveys is contemplated. If it is determined at a level above 
that of the contracting officer that it is impracticable for Government 
personnel to perform the original and final surveys, and the Government 
wishes the contractor to perform these surveys, the clause shall be used 
with its Alternate.



Sec. 36.517  Layout of work.

    The contracting officer shall insert the clause at 52.236-17, Layout 
of Work, in solicitations and contracts when a fixed-price construction 
contract is contemplated and use of this clause is appropriate due to a 
need for accurate work layout and for siting verification during work 
performance.



Sec. 36.518  Work oversight in cost-reimbursement construction 
          contracts.

    The contracting officer shall insert the clause at 52.236-18, Work 
Oversight in Cost-Reimbursement Construction Contracts, in solicitations 
and contracts when a cost-reimbursement construction contract is 
contemplated.



Sec. 36.519  Organization and direction of the work.

    The contracting officer shall insert the clause at 52.236-19, 
Organization and Direction of the Work, in solicitations and contracts 
when a cost-reimbursement construction contract is contemplated.



Sec. 36.520  Contracting by negotiation.

    The contracting officer shall insert in solicitations for 
construction the provision at 52.236-28, Preparation of Offers--
Construction, when contracting by negotiation.

[62 FR 51258, Sept. 30, 1997]



Sec. 36.521  Specifications and drawings for construction.

    The contracting officer shall insert the clause at 52.236-21, 
Specifications and Drawings for Construction, in solicitations and 
contracts when a fixed-price construction contract or a fixed-price 
dismantling, demolition, or removal of improvements contract is 
contemplated and the contract amount is expected to exceed the 
simplified acquisition threshold. The contracting officer may insert the 
clause in solicitations and contracts when a fixed-price construction or 
a fixed-price contract for dismantling, demolition, or removal of 
improvements is contemplated and the contract amount is expected to be 
at or below the simplified acquisition threshold. When the

[[Page 826]]

Government needs record drawings, the contracting officer shall (a) use 
the clause with its Alternate I, if reproducible shop drawings are 
needed, or (b) use the clause with its Alternate II, if reproducible 
shop drawings are not needed.

[48 FR 42356, Sept. 19, 1983, as amended at 51 FR 2666, Jan. 17, 1986; 
60 FR 34759, July 3, 1995]



Sec. 36.522  Preconstruction conference.

    If the contracting officer determines it may be desirable to hold a 
preconstruction conference, the contracting officer shall insert a 
clause substantially the same as the clause at 52.236-26, 
Preconstruction Conference, in solicitations and fixed price contracts 
for construction or for dismantling, demolition or removal of 
improvements.

[59 FR 67050, Dec. 28, 1994]



Sec. 36.523  Site visit.

    The contracting officer shall insert a provision substantially the 
same as the provision at 52.236-27, Site Visit (Construction), in 
solicitations which include the clauses at 52.236-2, Differing Site 
Conditions, and 52.236-3, Site Investigations and Conditions Affecting 
the Work. Alternate I may be used when an organized site visit will be 
conducted.

[59 FR 67050, Dec. 28, 1994]

                Subpart 36.6_Architect-Engineer Services



Sec. 36.600  Scope of subpart.

    This subpart prescribes policies and procedures applicable to the 
acquisition of architect-engineer services, including orders for 
architect-engineer services under multi-agency contracts (see 
16.505(a)(9)).

[70 FR 11739, Mar. 9, 2005, as amended at 77 FR 194, Jan. 3, 2012]



Sec. 36.601  Policy.



Sec. 36.601-1  Public announcement.

    The Government shall publicly announce all requirements for 
architect-engineer services and negotiate contracts for these services 
based on the demonstrated competence and qualifications of prospective 
contractors to perform the services at fair and reasonable prices. (See 
40 U.S.C. 1101 et seq.)

[56 FR 29128, June 25, 1991, as amended at 70 FR 57454, Sept. 30, 2005]



Sec. 36.601-2  Competition.

    Acquisition of architect-engineer services in accordance with the 
procedures in this subpart will constitute a competitive procedure. (See 
6.102(d)(1).)

[56 FR 29128, June 25, 1991]



Sec. 36.601-3  Applicable contracting procedures.

    (a)(1) For facility design contracts, the statement of work shall 
require that the architect-engineer specify, in the construction design 
specifications, use of the maximum practicable amount of recovered 
materials consistent with the performance requirements, availability, 
price reasonableness, and cost-effectiveness. Where appropriate, the 
statement of work also shall require the architect-engineer to consider 
energy conservation, pollution prevention, and waste reduction to the 
maximum extent practicable in developing the construction design 
specifications.
    (2) Facility design solicitations and contracts that include the 
specification of energy-consuming products must comply with the 
requirements at subpart 23.2.
    (b) Sources for contracts for architect-engineer services shall be 
selected in accordance with the procedures in this subpart rather than 
the solicitation or source selection procedures prescribed in parts 13, 
14, and 15 of this regulation.
    (c) When the contract statement of work includes both architect-
engineer services and other services, the contracting officer shall 
follow the procedures in this subpart if the statement of work, 
substantially or to a dominant extent, specifies performance or approval 
by a registered or licensed architect or engineer. If the statement of 
work does not specify such performance or approval, the contracting 
officer shall follow the procedures in parts 13, 14, or 15.

[[Page 827]]

    (d) Other than ``incidental services'' as specified in the 
definition of architect-engineer services in Section 2.101 and in 
Section 36.601-4(a)(3), services that do not require performance by a 
registered or licensed architect or engineer, notwithstanding the fact 
that architect-engineers also may perform those services, should be 
acquired pursuant to parts 13, 14, and 15.

[56 FR 29128, June 25, 1991, as amended at 60 FR 28498, May 31, 1995; 62 
FR 44812, Aug. 22, 1997; 66 FR 2132, Jan. 10, 2001; 72 FR 65872, Nov. 
23, 2007]



Sec. 36.601-4  Implementation.

    (a) Contracting officers should consider the following services to 
be ``architect-engineer services'' subject to the procedures of this 
subpart:
    (1) Professional services of an architectural or engineering nature, 
as defined by applicable State law, which the State law requires to be 
performed or approved by a registered architect or engineer.
    (2) Professional services of an architectural or engineering nature 
associated with design or construction of real property.
    (3) Other professional services of an architectural or engineering 
nature or services incidental thereto (including studies, 
investigations, surveying and mapping, tests, evaluations, 
consultations, comprehensive planning, program management, conceptual 
designs, plans and specifications, value engineering, construction phase 
services, soils engineering, drawing reviews, preparation of operating 
and maintenance manuals and other related services) that logically or 
justifiably require performance by registered architects or engineers or 
their employees.
    (4) Professional surveying and mapping services on an architectural 
or engineering nature. Surveying is considered to be an architectural 
and engineering service and shall be procured pursuant to 36.601 from 
registered surveyors or architects and engineers. Mapping associated 
with the research, planning, development, design, construction, or 
alteration of real property is considered to be an architectural and 
engineering service and is to be procured pursuant to 36.601. However, 
mapping services that are not connected to traditionally understood or 
accepted architectural and engineering activities, are not incidental to 
such architectural and engineering activities or have not in themselves 
traditionally been considered architectural and engineering services 
shall be procured pursuant to provisions in parts 13, 14, and 15.
    (b) Contracting officers may award contracts for architect-engineer 
services to any firm permitted by law to practice the professions of 
architecture or engineering.

[56 FR 29128, June 25, 1991, as amended at 64 FR 32747, June 17, 1999]



Sec. 36.602  Selection of firms for architect-engineer contracts.



Sec. 36.602-1  Selection criteria.

    (a) Agencies shall evaluate each potential contractor in terms of 
its--
    (1) Professional qualifications necessary for satisfactory 
performance of required services;
    (2) Specialized experience and technical competence in the type of 
work required, including, where appropriate, experience in energy 
conservation, pollution prevention, waste reduction, and the use of 
recovered materials;
    (3) Capacity to accomplish the work in the required time;
    (4) Past performance on contracts with Government agencies and 
private industry in terms of cost control, quality of work, and 
compliance with performance schedules;
    (5) Location in the general geographical area of the project and 
knowledge of the locality of the project; provided, that application of 
this criterion leaves an appropriate number of qualified firms, given 
the nature and size of the project; and
    (6) Acceptability under other appropriate evaluation criteria.
    (b) When the use of design competition is approved by the agency 
head or a designee, agencies may evaluate firms on the basis of their 
conceptual design of the project. Design competition may be used when--
    (1) Unique situations exist involving prestige projects, such as the 
design of memorials and structures of unusual national significance;

[[Page 828]]

    (2) Sufficient time is available for the production and evaluation 
of conceptual designs; and
    (3) The design competition, with its costs, will substantially 
benefit the project.

[48 FR 42356, Sept. 19, 1983, as amended at 60 FR 28498, May 31, 1995; 
62 FR 44812, Aug. 22, 1997; 62 FR 51379, Oct. 1, 1997]



Sec. 36.602-2  Evaluation boards.

    (a) When acquiring architect-engineer services, an agency shall 
provide for one or more permanent or ad hoc architect-engineer 
evaluation boards (which may include preselection boards when authorized 
by agency regulations) to be composed of members who, collectively, have 
experience in architecture, engineering, construction, and Government 
and related acquisition matters. Members shall be appointed from among 
highly qualified professional employees of the agency or other agencies, 
and if authorized by agency procedure, private practitioners of 
architecture, engineering, or related professions. One Government member 
of each board shall be designated as the chairperson.
    (b) No firm shall be eligible for award of an architect-engineer 
contract during the period in which any of its principals or associates 
are participating as members of the awarding agency's evaluation board.



Sec. 36.602-3  Evaluation board functions.

    Under the general direction of the head of the contracting activity, 
an evaluation board shall perform the following functions:
    (a) Review the current data files on eligible firms and responses to 
a public notice concerning the particular project (see 36.603).
    (b) Evaluate the firms in accordance with the criteria in 36.602-1.
    (c) Hold discussions with at least three of the most highly 
qualified firms regarding concepts and the relative utility of 
alternative methods of furnishing the required services.
    (d) Prepare a selection report for the agency head or other 
designated selection authority recommending, in order of preference, at 
least three firms that are considered to be the most highly qualified to 
perform the required services. The report shall include a description of 
the discussions and evaluation conducted by the board to allow the 
selection authority to review the considerations upon which the 
recommendations are based.

[48 FR 42356, Sept. 19, 1983, as amended at 54 FR 48989, Nov. 28, 1989; 
60 FR 28498, May 31, 1995; 62 FR 44812, Aug. 22, 1997; 74 FR 31560, July 
1, 2009]



Sec. 36.602-4  Selection authority.

    (a) The final selection decision shall be made by the agency head or 
a designated selection authority.
    (b) The selection authority shall review the recommendations of the 
evaluation board and shall, with the advice of appropriate technical and 
staff representatives, make the final selection. This final selection 
shall be a listing, in order of preference, of the firms considered most 
highly qualified to perform the work. If the firm listed as the most 
preferred is not the firm recommended as the most highly qualified by 
the evaluation board, the selection authority shall provide for the 
contract file a written explanation of the reason for the preference. 
All firms on the final selection list are considered selected firms with 
which the contracting officer may negotiate in accordance with 36.606.
    (c) The selection authority shall not add firms to the selection 
report. If the firms recommended in the report are not deemed to be 
qualified or the report is considered inadequate for any reason, the 
selection authority shall record the reasons and return the report 
through channels to the evaluation board for appropriate revision.
    (d) The board shall be promptly informed of the final selection.



Sec. 36.602-5  Short selection process for contracts not to exceed the 
          simplified acquisition threshold.

    When authorized by the agency, either or both of the short processes 
described in this subsection may be used to select firms for contracts 
not expected to exceed the simplified acquisition threshold. Otherwise, 
the procedures prescribed in 36.602-3 and 36.602-4 shall be followed.

[[Page 829]]

    (a) Selection by the board. The board shall review and evaluate 
architect-engineer firms in accordance with 36.602-3, except that the 
selection report shall serve as the final selection list and shall be 
provided directly to the contracting officer. The report shall serve as 
an authorization for the contracting officer to commence negotiations in 
accordance with 36.606.
    (b) Selection by the chairperson of the board. When the board 
decides that formal action by the board is not necessary in connection 
with a particular selection, the following procedures shall be followed:
    (1) The chairperson of the board shall perform the functions 
required in 36.602-3.
    (2) The agency head or designated selection authority shall review 
the report and approve it or return it to the chairperson for 
appropriate revision.
    (3) Upon receipt of an approved report, the chairperson of the board 
shall furnish the contracting officer a copy of the report which will 
serve as an authorization for the contracting officer to commence 
negotiations in accordance with 36.606.

[48 FR 42356, Sept. 19, 1983, as amended at 54 FR 48989, Nov. 28, 1989; 
60 FR 34759, July 3, 1995]



Sec. 36.603  Collecting data on and appraising firms' qualifications.

    (a) Establishing offices. Agencies shall maintain offices or 
permanent evaluation boards, or arrange to use the offices or boards of 
other agencies, to receive and maintain data on firms wishing to be 
considered for Government contracts. Each office or board shall be 
assigned a jurisdiction by its parent agency, making it responsible for 
a geographical region or area, or a specialized type of construction.
    (b) Qualifications data. To be considered for architect-engineer 
contracts, a firm must file with the appropriate office or board the 
Standard Form 330, ``Architect-Engineer Qualifications,'' Part II, and 
when applicable, SF 330, Part I.
    (c) Data files and the classification of firms. Under the direction 
of the parent agency, offices or permanent evaluation boards shall 
maintain an architect-engineer qualifications data file. These offices 
or boards shall review the SF's 254 and 255 filed, and shall classify 
each firm with respect to:
    (1) Location;
    (2) Specialized experience;
    (3) Professional capabilities; and
    (4) Capacity, with respect to the scope of work that can be 
undertaken. A firm's ability and experience in computer-assisted design 
should be considered, when appropriate.
    (d) Currency of files. Any office or board maintaining 
qualifications data files shall review and update each file at least 
once a year. This process should include:
    (1) Encouraging firms to submit annually an updated statement of 
qualifications and performance data on a SF 330 Part II.
    (2) Reviewing the SF 330 Part II and, if necessary, updating the 
firm's classification (see 36.603(c)).
    (3) Recording any contract awards made to the firm in the past year.
    (4) Assuring that the file contains a copy of each pertinent 
performance evaluation (see 42.1502(f)).
    (5) Discarding any material that has not been updated within the 
past three years, if it is no longer pertinent, see 42.1502(f).
    (6) Posting the date of the review in the file.
    (e) Use of data files. Evaluation boards and other appropriate 
Government employees, including contracting officers, shall use data 
files on firms.

[48 FR 42356, Sept. 19, 1983, as amended at 68 FR 69231, Dec. 11, 2003; 
74 FR 31560, July 1, 2009]



Sec. 36.604  Performance evaluation.

    See 42.1502(f) for the requirements for preparing past performance 
evaluations for architect-engineer contracts.

[74 FR 31560, July 1, 2009]



Sec. 36.605  Government cost estimate for architect-engineer work.

    (a) An independent Government estimate of the cost of architect-
engineer services shall be prepared and furnished to the contracting 
officer before commencing negotiations for each proposed contract or 
contract modification expected to exceed the simplified acquisition 
threshold. The estimate

[[Page 830]]

shall be prepared on the basis of a detailed analysis of the required 
work as though the Government were submitting a proposal.
    (b) Access to information concerning the Government estimate shall 
be limited to Government personnel whose official duties require 
knowledge of the estimate. An exception to this rule may be made during 
contract negotiations to allow the contracting officer to identify a 
specialized task and disclose the associated cost breakdown figures in 
the Government estimate, but only to the extent deemed necessary to 
arrive at a fair and reasonable price. The overall amount of the 
Government's estimate shall not be disclosed except as permitted by 
agency regulations.

[48 FR 42356, Sept. 19, 1983, as amended at 62 FR 44829, Aug. 22, 1997; 
71 FR 57368, Sept. 28, 2006]



Sec. 36.606  Negotiations.

    (a) Unless otherwise specified by the selection authority, the final 
selection authorizes the contracting officer to begin negotiations. 
Negotiations shall be conducted in accordance with part 15 of this 
chapter, beginning with the most preferred firm in the final selection 
(see 15.404-4(c)(4)(i) on fee limitation).
    (b) The contracting officer should ordinarily request a proposal 
from the firm, ensuring that the solicitation does not inadvertently 
preclude the firm from proposing the use of modern design methods.
    (c) The contracting officer shall inform the firm that no 
construction contract may be awarded to the firm that designed the 
project, except as provided in 36.209.
    (d) During negotiations, the contracting officer should seek advance 
agreement (see 31.109) on any charges for computer-assisted design. When 
the firm's proposal does not cover appropriate modern and cost-effective 
design methods (e.g., computer-assisted design), the contracting officer 
should discuss this topic with the firm.
    (e) Because selection of firms is based upon qualifications, the 
extent of any subcontracting is an important negotiation topic. The 
clause prescribed at 44.204(b), Subcontractors and Outside Associates 
and Consultants (Architect-Engineer Services) (see 52.244-4), limits a 
firm's subcontracting to firms agreed upon during negotiations.
    (f) If a mutually satisfactory contract cannot be negotiated, the 
contracting officer shall obtain a written final proposal revision from 
the firm, and notify the firm that negotiations have been terminated. 
The contracting officer shall then initiate negotiations with the next 
firm on the final selection list. This procedure shall be continued 
until a mutually satisfactory contract has been negotiated. If 
negotiations fail with all selected firms, the contracting officer shall 
refer the matter to the selection authority who, after consulting with 
the contracting officer as to why a contract cannot be negotiated, may 
direct the evaluation board to recommend additional firms in accordance 
with 36.602.

[48 FR 42356, Sept. 19, 1983, as amended at 60 FR 37777, July 21, 1995; 
62 FR 51271, Sept. 30, 1997; 63 FR 34060, June 22, 1998; 67 FR 6120, 
Feb. 8, 2002; 67 FR 56126, Aug. 30, 2002]



Sec. 36.607  Release of information on firm selection.

    (a) After final selection has taken place, the contracting officer 
may release information identifying only the architect-engineer firm 
with which a contract will be negotiated for certain work. The work 
should be described in any release only in general terms, unless 
information relating to the work is classified. If negotiations are 
terminated without awarding a contract to the highest rated firm, the 
contracting officer may release that information and state that 
negotiations will be undertaken with another (named) architect-engineer 
firm. When an award has been made, the contracting officer may release 
award information, (see 5.401).
    (b) Debriefings of successful and unsuccessful firms will be held 
after final selection has taken place and will be conducted, to the 
extent practicable, in accordance with 15.503, 15.506(b) through (f), 
15.507(c). Note that 15.506(d)(2) through (d)(5) do not apply to 
architect-engineer contracts.

[48 FR 42356, Sept. 19, 1983, as amended at 60 FR 42657, Aug. 16, 1995; 
61 FR 69291, Dec. 31, 1996; 62 FR 51271, Sept. 30, 1997]

[[Page 831]]



Sec. 36.608  Liability for Government costs resulting from design
errors or deficiencies.

    Architect-engineer contractors shall be responsible for the 
professional quality, technical accuracy, and coordination of all 
services required under their contracts. A firm may be liable for 
Government costs resulting from errors or deficiencies in designs 
furnished under its contract. Therefore, when a modification to a 
construction contract is required because of an error or deficiency in 
the services provided under an architect-engineer contract, the 
contracting officer (with the advice of technical personnel and legal 
counsel) shall consider the extent to which the architect-engineer 
contractor may be reasonably liable. The contracting officer shall 
enforce the liability and issue a demand for payment of the amount due, 
if the recoverable cost will exceed the administrative cost involved or 
is otherwise in the Government's interest. The contracting officer shall 
include in the contract file a written statement of the reasons for the 
decision to recover or not to recover the costs from the firm.

[48 FR 42356, Sept. 19, 1983, as amended at 73 FR 54005, Sept. 17, 2008]



Sec. 36.609  Contract clauses.



Sec. 36.609-1  Design within funding limitations.

    (a) The Government may require the architect-engineer contractor to 
design the project so that construction costs will not exceed a 
contractually specified dollar limit (funding limitation). If the price 
of construction proposed in response to a Government solicitation 
exceeds the construction funding limitation in the architect-engineer 
contract, the firm shall be solely responsible for redesigning the 
project within the funding limitation. These additional services shall 
be performed at no increase in the price of this contract. However, if 
the cost of proposed construction is affected by events beyond the 
firm's reasonable control (e.g., if there is an increase in material 
costs which could not have been anticipated, or an undue delay by the 
Government in issuing a construction solicitation), the firm shall not 
be obligated to redesign at no cost to the Government. If a firm's 
design fails to meet the contractual limitation on construction cost and 
the Government determines that the firm should not redesign the project, 
a written statement of the reasons for that determination shall be 
placed in the contract file.
    (b) The amount of the construction funding limitation (to be 
inserted in paragraph (c) of the clause at 52.236-22) is to be 
established during negotiations between the contractor and the 
Government. This estimated construction contract price shall take into 
account any statutory or other limitations and exclude any allowances 
for Government supervision and overhead and any amounts set aside by the 
Government for contingencies. In negotiating the amount, the contracting 
officer should make available to the contractor the information upon 
which the Government has based its initial construction estimate and any 
subsequently acquired information that may affect the construction 
costs.
    (c) The contracting officer shall insert the clause at 52.236-22, 
Design Within Funding Limitations, in fixed-price architect-engineer 
contracts except when (1) the head of the contracting activity or a 
designee determines in writing that cost limitations are secondary to 
performance considerations and additional project funding can be 
expected, if necessary, (2) the design is for a standard structure and 
is not intended for a specific location, or (3) there is little or no 
design effort involved.

[48 FR 42356, Sept. 19, 1983, as amended at 50 FR 26903, June 28, 1985]



Sec. 36.609-2  Redesign responsibility for design errors or 
          deficiencies.

    (a) Under architect-engineer contracts, contractors shall be 
required to make necessary corrections at no cost to the Government when 
the designs, drawings, specifications, or other items or services 
furnished contain any errors, deficiencies, or inadequacies. If, in a 
given situation, the Government does not require a firm to correct such 
errors, the contracting officer shall include a written statement of the 
reasons for that decision in the contract file.

[[Page 832]]

    (b) The contracting officer shall insert the clause at 52.236-23, 
Responsibility of the Architect-Engineer Contractor, in fixed-price 
architect-engineer contracts.

[48 FR 42356, Sept. 19, 1983, as amended at 50 FR 26903, June 28, 1985]



Sec. 36.609-3  Work oversight in architect-engineer contracts.

    The contracting officer shall insert the clause at 52.236-24, Work 
Oversight in Architect-Engineer Contracts, in all architect-engineer 
contracts.

[50 FR 26903, June 28, 1985, as amended at 64 FR 51845, Sept. 24, 1999]
    The contracting officer shall insert the clause at 52.236-25,



Sec. 36.609-4  Requirements for registration of designers.

    Insert the clause at 52.236-25, Requirements for Registration of 
Designers, in architect-engineer contracts, except that it may be 
omitted when the design will be performed--
    (a) Outside the United States and its outlying areas; or
    (b) In a State or outlying area of the United States that does not 
have registration requirements for the particular field involved.

[68 FR 28083, May 22, 2003]

      Subpart 36.7_Standard and Optional Forms for Contracting for 
Construction, Architect-Engineer Services, and Dismantling, Demolition, 
                       or Removal of Improvements



Sec. 36.700  Scope of subpart.

    This subpart sets forth requirements for the use of standard and 
optional forms, prescribed in part 53, for contracting for construction, 
architect-engineer services, or dismantling, demolition, or removal of 
improvements. These standard and optional forms are illustrated in part 
53.

[54 FR 29282, July 11, 1989]



Sec. 36.701  Standard and optional forms for use in contracting for 
          construction or dismantling, demolition, or removal of 
          improvements.

    (a) Standard Form 1442, Solicitation, Offer, and Award 
(Construction, Alteration, or Repair), shall be used to solicit and 
submit offers, and award construction or dismantling, demolition, or 
removal of improvements contracts expected to exceed the simplified 
acquisition threshold, and may be used for contracts at or below the 
simplified acquisition threshold. In all sealed bid solicitations, or 
when the Government otherwise requires a noncancellable offer acceptance 
period, the contracting officer shall insert in the blank provided in 
Block 13D the number of calendar days that the offer must be available 
for acceptance after the date offers are due.
    (b) Optional Form 347, Order for Supplies or Services, may be used 
for construction or dismantling, demolition, or removal of improvements 
contracts that are at or below the simplified acquisition threshold 
provided, that the contracting officer includes the clauses required 
(see subpart 36.5) in the simplified acquisitions (see part 13).
    (c) Contracting officers may use Optional Form 1419, Abstract of 
Offers--Construction, and Optional Form 1419A, Abstract of Offers--
Construction, Continuation Sheet, or the automated equivalents to record 
offers submitted in response to a sealed bid solicitation (see 14.403) 
and may also use them to record offers submitted in response to 
negotiated solicitations.

[48 FR 42356, Sept. 19, 1983, as amended at 52 FR 19805, May 27, 1987; 
54 FR 29282, July 11, 1989; 60 FR 34759, July 3, 1995; 61 FR 39198, July 
26, 1996; 69 FR 59699, Oct. 5, 2004; 74 FR 31560, July 1, 2009]



Sec. 36.702  Forms for use in contracting for architect-engineer 
          services.

    (a) Contracting officers must use Standard Form 252, Architect-
Engineer Contract, to award fixed-price contracts for architect-engineer 
services when the services will be performed in the United States or its 
outlying areas.
    (b) The SF 330, Architect-Engineer Qualifications, shall be used to 
evaluate firms before awarding a contract for architect-engineer 
services:

[[Page 833]]

    (1) Use the SF 330, Part I--Contract-Specific Qualifications, to 
obtain information from an architect-engineer firm about its 
qualifications for a specific contract when the contract amount is 
expected to exceed the simplified acquisition threshold. Part I may be 
used when the contract amount is expected to be at or below the 
simplified acquisition threshold, if the contracting officer determines 
that its use is appropriate.
    (2) Use the SF 330, Part II--General Qualifications, to obtain 
information from an architect-engineer firm about its general 
professional qualifications.

[48 FR 42356, Sept. 19, 1983, as amended at 60 FR 34759, July 3, 1995; 
68 FR 28084, May 22, 2003; 68 FR 69231, Dec. 11, 2003; 74 FR 31560, July 
1, 2009]

                       PART 37_SERVICE CONTRACTING

Sec.

Sec. 37.000 Scope of part.

                 Subpart 37.1_Service Contracts_General


Sec. 37.101 Definitions.

Sec. 37.102 Policy.

Sec. 37.103 Contracting officer responsibility.

Sec. 37.104 Personal services contracts.

Sec. 37.105 Competition in service contracting.

Sec. 37.106 Funding and term of service contracts.

Sec. 37.107 Service Contract Act of 1965.

Sec. 37.108 Small business Certificate of Competency.

Sec. 37.109 Services of quasi-military armed forces.

Sec. 37.110 Solicitation provisions and contract clauses.

Sec. 37.111 Extension of services.

Sec. 37.112 Government use of private sector temporaries.

Sec. 37.113 Severance payments to foreign nationals.

Sec. 37.113-1 Waiver of cost allowability limitations.

Sec. 37.113-2 Solicitation provision and contract clause.

Sec. 37.114 Special acquisition requirements.

Sec. 37.115 Uncompensated overtime.

Sec. 37.115-1 Scope.

Sec. 37.115-2 General policy.

Sec. 37.115-3 Solicitation provision.

Sec. 37.116 Accepting and dispensing of $1 coin.

Sec. 37.116-1 Presidential $1 Coin Act of 2005.

Sec. 37.116-2 Contract clause.

              Subpart 37.2_Advisory and Assistance Services


Sec. 37.200 Scope of subpart.

Sec. 37.201 Definition.

Sec. 37.202 Exclusions.

Sec. 37.203 Policy.

Sec. 37.204 Guidelines for determining availability of personnel.

Sec. 37.205 Contracting officer responsibilities.

    Subpart 37.3_Dismantling, Demolition, or Removal of Improvements


Sec. 37.300 Scope of subpart.

Sec. 37.301 Labor standards.

Sec. 37.302 Bonds or other security.

Sec. 37.303 Payments.

Sec. 37.304 Contract clauses.

              Subpart 37.4_Nonpersonal Health Care Services


Sec. 37.400 Scope of subpart.

Sec. 37.401 Policy.

Sec. 37.402 Contracting officer responsibilities.

Sec. 37.403 Contract clause.

         Subpart 37.5_Management Oversight of Service Contracts


Sec. 37.500 Scope of subpart.

Sec. 37.501 Definition.

Sec. 37.502 Exclusions.

Sec. 37.503 Agency-head responsibilities.

Sec. 37.504 Contracting officials' responsibilities.

               Subpart 37.6_Performance-Based Contracting


Sec. 37.600 Scope of subpart.

Sec. 37.601 General.

Sec. 37.602 Performance work statement.

Sec. 37.603 Performance standards.

Sec. 37.604 Quality assurance surveillance plans.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 
2473(c).

    Source: 48 FR 42365, Sept. 19, 1983, unless otherwise noted.



Sec. 37.000  Scope of part.

    This part prescribes policy and procedures that are specific to the 
acquisition and management of services by contract. This part applies to 
all contracts and orders for services regardless of the contract type or 
kind of service being acquired. This part requires the use of 
performance-based acquisitions for services to the maximum extent 
practicable and prescribes policies and procedures for use of 
performance-based acquisition methods (see Subpart 37.6). Additional 
guidance for research and development services is in part 35; architect-
engineering services is in part 36; information technology is in part 
39; and transportation services

[[Page 834]]

is in part 47. Parts 35, 36, 39, and 47 take precedence over this part 
in the event of inconsistencies. This part includes, but is not limited 
to, contracts for services to which the Service Contract Act of 1965, as 
amended, applies (see subpart 22.10).

[62 FR 12694, Mar. 17, 1997, as amended at 62 FR 44815, Aug. 22, 1997; 
71 FR 218, Jan. 3, 2006]

                 Subpart 37.1_Service Contracts_General



Sec. 37.101  Definitions.

    As used in this part--
    Child care services means child protective services (including the 
investigation of child abuse and neglect reports), social services, 
health and mental health care, child (day) care, education (whether or 
not directly involved in teaching), foster care, residential care, 
recreational or rehabilitative programs, and detention, correctional, or 
treatment services.
    Nonpersonal services contract means a contract under which the 
personnel rendering the services are not subject, either by the 
contract's terms or by the manner of its administration, to the 
supervision and control usually prevailing in relationships between the 
Government and its employees.
    Performance-based contracting means structuring all aspects of an 
acquisition around the purpose of the work to be performed as opposed to 
either the manner by which the work is to be performed or broad and 
imprecise statements of work.
    Service contract means a contract that directly engages the time and 
effort of a contractor whose primary purpose is to perform an 
identifiable task rather than to furnish an end item of supply. A 
service contract may be either a nonpersonal or personal contract. It 
can also cover services performed by either professional or 
nonprofessional personnel whether on an individual or organizational 
basis. Some of the areas in which service contracts are found include 
the following:
    (1) Maintenance, overhaul, repair, servicing, rehabilitation, 
salvage, modernization, or modification of supplies, systems, or 
equipment.
    (2) Routine recurring maintenance of real property.
    (3) Housekeeping and base services.
    (4) Advisory and assistance services.
    (5) Operation of Government-owned equipment, real property, and 
systems.
    (6) Communications services.
    (7) Architect-Engineering (see subpart 36.6).
    (8) Transportation and related services (see part 47).
    (9) Research and development (see part 35).

[48 FR 42365, Sept. 19, 1983, as amended at 53 FR 43392, Oct. 26, 1988; 
59 FR 67051, Dec. 28, 1994; 62 FR 44815, Aug. 22, 1997; 66 FR 2133, Jan. 
10, 2001; 72 FR 27385, May 15, 2007]



Sec. 37.102  Policy.

    (a) Performance-based acquisition (see Subpart 37.6) is the 
preferred method for acquiring services (Public Law 106-398, section 
821). When acquiring services, including those acquired under supply 
contracts or orders, agencies must--
    (1) Use performance-based acquisition methods to the maximum extent 
practicable, except for--
    (i) Architect-engineer services acquired in accordance with 40 
U.S.C. 1101 et seq. (see part 36);
    (ii) Construction (see part 36);
    (iii) Utility services (see part 41); or
    (iv) Services that are incidental to supply purchases; and
    (2) Use the following order of precedence (Public Law 106-398, 
section 821(a));
    (i) A firm-fixed price performance-based contract or task order.
    (ii) A performance-based contract or task order that is not firm-
fixed price.
    (iii) A contract or task order that is not performance-based.
    (b) Agencies shall generally rely on the private sector for 
commercial services (see OMB Circular No. A-76, Performance of 
Commercial Activities and subpart 7.3).
    (c) Agencies shall not award a contract for the performance of an 
inherently governmental function (see subpart 7.5).
    (d) Non-personal service contracts are proper under general 
contracting authority.
    (e) Agency program officials are responsible for accurately 
describing the

[[Page 835]]

need to be filled, or problem to be resolved, through service 
contracting in a manner that ensures full understanding and responsive 
performance by contractors and, in so doing, should obtain assistance 
from contracting officials, as needed. To the maximum extent 
practicable, the program officials shall describe the need to be filled 
using performance-based acquisition methods.
    (f) Agencies shall establish effective management practices in 
accordance with Office of Federal Procurement Policy (OFPP) Policy 
Letter 93-1, Management Oversight of Service Contracting, to prevent 
fraud, waste, and abuse in service contracting.
    (g) Services are to be obtained in the most cost-effective manner, 
without barriers to full and open competition, and free of any potential 
conflicts of interest.
    (h) Agencies shall ensure that sufficiently trained and experienced 
officials are available within the agency to manage and oversee the 
contract administration function.
    (i) Agencies shall ensure that service contracts that require the 
delivery, use, or furnishing of products are consistent with part 23.

[61 FR 2630, Jan. 26, 1996, as amended at 62 FR 12694, Mar. 17, 1997; 62 
FR 44815, Aug. 22, 1997; 66 FR 22083, May 2, 2001; 70 FR 57454, Sept. 
30, 2005; 71 FR 218, Jan. 3, 2006; 76 FR 31401, May 31, 2011]



Sec. 37.103  Contracting officer responsibility.

    (a) The contracting officer is responsible for ensuring that a 
proposed contract for services is proper. For this purpose the 
contracting officer shall--
    (1) Determine whether the proposed service is for a personal or 
nonpersonal services contract using the definitions at 2.101 and 37.101 
and the guidelines in 37.104;
    (2) In doubtful cases, obtain the review of legal counsel; and
    (3) Document the file (except as provided in paragraph (b) below) 
with
    (i) the opinion of legal counsel, if any,
    (ii) a memorandum of the facts and rationale supporting the 
conclusion that the contract does not violate the provisions in 
37.104(b), and
    (iii) any further documentation that the contracting agency may 
require.
    (b) Nonpersonal services contracts are exempt from the requirements 
of subparagraph (a)(3) above.
    (c) Ensure that performance-based acquisition methods are used to 
the maximum extent practicable when acquiring services.
    (d) Ensure that contracts for child care services include 
requirements for criminal history background checks on employees who 
will perform child care services under the contract in accordance with 
42 U.S.C. 13041, as amended, and agency procedures.

[48 FR 42365, Sept. 19, 1983, as amended at 55 FR 36796, Sept. 6, 1990; 
59 FR 67051, Dec. 28, 1994; 62 FR 233, Jan. 2, 1997; 62 FR 44815, Aug. 
22, 1997; 62 FR 51379, Oct. 1, 1997; 66 FR 2133, Jan. 10, 2001; 71 FR 
218, Jan. 3, 2006]



Sec. 37.104  Personal services contracts.

    (a) A personal services contract is characterized by the employer-
employee relationship it creates between the Government and the 
contractor's personnel. The Government is normally required to obtain 
its employees by direct hire under competitive appointment or other 
procedures required by the civil service laws. Obtaining personal 
services by contract, rather than by direct hire, circumvents those laws 
unless Congress has specifically authorized acquisition of the services 
by contract.
    (b) Agencies shall not award personal services contracts unless 
specifically authorized by statute (e.g., 5 U.S.C. 3109) to do so.
    (c)(1) An employer-employee relationship under a service contract 
occurs when, as a result of (i) the contract's terms or (ii) the manner 
of its administration during performance, contractor personnel are 
subject to the relatively continuous supervision and control of a 
Government officer or employee. However, giving an order for a specific 
article or service, with the right to reject the finished product or 
result, is not the type of supervision or control that converts an 
individual who is an independent contractor (such as a contractor 
employee) into a Government employee.
    (2) Each contract arrangement must be judged in the light of its own 
facts

[[Page 836]]

and circumstances, the key question always being: Will the Government 
exercise relatively continuous supervision and control over the 
contractor personnel performing the contract? The sporadic, unauthorized 
supervision of only one of a large number of contractor employees might 
reasonably be considered not relevant, while relatively continuous 
Government supervision of a substantial number of contractor employees 
would have to be taken strongly into account (see (d) below).
    (d) The following descriptive elements should be used as a guide in 
assessing whether or not a proposed contract is personal in nature:
    (1) Performance on site.
    (2) Principal tools and equipment furnished by the Government.
    (3) Services are applied directly to the integral effort of agencies 
or an organizational subpart in furtherance of assigned function or 
mission.
    (4) Comparable services, meeting comparable needs, are performed in 
the same or similar agencies using civil service personnel.
    (5) The need for the type of service provided can reasonably be 
expected to last beyond one year.
    (6) The inherent nature of the service, or the manner in which it is 
provided reasonably requires directly or indirectly, Government 
direction or supervision of contractor employees in order to--
    (i) Adequately protect the Government's interest;
    (ii) Retain control of the function involved; or
    (iii) Retain full personal responsibility for the function supported 
in a duly authorized Federal officer or employee.
    (e) When specific statutory authority for a personal service 
contract is cited, obtain the review and opinion of legal counsel.
    (f) Personal services contracts for the services of individual 
experts or consultants are limited by the Classification Act. In 
addition, the Office of Personnel Management has established 
requirements which apply in acquiring the personal services of experts 
or consultants in this manner (e.g., benefits, taxes, conflicts of 
interest). Therefore, the contracting officer shall effect necessary 
coordination with the cognizant civilian personnel office.

[48 FR 42365, Sept. 19, 2001, as amended at 66 FR 2133, Jan. 10, 2001]



Sec. 37.105  Competition in service contracting.

    (a) Unless otherwise provided by statute, contracts for services 
shall be awarded through sealed bidding whenever the conditions in 
6.401(a) are met (except see 6.401(b)).
    (b) The provisions of statute and part 6 of this regulation 
requiring competition apply fully to service contracts. The method of 
contracting used to provide for competition may vary with the type of 
service being acquired and may not necessarily be limited to price 
competition.

[50 FR 1744, Jan. 11, 1985, and 50 FR 52429, Dec. 23, 1985]



Sec. 37.106  Funding and term of service contracts.

    (a) When contracts for services are funded by annual appropriations, 
the term of contracts so funded shall not extend beyond the end of the 
fiscal year of the appropriation except when authorized by law (see 
paragraph (b) of this section for certain service contracts, 32.703-2 
for contracts conditioned upon availability of funds, and 32.703-3 for 
contracts crossing fiscal years).
    (b) The head of an executive agency, except NASA, may enter into a 
contract, exercise an option, or place an order under a contract for 
severable services for a period that begins in one fiscal year and ends 
in the next fiscal year if the period of the contract awarded, option 
exercised, or order placed does not exceed one year (10 U.S.C. 2410a and 
41 U.S.C. 253l). Funds made available for a fiscal year may be obligated 
for the total amount of an action entered into under this authority.
    (c) Agencies with statutory multiyear authority shall consider the 
use of this authority to encourage and

[[Page 837]]

promote economical business operations when acquiring services.

[60 FR 37778, July 21, 1995, as amended at 62 FR 44815, Aug. 22, 1997; 
63 FR 58601, Oct. 30, 1998]



Sec. 37.107  Service Contract Act of 1965.

    The Service Contract Act of 1965 (41 U.S.C. 351-357) (the Act) 
provides for minimum wages and fringe benefits as well as other 
conditions of work under certain types of service contracts (see subpart 
22.10). Whether or not the Act applies to a specific service contract 
will be determined by the definitions and exceptions given in the Act, 
or implementing regulations.



Sec. 37.108  Small business Certificate of Competency.

    In those service contracts for which the Government requires the 
highest competence obtainable, as evidenced in a solicitation by a 
request for a technical/management proposal and a resultant technical 
evaluation and source selection, the small business Certificate of 
Competency procedures may not apply (see subpart 19.6).



Sec. 37.109  Services of quasi-military armed forces.

    Contracts with Pinkerton Detective Agencies or similar organizations 
are prohibited by 5 U.S.C. 3108. This prohibition applies only to 
contracts with organizations that offer quasi-military armed forces for 
hire, or with their employees, regardless of the contract's character. 
An organization providing guard or protective services does not thereby 
become a quasi-military armed force, even though the guards are armed or 
the organization provides general investigative or detective services. 
(See 57 Comp. Gen. 524).



Sec. 37.110  Solicitation provisions and contract clauses.

    (a) The contracting officer shall insert the provision at 52.237-1, 
Site Visit, in solicitations for services to be performed on Government 
installations, unless the solicitation is for construction.
    (b) The contracting officer shall insert the clause at 52.237-2, 
Protection of Government Buildings, Equipment, and Vegetation, in 
solicitations and contracts for services to be performed on Government 
installations, unless a construction contract is contemplated.
    (c) The contracting officer may insert the clause at 52.237-3, 
Continuity of Services, in solicitations and contracts for services, 
when--
    (1) The services under the contract are considered vital to the 
Government and must be continued without interruption and when, upon 
contract expiration, a successor, either the Government or another 
contractor, may continue them; and
    (2) The Government anticipates difficulties during the transition 
from one contractor to another or to the Government. Examples of 
instances where use of the clause may be appropriate are services in 
remote locations or services requiring personnel with special security 
clearances.
    (d) See 9.508 regarding the use of an appropriate provision and 
clause concerning the subject of conflict-of-interest, which may at 
times be significant in solicitations and contracts for services.
    (e) The contracting officer shall also insert in solicitations and 
contracts for services the provisions and clauses prescribed elsewhere 
in the FAR, as appropriate for each acquisition, depending on the 
conditions that are applicable.

[48 FR 42365, Sept. 19, 1983, as amended at 55 FR 52795, Dec. 21, 1990; 
57 FR 60584, Dec. 21, 1992]



Sec. 37.111  Extension of services.

    Award of contracts for recurring and continuing service requirements 
are often delayed due to circumstances beyond the control of contracting 
offices. Examples of circumstances causing such delays are bid protests 
and alleged mistakes in bid. In order to avoid negotiation of short 
extensions to existing contracts, the contracting officer may include an 
option clause (see 17.208(f)) in solicitations and contracts which will 
enable the Government to require continued performance of any services 
within the limits and at the rates specified in the contract. However, 
these rates may be adjusted only as a result of revisions to prevailing 
labor rates provided by the Secretary of Labor. The option provision may 
be exercised

[[Page 838]]

more than once, but the total extension of performance thereunder shall 
not exceed 6 months.

[54 FR 29282, July 11, 1989]



Sec. 37.112  Government use of private sector temporaries.

    Contracting officers may enter into contracts with temporary help 
service firms for the brief or intermittent use of the skills of private 
sector temporaries. Services furnished by temporary help firms shall not 
be regarded or treated as personal services. These services shall not be 
used in lieu of regular recruitment under civil service laws or to 
displace a Federal employee. Acquisition of these services shall comply 
with the authority, criteria, and conditions of 5 CFR part 300, subpart 
E, Use of Private Sector Temporaries, and agency procedures.

[56 FR 55380, Oct. 25, 1991]



Sec. 37.113  Severance payments to foreign nationals.



Sec. 37.113-1  Waiver of cost allowability limitations.

    (a) The head of the agency may waive the 31.205-6(g)(6) cost 
allowability limitations on severance payments to foreign nationals for 
contracts that--
    (1) Provide significant support services for (i) members of the 
armed forces stationed or deployed outside the United States, or (ii) 
employees of an executive agency posted outside the United States; and
    (2) Will be performed in whole or in part outside the United States.
    (b) Waivers can be granted only before contract award.
    (c) Waivers cannot be granted for--
    (1) Military banking contracts, which are covered by 10 U.S.C. 
2324(e)(2); or
    (2) Severance payments made by a contractor to a foreign national 
employed by the contractor under a DOD service contract in the Republic 
of the Philippines, if the discontinuation of the foreign national is 
the result of the termination of basing rights of the United States 
military in the Republic of the Philippines (section 1351(b) of Public 
Law 102-484, 10 U.S.C. 1592, note).

[60 FR 42661, Aug. 16, 1995, as amended at 68 FR 43867, July 24, 2003]



Sec. 37.113-2  Solicitation provision and contract clause.

    (a) Use the provision at 52.237-8, Restriction on Severance Payments 
to Foreign Nationals, in all solicitations that meet the criteria in 
37.113-1(a), except for those excluded by 37.113-1(c).
    (b) When the head of an agency has granted a waiver pursuant to 
37.113-1, use the clause at 52.237-9, Waiver of Limitation on Severance 
Payments to Foreign Nationals.

[60 FR 42261, Aug. 16, 1995, as amended at 68 FR 43867, July 24, 2003]



Sec. 37.114  Special acquisition requirements.

    Contracts for services which require the contractor to provide 
advice, opinions, recommendations, ideas, reports, analyses, or other 
work products have the potential for influencing the authority, 
accountability, and responsibilities of Government officials. These 
contracts require special management attention to ensure that they do 
not result in performance of inherently governmental functions by the 
contractor and that Government officials properly exercise their 
authority. Agencies must ensure that--
    (a) A sufficient number of qualified Government employees are 
assigned to oversee contractor activities, especially those that involve 
support of government policy or decision making. During performance of 
service contracts, the functions being performed shall not be changed or 
expanded to become inherently governmental.
    (b) A greater scrutiny and an appropriate enhanced degree of 
management oversight is exercised when contracting for functions that 
are not inherently governmental but closely support the performance of 
inherently governmental functions (see 7.503(c)).
    (c) All contractor personnel attending meetings, answering 
Government telephones, and working in other situations where their 
contractor status is not obvious to third parties are required to 
identify themselves as such to avoid creating an impression in the

[[Page 839]]

minds of members of the public or Congress that they are Government 
officials, unless, in the judgment of the agency, no harm can come from 
failing to identify themselves. They must also ensure that all documents 
or reports produced by contractors are suitably marked as contractor 
products or that contractor participation is appropriately disclosed.

[61 FR 2630, Jan. 26, 1996]



Sec. 37.115  Uncompensated overtime.



Sec. 37.115-1  Scope.

    The policies in this section are based on Section 834 of Public Law 
101-510 (10 U.S.C. 2331).

[62 FR 44815, Aug. 22, 1997]



Sec. 37.115-2  General policy.

    (a) Use of uncompensated overtime is not encouraged.
    (b) When professional or technical services are acquired on the 
basis of the number of hours to be provided, rather than on the task to 
be performed, the solicitation shall require offerors to identify 
uncompensated overtime hours and the uncompensated overtime rate for 
direct charge Fair Labor Standards Act--exempt personnel included in 
their proposals and subcontractor proposals. This includes uncompensated 
overtime hours that are in indirect cost pools for personnel whose 
regular hours are normally charged direct.
    (c) Contracting officers must ensure that the use of uncompensated 
overtime in contracts to acquire services on the basis of the number of 
hours provided will not degrade the level of technical expertise 
required to fulfill the Government's requirements (see 15.305 for 
competitive negotiations and 15.404-1(d) for cost realism analysis). 
When acquiring these services, contracting officers must conduct a risk 
assessment and evaluate, for award on that basis, any proposals received 
that reflect factors such as:
    (1) Unrealistically low labor rates or other costs that may result 
in quality or service shortfalls; and
    (2) Unbalanced distribution of uncompensated overtime among skill 
levels and its use in key technical positions.

[62 FR 44815, Aug. 22, 1997, as amended at 64 FR 51842, Sept. 24, 1999]



Sec. 37.115-3  Solicitation provision.

    The contracting officer shall insert the provision at 52.237-10, 
Identification of Uncompensated Overtime, in all solicitations valued 
above the simplified acquisition threshold, for professional or 
technical services to be acquired on the basis of the number of hours to 
be provided.

[62 FR 44815, Aug. 22, 1997]



Sec. 37.116  Accepting and Dispensing of $1 Coin.

[72 FR 46362, Aug. 17, 2007]



Sec. 37.116-1  Presidential $1 Coin Act of 2005.

    This section implements Section 104 of the Presidential $1 Coin Act 
of 2005 (31 U.S.C. 5112(p)(1)), which seeks to remove barriers to the 
circulation of $1 coins. Section 104 requires that business operations 
performed on Government premises provide for accepting and dispensing of 
existing and proposed $1 coins as part of operations on and after 
January 1, 2008. Pub. L. 110-147 amended 31 U.S.C. 5112(p)(1)(A) to 
allow an exception from the $1 coin dispensing capability requirement 
for those vending machines that do not receive currency denominations 
greater than $1.

[72 FR 46362, Aug. 17, 2007, as amended at 73 FR 54016, Sept. 17, 2008]



Sec. 37.116-2  Contract clause.

    Insert the clause at 52.237-11, Accepting and Dispensing of $1 Coin, 
in solicitations and contracts for the provision of services that 
involve business operations conducted in U.S. coins and currency, 
including vending machines, on any premises owned by the United States 
or under the control of any agency or instrumentality of the United 
States.

[72 FR 46362, Aug. 17, 2007]

[[Page 840]]

              Subpart 37.2_Advisory and Assistance Services

    Source: 60 FR 49722, Sept. 26, 1995, unless otherwise noted.



Sec. 37.200  Scope of subpart.

    This subpart prescribes policies and procedures for acquiring 
advisory and assistance services by contract. The subpart applies to 
contracts, whether made with individuals or organizations, that involve 
either personal or nonpersonal services.



Sec. 37.201  Definition.

    Covered personnel means--
    (1) An officer or an individual who is appointed in the civil 
service by one of the following acting in an official capacity:
    (i) The President;
    (ii) A Member of Congress;
    (iii) A member of the uniformed services;
    (iv) An individual who is an employee under 5 U.S.C. 2105;
    (v) The head of a Government-controlled corporation; or
    (vi) An adjutant general appointed by the Secretary concerned under 
32 U.S.C. 709(c).
    (2) A member of the Armed Services of the United States.
    (3) A person assigned to a Federal agency who has been transferred 
to another position in the competitive service in another agency.

[60 FR 49722, Sept. 26, 1995, as amended at 65 FR 24320, Apr. 25, 2000; 
66 FR 2133, Jan. 10, 2001]



Sec. 37.202  Exclusions.

    The following activities and programs are excluded or exempted from 
the definition of advisory or assistance services:
    (a) Routine information technology services unless they are an 
integral part of a contract for the acquisition of advisory and 
assistance services.
    (b) Architectural and engineering services as defined in the Brooks 
Architect-Engineers Act (40 U.S.C. 1102).
    (c) Research on theoretical mathematics and basic research involving 
medical, biological, physical, social, psychological, or other 
phenomena.

[60 FR 49722, Sept. 26, 1995, as amended at 61 FR 41470, Aug. 8, 1996; 
70 FR 57454, Sept. 30, 2005]



Sec. 37.203  Policy.

    (a) The acquisition of advisory and assistance services is a 
legitimate way to improve Government services and operations. 
Accordingly, advisory and assistance services may be used at all 
organizational levels to help managers achieve maximum effectiveness or 
economy in their operations.
    (b) Subject to 37.205, agencies may contract for advisory and 
assistance services, when essential to the agency's mission, to--
    (1) Obtain outside points of view to avoid too limited judgment on 
critical issues;
    (2) Obtain advice regarding developments in industry, university, or 
foundation research;
    (3) Obtain the opinions, special knowledge, or skills of noted 
experts;
    (4) Enhance the understanding of, and develop alternative solutions 
to, complex issues;
    (5) Support and improve the operation of organizations; or
    (6) Ensure the more efficient or effective operation of managerial 
or hardware systems.
    (c) Advisory and assistance services shall not be--
    (1) Used in performing work of a policy, decision-making, or 
managerial nature which is the direct responsibility of agency 
officials;
    (2) Used to bypass or undermine personnel ceilings, pay limitations, 
or competitive employment procedures;
    (3) Contracted for on a preferential basis to former Government 
employees;
    (4) Used under any circumstances specifically to aid in influencing 
or enacting legislation; or
    (5) Used to obtain professional or technical advice which is readily 
available within the agency or another Federal agency.
    (d) Limitation on payment for advisory and assistance services. 
Contractors may not be paid for services to conduct evaluations or 
analyses of any aspect of a proposal submitted for an initial contract 
award unless--

[[Page 841]]

    (1) Neither covered personnel from the requesting agency, nor from 
another agency, with adequate training and capabilities to perform the 
required proposal evaluation, are readily available and a written 
determination is made in accordance with 37.204;
    (2) The contractor is a Federally-Funded Research and Development 
Center (FFRDC) as authorized in Section 23 of the Office of Federal 
Procurement Policy (OFPP) Act as amended (41 U.S.C. 419) and the work 
placed under the FFRDCOs contract meets the criteria of 35.017-3; or
    (3) Such functions are otherwise authorized by law.



Sec. 37.204  Guidelines for determining availability of personnel.

    (a) The head of an agency shall determine, for each evaluation or 
analysis of proposals, if sufficient personnel with the requisite 
training and capabilities are available within the agency to perform the 
evaluation or analysis of proposals submitted for the acquisition.
    (b) If, for a specific evaluation or analysis, such personnel are 
not available within the agency, the head of the agency shall--
    (1) Determine which Federal agencies may have personnel with the 
required training and capabilities; and
    (2) Consider the administrative cost and time associated with 
conducting the search, the dollar value of the procurement, other costs, 
such as travel costs involved in the use of such personnel, and the 
needs of the Federal agencies to make management decisions on the best 
use of available personnel in performing the agency's mission.
    (c) If the supporting agency agrees to make the required personnel 
available, the agencies shall execute an agreement for the detail of the 
supporting agency's personnel to the requesting agency.
    (d) If the requesting agency, after reasonable attempts to obtain 
personnel with the required training and capabilities, is unable to 
identify such personnel, the head of the agency may make the 
determination required by 37.203.
    (e) An agency may make a determination regarding the availability of 
covered personnel for a class of proposals for which evaluation and 
analysis would require expertise so unique or specialized that it is not 
reasonable to expect such personnel to be available.



Sec. 37.205  Contracting officer responsibilities.

    The contracting officer shall ensure that the determination required 
in accordance with the guidelines at 37.204 has been made prior to 
issuing a solicitation.

    Subpart 37.3_Dismantling, Demolition, or Removal of Improvements



Sec. 37.300  Scope of subpart.

    This subpart prescribes procedures for contracting for dismantling 
or demolition of buildings, ground improvements, and other real property 
structures and for the removal of such structures or portions of them 
(hereafter referred to as dismantling, demolition, or removal of 
improvements).



Sec. 37.301  Labor standards.

    Contracts for dismantling, demolition, or removal of improvements 
are subject to either the Service Contract Act (41 U.S.C. 351-358) or 
the Davis-Bacon Act (40 U.S.C. 3141 et seq.). If the contract is solely 
for dismantling, demolition, or removal of improvements, the Service 
Contract Act applies unless further work which will result in the 
construction, alteration, or repair of a public building or public work 
at that location is contemplated. If such further construction work is 
intended, even though by separate contract, then the Davis-Bacon Act 
applies to the contract for dismantling, demolition, or removal.

[60 FR 49722, Sept. 26, 1995, as amended at 70 FR 57454, Sept. 30, 2005]



Sec. 37.302  Bonds or other security.

    When a contract is solely for dismantling, demolition, or removal of 
improvements, the Miller Act (40 U.S.C. 3131 et seq.) (see 28.102) does 
not apply. However, the contracting officer may require the contractor 
to furnish a performance bond or other security (see

[[Page 842]]

28.103) in an amount that the contracting officer considers adequate to 
(a) ensure completion of the work, (b) protect property to be retained 
by the Government, (c) protect property to be provided as compensation 
to the contractor, and (d) protect the Government against damage to 
adjoining property.

[60 FR 49722, Sept. 26, 1995, as amended at 70 FR 57455, Sept. 30, 2005]



Sec. 37.303  Payments.

    (a) The contract may provide that the (1) Government pay the 
contractor for the dismantling or demolition of structures or (2) 
contractor pay the Government for the right to salvage and remove the 
materials resulting from the dismantling or demolition operation.
    (b) The contracting officer shall consider the usefulness to the 
Government of all salvageable property. Any of the property that is more 
useful to the Government than its value as salvage to the contractor 
should be expressly designated in the contract for retention by the 
Government. The contracting officer shall determine the fair market 
value of any property not so designated, since the contractor will get 
title to this property, and its value will therefore be important in 
determining what payment, if any, shall be made to the contractor and 
whether additional compensation will be made if the contract is 
terminated.



Sec. 37.304  Contract clauses.

    (a) The contracting officer shall insert the clause at 52.237-4, 
Payment by Government to Contractor, in solicitations and contracts 
solely for dismantling, demolition, or removal of improvements whenever 
the contracting officer determines that the Government shall make 
payment to the contractor in addition to any title to property that the 
contractor may receive under the contract. If the contracting officer 
determines that all material resulting from the dismantling or 
demolition work is to be retained by the Government, use the basic 
clause with its Alternate I.
    (b) The contracting officer shall insert the clause at 52.237-5, 
Payment by Contractor to Government in solicitations and contracts for 
dismantling, demolition, or removal of improvements whenever the 
contractor is to receive title to dismantled or demolished property and 
a net amount of compensation is due to the Government, except if the 
contracting officer determines that it would be advantageous to the 
Government for the contractor to pay in increments and the government to 
transfer title to the contractor for increments of property only upon 
receipt of those payments.
    (c) The contracting officer shall insert the clause at 52.237-6, 
Incremental Payment by Contractor to Government, in solicitations and 
contracts for dismantling, demolition, or removal of improvements if (1) 
the contractor is to receive title to dismantled or demolished property 
and a net amount of compensation is due the Government, and (2) the 
contracting officer determines that it would be advantageous to the 
Government for the contractor to pay in increments, and for the 
Government to transfer title to the contractor for increments of 
property only upon receipt of those payments. This determination may be 
appropriate, for example, if it encourages greater competition or 
participation of small business concerns.

              Subpart 37.4_Nonpersonal Health Care Services

    Source: 54 FR 5056, Jan. 31, 1989, unless otherwise noted.



Sec. 37.400  Scope of subpart.

    This subpart prescribes policies and procedures for obtaining health 
care services of physicians, dentists and other health care providers by 
nonpersonal services contracts, as defined in 37.101.



Sec. 37.401  Policy.

    Agencies may enter into nonpersonal health care services contracts 
with physicians, dentists and other health care providers under 
authority of 10 U.S.C. 2304 and 41 U.S.C. 253. Each contract shall--
    (a) State that the contract is a nonpersonal health care services 
contract, as defined in 37.101, under which the

[[Page 843]]

contractor is an independent contractor;
    (b) State that the Government may evaluate the quality of 
professional and administrative services provided, but retains no 
control over the medical, professional aspects of services rendered 
(e.g., professional judgments, diagnosis for specific medical 
treatment);
    (c) Require that the contractor indemnify the Government for any 
liability producing act or omission by the contractor, its employees and 
agents occurring during contract performance;
    (d) Require that the contractor maintain medical liability 
insurance, in a coverage amount acceptable to the contracting officer, 
which is not less than the amount normally prevailing within the local 
community for the medical specialty concerned; and
    (e) State that the contractor is required to ensure that its 
subcontracts for provisions of health care services, contain the 
requirements of the clause at 52.237-7, including the maintenance of 
medical liability insurance.



Sec. 37.402  Contracting officer responsibilities.

    Contracting officers shall obtain evidence of insurability 
concerning medical liability insurance from the apparent successful 
offeror prior to contract award and shall obtain evidence of insurance 
demonstrating the required coverage prior to commencement of 
performance.

[62 FR 237, Jan. 2, 1997]



Sec. 37.403  Contract clause.

    The contracting officer shall insert the clause at 52.237-7, 
Indemnification and Medical Liability Insurance, in solicitations and 
contracts for nonpersonal health care services. The contracting officer 
may include the clause in bilateral purchase orders for nonpersonal 
health care services awarded under the procedures in part 13.

         Subpart 37.5_Management Oversight of Service Contracts

    Source: 62 FR 12694, Mar. 17, 1997, unless otherwise noted.



Sec. 37.500  Scope of subpart.

    This subpart establishes responsibilities for implementing Office of 
Federal Procurement Policy (OFPP) Policy Letter 93-1, Management 
Oversight of Service Contracting.



Sec. 37.501  Definition.

    Best practices, as used in this subpart, means techniques that 
agencies may use to help detect problems in the acquisition, management, 
and administration of service contracts. Best practices are practical 
techniques gained from experience that agencies may use to improve the 
procurement process.



Sec. 37.502  Exclusions.

    (a) This subpart does not apply to services that are
    (1) Obtained through personnel appointments and advisory committees;
    (2) Obtained through personal service contracts authorized by 
statute;
    (3) For construction as defined in 2.101; or
    (4) Obtained through interagency agreements where the work is being 
performed by in-house Federal employees.
    (b) Services obtained under contracts below the simplified 
acquisition threshold and services incidental to supply contracts also 
are excluded from the requirements of this subpart. However, good 
management practices and contract administration techniques should be 
used regardless of the contracting method.

[62 FR 12694, Mar. 17, 1997, as amended at 66 FR 2133, Jan. 10, 2001]



Sec. 37.503  Agency-head responsibilities.

    The agency head or designee should ensure that--
    (a) Requirements for services are clearly defined and appropriate 
performance standards are developed so that the agency's requirements 
can be understood by potential offerors and that performance in 
accordance with contract terms and conditions will meet the agency's 
requirements;
    (b) Service contracts are awarded and administered in a manner that 
will provide the customer its supplies and services within budget and in 
a timely manner;

[[Page 844]]

    (c) Specific procedures are in place before contracting for services 
to ensure that inherently governmental functions are performed by 
Government personnel; and
    (d) Strategies are developed and necessary staff training is 
initiated to ensure effective implementation of the policies in 37.102.

[62 FR 12694, Mar. 17, 1997, as amended at 65 FR 36014, June 6, 2000; 71 
FR 20300, Apr. 19, 2006]



Sec. 37.504  Contracting officials' responsibilities.

    Contracting officials should ensure that ``best practices'' 
techniques are used when contracting for services and in contract 
management and administration (see OFPP Policy Letter 93-1).

               Subpart 37.6_Performance-Based Acquisition

    Source: 71 FR 218, Jan. 3, 2006, unless othewise noted.



Sec. 37.600  Scope of subpart.

    This subpart prescribes policies and procedures for acquiring 
services using performance-based acquisition methods.



Sec. 37.601  General.

    (a) Solicitations may use either a performance work statement or a 
statement of objectives (see 37.602).
    (b) Performance-based contracts for services shall include--
    (1) A performance work statement (PWS);
    (2) Measurable performance standards (i.e., in terms of quality, 
timeliness, quantity, etc.) and the method of assessing contractor 
performance against performance standards; and
    (3) Performance incentives where appropriate. When used, the 
performance incentives shall correspond to the performance standards set 
forth in the contract (see 16.402-2).
    (c) See 12.102(g) for the use of Part 12 procedures for performance-
based acquisitions.



Sec. 37.602  Performance work statement.

    (a) A Performance work statement (PWS) may be prepared by the 
Government or result from a Statement of objectives (SOO) prepared by 
the Government where the offeror proposes the PWS.
    (b) Agencies shall, to the maximum extent practicable--
    (1) Describe the work in terms of the required results rather than 
either ``how'' the work is to be accomplished or the number of hours to 
be provided (see 11.002(a)(2) and 11.101);
    (2) Enable assessment of work performance against measurable 
performance standards;
    (3) Rely on the use of measurable performance standards and 
financial incentives in a competitive environment to encourage 
competitors to develop and institute innovative and cost-effective 
methods of performing the work.
    (c) Offerors use the SOO to develop the PWS; however, the SOO does 
not become part of the contract. The SOO shall, at a minimum, include--
    (1) Purpose;
    (2) Scope or mission;
    (3) Period and place of performance;
    (4) Background;
    (5) Performance objectives, i.e., required results; and
    (6) Any operating constraints.



Sec. 37.603  Performance standards.

    (a) Performance standards establish the performance level required 
by the Government to meet the contract requirements. The standards shall 
be measurable and structured to permit an assessment of the contractor's 
performance.
    (b) When offerors propose performance standards in response to a 
SOO, agencies shall evaluate the proposed standards to determine if they 
meet agency needs.



Sec. 37.604  Quality assurance surveillance plans.

    Requirements for quality assurance and quality assurance 
surveillance plans are in Subpart 46.4. The Government may either 
prepare the quality assurance surveillance plan or require the offerors 
to submit a proposed quality assurance surveillance plan for the 
Government's consideration in development of the Government's plan.

[[Page 845]]

               PART 38_FEDERAL SUPPLY SCHEDULE CONTRACTING

Sec.

Sec. 38.000 Scope of part.

              Subpart 38.1_Federal Supply Schedule Program


Sec. 38.101 General.

  Subpart 38.2_Establishing and Administering Federal Supply Schedules


Sec. 38.201 Coordination requirements.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 
2473(c).

    Source: 48 FR 42368, Sept. 19, 1983, unless otherwise noted.



Sec. 38.000  Scope of part.

    This part prescribes policies and procedures for contracting for 
supplies and services under the Federal Supply Schedule program, which 
is directed and managed by the General Services Administration (see 
Subpart 8.4, Federal Supply Schedules, for additional information). GSA 
may delegate certain responsibilities to other agencies (e.g., GSA has 
delegated authority to the Department of Veterans Affairs (VA) to 
procure medical supplies under the VA Federal Supply Schedules Program). 
The VA Federal Supply Schedules Program is covered by this subpart. 
Additionally, the Department of Defense manages a similar system of 
schedule contracting for military items; however, the Department of 
Defense systems are not a part of the Federal Supply Schedule program.

[69 FR 34239, June 18, 2004]

              Subpart 38.1_Federal Supply Schedule Program



Sec. 38.101  General.

    (a) The Federal Supply Schedule program, pursuant to 41 U.S.C. 
259(b)(3)(A), provides Federal agencies with a simplified process of 
acquiring commercial supplies and services in varying quantities while 
obtaining volume discounts. Indefinite-delivery contracts are awarded 
using competitive procedures to firms. The firms provide supplies and 
services at stated prices for given periods of time, for delivery within 
a stated geographic area such as the 48 contiguous states, the District 
of Columbia, Alaska, Hawaii, and overseas. The schedule contracting 
office issues Federal Supply Schedule publications that contain a 
general overview of the Federal Supply Schedule (FSS) program and 
address pertinent topics.
    (b) Each schedule identifies agencies that are required to use the 
contracts as primary sources of supply.
    (c) Federal agencies not identified in the schedules as mandatory 
users may issue orders under the schedules. Contractors are encouraged 
to accept the orders.
    (d) Although GSA awards most Federal Supply Schedule contracts, it 
may authorize other agencies to award schedule contracts and publish 
schedules. For example, the Department of Veterans Affairs awards 
schedule contracts for certain medical and nonperishable subsistence 
items.
    (e) When establishing Federal Supply Schedules, GSA, or an agency 
delegated that authority, is responsible for complying with all 
applicable statutory and regulatory requirements (e.g., Parts 5, 6, and 
19). The requirements of parts 5, 6, and 19 apply at the acquisition 
planning stage prior to issuing the schedule solicitation and, 
generally, do not apply to orders and BPAs placed under resulting 
schedule contracts except see 8.404 and 8.405-5.

[65 FR 36025, June 6, 2000, as amended at 69 FR 34239, June 18, 2004; 76 
FR 14559, Mar. 16, 2011; 76 FR 68036, Nov. 2, 2011]

  Subpart 38.2_Establishing and Administering Federal Supply Schedules



Sec. 38.201  Coordination requirements.

    (a) Subject to interagency agreements, contracting officers having 
responsibility for awarding Federal Supply Schedule contracts shall 
coordinate and obtain approval of the General Services Administration's 
Federal Supply Service (FSS) before--
    (1) Establishing new schedules;
    (2) Discontinuing existing schedules;
    (3) Changing the scope of agency or geographical coverage of 
existing schedules; or

[[Page 846]]

    (4) Adding or deleting special item numbers, national stock numbers, 
or revising their description.
    (b) Requests should be forwarded to the General Services 
Administration, Federal Supply Service, Office of Acquisition (FC), 
Washington, DC 20406.

[48 FR 42368, Sept. 19, 1983, as amended at 54 FR 29282, July 11, 1989; 
56 FR 55372, Oct. 25, 1991; 59 FR 53718, Oct. 25, 1994; 62 FR 40237, 
July 25, 1997]

              PART 39_ACQUISITION OF INFORMATION TECHNOLOGY

Sec.

Sec. 39.000 Scope of part.

Sec. 39.001 Applicability.

Sec. 39.002 Definitions.

                          Subpart 39.1_General


Sec. 39.101 Policy.

Sec. 39.102 Management of risk.

Sec. 39.103 Modular contracting.

Sec. 39.104 Information technology services.

Sec. 39.105 Privacy.

Sec. 39.106 Year 2000 complaints.

Sec. 39.107 Contract clause.

           Subpart 39.2_Electronic and Information Technology


Sec. 39.201 Scope of subpart.

Sec. 39.202 Definition.

Sec. 39.203 Applicability.

Sec. 39.204 Exceptions.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 
2473(c).

    Source: 61 FR 41470, Aug. 8, 1996, unless otherwise noted.



Sec. 39.000  Scope of part.

    This part prescribes acquisition policies and procedures for use in 
acquiring--
    (a) Information technology, including financial management systems, 
consistent with other parts of this regulation, OMB Circular No. A-127, 
Financial Management Systems, and OMB Circular No. A-130, Management of 
Federal Information Resources; and
    (b) Electronic and information technology.

[66 FR 20897, Apr. 25, 2001]



Sec. 39.001  Applicability.

    This part applies to the acquisition of information technology by or 
for the use of agencies except for acquisitions of information 
technology for national security systems. However, acquisitions of 
information technology for national security systems shall be conducted 
in accordance with 40 U.S.C. 11302 with regard to requirements for 
performance and results-based management; the role of the agency Chief 
Information Officer in acquisitions; and accountability. These 
requirements are addressed in OMB Circular No. A-130.

[61 FR 41470, Aug. 8, 1996, as amended at 70 FR 57455, Sept. 30, 2005]



Sec. 39.002  Definitions.

    As used in this part--
    Modular contracting means use of one or more contracts to acquire 
information technology systems in successive, interoperable increments.
    National security system means any telecommunications or information 
system operated by the United States Government, the function, 
operation, or use of which--
    (1) Involves intelligence activities;
    (2) Involves cryptologic activities related to national security;
    (3) Involves command and control of military forces;
    (4) Involves equipment that is an integral part of a weapon or 
weapons system; or
    (5) Is critical to the direct fulfillment of military or 
intelligence missions. This does not include a system that is to be used 
for routine administrative and business applications, such as payroll, 
finance, logistics, and personnel management applications.
    Year 2000 compliant with respect to information technology, means 
that the information technology accurately processes date/time data 
(including, but not limited to, calculating, comparing, and sequencing) 
from, into, and between the twentieth and twenty-first centuries, and 
the years 1999 and 2000 and leap year calculations, to the extent that 
other information technology, used in combination with the information 
technology being acquired, properly exchanges date/time data with it.

[61 FR 41470, Aug. 8, 1996, as amended at 62 FR 274, Jan. 2, 1997; 62 FR 
44830, Aug. 22, 1997; 63 FR 9068, Feb. 23, 1998; 66 FR 2133, Jan. 10, 
2001]

[[Page 847]]

                          Subpart 39.1_General



Sec. 39.101  Policy.

    (a) Division A, Section 101(h), Title VI, Section 622 of the Omnibus 
Appropriations and Authorization Act for Fiscal Year 1999 (Pub. L. 105-
277) requires that agencies may not use appropriated funds to acquire 
information technology that does not comply with 39.106, unless the 
agency's Chief Information Officer determines that noncompliance with 
39.106 is necessary to the function and operation of the agency or the 
acquisition is required by a contract in effect before October 21, 1998. 
The Chief Information Officer must send to the Office of Management and 
Budget a copy of all waivers for forwarding to Congress.
    (b)(1) In acquiring information technology, agencies shall identify 
their requirements pursuant to--
    (i) OMB Circular A-130, including consideration of security of 
resources, protection of privacy, national security and emergency 
preparedness, accommodations for individuals with disabilities, and 
energy efficiency;
    (ii) Electronic Product Environmental Assessment Tool (EPEAT) 
standards (see 23.704);
    (iii) Policies to enable power management, double-sided printing, 
and other energy-efficient or environmentally preferable features on all 
agency electronic products; and
    (iv) Best management practices for energy-efficient management of 
servers and Federal data centers.
    (2) When developing an acquisition strategy, contracting officers 
should consider the rapidly changing nature of information technology 
through market research (see Part 10) and the application of technology 
refreshment techniques.
    (c) Agencies must follow OMB Circular A-127, Financial Management 
Systems, when acquiring financial management systems. Agencies may 
acquire only core financial management software certified by the Joint 
Financial Management Improvement Program.
    (d) In acquiring information technology, agencies shall include the 
appropriate information technology security policies and requirements, 
including use of common security configurations available from the 
National Institute of Standards and Technology's Web site at http://
checklists.nist.gov. Agency contracting officers should consult with the 
requiring official to ensure the appropriate standards are incorporated.
    (e) When acquiring information technology using Internet Protocol, 
agencies must include the appropriate Internet Protocol compliance 
requirements in accordance with 11.002(g).

[61 FR 41470, Aug. 8, 1996, as amended at 64 FR 32748, June 17, 1999; 64 
FR 72446, Dec. 27, 1999; 70 FR 57452, Sept. 30, 2005; 72 FR 73217, Dec. 
26, 2007; 73 FR 10968, Feb. 28, 2008; 74 FR 65607, Dec. 10, 2009; 76 FR 
31401, May 31, 2011]



Sec. 39.102  Management of risk.

    (a) Prior to entering into a contract for information technology, an 
agency should analyze risks, benefits, and costs. (See part 7 for 
additional information regarding requirements definition.) Reasonable 
risk taking is appropriate as long as risks are controlled and 
mitigated. Contracting and program office officials are jointly 
responsible for assessing, monitoring and controlling risk when 
selecting projects for investment and during program implementation.
    (b) Types of risk may include schedule risk, risk of technical 
obsolescence, cost risk, risk implicit in a particular contract type, 
technical feasibility, dependencies between a new project and other 
projects or systems, the number of simultaneous high risk projects to be 
monitored, funding availability, and program management risk.
    (c) Appropriate techniques should be applied to manage and mitigate 
risk during the acquisition of information technology. Techniques 
include, but are not limited to: prudent project management; use of 
modular contracting; thorough acquisition planning tied to budget 
planning by the program, finance and contracting offices; continuous 
collection and evaluation of risk-based assessment data; prototyping 
prior to implementation; post implementation reviews to determine actual 
project cost, benefits and returns; and focusing on risks and returns 
using quantifiable measures.

[[Page 848]]



Sec. 39.103  Modular contracting.

    (a) This section implements Section 5202, Incremental Acquisition of 
Information Technology, of the Clinger-Cohen Act of 1996 (Public Law 
104-106). Modular contracting is intended to reduce program risk and to 
incentivize contractor performance while meeting the Governments need 
for timely access to rapidly changing technology. Consistent with the 
agency's information technology architecture, agencies should, to the 
maximum extent practicable, use modular contracting to acquire major 
systems (see 2.101) of information technology. Agencies may also use 
modular contracting to acquire non-major systems of information 
technology.
    (b) When using modular contracting, an acquisition of a system of 
information technology may be divided into several smaller acquisition 
increments that--
    (1) Are easier to manage individually than would be possible in one 
comprehensive acquisition;
    (2) Address complex information technology objectives incrementally 
in order to enhance the likelihood of achieving workable systems or 
solutions for attainment of those objectives;
    (3) Provide for delivery, implementation, and testing of workable 
systems or solutions in discrete increments, each of which comprises a 
system or solution that is not dependent on any subsequent increment in 
order to perform its principal functions;
    (4) Provide an opportunity for subsequent increments to take 
advantage of any evolution in technology or needs that occur during 
implementation and use of the earlier increments; and
    (5) Reduce risk of potential adverse consequences on the overall 
project by isolating and avoiding custom-designed components of the 
system.
    (c) The characteristics of an increment may vary depending upon the 
type of information technology being acquired and the nature of the 
system being developed. The following factors may be considered:
    (1) To promote compatibility, the information technology acquired 
through modular contracting for each increment should comply with common 
or commercially acceptable information technology standards when 
available and appropriate, and shall conform to the agency's master 
information technology architecture.
    (2) The performance requirements of each increment should be 
consistent with the performance requirements of the completed, overall 
system within which the information technology will function and should 
address interface requirements with succeeding increments.
    (d) For each increment, contracting officers shall choose an 
appropriate contracting technique that facilitates the acquisition of 
subsequent increments. Pursuant to parts 16 and 17 of the Federal 
Acquisition Regulations, contracting officers shall select the contract 
type and method appropriate to the circumstances (e.g., indefinite 
delivery, indefinite quantity contracts, single contract with options, 
successive contracts, multiple awards, task order contracts). 
Contract(s) shall be structured to ensure that the Government is not 
required to procure additional increments.
    (e) To avoid obsolescence, a modular contract for information 
technology should, to the maximum extent practicable, be awarded within 
180 days after the date on which the solicitation is issued. If award 
cannot be made within 180 days, agencies should consider cancellation of 
the solicitation in accordance with 48 CFR 14.209 or 15.206(e). To the 
maximum extent practicable, deliveries under the contract should be 
scheduled to occur within 18 months after issuance of the solicitation.

[63 FR 9068, Feb. 23, 1998]



Sec. 39.104  Information technology services.

    When acquiring information technology services, solicitations must 
not describe any minimum experience or educational requirement for 
proposed contractor personnel unless the contracting officer determines 
that the needs of the agency--
    (a) Cannot be met without that requirement; or

[[Page 849]]

    (b) Require the use of other than a performance-based acquisition 
(see subpart 37.6).

[66 FR 22085, May 2, 2001; 71 FR 218, Jan. 3, 2006]



Sec. 39.105  Privacy.

    Agencies shall ensure that contracts for information technology 
address protection of privacy in accordance with the Privacy Act (5 
U.S.C. 552a) and part 24. In addition, each agency shall ensure that 
contracts for the design, development, or operation of a system of 
records using commercial information technology services or information 
technology support services include the following:
    (a) Agency rules of conduct that the contractor and the contractor's 
employees shall be required to follow.
    (b) A list of the anticipated threats and hazards that the 
contractor must guard against.
    (c) A description of the safeguards that the contractor must 
specifically provide.
    (d) Requirements for a program of Government inspection during 
performance of the contract that will ensure the continued efficacy and 
efficiency of safeguards and the discovery and countering of new threats 
and hazards.



Sec. 39.106  Year 2000 compliance.

    When acquiring information technology that will be required to 
perform date/time processing involving dates subsequent to December 31, 
1999, agencies shall ensure that solicitations and contracts--
    (a)(1) Require the information technology to be Year 2000 compliant; 
or
    (2) Require that non-compliant information technology be upgraded to 
be Year 2000 compliant prior to the earlier of
    (i) The earliest date on which the information technology may be 
required to perform date/time processing involving dates later than 
December 31, 1999, or
    (ii) December 31, 1999; and
    (b) As appropriate, describe existing information technology that 
will be used with the information technology to be acquired and identify 
whether the existing information technology is Year 2000 compliant.

[62 FR 274, Jan. 2, 1997]



Sec. 39.107  Contract clause.

    The contracting officer shall insert a clause substantially the same 
as the clause at 52.239-1, Privacy or Security Safeguards, in 
solicitations and contracts for information technology which require 
security of information technology, and/or are for the design, 
development, or operation of a system of records using commercial 
information technology services or support services.

[61 FR 41470, Aug. 8, 1996. Redesignated at 62 FR 274, Jan. 2, 1997]

           Subpart 39.2_Electronic and Information Technology

    Source: 66 FR 20897, Apr. 25, 2001, unless otherwise noted.



Sec. 39.201  Scope of subpart.

    (a) This subpart implements section 508 of the Rehabilitation Act of 
1973 (29 U.S.C. 794d), and the Architectural and Transportation Barriers 
Compliance Board Electronic and Information Technology (EIT) 
Accessibility Standards (36 CFR part 1194).
    (b) Further information on section 508 is available via the Internet 
at http://www.section508.gov.
    (c) When acquiring EIT, agencies 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.



Sec. 39.202  Definition.

    Undue burden, as used in this subpart, means a significant 
difficulty or expense.

[[Page 850]]



Sec. 39.203  Applicability.

    (a) Unless an exception at 39.204 applies, acquisitions of EIT 
supplies and services must meet the applicable accessibility standards 
at 36 CFR part 1194.
    (b)(1) Exception determinations are required prior to contract 
award, except for indefinite-quantity contracts (see paragraph (b)(2) of 
this section).
    (2) Exception determinations are not required prior to award of 
indefinite-quantity contracts, except for requirements that are to be 
satisfied by initial award. Contracting offices that award indefinite-
quantity contracts must indicate to requiring and ordering activities 
which supplies and services the contractor indicates as compliant, and 
show where full details of compliance can be found (e.g., vendor's or 
other exact website location).
    (3) Requiring and ordering activities must ensure supplies or 
services meet the applicable accessibility standards at 36 CFR part 
1194, unless an exception applies, at the time of issuance of task or 
delivery orders. Accordingly, indefinite-quantity contracts may include 
noncompliant items; however, any task or delivery order issued for 
noncompliant items must meet an applicable exception.
    (c)(1) When acquiring commercial items, an agency must comply with 
those accessibility standards that can be met with supplies or services 
that are available in the commercial marketplace in time to meet the 
agency's delivery requirements.
    (2) The requiring official must document in writing the 
nonavailability, including a description of market research performed 
and which standards cannot be met, and provide documentation to the 
contracting officer for inclusion in the contract file.



Sec. 39.204  Exceptions.

    The requirements in 39.203 do not apply to EIT that--
    (a) Is purchased in accordance with Subpart 13.2 (micro-purchases) 
prior to April 1, 2005. However, for micro-purchases, contracting 
officers and other individuals designated in accordance with 1.603-3 are 
strongly encouraged to comply with the applicable accessibility 
standards to the maximum extent practicable;
    (b) Is for a national security system;
    (c) Is acquired by a contractor incidental to a contract;
    (d) Is located in spaces frequented only by service personnel for 
maintenance, repair or occasional monitoring of equipment; or
    (e) Would impose an undue burden on the agency.
    (1) Basis. In determining whether compliance with all or part of the 
applicable accessibility standards in 36 CFR part 1194 would be an undue 
burden, an agency must consider--
    (i) The difficulty or expense of compliance; and
    (ii) Agency resources available to its program or component for 
which the supply or service is being acquired.
    (2) Documentation. (i) The requiring official must document in 
writing the basis for an undue burden decision and provide the 
documentation to the contracting officer for inclusion in the contract 
file.
    (ii) When acquiring commercial items, an undue burden determination 
is not required to address individual standards that cannot be met with 
supplies or service available in the commercial marketplace in time to 
meet the agency delivery requirements (see 39.203(c)(2) regarding 
documentation of nonavailability).

[66 FR 20897, Apr. 25, 2001, as amended at 67 FR 80322, Dec. 31, 2002; 
69 FR 59703, Oct. 5, 2004]

                           PART 40 [RESERVED]

                 PART 41_ACQUISITION OF UTILITY SERVICES

                          Subpart 41.1_General

Sec.

Sec. 41.100 Scope of part.

Sec. 41.101 Definitions.

Sec. 41.102 Applicability.

Sec. 41.103 Statutory and delegated authority.

                 Subpart 41.2_Acquiring Utility Services


Sec. 41.201 Policy.

Sec. 41.202 Procedures.

Sec. 41.203 GSA assistance.

Sec. 41.204 GSA areawide contracts.

Sec. 41.205 Separate contracts.

Sec. 41.206 Interagency agreements.

[[Page 851]]

                  Subpart 41.3_Requests for Assistance


Sec. 41.301 Requirements.

                       Subpart 41.4_Administration


Sec. 41.401 Monthly and annual review.

Sec. 41.402 Rate changes and regulatory intervention.

        Subpart 41.5_Solicitation Provision and Contract Clauses


Sec. 41.501 Solicitation provision and contract clauses.

                           Subpart 41.6_Forms


Sec. 41.601 Utility services forms.

                          Subpart 41.7_Formats


Sec. 41.701 Formats for utility service specifications.

Sec. 41.702 Formats for annual utility service review.

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 
2473(c).

    Source: 59 FR 67018, Dec. 28, 1994, unless otherwise noted.

                          Subpart 41.1_General



Sec. 41.100  Scope of part.

    This part prescribes policies, procedures, and contract format for 
the acquisition of utility services. (See 41.102(b) for services that 
are excluded from this part.)



Sec. 41.101  Definitions.

    As used in this part,
    Areawide contract means a contract entered into between the General 
Services Administration (GSA) and a utility service supplier to cover 
utility service needs of Federal agencies within the franchise territory 
of the supplier. Each areawide contract includes an ``Authorization'' 
form for requesting service, connection, disconnection, or change in 
service.
    Authorization means the document executed by the ordering agency and 
the utility supplier to order service under an areawide contract.
    Connection charge means all nonrecurring costs, whether refundable 
or nonrefundable, to be paid by the Government to the utility supplier 
for the required connecting facilities, which are installed, owned, 
operated, and maintained by the utility supplier (see Termination 
liability).
    Delegated agency means an agency that has received a written 
delegation of authority from GSA to contract for utility services for 
periods not exceeding ten years (see 41.103(b)).
    Federal Power and Water Marketing Agency means a Government entity 
that produces, manages, transports, controls, and sells electrical and 
water supply service to customers.
    Franchise territory means a geographical area that a utility 
supplier has a right to serve based upon a franchise, a certificate of 
public convenience and necessity, or other legal means.
    Intervention means action by GSA or a delegated agency to formally 
participate in a utility regulatory proceeding on behalf of all Federal 
executive agencies.
    Multiple service locations means the various locations or delivery 
points in the utility supplier's service area to which it provides 
service under a single contract.
    Rates may include rate schedules, riders, rules, terms and 
conditions of service, and other tariff and service charges, e.g., 
facilities use charges.
    Separate contract means a utility services contract (other than a 
GSA areawide contract, an Authorization under an areawide contract, or 
an interagency agreement) to cover the acquisition of utility services.
    Termination liability means a contingent Government obligation to 
pay a utility supplier the unamortized portion of a connection charge 
and any other applicable nonrefundable service charge as defined in the 
contract in the event the Government terminates the contract before the 
cost of connection facilities has been recovered by the utility supplier 
(see ``Connection charge'').
    Utility service means a service such as furnishing electricity, 
natural or manufactured gas, water, sewerage, thermal energy, chilled 
water, steam, hot water, or high temperature hot water. The application 
of part 41 to other services (e.g., rubbish removal, snow removal) may 
be appropriate when the acquisition is not subject to the Service 
Contract Act of 1965 (see 37.107).

[[Page 852]]



Sec. 41.102  Applicability.

    (a) Except as provided in paragraph (b) of this section, this part 
applies to the acquisition of utility services for the Government, 
including connection charges and termination liabilities.
    (b) This part does not apply to--
    (1) Utility services produced, distributed, or sold by another 
Federal agency. In those cases, agencies shall use interagency 
agreements (see 41.206);
    (2) Utility services obtained by purchase, exchange, or otherwise by 
a Federal power or water marketing agency incident to that agency's 
marketing or distribution program;
    (3) Cable television (CATV) and telecommunications services;
    (4) Acquisition of natural or manufactured gas when purchased as a 
commodity;
    (5) Acquisition of utilities services in foreign countries;
    (6) Acquisition of rights in real property, acquisition of public 
utility facilities, and on-site equipment needed for the facility's own 
distribution system, or construction/maintenance of Government-owned 
equipment and real property; or
    (7) Third party financed shared-savings projects authorized by 42 
U.S.C. 8287. However, agencies may utilize part 41 for any energy 
savings or purchased utility service directly resulting from 
implementation of a third party financed shared-savings project under 42 
U.S.C. 8287 for periods not to exceed 25 years.

[59 FR 67018, Dec. 28, 1994, as amended at 72 FR 27385, May 15, 2007]



Sec. 41.103  Statutory and delegated authority.

    (a) Statutory authority. (1) The General Services Administration 
(GSA) is authorized by 40 U.S.C. 501 to prescribe policies and methods 
governing the acquisition and supply of utility services for Federal 
agencies. This authority includes related functions such as managing 
public utility services and representing Federal agencies in proceedings 
before Federal and state regulatory bodies. GSA is authorized by 40 
U.S.C. 501 to contract for utility services for periods not exceeding 
ten years.
    (2) The Department of Defense (DOD) is authorized by 10 U.S.C. 2304, 
and 40 U.S.C. 474(d)(3) to acquire utility services for military 
facilities.
    (3) The Department of Energy (DOE) is authorized by the Department 
of Energy Organization Act (42 U.S.C. 7251, et seq.) to acquire utility 
services. DOE is authorized by the Atomic Energy Act of 1954, as amended 
(42 U.S.C. 2204), to enter into new contracts or modify existing 
contracts for electric services for periods not exceeding 25 years for 
uranium enrichment installations.
    (b) Delegated authority. GSA has delegated its authority to enter 
into utility service contracts for periods not exceeding ten years to 
DOD and DOE, and for connection charges only to the Department of 
Veteran Affairs. Contracting pursuant to this delegated authority shall 
be consistent with the requirements of this part. Other agencies 
requiring utility service contracts for periods over one year, but not 
exceeding ten years, may request a delegation of authority from GSA at 
the address specified in 41.301(a). In keeping with its statutory 
authority, GSA will, as necessary, conduct reviews of delegated 
agencies' acquisitions of utility services to ensure compliance with the 
terms of the delegation and applicable laws and regulations.
    (c) Requests for delegations of contracting authority from GSA shall 
include a certification from the acquiring agency's Senior Procurement 
Executive that the agency has--
    (1) An established acquisition program;
    (2) Personnel technically qualified to deal with specialized 
utilities problems; and
    (3) The ability to accomplish its own pre-award contract review.

[59 FR 67018, Dec. 28, 1994, as amended at 60 FR 37777, July 21, 1995; 
63 FR 58603, Oct. 30, 1998; 70 FR 57455, Sept. 30, 2005]

                 Subpart 41.2_Acquiring Utility Services



Sec. 41.201  Policy.

    (a) Subject to paragraph (d) of this section, it is the policy of 
the Federal Government that agencies obtain required utility services 
from sources of supply which are most advantageous to

[[Page 853]]

the Government in terms of economy, efficiency, reliability, or service.
    (b) Except for acquisitions at or below the simplified acquisition 
threshold, agencies shall acquire utility services by a bilateral 
written contract, which must include the clauses required by 41.501, 
regardless of whether rates or terms and conditions of service are fixed 
or adjusted by a regulatory body. Agencies may not use the utility 
supplier's forms and clauses to avoid the inclusion of provisions and 
clauses required by 41.501 or by statute. (See 41.202(c) for procedures 
to be used when the supplier refuses to execute a written contract.)
    (c) Specific operating and management details, such as procedures 
for internal agency contract assistance and review, delegations of 
authority, and approval thresholds, may be prescribed by an individual 
agency subject to compliance with applicable statutes and regulations.
    (d)(1) Section 8093 of the Department of Defense Appropriations Act 
of 1988, Pub. L. 100-202, provides that none of the funds appropriated 
by that Act or any other Act with respect to any fiscal year by any 
department, agency, or instrumentality of the United States, may be used 
for the purchase of electricity by the Government in any manner that is 
inconsistent with state law governing the providing of electric utility 
service, including state utility commission rulings and electric utility 
franchises or service territories established pursuant to state statute, 
state regulation, or state-approved territorial agreements.
    (2) The Act does not preclude--
    (i) The head of a Federal agency from entering into a contract 
pursuant to 42 U.S.C. 8287 (which pertains to the subject of shared 
energy savings including cogeneration);
    (ii) The Secretary of a military department from entering into a 
contract pursuant to 10 U.S.C. 2394 (which pertains to contracts for 
energy or fuel for military installations including the provision and 
operation of energy production facilities); or
    (iii) The Secretary of a military department from purchasing 
electricity from any provider when the utility or utilities having 
applicable state-approved franchise or other service authorizations are 
found by the Secretary to be unwilling or unable to meet unusual 
standards for service reliability that are necessary for purposes of 
national defense.
    (3) Additionally, the head of a Federal agency may--
    (i) Consistent with applicable state law, enter into contracts for 
the purchase or transfer of electricity to the agency by a non-utility, 
including a qualifying facility under the Public Utility Regulatory 
Policies Act of 1978;
    (ii) Enter into an interagency agreement, pursuant to 41.206 and 
17.5, with a Federal power marketing agency or the Tennessee Valley 
Authority for the transfer of electric power to the agency; and
    (iii) Enter into a contract with an electric utility under the 
authority or tariffs of the Federal Energy Regulatory Commission.
    (e) Prior to acquiring electric utility services on a competitive 
basis, the contracting officer shall determine, with the advice of legal 
counsel, by a market survey or any other appropriate means, e.g. 
consultation with the state agency responsible for regulating public 
utilities, that such competition would not be inconsistent with state 
law governing the provision of electric utility service, including state 
utility commission rulings and electric utility franchises or service 
territories established pursuant to state statute, state regulation, or 
state-approved territorial agreements. Proposals from alternative 
electric suppliers shall provide a representation that service can be 
provided in a manner consistent with section 8093 of Public Law 100-202 
(see 41.201(d)).

[59 FR 67018, Dec. 28, 1994, as amended at 60 FR 34759, July 3, 1995; 61 
FR 39190, July 26, 1996; 64 FR 10533, Mar. 4, 1999]



Sec. 41.202  Procedures.

    (a) Prior to executing a utility service contract, the contracting 
officer shall comply with parts 6 and 7 and 41.201 (d) and (e). In 
accordance with parts 6 and 7, agencies shall conduct market surveys and 
perform acquisition planning in order to promote and provide for full 
and open competition provided that the contracting officer

[[Page 854]]

determines that any resultant contract would not be inconsistent with 
applicable state law governing the provision of electric utility 
services. If competition for an entire utility service is not available, 
the market survey may be used to determine the availability of 
competitive sources for certain portions of the requirement. The scope 
of the term ``entire utility service'' includes the provision of the 
utility service capacity, energy, water, sewage, transportation, standby 
or back-up service, transmission and/or distribution service, quality 
assurance, system reliability, system operation and maintenance, 
metering, and billing.
    (b) In performing a market survey (see 7.101), the contracting 
officer shall consider, in addition to alternative competitive sources, 
use of the following:
    (1) GSA areawide contracts (see 41.204);
    (2) Separate contracts (see 41.205); and
    (3) Interagency agreements (see 41.206).
    (c) When a utility supplier refuses to execute a tendered contract 
as outlined in 41.201(b), the agency shall obtain a written definite and 
final refusal signed by a corporate officer or other responsible 
official of the supplier (or if unobtainable, document any unwritten 
refusal), and transmit this document, along with statements of the 
reasons for the refusal and the record of negotiations, to GSA at the 
address specified at 41.301(a). Unless urgent and compelling 
circumstances exist, the contracting officer shall notify GSA prior to 
acquiring utility services without executing a tendered contract. After 
such notification, the agency may proceed with the acquisition and pay 
for the utility service under the provisions of 31 U.S.C. 1501(a)(8)--
    (1) By issuing a purchase order in accordance with 13.302; or
    (2) By ordering the necessary utility service and paying for it upon 
the presentation of an invoice, provided that a determination is 
approved by the head of the contracting activity that a written contract 
cannot be obtained and that the issuance of a purchase order is not 
feasible.
    (d) When obtaining service without a bilateral written contract, the 
contracting officer shall establish a utility history file on each 
acquisition of utility service provided by a contractor. This utility 
history file shall contain, in addition to applicable documents in 
4.803, the following information:
    (1) The unsigned, tendered contract and any related letter of 
transmittal.
    (2) The reasons stated by the utility supplier for not executing the 
tendered contract, the record of negotiations, and a written definite 
and final refusal by a corporate officer or other responsible official 
of the supplier (or if unobtainable, documentation of unwritten 
refusal).
    (3) Services to be furnished and the estimated annual cost.
    (4) Historical record of any applicable connection charges.
    (5) Historical record of any applicable ongoing capital credits.
    (6) A copy of the applicable rate schedule.
    (e) If the Government obtains utility service pursuant to paragraph 
(c) of this section, the contracting officer shall, on an annual basis 
beginning from the date of final refusal, take action to execute a 
bilateral written contract. The contracting officer shall document the 
utility history file with the efforts made and the agency shall notify 
GSA, in writing, if the utility continues to refuse to execute a 
bilateral contract.

[59 FR 67018, Dec. 28, 1994, as amended at 62 FR 64926, Dec. 9, 1997]



Sec. 41.203  GSA assistance.

    (a) GSA will, upon request, provide technical and acquisition 
assistance, or will delegate its contracting authority for the 
furnishing of the services described in this part for any Federal 
agency, mixed-ownership Government corporation, the District of 
Columbia, the Senate, the House of Representatives, or the Architect of 
the Capitol and any activity under the Architect's direction.
    (b) Agencies seeking assistance shall provide, upon request by GSA, 
the information listed in 41.301.

[[Page 855]]



Sec. 41.204  GSA areawide contracts.

    (a) Purpose. GSA enters into areawide contracts (see 41.101) for use 
by Federal agencies. Areawide contracts provide a pre-established 
contractual vehicle for ordering utility services under the conditions 
in paragraph (c)(1) of this section.
    (b) Features. (1) Areawide contracts generally provide for ordering 
utility service at rates approved and/or established by a regulatory 
body and published in a tariff or rate schedule. However, agencies are 
permitted to negotiate other rates and terms and conditions of service 
with the supplier (see paragraph (c) of this section). Rates other than 
those published may require the approval of the regulatory body.
    (2) Areawide contracts are negotiated with utility service suppliers 
for the provision of service within the supplier's franchise territory 
or service area.
    (3) Due to the regulated nature of the utility industry, as well as 
statutory restrictions associated with the procurement of electricity 
(see 41.201(d)), competition is typically not available within the 
entire geographical area covered by an areawide contract, although it 
may be available at specific locations within the utility's service 
area. When competing suppliers are available, the provisions of 
paragraph (c)(1) of this section apply.
    (c) Procedures for obtaining service. (1) Any Federal agency having 
a requirement for utility services within an area covered by an areawide 
contract shall acquire services under that areawide contract unless--
    (i) Service is available from more than one supplier; or
    (ii) The head of the contracting activity or designee otherwise 
determines that use of the areawide contract is not advantageous to the 
Government. If service is available from more than one supplier, service 
shall be acquired using competitive acquisition procedures (see 
41.202(a)). The determination required by paragraph (c)(1)(ii) of this 
section shall be documented in the contract file with an information 
copy furnished to GSA at the address in 41.301(a).
    (2) Each areawide contract includes an authorization form for 
ordering service, connection, disconnection, or change in service. Upon 
execution of an authorization by the contracting officer and utility 
supplier, the utility supplier is required to furnish services, without 
further negotiation, at the current, applicable published or unpublished 
rates, unless other rates, and/or terms and conditions are separately 
negotiated by the Federal agency with the supplier.
    (3) The contracting officer shall execute the Authorization, and 
attach it to a Standard Form (SF) 26, Award/Contract, along with any 
modifications such as connection charges, special facilities, or service 
arrangements. The contracting officer shall also attach any specific 
fiscal, operational, and administrative requirements of the agency, 
applicable rate schedules, technical information and detailed maps or 
drawings of delivery points, details on Government ownership, 
maintenance, or repair of facilities, and other information deemed 
necessary to fully define the service conditions in the Authorization/
contract.
    (d) List of areawide contracts. A list of current GSA areawide 
contracts is available from the GSA office specified at 41.301(a). The 
list identifies the types of services and the geographic area served. A 
copy of the contract may also be obtained from this office.
    (e) Notification. Agencies shall provide GSA at the address 
specified at 41.301(a) a copy of each SF 26 and executed Authorization 
issued under an areawide contract within 30 days after execution.



Sec. 41.205  Separate contracts.

    (a) In the absence of an areawide contract or interagency agreement 
(see 41.206), agencies shall acquire utility services by separate 
contract subject to this part, and subject to agency contracting 
authority.
    (b) If an agency enters into a separate contract, the contracting 
officer shall document the contract file with the following information:
    (1) The number of available suppliers.
    (2) Any special equipment, service reliability, or facility 
requirements and related costs.

[[Page 856]]

    (3) The utility supplier's rates, connection charges, and 
termination liability.
    (4) Total estimated contract value (including costs in subparagraphs 
(b) (2) and (3) of this subsection).
    (5) Any technical or special contract terms required.
    (6) Any unusual characteristics of services required.
    (7) The utility's wheeling or transportation policy for utility 
service.
    (c) If requesting GSA assistance with a separate contract, the 
requesting agency shall furnish the technical and acquisition data 
specified in 41.205(b), 41.301, and such other data as GSA may deem 
necessary.
    (d) A contract exceeding a 1-year period, but not exceeding ten 
years (except pursuant to 41.103), may be justified, and is usually 
required, where any of the following circumstances exist:
    (1) The Government will obtain lower rates, larger discounts, or 
more favorable terms and conditions of service;
    (2) A proposed connection charge, termination liability, or any 
other facilities charge to be paid by the Federal Government will be 
reduced or eliminated; or
    (3) The utility service supplier refuses to render the desired 
service except under a contract exceeding a 1-year period.



Sec. 41.206  Interagency agreements.

    Agencies shall use interagency agreements (e.g., consolidated 
purchase, joint use, or cross-service agreements) when acquiring utility 
service or facilities from other Government agencies and shall comply 
with the policies and procedures at 17.502-2, The Economy Act.

[75 FR 77737, Dec. 13, 2010]

                  Subpart 41.3_Requests for Assistance



Sec. 41.301  Requirements.

    (a) Requests for delegations of GSA contracting authority, 
assistance with a proposed contract as provided in 41.203, and the 
submission of other information required by this part, shall be sent or 
submitted to the General Services Administration (GSA) region in which 
service is required. The names and locations of GSA regional offices are 
available from the General Services Administration, Energy Center of 
Expertise, 301 7th Street, SW., Room 4004, Washington, DC 20407.
    (b) Requests for contracting assistance for utility services shall 
be sent not later than 120 days prior to the date new services are 
required to commence an existing contract will expire. Requests for 
assistance shall contain the following information:
    (1) A technical description or specification of the type, quantity, 
and quality of service required, and a delivery schedule.
    (2) A copy of any service proposal or proposed contract.
    (3) Copies of all current published or unpublished rates of the 
utility supplier.
    (4) Identification of any unusual factors affecting the acquisition.
    (5) Identification of all available sources or methods of supply, an 
analysis of the cost effectiveness of each, and a statement of the 
ability of each source to provide the required services, including the 
location and a description of each available supplier's facilities at 
the nearest point of service, and the cost of providing or obtaining 
necessary backup and other ancillary services.
    (c) For new utility service requirements, the agency shall furnish 
the information in paragraph (a) of this section and the following as 
applicable:
    (1) The date initial service is required.
    (2) For the first 12 months of full service, estimated maximum 
demand, monthly consumption, other pertinent information (e.g., demand 
side management, load or energy management, peak shaving, on site 
generation, load shaping), and annual cost of the service.
    (3) Known or estimated time schedule for growth to ultimate 
requirements.
    (4) Estimated ultimate maximum demand and ultimate monthly 
consumption.
    (5) A simple schematic diagram or line drawing showing the meter 
locations, the location of the new utility facilities to be constructed 
on Federal property by the Federal agency, and

[[Page 857]]

any required new connection facilities on either side of the delivery 
point to be constructed by the utility supplier to provide the new 
services.
    (6) Accounting and appropriation data to cover the required utility 
services and any connection charges required to be paid by the agency 
receiving such utility services.
    (7) The following data concerning proposed facilities and related 
charges or costs:
    (i) Proposed refundable or nonrefundable connection charge, 
termination liability, or other facilities charge to be paid by the 
agency, together with a description of the supplier's proposed 
facilities and estimated construction costs, and its rationale for the 
charge (e.g., tariff provisions or policies).
    (ii) A copy of the acquiring agency's estimate to make its own 
connection to the supplier's facilities through use of its own resources 
or by separate contract. When feasible, the acquiring agency shall 
provide its estimates to construct and operate its own utility 
facilities in lieu of participating in a cost-sharing construction 
program with the proposed utility supplier.
    (d) For existing utility service, the agency shall furnish GSA the 
information in paragraph (b) of this section and the following, as 
applicable:
    (1) A copy of the most recent 12-months' service invoices.
    (2) A tabulation, by month, for the most recent 12 months, showing 
the actual utility demands, consumption, connection charges, fuel 
adjustment charges, and the average monthly cost per unit of 
consumption.
    (3) An estimate, by month, for the next 12 months, showing the 
estimated maximum demands, monthly consumption, other pertinent 
information (e.g., demand side management, load or energy management, 
peak shaving, on site generation, load shaping), and annual cost of the 
service.
    (4) Accounting and appropriation data to cover the costs for the 
continuation of utility services.
    (5) A statement noting whether the transformer, or other system 
components, on either side of the delivery point are owned by the 
Federal agency or the utility supplier, and if the metering is on the 
primary or secondary side of the transformer.

[69 FR 76358, Dec. 20, 2004]

                       Subpart 41.4_Administration



Sec. 41.401  Monthly and annual review.

    Agencies shall review utility service invoices on a monthly basis 
and all utility accounts, with annual values exceeding the simplified 
acquisition threshold, on an annual basis. Annual reviews of accounts 
with annual values at or below the simplified acquisition threshold 
shall be conducted when deemed advantageous to the Government. The 
purpose of the monthly review is to ensure the accuracy of utility 
service invoices. The purpose of the annual review is to ensure that the 
utility supplier is furnishing the services to each facility under the 
utility's most economical, applicable rate and to examine competitive 
markets for more advantageous service offerings. The annual review shall 
be based upon the facility's usage, conditions and characteristics of 
service at each individual delivery point for the most recent 12 months. 
If a more advantageous rate is appropriate, the Federal agency shall 
request the supplier to make such rate change immediately.

[59 FR 67018, Dec. 28, 1994, as amended at 60 FR 34759, July 3, 1995]



Sec. 41.402  Rate changes and regulatory intervention.

    (a) When a change is proposed to rates or terms and conditions of 
service to the Government, the agency shall promptly determine whether 
the proposed change is reasonable, justified, and not discriminatory.
    (b) If a change is proposed to rates or terms and conditions of 
service that may be of interest to other Federal agencies, and 
intervention before a regulatory body is considered justified, the 
matter shall be referred to GSA. The agency may request from GSA a 
delegation of authority for the agency to intervene on behalf of the 
consumer interests of the Federal executive agencies (see 41.301).

[[Page 858]]

    (c) Pursuant to 52.241-7, Change in Rates or Terms and Conditions of 
Service for Regulated Services, if a regulatory body approves a rate 
change, any rate change shall be made a part of the contract by 
unilateral contract modification or otherwise documented in accordance 
with agency procedures. The approved applicable rate shall be effective 
on the date determined by the regulatory body and resulting rates and 
charges shall be paid promptly to avoid late payment provisions. Copies 
of the modification containing the approved rate change shall be sent to 
the agency's paying office or office responsible for verifying billed 
amounts (see 41.401).
    (d) If the utility supplier is not regulated and the rates, terms, 
and conditions of service are subject to negotiation pursuant to the 
clause at 52.241-8, Change in Rates or Terms and Conditions of Service 
for Unregulated Services, any rate change shall be made a part of the 
contract by contract modification, with copies sent to the agency's 
paying office or office responsible for verifying billed amounts.

        Subpart 41.5_Solicitation Provision and Contract Clauses



Sec. 41.501  Solicitation provision and contract clauses.

    (a) Because the terms and conditions under which utility suppliers 
furnish service may vary from area to area, the differences may 
influence the terms and conditions appropriate to a particular utility's 
contracting situation. To accommodate requirements that are peculiar to 
the contracting situation, this section prescribes provisions and 
clauses on a ``substantially the same as'' basis (see 52.101) which 
permits the contracting officer to prepare and utilize variations of the 
prescribed provision and clauses in accordance with agency procedures.
    (b) The contracting officer shall insert in solicitations for 
utility services a provision substantially the same as the provision at 
52.241-1, Electric Service Territory Compliance Representation, when 
proposals from alternative electric suppliers are sought.
    (c) The contracting officer shall insert in solicitations and 
contracts for utility services clauses substantially the same as the 
clauses at--
    (1) 52.241-2, Order of Precedence--Utilities;
    (2) 52.241-3, Scope and Duration of Contract;
    (3) 52.241-4, Change in Class of Service;
    (4) 52.241-5, Contractor's Facilities; and
    (5) 52.241-6, Service Provisions.
    (d) The contracting officer shall insert clauses substantially the 
same as the clauses listed below in solicitations and contracts under 
the prescribed conditions--
    (1) 52.241-7, Change in Rates or Terms and Conditions of Service for 
Regulated Services, when the utility services are subject to a 
regulatory body. (Except for GSA areawide contracts, the contracting 
officer shall insert in the blank space provided in the clause the name 
of the contracting officer. For GSA areawide contracts, the contracting 
officer shall insert the following: ``GSA and each areawide customer 
with annual billings that exceed $250,000.'')
    (2) 52.241-8, Change in Rates or Terms and Conditions of Service for 
Unregulated Services, when the utility services are not subject to a 
regulatory body.
    (3) 52.241-9, Connection Charge, when a refundable connection charge 
is required to be paid by the Government to compensate the contractor 
for furnishing additional facilities necessary to supply service. (Use 
Alternate I to the clause if a nonrefundable charge is to be paid. When 
conditions require the incorporation of a nonrecurring, nonrefundable 
service charge or a termination liability, see paragraphs (d)(6) and 
(d)(4) of this section.)
    (4) 52.241-10, Termination Liability, when payment is to be made to 
the contractor upon termination of service in conjunction with or in 
lieu of a connection charge upon completion of the facilities.
    (5) 52.241-11, Multiple Service Locations (as defined in 41.101), 
when providing for possible alternative service locations, except under 
areawide contracts, is required.
    (6) 52.241-12, Nonrefundable, Nonrecurring Service Charge, when the

[[Page 859]]

Government is required to pay a nonrefundable, nonrecurring membership 
fee, a charge for initiation of service, or a contribution for the cost 
of facilities construction. The Government may provide for inclusion of 
such agreed amount or fee as a part of the connection charge, a part of 
the initial payment for services, or as periodic payments to fulfill the 
Government's obligation.
    (7) 52.241-13, Capital Credits, when the Federal Government is a 
member of a cooperative and is entitled to capital credits, consistent 
with the bylaws and governing documents of the cooperative.
    (e) Depending on the conditions that are appropriate for each 
acquisition, the contracting officer shall also insert in solicitations 
and contracts for utility services the provisions and clauses prescribed 
elsewhere in the FAR.

[59 FR 67018, Dec. 28, 1994, as amended at 60 FR 14377, Mar. 17, 1995]

                           Subpart 41.6_Forms



Sec. 41.601  Utility services forms.

    (a) If acquiring utility services under other than an areawide 
contract, a purchase order, or an interagency agreement, the Standard 
Form (SF) 33, Solicitation, Offer and Award; SF 26, Award/Contract; or 
SF 1447, Solicitation/Contract, shall be used.
    (b) The contracting officer shall incorporate the applicable rate 
schedule in each contract, purchase order or modification.

                          Subpart 41.7_Formats



Sec. 41.701  Formats for utility service specifications.

    (a) The following specification formats for use in acquiring utility 
services are available from the address specified at 41.301(a) and may 
be used and modified at the agency's discretion:
    (1) Electric service.
    (2) Water service.
    (3) Steam service.
    (4) Sewage service.
    (5) Natural gas service.
    (b) Contracting officers may modify the specification format 
referenced in paragraph (a) of this section and attach technical items, 
details on Government ownership of equipment and real property and 
maintenance or repair obligations, maps or drawings of delivery points, 
and other information deemed necessary to fully define the service 
conditions.
    (c) The specifications and attachments (see paragraph (b) of this 
section) shall be inserted in Section C of the utility service 
solicitation and contract.

[59 FR 67018, Dec. 28, 1994, as amended at 72 FR 27385, May 15, 2007]



Sec. 41.702  Formats for annual utility service review.

    (a) Formats for use in conducting annual reviews of the following 
utility services are available from the address specified at 41.301(a) 
and may be used at the agency's discretion:
    (1) Electric service.
    (2) Gas service.
    (3) Water and sewage service.
    (b) Contracting officers may modify the annual utility service 
review format as necessary to fully cover the service used.

[[Page 860]]

                    SUBCHAPTER G_CONTRACT MANAGEMENT

           PART 42_CONTRACT ADMINISTRATION AND AUDIT SERVICES

Sec.

Sec. 42.000 Scope of part.

Sec. 42.001 [Reserved]

Sec. 42.002 Interagency agreements.

Sec. 42.003 Cognizant Federal agency.

                  Subpart 42.1_Contract Audit Services


Sec. 42.101 Contract audit responsibilities.

Sec. 42.102 Assignment of contract audit services.

Sec. 42.103 Contract audit services directory.

              Subpart 42.2_Contract Administration Services


Sec. 42.201 Contract administration responsibilities.

Sec. 42.202 Assignment of contract administration.

Sec. 42.203 Contract administration services directory.

          Subpart 42.3_Contract Administration Office Functions


Sec. 42.301 General.

Sec. 42.302 Contract administration functions.

                 Subpart 42.4_Correspondence and Visits


Sec. 42.401 Contract correspondence.

Sec. 42.402 Visits to contractors' facilities.

Sec. 42.403 Evaluation of contract administration offices.

                   Subpart 42.5_Postaward Orientation


Sec. 42.500 Scope of subpart.

Sec. 42.501 General.

Sec. 42.502 Selecting contracts for postaward orientation.

Sec. 42.503 Postaward conferences.

Sec. 42.503-1 Postaward conference arrangements.

Sec. 42.503-2 Postaward conference procedure.

Sec. 42.503-3 Postaward conference report.

Sec. 42.504 Postaward letters.

Sec. 42.505 Postaward subcontractor conferences.

        Subpart 42.6_Corporate Administrative Contracting Officer


Sec. 42.601 General.

Sec. 42.602 Assignment and location.

Sec. 42.603 Responsibilities.

                    Subpart 42.7_Indirect Cost Rates


Sec. 42.700 Scope of subpart.

Sec. 42.701 Definition.

Sec. 42.702 Purpose.

Sec. 42.703 General.

Sec. 42.703-1 Policy.

Sec. 42.703-2 Certificate of indirect costs.

Sec. 42.704 Billing rates.

Sec. 42.705 Final indirect cost rates.

Sec. 42.705-1 Contracting officer determination procedure.

Sec. 42.705-2 Auditor determination procedure.

Sec. 42.705-3 Educational institutions.

Sec. 42.705-4 State and local governments.

Sec. 42.705-5 Nonprofit organizations other than educational and state 
          and local governments.

Sec. 42.706 Distribution of documents.

Sec. 42.707 Cost-sharing rates and limitations on indirect cost rates.

Sec. 42.708 Quick-closeout procedure.

Sec. 42.709 Scope.

Sec. 42.709-1 General.

Sec. 42.709-2 Responsibilities.

Sec. 42.709-3 Assessing the penalty.

Sec. 42.709-4 Computing interest.

Sec. 42.709-5 Waiver of the penalty.

Sec. 42.709-6 Contract clause.

                   Subpart 42.8_Disallowance of Costs


Sec. 42.800 Scope of subpart.

Sec. 42.801 Notice of intent to disallow costs.

Sec. 42.802 Contract clause.

Sec. 42.803 Disallowing costs after incurrence.

                         Subpart 42.9_Bankruptcy


Sec. 42.900 Scope of subpart.

Sec. 42.901 General.

Sec. 42.902 Procedures.

Sec. 42.903 Solicitation provision and contract clause.

Subpart 42.10 [Reserved]

           Subpart 42.11_Production Surveillance and Reporting


Sec. 42.1101 General.

Sec. 42.1102 Applicability.

Sec. 42.1103 Policy.

Sec. 42.1104 Surveillance requirements.

Sec. 42.1105 Assignment of criticality designator.

Sec. 42.1106 Reporting requirements.

Sec. 42.1107 Contract clause.

          Subpart 42.12_Novation and Change-of-Name Agreements


Sec. 42.1200 Scope of subpart.

Sec. 42.1201 [Reserved]

Sec. 42.1202 Responsibility for executing agreements.

Sec. 42.1203 Processing agreements.

Sec. 42.1204 Applicability of novation agreements.

[[Page 861]]


Sec. 42.1205 Agreement to recognize contractor's change of name.

Subpart 42.13_Suspension of Work, Stop-Work Orders, and Government Delay 
                                 of Work


Sec. 42.1301 General.

Sec. 42.1302 Suspension of work.

Sec. 42.1303 Stop-work orders.

Sec. 42.1304 Government delay of work.

Sec. 42.1305 Contract clauses.

Subpart 42.14 [Reserved]

            Subpart 42.15_Contractor Performance Information


Sec. 42.1500 Scope of subpart.

Sec. 42.1501 General.

Sec. 42.1502 Policy.

Sec. 42.1503 Procedures.

          Subpart 42.16_Small Business Contract Administration


Sec. 42.1601 General.

              Subpart 42.17_Forward Pricing Rate Agreements


Sec. 42.1701 Procedures.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 
20113.

    Source: 48 FR 42370, Sept. 19, 1983, unless otherwise noted.



Sec. 42.000  Scope of part.

    This part prescribes policies and procedures for assigning and 
performing contract administration and contract audit services.

[63 FR 9062, Feb. 23, 1998]



Sec. 42.001  [Reserved]



Sec. 42.002  Interagency agreements.

    (a) Agencies shall avoid duplicate audits, reviews, inspections, and 
examinations of contractors or subcontractors, by more than one agency, 
through the use of interagency agreements.
    (b) Subject to the fiscal regulations of the agencies and applicable 
interagency agreements, the requesting agency shall reimburse the 
servicing agency for rendered services in accordance with the Economy 
Act (31 U.S.C. 1535).
    (c) When an interagency agreement is established, the agencies are 
encouraged to consider establishing procedures for the resolution of 
issues that may arise under the agreement.

[63 FR 9062, Feb. 23, 1998, as amended at 65 FR 36014, June 6, 2000]



Sec. 42.003  Cognizant Federal agency.

    (a) For contractors other than educational institutions and 
nonprofit organizations, the cognizant Federal agency normally will be 
the agency with the largest dollar amount of negotiated contracts, 
including options. For educational institutions and nonprofit 
organizations, the cognizant Federal agency is established according to 
Subsection G.11 of OMB Circular A-21, Cost Principles for Educational 
Institutions, and Attachment A, Subsection E.2, of OMB Circular A-122, 
Cost Principles for Nonprofit Organizations, respectively.
    (b) Once a Federal agency assumes cognizance for a contractor, it 
should remain cognizant for at least 5 years to ensure continuity and 
ease of administration. If, at the end of the 5-year period, another 
agency has the largest dollar amount of negotiated contracts, including 
options, the two agencies shall coordinate and determine which will 
assume cognizance. However, if circumstances warrant it and the affected 
agencies agree, cognizance may transfer prior to the expiration of the 
5-year period.

[63 FR 9062, Feb. 23, 1998]

                  Subpart 42.1_Contract Audit Services

    Source: 63 FR 9062, Feb. 23, 1998, unless otherwise noted.



Sec. 42.101  Contract audit responsibilities.

    (a) The auditor is responsible for--
    (1) Submitting information and advice to the requesting activity, 
based on the auditor's analysis of the contractor's financial and 
accounting records or other related data as to the acceptability of the 
contractor's incurred and estimated costs;
    (2) Reviewing the financial and accounting aspects of the 
contractor's cost control systems; and
    (3) Performing other analyses and reviews that require access to the 
contractor's financial and accounting

[[Page 862]]

records supporting proposed and incurred costs.
    (b) Normally, for contractors other than educational institutions 
and nonprofit organizations, the Defense Contract Audit Agency (DCAA) is 
the responsible Government audit agency. However, there may be instances 
where an agency other than DCAA desires cognizance of a particular 
contractor. In those instances, the two agencies shall agree on the most 
efficient and economical approach to meet contract audit requirements. 
For educational institutions and nonprofit organizations, audit 
cognizance will be determined according to the provisions of OMB 
Circular A-133, Audits of Institutions of Higher Education and Other 
Non-Profit Institutions.



Sec. 42.102  Assignment of contract audit services.

    (a) As provided in agency procedures or interagency agreements, 
contracting officers may request audit services directly from the 
responsible audit agency cited in the Directory of Federal Contract 
Audit Offices. The audit request should include a suspense date and 
should identify any information needed by the contracting officer.
    (b) The responsible audit agency may decline requests for services 
on a case-by-case basis, if resources of the audit agency are inadequate 
to accomplish the tasks. Declinations shall be in writing.



Sec. 42.103  Contract audit services directory.

    (a) DCAA maintains and distributes the Directory of Federal Contract 
Audit Offices. The directory identifies cognizant audit offices and the 
contractors over which they have cognizance. Changes to audit cognizance 
shall be provided to DCAA so that the directory can be updated.
    (b) Agencies may obtain a copy of the directory or information 
concerning cognizant audit offices by contacting the--Defense Contract 
Audit Agency, ATTN: CMO, Publications Officer, 8725 John J. Kingman 
Road, Suite 2135, Fort Belvoir, VA 22060-6219.

              Subpart 42.2_Contract Administration Services

    Source: 63 FR 9062, Feb. 23, 1998, unless otherwise noted.



Sec. 42.201  Contract administration responsibilities.

    (a) For each contract assigned for administration, the contract 
administration office (CAO) (see 48 CFR 2.101) shall--
    (1) Perform the functions listed in 42.302(a) to the extent that 
they apply to the contract, except for the functions specifically 
withheld;
    (2) Perform the functions listed in 42.302(b) only when and to the 
extent specifically authorized by the contracting officer; and
    (3) Request supporting contract administration under 42.202(e) and 
(f) when it is required.
    (b) The Defense Contract Management Agency and other agencies offer 
a wide variety of contract administration and support services.

[63 FR 9062, Feb. 23, 1998, as amended at 66 FR 2141, Jan. 10, 2001]



Sec. 42.202  Assignment of contract administration.

    (a) Delegating functions. As provided in agency procedures, 
contracting officers may delegate contract administration or specialized 
support services, either through interagency agreements or by direct 
request to the cognizant CAO listed in the Federal Directory of Contract 
Administration Services Components. The delegation should include--
    (1) The name and address of the CAO designated to perform the 
administration (this information also shall be entered in the contract);
    (2) Any special instructions, including any functions withheld or 
any specific authorization to perform functions listed in 42.302(b);
    (3) A copy of the contract to be administered; and
    (4) Copies of all contracting agency regulations or directives that 
are--
    (i) Incorporated into the contract by reference; or
    (ii) Otherwise necessary to administer the contract, unless copies 
have been provided previously.

[[Page 863]]

    (b) Special instructions. As necessary, the contracting officer also 
shall advise the contractor (and other activities as appropriate) of any 
functions withheld from or additional functions delegated to the CAO.
    (c) Delegating additional functions. For individual contracts or 
groups of contracts, the contracting office may delegate to the CAO 
functions not listed in 42.302: Provided that--
    (1) Prior coordination with the CAO ensures the availability of 
required resources;
    (2) In the case of authority to issue orders under provisioning 
procedures in existing contracts and under basic ordering agreements for 
items and services identified in the schedule, the head of the 
contracting activity or designee approves the delegation; and
    (3) The delegation does not require the CAO to undertake new or 
follow-on acquisitions.
    (d) Rescinding functions. The contracting officer at the requesting 
agency may rescind or recall a delegation to administer a contract or 
perform a contract administration function, except for functions 
pertaining to cost accounting standards and negotiation of forward 
pricing rates and indirect cost rates (also see 42.003). The requesting 
agency must coordinate with the CAO to establish a reasonable transition 
period prior to rescinding or recalling the delegation.
    (e) Secondary delegations of contract administration. (1) A CAO that 
has been delegated administration of a contract under paragraph (a) or 
(c) of this section, or a contracting office retaining contract 
administration, may request supporting contract administration from the 
CAO cognizant of the contractor location where performance of specific 
contract administration functions is required. The request shall--
    (i) Be in writing;
    (ii) Clearly state the specific functions to be performed; and
    (iii) Be accompanied by a copy of pertinent contractual and other 
necessary documents.
    (2) The prime contractor is responsible for managing its 
subcontracts. The CAO's review of subcontracts is normally limited to 
evaluating the prime contractor's management of the subcontracts (see 
Part 44). Therefore, supporting contract administration shall not be 
used for subcontracts unless--
    (i) The Government otherwise would incur undue cost;
    (ii) Successful completion of the prime contract is threatened; or
    (iii) It is authorized under paragraph (f) of this section or 
elsewhere in this regulation.
    (f) Special surveillance. For major system acquisitions (see part 
34), the contracting officer may designate certain high risk or critical 
subsystems or components for special surveillance in addition to 
requesting supporting contract administration. This surveillance shall 
be conducted in a manner consistent with the policy of requesting that 
the cognizant CAO perform contract administration functions at a 
contractor's facility (see 42.002).
    (g) Refusing delegation of contract administration. An agency may 
decline a request for contract administration services on a case-by-case 
basis if resources of the agency are inadequate to accomplish the tasks. 
Declinations shall be in writing.



Sec. 42.203  Contract administration services directory.

    The Defense Contract Management Agency (DCMA) maintains the Federal 
Directory of Contract Administration Services Components. The directory 
lists the names and telephone numbers of those DCMA and other agency 
offices that offer contract administration services within designated 
geographic areas and at specified contractor plants. Federal agencies 
may access it on the Internet at https://pubapp.dcma.mil/CASD/main.jsp. 
For additional information contact--Defense Contract Management Agency, 
3901 A Avenue, Building 10500, Ft. Lee, VA 23801-1809.

[70 FR 11764, Mar. 9, 2005, as amended at 77 FR 204, Jan. 3, 2012; 77 FR 
12949, Mar. 2, 2012]

          Subpart 42.3_Contract Administration Office Functions



Sec. 42.301  General.

    When a contract is assigned for administration under Subpart 42.2, 
the

[[Page 864]]

contract administration office (CAO) shall perform contract 
administration functions in accordance with 48 CFR Chapter I, the 
contract terms, and, unless otherwise agreed to in an interagency 
agreement (see 42.002), the applicable regulations of the servicing 
agency.

[63 FR 9063, Feb. 23, 1998]



Sec. 42.302  Contract administration functions.

    (a) The contracting officer normally delegates the following 
contract administration functions to a CAO. The contracting officer may 
retain any of these functions, except those in paragraphs (a)(5), 
(a)(9), (a)(11), and (a)(12) of this section, unless the cognizant 
Federal agency (see 2.101) has designated the contracting officer to 
perform these functions.
    (1) Review the contractor's compensation structure.
    (2) Review the contractor's insurance plans.
    (3) Conduct post-award orientation conferences.
    (4) Review and evaluate contractors' proposals under subpart 15.4 
and, when negotiation will be accomplished by the contracting officer, 
furnish comments and recommendations to that officer.
    (5) Negotiate forward pricing rate agreements (see 15.407-3).
    (6) Negotiate advance agreements applicable to treatment of costs 
under contracts currently assigned for administration (see 31.109).
    (7) Determine the allowability of costs suspended or disapproved as 
required (see subpart 42.8), direct the suspension or disapproval of 
costs when there is reason to believe they should be suspended or 
disapproved, and approve final vouchers.
    (8) Issue Notices of Intent to Disallow or not Recognize Costs (see 
subpart 42.8).
    (9) Establish final indirect cost rates and billing rates for those 
contractors meeting the criteria for contracting officer determination 
in subpart 42.7.
    (10) Attempt to resolve issues in controversy, using ADR procedures 
when appropriate (see subpart 33.2); prepare findings of fact and issue 
decisions under the Disputes clause on matters in which the 
administrative contracting officer (ACO) has the authority to take 
definitive action.
    (11) In connection with Cost Accounting Standards (see 48 CFR 30.601 
and 48 CFR Chapter 99 (FAR Appendix))--
    (i) Determine the adequacy of the contractor's disclosure 
statements;
    (ii) Determine whether disclosure statements are in compliance with 
Cost Accounting Standards and part 31;
    (iii) Determine the contractor's compliance with Cost Accounting 
Standards and disclosure statements, if applicable; and
    (iv) Negotiate price adjustments and execute supplemental agreements 
under the Cost Accounting Standards clauses at 48 CFR 52.230-2, 52.230-
3, 52.230-4, 52.230-5, and 52.230-6.
    (12) Determine the adequacy of the contractor's accounting system. 
The contractor's accounting system should be adequate during the entire 
period of contract performance. The adequacy of the contractor's 
accounting system and its associated internal control system, as well as 
contractor compliance with the Cost Accounting Standards (CAS), affect 
the quality and validity of the contractor data upon which the 
Government must rely for its management oversight of the contractor and 
contract performance.
    (13) Review and approve or disapprove the contractor's requests for 
payments under the progress payments or performance-based payments 
clauses.
    (14) Make payments on assigned contracts when prescribed in agency 
acquisition regulations.
    (15) Manage special bank accounts.
    (16) Ensure timely notification by the contractor of any anticipated 
overrun or underrun of the estimated cost under cost-reimbursement 
contracts.
    (17) Monitor the contractor's financial condition and advise the 
contracting officer when it jeopardizes contract performance.
    (18) Analyze quarterly limitation on payments statements and take 
action in accordance with Subpart 32.6 to recover overpayments from the 
contractor.
    (19) Issue tax exemption forms.
    (20) Ensure processing and execution of duty-free entry 
certificates.

[[Page 865]]

    (21) For classified contracts, administer those portions of the 
applicable industrial security program delegated to the CAO (see Subpart 
4.4).
    (22) Issue work requests under maintenance, overhaul, and 
modification contracts.
    (23) Negotiate prices and execute supplemental agreements for spare 
parts and other items selected through provisioning procedures when 
prescribed by agency acquisition regulations.
    (24) Negotiate and execute contractual documents for settlement of 
partial and complete contract terminations for convenience, except as 
otherwise prescribed by part 49.
    (25) Negotiate and execute contractual documents settling 
cancellation charges under multi-year contracts.
    (26) Process and execute novation and change of name agreements 
under subpart 42.12.
    (27) Perform property administration (see part 45).
    (28) Perform necessary screening, redistribution, and disposal of 
contractor inventory.
    (29) Issue contract modifications requiring the contractor to 
provide packing, crating, and handling services on excess Government 
property. When the ACO determines it to be in the Government's 
interests, the services may be secured from a contractor other than the 
contractor in possession of the property.
    (30) When contractors request Government property--
    (i) Evaluate the contractor's requests for Government property and 
for changes to existing Government property and provide appropriate 
recommendations to the contracting officer;
    (ii) Ensure required screening of Government property before 
acquisition by the contractor;
    (iii) Evaluate the use of Government property on a non-interference 
basis in accordance with the clause at 52.245-9, Use and Charges;
    (iv) Ensure payment by the contractor of any rental due; and
    (v) Modify contracts to reflect the addition of Government-furnished 
property and ensure appropriate consideration.
    (31) Perform production support, surveillance, and status reporting, 
including timely reporting of potential and actual slippages in contract 
delivery schedules.
    (32) Perform preaward surveys (see Subpart 9.1).
    (33) Advise and assist contractors regarding their priorities and 
allocations responsibilities and assist contracting offices in 
processing requests for special assistance and for priority ratings for 
privately owned capital equipment.
    (34) Monitor contractor industrial labor relations matters under the 
contract; apprise the contracting officer and, if designated by the 
agency, the cognizant labor relations advisor, of actual or potential 
labor disputes; and coordinate the removal of urgently required material 
from the strikebound contractor's plant upon instruction from, and 
authorization of, the contracting officer.
    (35) Perform traffic management services, including issuance and 
control of Government bills of lading and other tran portation 
documents.
    (36) Review the adequacy of the contractor's traffic operations.
    (37) Review and evaluate preservation, packaging, and packing.
    (38) Ensure contractor compliance with contractual quality assurance 
requirements (see part 46).
    (39) Ensure contractor compliance with contractual safety 
requirements.
    (40) Perform engineering surveillance to assess compliance with 
contractual terms for schedule, cost, and technical performance in the 
areas of design, development, and production.
    (41) Evaluate for adequacy and perform surveillance of contractor 
engineering efforts and management systems that relate to design, 
development, production, engineering changes, subcontractors, tests, 
management of engineering resources, reliability and maintainability, 
data control systems, configuration management, and independent research 
and development.
    (42) Review and evaluate for technical adequacy the contractor's 
logistics support, maintenance, and modification programs.
    (43) Report to the contracting office any inadequacies noted in 
specifications.

[[Page 866]]

    (44) Perform engineering analyses of contractor cost proposals.
    (45) Review and analyze contractor-proposed engineering and design 
studies and submit comments and recommendations to the contracting 
office, as required.
    (46) Review engineering change proposals for proper classification, 
and when required, for need, technical adequacy of design, 
producibility, and impact on quality, reliability, schedule, and cost; 
submit comments to the contracting office.
    (47) Assist in evaluating and make recommendations for acceptance or 
rejection of waivers and deviations.
    (48) Evaluate and monitor the contractor's procedures for complying 
with procedures regarding restrictive markings on data.
    (49) Monitor the contractor's value engineering program.
    (50) Review, approve or disapprove, and maintain surveillance of the 
contractor's purchasing system (see part 44).
    (51) Consent to the placement of subcontracts.
    (52) Review, evaluate, and approve plant or division-wide small, 
small disadvantaged, women-owned, veteran-owned, HUBZone, and service-
disabled veteran-owned small business master subcontracting plans.
    (53) Obtain the contractor's currently approved company- or 
division-wide plans for small, small disadvantaged, women-owned, 
veteran-owned, HUBZone, and service-disabled veteran-owned small 
business subcontracting for its commercial products, or, if there is no 
currently approved plan, assist the contracting officer in evaluating 
the plans for those products.
    (54) Assist the contracting officer, upon request, in evaluating an 
offeror's proposed small, small disadvantaged women-owned, veteran-
owned, HUBZone, and service-disabled veteran-owned small business 
subcontracting plans, including documentation of compliance with similar 
plans under prior contracts.
    (55) By periodic surveillance, ensure the contractor's compliance 
with small, small disadvantaged, women-owned, veteran-owned, HUBZone, 
and service-disabled veteran-owned small business subcontracting plans 
and any labor surplus area contractual requirements; maintain 
documentation of the contractor's performance under and compliance with 
these plans and requirements; and provide advice and assistance to the 
firms involved, as appropriate.
    (56) Maintain surveillance of flight operations.
    (57) Assign and perform supporting contract administration.
    (58) Ensure timely submission of required reports.
    (59) Issue administrative changes, correcting errors or omissions in 
typing, contractor address, facility or activity code, remittance 
address, computations, which do not require additional contract funds, 
and other such changes (see 43.101).
    (60) Cause release of shipments from contractor's plants according 
to the shipping instructions. When applicable, the order of assigned 
priority shall be followed; shipments within the same priority shall be 
determined by date of the instruction.
    (61) Obtain contractor proposals for any contract price adjustments 
resulting from amended shipping instructions. Review all amended 
shipping instructions on a periodic, consolidated basis to ensure that 
adjustments are timely made. Except when the ACO has settlement 
authority, the ACO shall forward the proposal to the contracting officer 
for contract modification. The ACO shall not delay shipments pending 
completion and formalization of negotiations of revised shipping 
instructions.
    (62) Negotiate and/or execute supplemental agreements, as required, 
making changes in packaging subcontractors or contract shipping points.
    (63) Cancel unilateral purchase orders when notified of 
nonacceptance by the contractor. The CAO shall notify the contracting 
officer when the purchase order is canceled.
    (64) Negotiated and execute one-time supplemental agreements 
providing for the extension of contract delivery schedules up to 90 days 
on contracts with an assigned Critically Designator of C (see 42.1105). 
Notification that the

[[Page 867]]

contract delivery schedule is being extended shall be provided to the 
contracting office. Subsequent extensions on any individual contract 
shall be authorized only upon concurrence of the contracting office.
    (65) Accomplish administrative closeout procedures (see 4.804-5).
    (66) Determine that the contractor has a drug-free workplace program 
and drug free awareness program (see subpart 23.5).
    (67) Support the program, product, and project offices regarding 
program reviews, program status, program performance and actual or 
anticipated program problems.
    (68) Monitor the contractor's environmental practices for adverse 
impact on contract performance or contract cost, and for compliance with 
environmental requirements specified in the contract. ACO 
responsibilities include--
    (i) Requesting environmental technical assistance, if needed;
    (ii) Monitoring contractor compliance with specifications or other 
contractual requirements requiring the delivery or use of 
environmentally preferable products, energy-efficient products, products 
containing recovered materials, and biobased products. This must occur 
as part of the quality assurance procedures set forth in Part 46; and
    (iii) As required in the contract, ensuring that the contractor 
complies with the reporting requirements relating to recovered material 
content utilized in contract performance (see subpart 23.4).
    (69) Administer commercial financing provisions and monitor 
contractor security to ensure its continued adequacy to cover 
outstanding payments, when on-site review is required.
    (70) Deobligate excess funds after final price determination.
    (71) Ensure that the contractor has implemented the requirements of 
52.203-13, Contractor Code of Business Ethics and Conduct.
    (b) The CAO shall perform the following functions only when and to 
the extent specifically authorized by the contracting office:
    (1) Negotiate or negotiate and execute supplemental agreements 
incorporating contractor proposals resulting from change orders issued 
under the Changes clause. Before completing negotiations, coordinate any 
delivery schedule change with the contracting office.
    (2) Negotiate prices and execute priced exhibits for unpriced orders 
issued by the contracting officer under basic ordering agreements.
    (3) Negotiate or negotiate and execute supplemental agreements 
changing contract delivery schedules.
    (4) Negotiate or negotiate and execute supplemental agreements 
providing for the deobligation of unexpended dollar balances considered 
excess to known contract requirements.
    (5) Issue amended shipping instructions and, when necessary, 
negotiate and execute supplemental agreements incorporating contractor 
proposals resulting from these instructions.
    (6) Negotiate changes to interim billing prices.
    (7) Negotiate and definitize adjustments to contract prices 
resulting from exercise of an economic price adjustment clause (see 
subpart 16.2).
    (8) Issue change orders and negotiate and execute resulting 
supplemental agreements under contracts for ship construction, 
conversion, and repair.
    (9) Execute supplemental agreements on firm-fixed price supply 
contracts to reduce required contract line item quantities and 
deobligate excess funds when notified by the contractor of an 
inconsequential delivery shortage, and it is determined that such action 
is in the best interests of the Government, notwithstanding the default 
provisions of the contract. Such action will be taken only upon the 
written request of the contractor and, in no event shall the total 
downward contract price adjustment resulting from an inconsequential 
delivery shortage exceed $250.00 or 5 percent of the contract price, 
whichever is less.
    (10) Execute supplemental agreements to permit a chance in place of 
inspection at origin specified in firm fixed-price supply contracts 
awarded to nonmanufacturers, as deemed necessary to protect the 
Government's interests.

[[Page 868]]

    (11) Prepare evaluations of contractor performance in accordance 
with subpart 42.15.
    (c) Any additional contract administration functions not listed in 
42.302(a) and (b), or not otherwise delegated, remain the responsibility 
of the contracting office.

[48 FR 42370, Sept. 19, 1983]

    Editorial Note: For Federal Register citations affecting section 
42.302, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.fdsys.gov.

                 Subpart 42.4_Correspondence and Visits



Sec. 42.401  Contract correspondence.

    (a) The contracting officer (or other contracting agency personnel) 
normally shall (1) forward correspondence relating to assigned contract 
administration functions through the cognizant contract administration 
office (CAO) to the contractor and (2) provide a copy for the CAO's 
file. When urgency requires sending such correspondence directly to the 
contractor, a copy shall be sent concurrently to the CAO.
    (b) The CAO shall send the contracting office a copy of pertinent 
correspondence conducted between the CAO and the contractor.



Sec. 42.402  Visits to contractors' facilities.

    (a) Government personnel planning to visit a contractor's facility 
in connection with one or more Government contracts shall provide prior 
notification to the cognizant CAO, with the following information, 
sufficiently in advance to permit the CAO to make necessary 
arrangements. Such notification is for the purpose of eliminating 
duplicative reviews, requests, investigations, and audits relating to 
the contract administration functions in subpart 42.3 delegated to CAO's 
and shall, as a minimum, include the following (see also paragraph (b) 
of this section):
    (1) Visitors' names, official positions, and security clearances.
    (2) Date and duration of visit.
    (3) Name and address of contractor and personnel to be contacted.
    (4) Contract number, program involved, and purpose of visit.
    (5) If desired, visitors to a contractor's plant may request that a 
representative of the CAO accompany them. In any event, the CAO has 
final authority to decide whether a representative shall accompany a 
visitor.
    (b) If the visit will result in reviewing, auditing, or obtaining 
any information from the contractor relating to contract administration 
functions, the prospective visitor shall identify the information in 
sufficient detail so as to permit the CAO, after consultation with the 
contractor and the cognizant audit office, to determine whether such 
information, adequate to fulfill the requirement, has recently been 
reviewed by or is available within the Government. If so, the CAO will 
discourage the visit and refer the prospective visitor to the Government 
office where such information is located. Where the office is the CAO, 
such information will be immediately forwarded or otherwise made 
available to the requestor.
    (c) Visitors shall fully inform the CAO of any agreements reached 
with the contractor or other results of the visit that may affect the 
CAO.

[48 FR 42370, Sept. 19, 1983, as amended at 53 FR 662, Jan. 11, 1988; 53 
FR 17859, May 18, 1988]



Sec. 42.403  Evaluation of contract administration offices.

    Onsite inspections or evaluations of the performance of the assigned 
functions of a contract administration office shall be accomplished only 
by or under the direction of the agency of which that office is a part.

                   Subpart 42.5_Postaward Orientation



Sec. 42.500  Scope of subpart.

    This subpart prescribes policies and procedures for the postaward 
orientation of contractors and subcontractors through (a) a conference 
or (b) a letter or other form of written communication.



Sec. 42.501  General.

    (a) A postaward orientation aids both Government and contractor 
personnel

[[Page 869]]

to (l) achieve a clear and mutual understanding of all contract 
requirements and (2) identify and resolve potential problems. However, 
it is not a substitute for the contractor's fully understanding the work 
requirements at the time offers are submitted, nor is it to be used to 
alter the final agreement arrived at in any negotiations leading to 
contract award.
    (b) Postaward orientation is encouraged to assist (see part 19)--
    (1) Small business concerns;
    (2) Small disadvantaged business concerns;
    (3) Veteran-owned small business concerns;
    (4) Service-disabled veteran-owned small business concerns;
    (5) HUBZone small business concerns; and
    (6) Women-owned small business concerns (including economically 
disadvantaged women-owned small business concerns and women-owned small 
business concerns eligible under the Women-Owned Small Business 
Program).
    (c) While cognizant Government or contractor personnel may request 
the contracting officer to arrange for orientation, it is up to the 
contracting officer to decide whether a postaward orientation in any 
form is necessary.
    (d) Maximum benefits will be realized when orientation is conducted 
promptly after award.

[48 FR 42370, Sept. 19, 1983, as amended at 60 FR 48264, Sept. 18, 1995; 
70 FR 14955, Mar. 23, 2005; 76 FR 18313, Apr. 1, 2011]



Sec. 42.502  Selecting contracts for postaward orientation.

    When deciding whether postaward orientation is necessary and, if so, 
what form it shall take, the contracting officer shall consider, as a 
minimum, the--
    (a) Nature and extent of the preaward survey and any other prior 
discussions with the contractor;
    (b) Type, value, and complexity of the contract;
    (c) Complexity and acquisition history of the product or service;
    (d) Requirements for spare parts and related equipment;
    (e) Urgency of the delivery schedule and relationship of the product 
or service to critical programs;
    (f) Length of the planned production cycle;
    (g) Extent of subcontracting;
    (h) Contractor's performance history and experience with the product 
or service;
    (i) Contractor's status, if any, as a small business, small 
disadvantaged, women-owned, veteran-owned, HUBZone, or service-disabled 
veteran-owned small business concern;
    (j) Contractor's performance history with small, small 
disadvantaged, women-owned, veteran-owned, HUBZone, and service-disabled 
veteran-owned small business subcontracting programs;
    (k) Safety precautions required for hazardous materials or 
operations; and
    (l) Complex financing arrangements, such as progress payments, 
advance payments, or guaranteed loans.

[48 FR 42370, Sept. 19, 1983, as amended at 60 FR 48264, Sept. 18, 1995; 
70 FR 14955, Mar. 23, 2005]



Sec. 42.503  Postaward conferences.



Sec. 42.503-1  Postaward conference arrangements.

    (a) The contracting officer who decides that a conference is needed 
is responsible for--
    (1) Establishing the time and place of the conference;
    (2) Preparing the agenda, when necessary;
    (3) Notifying appropriate Government representatives (e.g., 
contracting/contract administration office) and the contractor;
    (4) Designating or acting as the chairperson;
    (5) Conducting a preliminary meeting of Government personnel; and
    (6) Preparing a summary report of the conference.
    (b) When the contracting office initiates a conference, the 
arrangements may be made by that office or, at its request, by the 
contract administration office.

[[Page 870]]



Sec. 42.503-2  Postaward conference procedure.

    The chairperson of the conference shall conduct the meeting. Unless 
a contract change is contemplated, the chairperson shall emphasize that 
it is not the purpose of the meeting to change the contract. The 
contracting officer may make commitments or give directions within the 
scope of the contracting officer's authority and shall put in writing 
and sign any commitment or direction, whether or not it changes the 
contract. Any change to the contract that results from the postaward 
conference shall be made only by a contract modification referencing the 
applicable terms of the contract. Participants without authority to bind 
the Government shall not take action that in any way alters the 
contract. The chairperson shall include in the summary report (see 
42.503-3 below) all information and guidance provided to the contractor.

[66 FR 42370, Sept. 19, 1983, as amended at 66 FR 2133, Jan. 10, 2001]



Sec. 42.503-3  Postaward conference report.

    The chairperson shall prepare and sign a report of the postaward 
conference. The report shall cover all items discussed, including areas 
requiring resolution, controversial matters, the names of the 
participants assigned responsibility for further actions, and the due 
dates for the actions. The chairperson shall furnish copies of the 
report to the contracting office, the contract administration office, 
the contractor, and others who require the information.



Sec. 42.504  Postaward letters.

    In some circumstances, a letter or other written form of 
communication to the contractor may be adequate postaward orientation 
(in lieu of a conference). The letter should identify the Government 
representative responsible for administering the contract and cite any 
unusual or significant contract requirements. The rules on changes to 
the contract in 42.503-2 also apply here.



Sec. 42.505  Postaward subcontractor conferences.

    (a) The prime contractor is generally responsible for conducting 
postaward conferences with subcontractors. However, the prime contractor 
may invite Government representatives to a conference with 
subcontractors, or the Government may request that the prime contractor 
initiate a conference with subcontractors. The prime contractor should 
ensure that representatives from involved contract administration 
offices are invited.
    (b) Government representatives (1) must recognize the lack of 
privity of contract between the Government and subcontractors, (2) shall 
not take action that is inconsistent with or alters subcontracts, and 
(3) shall ensure that any changes in direction or commitment affecting 
the prime contract or contractor resulting from a subcontractor 
conference are made by written direction of the contracting officer to 
the prime contractor in the same manner as described in 42.503-2.

        Subpart 42.6_Corporate Administrative Contracting Officer



Sec. 42.601  General.

    Contractors with more than one operational location (e.g., division, 
plant, or subsidiary) often have corporate-wide policies, procedures, 
and activities requiring Government review and approval and affecting 
the work of more than one administrative contracting officer (ACO). In 
these circumstances, effective and consistent contract administration 
may require the assignment of a corporate administrative contracting 
officer (CACO) to deal with corporate management and to perform selected 
contract administration functions on a corporate-wide basis.



Sec. 42.602  Assignment and location.

    (a) A CACO may be assigned only when (1) the contractor has at least 
two locations with resident ACO's or (2) the need for a CACO is approved 
by the agency head or designee (for this purpose, a nonresident ACO will 
be considered as resident if at least 75 percent of the ACO's effort is 
devoted to a

[[Page 871]]

single contractor). One of the resident ACO's may be designated to 
perform the CACO functions, or a full-time CACO may be assigned. In 
determining the location of the CACO, the responsible agency shall take 
into account such factors as the location(s) of the corporate records, 
corporate office, major plant, cognizant government auditor, and overall 
cost effectiveness.
    (b) A decision to initiate or discontinue a CACO assignment should 
be based on such factors as (1) the benefits of coordination and liaison 
at the corporate level, (2) the volume of Government sales, (3) the 
degree of control exercised by the contractor's corporate office over 
Government-oriented lower-tier operating elements, and (4) the impact of 
corporate policies and procedures on those elements.
    (c) Responsibility for assigning a CACO shall be determined as 
follows:
    (1) When all locations of a corporate entity are under the contract 
administration cognizance of a single agency, that agency is 
responsible.
    (2) When the locations are under the contract administration 
cognizance of more than one agency, the agencies concerned shall agree 
on the responsible agency (normally on the basis of the agency with the 
largest dollar balance, including options, of affected contracts). In 
such cases, agencies may also consider geographic location.
    (d) The directory of contract administration services components 
referenced in 42.203 includes a listing of CACO's and the contractors 
for which they are assigned responsibility.

[48 FR 42370, Sept. 19, 1983, as amended at 63 FR 9064, Feb. 23, 1998]



Sec. 42.603  Responsibilities.

    (a) The CACO shall perform, on a corporate-wide basis, the contract 
administration functions as designated by the responsible agency. 
Typical CACO functions include (1) the determination of final indirect 
cost rates for cost-reimbursement contracts, (2) establishment of 
advance agreements or recommendations on corporate/home office expense 
allocations, and (3) administration of Cost Accounting Standards (CAS) 
applicable to corporate-level and corporate-directed accounting 
practices.
    (b) The CACO shall--
    (1) Fully utilize the responsible contract audit agency financial 
and advisory accounting services, including (i) advice regarding the 
acceptability of corporate-wide policies and (ii) advisory audit 
reports;
    (2) Keep cognizant ACO's and auditors informed of important matters 
under consideration and determinations made; and
    (3) Solicit their advice and participation as appropriate.

[48 FR 42370, Sept. 19, 1983, as amended at 63 FR 9064, Feb. 23, 1998]

                    Subpart 42.7_Indirect Cost Rates



Sec. 42.700  Scope of subpart.

    This subpart prescribes policies and procedures for establishing (a) 
billing rates and (b) final indirect cost rates.



Sec. 42.701  Definition.

    Billing rate as used in this subpart means an indirect cost rate (1) 
established temporarily for interim reimbursement of incurred indirect 
costs and (2) adjusted as necessary pending establishment of final 
indirect cost rates.

[48 FR 42370, Sept. 19, 1983, as amended at 59 FR 11387, Mar. 10, 1994; 
63 FR 9064, Feb. 23, 1998; 66 FR 2133, Jan. 10, 2001]



Sec. 42.702  Purpose.

    (a) Establishing final indirect cost rates under this subpart 
provides--
    (1) Uniformity of approach with a contractor when more than one 
contract or agency is involved;
    (2) Economy of administration; and
    (3) Timely settlement under cost-reimbursement contracts.
    (b) Establishing billing rates provides a method for interim 
reimbursement of indirect costs at estimated rates subject to adjustment 
during contract performance and at the time the final indirect cost 
rates are established.



Sec. 42.703  General.



Sec. 42.703-1  Policy.

    (a) A single agency (see 42.705-1) shall be responsible for 
establishing final indirect cost rates for each business unit. These 
rates shall be binding on all

[[Page 872]]

agencies and their contracting offices, unless otherwise specifically 
prohibited by statute. An agency shall not perform an audit of indirect 
cost rates when the contracting officer determines that the objectives 
of the audit can reasonably be met by accepting the results of an audit 
that was conducted by any other department or agency of the Federal 
Government (10 U.S.C. 2313(d) and 41 U.S.C. 254d(d)).
    (b) Billing rates and final indirect cost rates shall be used in 
reimbursing indirect costs under cost-reimbursement contracts and in 
determining progress payments under fixed-price contracts.
    (c) To ensure compliance with 10 U.S.C. 2324(a) and 41 U.S.C. 
256(a)--
    (1) Final indirect cost rates shall be used for contract closeout 
for a business unit, unless the quick-closeout procedure in 42.708 is 
used. These final rates shall be binding for all cost-reimbursement 
contracts at the business unit, subject to any specific limitation in a 
contract or advance agreement; and
    (2) Established final indirect cost rates shall be used in 
negotiating the final price of fixed-price incentive and fixed-price 
redeterminable contracts and in other situations requiring that indirect 
costs be settled before contract prices are established, unless the 
quick-closeout procedure in 42.708 is used.

[48 FR 42370, Sept. 19, 1983, as amended at 60 FR 42661, Aug. 16, 1995. 
Redesignated at 60 FR 42664, Aug. 16, 1995, as amended at 62 FR 274, 
Jan. 2, 1997; 63 FR 9064, Feb. 23, 1998]



Sec. 42.703-2  Certificate of indirect costs.

    (a) General. In accordance with 10 U.S.C. 2324(h) and 41 U.S.C. 
256(h), a proposal shall not be accepted and no agreement shall be made 
to establish final indirect cost rates unless the costs have been 
certified by the contractor.
    (b) Waiver of certification. (1) The agency head, or designee, may 
waive the certification requirement when--
    (i) It is determined to be in the interest of the United States; and
    (ii) The reasons for the determination are put in writing and made 
available to the public.
    (2) A waiver may be appropriate for a contract with--
    (i) A foreign government or international organization, such as a 
subsidiary body of the North Atlantic Treaty Organization;
    (ii) A state or local government subject to OMB Circular A-87;
    (iii) An educational institution subject to OMB Circular A-21; and
    (iv) A nonprofit organization subject to OMB Circular A-122.
    (c) Failure to certify. (1) If the contractor has not certified its 
proposal for final indirect cost rates and a waiver is not appropriate, 
the contracting officer may unilaterally establish the rates.
    (2) Rates established unilaterally should be--
    (i) Based on audited historical data or other available data as long 
as unallowable costs are excluded; and
    (ii) Set low enough to ensure that unallowable costs will not be 
reimbursed.
    (d) False certification. The contracting officer should consult with 
legal counsel to determine appropriate action when a contractor's 
certificate of final indirect costs is thought to be false.
    (e) Penalties for unallowable costs. 10 U.S.C. 2324(a) through (d) 
and 41 U.S.C. 256 (a) through (d) prescribe penalties for submission of 
unallowable costs in final indirect cost rate proposals (see 42.709 for 
penalties and contracting officer responsibilities).
    (f) Contract clause. (1) Except as provided in paragraph (f)(2) of 
this subsection, the clause at 52.242-4, Certification of Final Indirect 
Costs, shall be incorporated into all solicitations and contracts which 
provide for establishment of final indirect cost rates.
    (2) The Department of Energy may provide an alternate clause in its 
agency supplement for its Management and Operating contracts.

[60 FR 42664, Aug. 16, 1995, as amended at 62 FR 237, Jan. 2, 1997; 62 
FR 10710, Mar. 10, 1997; 63 FR 9064, Feb. 23, 1998]



Sec. 42.704  Billing rates.

    (a) The contracting officer (or cognizant Federal agency official) 
or auditor responsible under 42.705 for establishing the final indirect 
cost rates also shall be responsible for determining the billing rates.

[[Page 873]]

    (b) The contracting officer (or cognizant Federal agency official) 
or auditor shall establish billing rates on the basis of information 
resulting from recent review, previous rate audits or experience, or 
similar reliable data or experience of other contracting activities. In 
establishing billing rates, the contracting officer (or cognizant 
Federal agency official) or auditor should ensure that the billing rates 
are as close as possible to the final indirect cost rates anticipated 
for the contractor's fiscal period, as adjusted for any unallowable 
costs. When the contracting officer (or cognizant Federal agency 
official) or auditor determines that the dollar value of contracts 
requiring use of billing rates does not warrant submission of a detailed 
billing rate proposal, the billing rates may be established by making 
appropriate adjustments from the prior year's indirect cost experience 
to eliminate unallowable and nonrecurring costs and to reflect new or 
changed conditions.
    (c) Once established, billing rates may be prospectively or 
retroactively revised by mutual agreement of the contracting officer (or 
cognizant Federal agency official) or auditor and the contractor at 
either party's request, to prevent substantial overpayment or 
underpayment. When agreement cannot be reached, the billing rates may be 
unilaterally determined by the contracting officer (or cognizant Federal 
agency official).
    (d) The elements of indirect cost and the base or bases used in 
computing billing rates shall not be construed as determinative of the 
indirect costs to be distributed or of the bases of distribution to be 
used in the final settlement.
    (e) When the contractor provides to the cognizant contracting 
officer the certified final indirect cost rate proposal in accordance 
with 42.705-(b) or 42.705-(b), the contractor and the Government may 
mutually agree to revise billing rates to reflect the proposed indirect 
cost rates, as approved by the Government to reflect historically 
disallowed amounts from prior years' audits, until the proposal has been 
audited and settled. The historical decrement will be determined by 
either the cognizant contracting officer (42.705-1(b)) or the cognizant 
auditor (42.705-2(b)).

[48 FR 42370, Sept. 19, 1983, as amended at 61 FR 69296, Dec. 31, 1996; 
63 FR 9064, Feb. 23, 1998]



Sec. 42.705  Final indirect cost rates.

    (a) Final indirect cost rates shall be established on the basis of--
    (1) Contracting officer determination procedure (see 42.705-1) or
    (2) Auditor determination procedure (see 42.705-2).
    (b) Within 120 days (or longer period, if approved in writing by the 
contracting officer,) after settlement of the final annual indirect cost 
rates for all years of a physically complete contract, the contractor 
must submit a completion invoice or voucher reflecting the settled 
amounts and rates. To determine whether a period longer than 120 days is 
appropriate, the contracting officer should consider whether there are 
extenuating circumstances, such as the following:
    (1) Pending closeout of subcontracts awaiting Government audit.
    (2) Pending contractor, subcontractor, or Government claims.
    (3) Delays in the disposition of Government property.
    (4) Delays in contract reconciliation.
    (5) Any other pertinent factors.
    (c)(1) If the contractor fails to submit a completion invoice or 
voucher within the time specified in paragraph (b) of this section, the 
contracting officer may--
    (i) Determine the amounts due to the contractor under the contract; 
and
    (ii) Record this determination in a unilateral modification to the 
contract.
    (2) This contracting officer determination must be issued as a final 
decision in accordance with 33.211.

[61 FR 69296, Dec. 31, 1996, as amended at 67 FR 6119, Feb. 8, 2002]



Sec. 42.705-1  Contracting officer determination procedure.

    (a) Applicability and responsibility. Contracting officer 
determination shall be used for the following, with the indicated 
cognizant contracting officer (or cognizant Federal agency official) 
responsible for establishing the final indirect cost rates:

[[Page 874]]

    (1) Business units of a multidivisional corporation under the 
cognizance of a corporate administrative contracting officer (see 
subpart 42.6), with that officer responsible for the determination, 
assisted, as required, by the administrative contracting officers 
assigned to the individual business units. Negotiations may be conducted 
on a coordinated or centralized basis, depending upon the degree of 
centralization within the contractor's organization.
    (2) Business units not under the cognizance of a corporate 
administrative contracting officer, but having a resident administrative 
contracting officer (see 42.602), with that officer responsible for the 
determination. For this purpose, a nonresident administrative 
contracting officer is considered as resident if at least 75 percent of 
the administrative contracting officer's time is devoted to a single 
contractor.
    (3) For business units not included in paragraph (a)(1) or (a)(2) of 
this subsection, the contracting officer (or cognizant Federal agency 
official) will determine whether the rates will be contracting officer 
or auditor determined.
    (4) Educational institutions (see 42.705-3).
    (5) State and local governments (see 42.705-4).
    (6) Nonprofit organizations other than educational and state and 
local governments (see 42.705-5).
    (b) Procedures. (1) In accordance with the Allowable Cost and 
Payment clause at 52.216-7, the contractor is required to submit an 
adequate final indirect cost rate proposal to the contracting officer 
(or cognizant Federal agency official) and to the cognizant auditor.
    (i) The required content of the proposal and supporting data will 
vary depending on such factors as business type, size, and accounting 
system capabilities. The contractor, contracting officer, and auditor 
must work together to make the proposal, audit, and negotiation process 
as efficient as possible.
    (ii) Each contractor is required to submit the final indirect cost 
rate proposal within the six-month period following the expiration of 
each of its fiscal years. The contracting officer may grant, in writing, 
reasonable extensions, for exceptional circumstances only, when 
requested in writing by the contractor.
    (iii) Upon receipt of the proposal--
    (A) The cognizant auditor will review the adequacy of the 
contractor's proposal for audit in support of negotiating final indirect 
cost rates and will provide a written description of any inadequacies to 
the contractor and contracting officer.
    (B) If the auditor and contractor are unable to resolve the 
proposal's inadequacies identified by the auditor, the auditor will 
elevate the issue to the contracting office to resolve the inadequacies.
    (iv) The proposal must be supported with adequate supporting data, 
some of which may be required subsequent to finding that the proposal is 
adequate for audit in support of negotiating final indirect cost rates 
(e.g., during the course of the performance of the advisory audit). See 
the clause at 52.216-7(d)(2) for the description of an adequate final 
indirect cost rate proposal and supporting data.
    (2) Once a proposal has been determined to be adequate for audit in 
support of negotiating final indirect cost rates, the auditor will audit 
the proposal and prepare an advisory audit report to the contracting 
officer (or cognizant Federal agency official), including a listing of 
any relevant advance agreements or restrictive terms of specific 
contracts.
    (3) The contracting officer (or cognizant Federal agency official) 
shall head the Government negotiating team, which includes the cognizant 
auditor and technical or functional personnel as required. Contracting 
offices having significant dollar interest shall be invited to 
participate in the negotiation and in the preliminary discussion of 
critical issues. Individuals or offices that have provided a significant 
input to the Government position should be invited to attend.
    (4) The Government negotiating team shall develop a negotiation 
position. Pursuant to 10 U.S.C. 2324(f) and 41 U.S.C. 256(f), the 
contracting, officer shall--
    (i) Not resolve any questioned costs until obtaining--
    (A) Adequate documentation on the costs; and

[[Page 875]]

    (B) The contract auditor's opinion on the allowability of the costs.
    (ii) Whenever possible, invite the contract auditor to serve as an 
advisor at any negotiation or meeting with the contractor on the 
determination of the contractor's final indirect cost rates.
    (5) The cognizant contracting officer shall--
    (i) Conduct negotiations;
    (ii) Prepare a written indirect cost rate agreement conforming to 
the requirements of the contracts;
    (iii) Prepare, sign, and place in the contractor general file (see 
4.801(c)(3)) a negotiation memorandum covering
    (A) the disposition of significant matters in the advisory audit 
report,
     (B) reconciliation of all costs questioned, with identification of 
items and amounts allowed or disallowed in the final settlement as well 
as the disposition of period costing or allocability issues,
    (C) reasons why any recommendations of the auditor or other 
Government advisors were not followed, and
    (D) identification of certified cost or pricing data submitted 
during the negotiations and relied upon in reaching a settlement; and
    (iv) Distribute resulting documents in accordance with 42.706.
    (v) Notify the contractor of the individual costs which were 
considered unallowable and the respective amounts of the disallowance.

[48 FR 42370, Sept. 19, 1983, as amended at 60 FR 42661, Aug. 16, 1995; 
62 FR 51258, Sept. 30, 1997; 63 FR 9064, Feb. 23, 1998; 67 FR 6120, Feb. 
8, 2002; 72 FR 27385, May 15, 2007; 75 FR 53149, Aug. 30, 2010; 76 FR 
31408, May 31, 2011]



Sec. 42.705-2  Auditor determination procedure.

    (a) Applicability and responsibility. (1) The cognizant Government 
auditor shall establish final indirect cost rates for business units not 
covered in 42.705-1(a).
    (2) In addition, auditor determination may be used for business 
units that are covered in 42.705-1(a) when the contracting officer (or 
cognizant Federal agency official) and auditor agree that the indirect 
costs can be settled with little difficulty and any of the following 
circumstances apply:
    (i) The business unit has primarily fixed-price contracts, with only 
minor involvement in cost-reimbursement contracts.
    (ii) The administrative cost of contracting officer determination 
would exceed the expected benefits.
    (iii) The business unit does not have a history of disputes and 
there are few cost problems.
    (iv) The contracting officer (or cognizant Federal agency official) 
and auditor agree that special circumstances require auditor 
determination.
    (b) Procedures. (1) The contractor shall submit to the cognizant 
contracting officer (or cognizant Federal agency official) and auditor a 
final indirect cost rate proposal in accordance with 42.705-1(b)(1).
    (2) Once a proposal has been determined to be adequate for audit in 
support of negotiating final indirect cost rates, the auditor shall--
    (i) Audit the proposal and prepare an advisory audit report, 
including a listing of any relevant advance agreements or restrictive 
terms of specific contracts;
    (ii) Seek agreement on indirect costs with the contractor;
    (iii) Prepare an indirect cost rate agreement conforming to the 
requirements of the contracts. The agreement shall be signed by the 
contractor and the auditor;
    (iv) If agreement with the contractor is not reached, forward the 
audit report to the contracting officer (or cognizant Federal agency 
official) identified in the Directory of Contract Administration 
Services Components (see 42.203), who will then resolve the 
disagreement; and
    (v) Distribute resulting documents in accordance with 42.706.

[48 FR 42370, Sept. 19, 1983, as amended at 59 FR 67052, Dec. 28, 1994; 
62 FR 51258, Sept. 30, 1997; 63 FR 9065, Feb. 23, 1998; 76 FR 31408, May 
31, 2011]



Sec. 42.705-3  Educational institutions.

    (a) General. (1) Postdetermined final indirect cost rates shall be 
used in the settlement of indirect costs for all cost-reimbursement 
contracts with educational institutions, unless predetermined final 
indirect cost rates are

[[Page 876]]

authorized and used (see paragraph (b) below).
    (2) OMB Circular No. A-21, Cost Principles for Educational 
Institutions, assigns each educational institution to a single 
Government agency for the negotiation of indirect cost rates and 
provides that those rates shall be accepted by all Federal agencies. 
Cognizant Government agencies and educational institutions are listed in 
the Directory of Federal Contract Audit Offices (see 42.103).
    (3) The cognizant agency shall establish the billing rates and final 
indirect cost rates at the educational institution, consistent with the 
requirements of this subpart, subpart 31.3, and the OMB Circular. The 
agency shall follow the procedures outlined in 42.705-1(b).
    (4) If the cognizant agency is unable to reach agreement with an 
institution, the appeals system of the cognizant agency shall be 
followed for resolution of the dispute.
    (b) Predetermined final indirect cost rates. (1) Under cost-
reimbursement research and development contracts with universities, 
colleges, or other educational institutions (41 U.S.C. 254a), payment 
for reimbursable indirect costs may be made on the basis of 
predetermined final indirect cost rates. The cognizant agency is not 
required to establish predetermined rates, but if they are established, 
their use must be extended to all the institution's Government 
contracts.
    (2) In deciding whether the use of predetermined rates would be 
appropriate for the educational institution concerned, the agency should 
consider both the stability of the institution's indirect costs and 
bases over a period of years and any anticipated changes in the amount 
of the direct and indirect costs.
    (3) Unless their use is approved at a level in the agency (see 
subparagraph (a)(2) above) higher than the contracting officer, 
predetermined rates shall not be used when--
    (i) There has been no recent audit of the indirect costs;
    (ii) There have been frequent or wide fluctuations in the indirect 
cost rates and the bases over a period of years; or
    (iii) The estimated reimbursable costs for any individual contract 
are expected to exceed $1 million annually.
    (4)(i) If predetermined rates are to be used and no rates have been 
previously established for the institution's current fiscal year, the 
agency shall obtain from the institution a proposal for predetermined 
rates.
    (ii) If the proposal is found to be generally acceptable, the agency 
shall negotiate the predetermined rates with the institution. The rates 
should be based on an audit of the institution's costs for the year 
immediately preceding the year in which the rates are being negotiated. 
If this is not possible, an earlier audit may be used, but appropriate 
steps should be taken to identify and evaluate significant variations in 
costs incurred or in bases used that may have a bearing on the 
reasonableness of the proposed rates. However, in the case of smaller 
contracts (i.e., contracts that do not exceed the simplified acquisition 
threshold), an audit made at an earlier date is acceptable if (A) there 
have been no significant changes in the contractor's organization and 
(B) it is reasonably apparent that another audit would have little 
effect on the rates finally agreed upon and the potential for 
overpayment of indirect cost is relatively insignificant.
    (5) If predetermined rates are used--
    (i) The contracting officer shall include the negotiated rates and 
bases in the contract Schedule; and
    (ii) See 16.307(g), which prescribes the clause at 52.216-15, 
Predetermined Indirect Cost Rates.
    (6) Predetermined indirect cost rates shall be applicable for a 
period of not more than four years. The agency shall obtain the 
contractor's proposal for new predetermined rates sufficiently in 
advance so that the new rates, based on current data, may be promptly 
negotiated near the beginning of the new fiscal year or other period 
agreed to by the parties (see paragraphs (b) and (d) of the clause at 
52.216-15, Predetermined Indirect Cost Rates).
    (7) Contracting officers shall use billing rates established by the 
agency to

[[Page 877]]

reimburse the contractor for work performed during a period not covered 
by predetermined rates.

[48 FR 42370, Sept. 19, 1983, as amended at 61 FR 31622, June 20, 1996; 
63 FR 9065, Feb. 23, 1998; 71 FR 57368, Sept. 28, 2006; 72 FR 27385, May 
15, 2007]



Sec. 42.705-4  State and local governments.

    OMB Circular No. A-87 concerning cost principles for state and local 
governments (see subpart 31.6) establishes the cognizant agency concept 
and procedures for determining a cognizant agency for approving state 
and local government indirect costs associated with federally-funded 
programs and activities. The indirect cost rates negotiated by the 
cognizant agency will be used by all Federal agencies that also award 
contracts to these same state and local governments.



Sec. 42.705-5  Nonprofit organizations other than educational and state 
          and local governments.

    See OMB Circular No. A-122.



Sec. 42.706  Distribution of documents.

    (a) The contracting officer or auditor shall promptly distribute 
executed copies of the indirect cost rate agreement to the contractor 
and to each affected contracting agency and shall provide copies of the 
agreement for the contract files, in accordance with the guidance for 
contract modifications in subpart 4.2, Contract Distribution.
    (b) Copies of the negotiation memorandum prepared under contracting 
officer determination or audit report prepared under auditor 
determination shall be furnished, as appropriate, to the contracting 
offices and Government audit offices.



Sec. 42.707  Cost-sharing rates and limitations on indirect cost rates.

    (a) Cost-sharing arrangements, when authorized, may call for the 
contractor to participate in the costs of the contract by accepting 
indirect cost rates lower than the anticipated actual rates. In such 
cases, a negotiated indirect cost rate ceiling may be incorporated into 
the contract for prospective application. For cost sharing under 
research and development contracts, see 35.003(b).
    (b)(1) Other situations may make it prudent to provide a final 
indirect cost rate ceiling in a contract. Examples of such circumstances 
are when the proposed contractor--
    (i) Is a new or recently reorganized company, and there is no past 
or recent record of incurred indirect costs;
    (ii) Has a recent record of a rapidly increasing indirect cost rate 
due to a declining volume of sales without a commensurate decline in 
indirect expenses; or
    (iii) Seeks to enhance its competitive position in a particular 
circumstance by basing its proposal on indirect cost rates lower than 
those that may reasonably be expected to occur during contract 
performance, thereby causing a cost overrun.
    (2) In such cases, an equitable ceiling covering the final indirect 
cost rates may be negotiated and specified in the contract.
    (c) When ceiling provisions are utilized, the contract shall also 
provide that (1) the Government will not be obligated to pay any 
additional amount should the final indirect cost rates exceed the 
negotiated ceiling rates and, (2) in the event the final indirect cost 
rates are less than the negotiated ceiling rates, the negotiated rates 
will be reduced to conform with the lower rates.



Sec. 42.708  Quick-closeout procedure.

    (a) The contracting officer responsible for contract closeout shall 
negotiate the settlement of direct and indirect costs for a specific 
contract, task order, or delivery order to be closed, in advance of the 
determination of final direct costs and indirect rates set forth in 
42.705, if--
    (1) The contract, task order, or delivery order is physically 
complete;
    (2) The amount of unsettled direct costs and indirect costs to be 
allocated to the contract, task order, or delivery order is relatively 
insignificant. Cost amounts will be considered relatively insignificant 
when the total unsettled direct costs and indirect costs to be allocated 
to any one contract, task order, or delivery order does not exceed the 
lesser of--
    (i) $1,000,000; or

[[Page 878]]

    (ii) 10 percent of the total contract, task order, or delivery order 
amount;
    (3) The contracting officer performs a risk assessment and 
determines that the use of the quick-closeout procedure is appropriate. 
The risk assessment shall include--
    (i) Consideration of the contractor's accounting, estimating, and 
purchasing systems;
    (ii) Other concerns of the cognizant contract auditors; and
    (iii) Any other pertinent information, such as, documented history 
of Federal Government approved indirect cost rate agreements, changes to 
contractor's rate structure, volatility of rate fluctuations during 
affected periods, mergers or acquisitions, special contract provisions 
limiting contractor's recovery of otherwise allowable indirect costs 
under cost reimbursement or time-and-materials contracts; and
    (4) Agreement can be reached on a reasonable estimate of allocable 
dollars.
    (b) Determinations of final indirect costs under the quick-closeout 
procedure provided for by the Allowable Cost and Payment clause at 
52.216-7 shall be final for the contract it covers and no adjustment 
shall be made to other contracts for over- or under-recoveries of costs 
allocated or allocable to the contract covered by the agreement.
    (c) Indirect cost rates used in the quick closeout of a contract 
shall not be considered a binding precedent when establishing the final 
indirect cost rates for other contracts.

[48 FR 42370, Sept. 19, 1983, as amended at 55 FR 52796, Dec. 21, 1990; 
61 FR 31661, June 20, 1996; 72 FR 27385, May 15, 2007; 76 FR 31408, May 
31, 2011]



Sec. 42.709  Scope.

    (a) This section implements 10 U.S.C. 2324 (a) through (d) and 41 
U.S.C. 256 (a) through (d). It covers the assessment of penalties 
against contractors which include unallowable indirect costs in--
    (1) Final indirect cost rate proposals; or
    (2) The final statement of costs incurred or estimated to be 
incurred under a fixed-price incentive contract.
    (b) This section applies to all contracts in excess of $700,000, 
except fixed-price contracts without cost incentives or any firm-fixed-
price contracts for the purchase of commercial items.

[60 FR 42658, Aug. 16, 1995, as amended at 69 FR 76358, Dec. 20, 2004; 
71 FR 57368, Sept. 28, 2006; 75 FR 53134, Aug. 30, 2010]



Sec. 42.709-1  General.

    (a) The following penalties apply to contracts covered by this 
section:
    (1) If the indirect cost is expressly unallowable under a cost 
principle in the FAR, or an executive agency supplement to the FAR, that 
defines the allowability of specific selected costs, the penalty is 
equal to--
    (i) The amount of the disallowed costs allocated to contracts that 
are subject to this section for which an indirect cost proposal has been 
submitted; plus
    (ii) Interest on the paid portion, if any, of the disallowance.
    (2) If the indirect cost was determined to be unallowable for that 
contractor before proposal submission, the penalty is two times the 
amount in paragraph (a)(1)(i) of this section.
    (b) These penalties are in addition to other administrative, civil, 
and criminal penalties provided by law.
    (c) It is not necessary for unallowable costs to have been paid to 
the contractor in order to assess a penalty.

[60 FR 42658, Aug. 16, 1995]



Sec. 42.709-2  Responsibilities.

    (a) The cognizant contracting officer is responsible for--
    (1) Determining whether the penalties in 42.709-1(a) should be 
assessed;
    (2) Determining whether such penalties should be waived pursuant to 
42.709-5; and
    (3) Referring the matter to the appropriate criminal investigative 
organization for review and for appropriate coordination of remedies, if 
there is evidence that the contractor knowingly submitted unallowable 
costs.
    (b) The contract auditor, in the review and/or the determination of 
final indirect cost proposals for contracts subject to this section, is 
responsible for--
    (1) Recommending to the contracting officer which costs may be 
unallowable

[[Page 879]]

and subject to the penalties in 42.709-1(a);
    (2) Providing rationale and supporting documentation for any 
recommendation; and
    (3) Referring the matter to the appropriate criminal investigative 
organization for review and for appropriate coordination of remedies, if 
there is evidence that the contractor knowingly submitted unallowable 
costs.

[60 FR 42658, Aug. 16, 1995]



Sec. 42.709-3  Assessing the penalty.

    Unless a waiver is granted pursuant to 42.709-5, the cognizant 
contracting officer shall--
    (a) Assess the penalty in 42.709-1(a)(1), when the submitted cost is 
expressly unallowable under a cost principle in the FAR or an executive 
agency supplement that defines the allowability of specific selected 
costs; or
    (b) Assess the penalty in 42.709-1(a)(2), when the submitted cost 
was determined to be unallowable for that contractor prior to submission 
of the proposal. Prior determinations of unallowability may be evidenced 
by--
    (1) A DCAA Form 1, Notice of Contract Costs Suspended and/or 
Disapproved (see 48 CFR 242.705-2), or any similar notice which the 
contractor elected not to appeal and was not withdrawn by the cognizant 
Government agency;
    (2) A contracting officer final decision which was not appealed;
    (3) A prior executive agency Board of Contract Appeals or court 
decision involving the contractor, which upheld the cost disallowance; 
or
    (4) A determination or agreement of unallowability under 31.201-6.
    (c) Issue a final decision (see 33.211) which includes a demand for 
payment of any penalty assessed under paragraph (a) or (b) of this 
section. The letter shall state that the determination is a final 
decision under the Disputes clause of the contract. (Demanding payment 
of the penalty is separate from demanding repayment of any paid portion 
of the disallowed cost.)

[60 FR 42658, Aug. 16, 1995]



Sec. 42.709-4  Computing interest.

    For 42.709-1(a)(1)(ii), compute interest on any paid portion of the 
disallowed cost as follows:
    (a) Consider the overpayment to have occurred, and interest to have 
begun accumulating, from the midpoint of the contractor's fiscal year. 
Use an alternate equitable method if the cost was not paid evenly over 
the fiscal year.
    (b) Use the interest rate specified by the Secretary of the Treasury 
pursuant to Pub. L. 92-41 (85 Stat. 97).
    (c) Compute interest from the date of overpayment to the date of the 
demand letter for payment of the penalty.
    (d) Determine the paid portion of the disallowed costs in 
consultation with the contract auditor.

[60 FR 42659, Aug. 16, 1995]



Sec. 42.709-5  Waiver of the penalty.

    The cognizant contracting officer shall waive the penalties at 
42.709-1(a) when--
    (a) The contractor withdraws the proposal before the Government 
formally initiates an audit of the proposal and the contractor submits a 
revised proposal (an audit will be deemed to be formally initiated when 
the Government provides the contractor with written notice, or holds an 
entrance conference, indicating that audit work on a specific final 
indirect cost proposal has begun);
    (b) The amount of the unallowable costs under the proposal which are 
subject to the penalty is $10,000 or less (i.e., if the amount of 
expressly or previously determined unallowable costs which would be 
allocated to the contracts specified in 42.709(b) is $10,000 or less); 
or
    (c) The contractor demonstrates, to the cognizant contracting 
officer's satisfaction, that--
    (1) It has established policies and personnel training and an 
internal control and review system that provide assurance that 
unallowable costs subject to penalties are precluded from being included 
in the contractor's final indirect cost rate proposals (e.g., the types 
of

[[Page 880]]

controls required for satisfactory participation in the Department of 
Defense sponsored self-governance programs, specific accounting controls 
over indirect costs, compliance tests which demonstrate that the 
controls are effective, and Government audits which have not disclosed 
recurring instances of expressly unallowable costs); and
    (2) The unallowable costs subject to the penalty were inadvertently 
incorporated into the proposal; i.e., their inclusion resulted from an 
unintentional error, notwithstanding the exercise of due care.

[60 FR 42659, Aug. 16, 1995]



Sec. 42.709-6  Contract clause.

    Use the clause at 52.242-3, Penalties for Unallowable Costs, in all 
solicitations and contracts over $700,000 except fixed-price contracts 
without cost incentives or any firm-fixed-price contract for the 
purchase of commercial items. Generally, covered contracts are those 
which contain one of the clauses at 52.216-7, 52.216-16, or 52.216-17, 
or a similar clause from an executive agency's supplement to the FAR.

[60 FR 42659, Aug. 16, 1995, as amended at 69 FR 76358, Dec. 20, 2004; 
71 FR 57368, Sept. 28, 2006; 72 FR 27385, May 15, 2007; 75 FR 53134, 
Aug. 30, 2010]

                   Subpart 42.8_Disallowance of Costs



Sec. 42.800  Scope of subpart.

    This subpart prescribes policies and procedures for (a) issuing 
notices of intent to disallow costs and (b) disallowing costs already 
incurred during the course of performance.



Sec. 42.801  Notice of intent to disallow costs.

    (a) At any time during the performance of a contract of a type 
referred to in 42.802, the cognizant contracting officer responsible for 
administering the contract may issue the contractor a written notice of 
intent to disallow specified costs incurred or planned for incurrence. 
However, before issuing the notice, the contracting officer responsible 
for administering the contract shall make every reasonable effort to 
reach a satisfactory settlement through discussions with the contractor.
    (b) A notice of intent to disallow such costs usually results from 
monitoring contractor costs. The purpose of the notice is to notify the 
contractor as early as practicable during contract performance that the 
cost is considered unallowable under the contract terms and to provide 
for timely resolution of any resulting disagreement. In the event of 
disagreement, the contractor may submit to the contracting officer a 
written response. Any such response shall be answered by withdrawal of 
the notice or by making a written decision within 60 days.
    (c) As a minimum, the notice shall--
    (1) Refer to the contract's Notice of Intent to Disallow Costs 
clause;
    (2) State the contractor's name and list the numbers of the affected 
contracts;
    (3) Describe the costs to be disallowed, including estimated dollar 
value by item and applicable time periods, and state the reasons for the 
intended disallowance;
    (4) Describe the potential impact on billing rates and forward 
pricing rate agreements;
    (5) State the notice's effective date and the date by which written 
response must be received;
    (6) List the recipients of copies of the notice; and
    (7) Request the contractor to acknowledge receipt of the notice.
    (d) The contracting officer issuing the notice shall furnish copies 
to all contracting officers cognizant of any segment of the contractor's 
organization.
    (e) If the notice involves elements of indirect cost, it shall not 
be issued without coordination with the contracting officer or auditor 
having authority for final indirect cost settlement (see 42.705).
    (f) In the event the contractor submits a response that disagrees 
with the notice (see paragraph (b) above), the contracting officer who 
issued the notice shall either withdraw the notice or issue the written 
decision, except when elements of indirect cost are involved, in which 
case the contracting officer

[[Page 881]]

responsible under 42.705 for determining final indirect cost rates shall 
issue the decision.



Sec. 42.802  Contract clause.

    The contracting officer shall insert the clause at 52.242-1, Notice 
of Intent to Disallow Costs, in solicitations and contracts when a cost-
reimbursement contract, a fixed-price incentive contract, or a contract 
providing for price redetermination is contemplated.



Sec. 42.803  Disallowing costs after incurrence.

    Cost-reimbursement contracts, the cost-reimbursement portion of 
fixed-price contracts, letter contracts that provide for reimbursement 
of costs, and time-and-material and labor-hour contracts provide for 
disallowing costs during the course of performance after the costs have 
been incurred. The following procedures shall apply:
    (a) Contracting officer receipt of vouchers. When contracting 
officers receive vouchers directly from the contractor and, with or 
without auditor assistance, approve or disapprove them, the process 
shall be conducted in accordance with the normal procedures of the 
individual agency.
    (b) Auditor receipt of vouchers. (1) When authorized by agency 
regulations, the contract auditor may be authorized to (i) receive 
reimbursement vouchers directly from contractors, (ii) approve for 
payment those vouchers found acceptable, and (iii) suspend payment of 
questionable costs. The auditor shall forward approved vouchers for 
payment to the cognizant contracting, finance, or disbursing officer, as 
appropriate under the agency's procedures.
    (2) If the examination of a voucher raises a question regarding the 
allowability of a cost under the contract terms, the auditor, after 
informal discussion as appropriate, may, where authorized by agency 
regulations, issue a notice of contract costs suspended and/or 
disapproved simultaneously to the contractor and the disbursing officer, 
with a copy to the cognizant contracting officer, for deduction from 
current payments with respect to costs claimed but not considered 
reimbursable.
    (3) If the contractor disagrees with the deduction from current 
payments, the contractor may--
    (i) Submit a written request to the cognizant contracting officer to 
consider whether the unreimbursed costs should be paid and to discuss 
the findings with the contractor;
    (ii) File a claim under the Disputes clause, which the cognizant 
contracting officer will process in accordance with agency procedures; 
or
    (iii) Do both of the above.

                         Subpart 42.9_Bankruptcy

    Source: 56 FR 15154, Apr. 15, 1991, unless otherwise noted.



Sec. 42.900  Scope of subpart.

    This subpart prescribes policies and procedures regarding actions to 
be taken when a contractor enters into proceedings relating to 
bankruptcy. It establishes a requirement for the contractor to notify 
the contracting officer upon filing a petition for bankruptcy. It 
further establishes minimum requirements for agencies to follow in the 
event of a contractor bankruptcy.



Sec. 42.901  General.

    The contract administration office shall take prompt action to 
determine the potential impact of a contractor bankruptcy on the 
Government in order to protect the interests of the Government.



Sec. 42.902  Procedures.

    (a) When notified of bankruptcy proceedings, agencies shall, as a 
minimum--
    (1) Furnish the notice of bankruptcy to legal counsel and other 
appropriate agency offices (e.g., contracting, financial, property) and 
affected buying activities;
    (2) Determine the amount of the Government's potential claim against 
the contractor (in assessing this impact, identify and review any 
contracts that have not been closed out, including those physically 
completed or terminated);
    (3) Take actions necessary to protect the Government's financial 
interests and safeguard Government property; and

[[Page 882]]

    (4) Furnish pertinent contract information to the legal counsel 
representing the Government.
    (b) The contracting officer shall consult the legal counsel, 
whenever possible, prior to taking any action regarding the contractor's 
bankruptcy proceedings.



Sec. 42.903  Solicitation provision and contract clause.

    The contracting officer shall insert the clause at 52.242-13, 
Bankruptcy, in all solicitations and contracts exceeding the simplified 
acquisition threshold.

[56 FR 15154, Apr. 15, 1991, as amended at 60 FR 34759, July 3, 1995; 61 
FR 39190, July 26, 1996]

Subpart 42.10 [Reserved]

           Subpart 42.11_Production Surveillance and Reporting



Sec. 42.1101  General.

    Production surveillance is a function of contract administration 
used to determine contractor progress and to identify any factors that 
may delay performance. Production surveillance involves Government 
review and analysis of (a) contractor performance plans, schedules, 
controls, and industrial processes and (b) the contractor's actual 
performance under them.



Sec. 42.1102  Applicability.

    This subpart applies to all contracts for supplies or services other 
than construction contracts, and Federal Supply Schedule contracts. See 
part 37, especially subpart 37.6, regarding surveillance of contracts 
for services.

[48 FR 42370, Sept. 19, 1983, as amended at 62 FR 44816, Aug. 22, 1997; 
72 FR 27385, May 15, 2007]



Sec. 42.1103  Policy.

    The contractor is responsible for timely contract performance. The 
Government will maintain surveillance of contractor performance as 
necessary to protect its interests. When the contracting office retains 
a contract for administration, the contracting officer administering the 
contract shall determine the extent of surveillance.



Sec. 42.1104  Surveillance requirements.

    (a) The contract administration office determines the extent of 
production surveillance on the basis of (1) the criticality (degree of 
importance to the Government) assigned by the contracting officer (see 
42.1105) to the supplies or services and (2) consideration of the 
following factors:
    (i) Contract requirements for reporting production progress and 
performance.
    (ii) The contract performance schedule.
    (iii) The contractor's production plan.
    (iv) The contractor's history of contract performance.
    (v) The contractor's experience with the contract supplies or 
services.
    (vi) The contractor's financial capability.
    (vii) Any supplementary written instructions from the contracting 
office.
    (b) Contracts at or below the simplified acquisition threshold 
should not normally require production surveillance.
    (c) In planning and conducting surveillance, contract administration 
offices shall make maximum use of any reliable contractor production 
control or data management systems.
    (d) In performing surveillance, contract administration office 
personnel shall avoid any action that may (1) be inconsistent with any 
contract requirement or (2) result in claims of waivers, of changes, or 
of other contract modifications.

[48 FR 42370, Sept. 19, 1983, as amended at 60 FR 34759, July 3, 1995]



Sec. 42.1105  Assignment of criticality designator.

    Contracting officers shall assign a criticality designator to each 
contract in the space for designating the contract administration 
office, as follows:

 
     Criticality Designator                     Criterion
 
A                                Critical contracts, including DX-rated
                                  contracts (see subpart 11.6),
                                  contracts citing the authority in
                                  6.302-2 (unusual and compelling
                                  urgency), and contracts for major
                                  systems.
B                                Contracts (other than those designated
                                  ``A'') for items needed to maintain a
                                  Government or contractor production or
                                  repair line, to preclude out-of-stock
                                  conditions or to meet user needs for
                                  nonstock items.

[[Page 883]]

 
C                                All contracts other than those
                                  designated ``A'' or ``B.''
 


[48 FR 42370, Sept. 19, 1983, as amended at 50 FR 1745, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 60 FR 48249, Sept. 18, 1995]



Sec. 42.1106  Reporting requirements.

    (a) When information on contract performance status is needed, 
contracting officers may require contractors to submit production 
progress reports (see 42.1107(a)). Reporting requirements shall be 
limited to that information essential to Government needs and shall take 
maximum advantage of data output generated by contractor management 
systems.
    (b) Contract administration offices shall review and verify the 
accuracy of contractor reports and advise the contracting officer of any 
required action. The accuracy of contractor-prepared reports shall be 
verified either by a program of continuous surveillance of the 
contractor's report-preparation system or by individual review of each 
report.
    (c) The contract administration office may at any time initiate a 
report to advise the contracting officer (and the inventory manager, if 
one is designated in the contract) of any potential or actual delay in 
performance. This advice shall (1) be in writing, (2) be provided in 
sufficient time for the contracting officer to take necessary action, 
and (3) provide a definite recommendation, if action is appropriate.



Sec. 42.1107  Contract clause.

    (a) The contracting officer shall insert the clause at 52.242-2, 
Production Progress Reports, in solicitations and contracts when 
production progress reporting is required; unless a construction 
contract, or a Federal Supply Schedule contract is contemplated.
    (b) When the clause at 52.242-2 is used, the contracting officer 
shall specify appropriate reporting instructions in the Schedule (see 
42.1106(a)).

[48 FR 42370, Sept. 19, 1983, as amended at 72 FR 27385, May 15, 2007]

          Subpart 42.12_Novation and Change-of-Name Agreements



Sec. 42.1200  Scope of subpart.

    This subpart prescribes policies and procedures for--
    (a) Recognition of a successor in interest to Government contracts 
when contractor assets are transferred;
    (b) Recognition of a change in a contractor's name; and
    (c) Execution of novation agreements and change-of-name agreements 
by the responsible contracting officer.



Sec. 42.1201  [Reserved]



Sec. 42.1202  Responsibility for executing agreements.

    The contracting officer responsible for processing and executing 
novation and change-of-name agreements shall be determined as follows:
    (a) If any of the affected contracts held by the transferor have 
been assigned to an administrative contracting officer (ACO) (see 2.1 
and 42.202), the responsible contracting officer shall be--
    (1) This ACO; or
    (2) The ACO responsible for the corporate office, if affected 
contracts are in more than one plant or division of the transferor.
    (b) If none of the affected contracts held by the transferor have 
been assigned to an ACO, the contracting officer responsible for the 
largest unsettled (unbilled plus billed but unpaid) dollar balance of 
contracts shall be the responsible contracting officer.
    (c) If several transferors are involved, the responsible contracting 
officer shall be--
    (1) The ACO administering the largest unsettled dollar balance; or
    (2) The contracting officer (or ACO) designated by the agency having 
the largest unsettled dollar balance, if none of the affected contracts 
have been assigned to an ACO.



Sec. 42.1203  Processing agreements.

    (a) If a contractor wishes the Government to recognize a successor 
in interest to its contracts or a name change, the contractor must 
submit a written request to the responsible contracting officer (see 
42.1202). If the contractor

[[Page 884]]

received its contract under Subpart 8.7 under the Javits-Wagner-O'Day 
Act, use the procedures at 8.716 instead.
    (b) The responsible contracting officer shall--
    (1) Identify and request that the contractor submit the information 
necessary to evaluate the proposed agreement for recognizing a successor 
in interest or a name change. This information should include the items 
identified in 42.1204 (e) and (f) or 42.1205(a), as applicable;
    (2) Notify each contract administration office and contracting 
office affected by a proposed agreement for recognizing a successor in 
interest, and provide those offices with a list of all affected 
contracts; and
    (3) Request submission of any comments or objections to the proposed 
transfer within 30 days after notification. Any submission should be 
accompanied by supporting documentation.
    (c) Upon receipt of the necessary information, the responsible 
contracting officer shall determine whether or not it is in the 
Government's interest to recognize the proposed successor in interest on 
the basis of--
    (1) The comments received from the affected contract administration 
offices and contracting offices;
    (2) The proposed successor's responsibility under subpart 9.1, 
Responsible Prospective Contractors; and
    (3) Any factor relating to the proposed successor's performance of 
contracts with the Government that the Government determines would 
impair the proposed successor's ability to perform the contract 
satisfactorily.
    (d) The execution of a novation agreement does not preclude the use 
of any other method available to the contracting officer to resolve any 
other issues related to a transfer of contractor assets, including the 
treatment of costs.
    (e) Any separate agreement between the transferor and transferee 
regarding the assumption of liabilities (e.g., long-term incentive 
compensation plans, cost accounting standards noncompliances, 
environmental cleanup costs, and final overhead costs) should be 
referenced specifically in the novation agreement.
    (f) Before novation and change-of-name agreements are executed, the 
responsible contracting officer shall ensure that Government counsel has 
reviewed them for legal sufficiency.
    (g) The responsible contracting officer shall (1) forward a signed 
copy of the executed novation or change-of-name agreement to the 
transferor and to the transferee and (2) retain a signed copy in the 
case file.
    (h) Following distribution of the agreement, the responsible 
contracting officer shall--
    (1) Prepare a Standard Form 30, Amendment of Solicitation/
Modification of Contract, incorporating a summary of the agreement and 
attaching a complete list of contracts affected;
    (2) Retain the original Standard Form 30 with the attached list in 
the case file;
    (3) Send a signed copy of the Standard Form 30, with attached list 
to the transferor and to the transferee; and
    (4) Send a copy of this Standard Form 30 with attached list to each 
contract administration office or contracting office involved, which 
shall be responsible for further appropriate distribution.

[48 FR 42370, Sept. 19, 1983, as amended at 62 FR 64934, Dec. 9, 1997; 
63 FR 1533, Jan. 9, 1998; 64 FR 51834, Sept. 24, 1999]



Sec. 42.1204  Applicability of novation agreements.

    (a) 41 U.S.C. 15 prohibits transfer of Government contracts from the 
contractor to a third party. The Government may, when in its interest, 
recognize a third party as the successor in interest to a Government 
contract when the third party's interest in the contract arises out of 
the transfer of--
    (1) All the contractor's assets; or
    (2) The entire portion of the assets involved in performing the 
contract. (See 14.404-2(l) for the effect of novation agreements after 
bid opening but before award.) Examples of such transactions include, 
but are not limited to--
    (i) Sale of these assets with a provision for assuming liabilities;
    (ii) Transfer of these assets incident to a merger or corporate 
consolidation; and

[[Page 885]]

    (iii) Incorporation of a proprietorship or partnership, or formation 
of a partnership.
    (b) A novation agreement is unnecessary when there is a change in 
the ownership of a contractor as a result of a stock purchase, with no 
legal change in the contracting party, and when that contracting party 
remains in control of the assets and is the party performing the 
contract. However, whether there is a purchase of assets or a stock 
purchase, there may be issues related to the change in ownership that 
appropriately should be addressed in a formal agreement between the 
contractor and the Government (see 42.1203(e)).
    (c) When it is in the Government's interest not to concur in the 
transfer of a contract from one company to another company, the original 
contractor remains under contractual obligation to the Government, and 
the contract may be terminated for reasons of default, should the 
original contractor not perform.
    (d) When considering whether to recognize a third party as a 
successor in interest to Government contracts, the responsible 
contracting officer shall identify and evaluate any significant 
organizational conflicts of interest in accordance with subpart 9.5. If 
the responsible contracting officer determines that a conflict of 
interest cannot be resolved, but that it is in the best interest of the 
Government to approve the novation request, a request for a waiver may 
be submitted in accordance with the procedures at 9.503.
    (e) When a contractor asks the Government to recognize a successor 
in interest, the contractor shall submit to the responsible contracting 
officer three signed copies of the proposed novation agreement and one 
copy each, as applicable, of the following:
    (1) The document describing the proposed transaction, e.g., 
purchase/sale agreement or memorandum of understanding.
    (2) A list of all affected contracts between the transferor and the 
Government, as of the date of sale or transfer of assets, showing for 
each, as of that date, the--
    (i) Contract number and type;
    (ii) Name and address of the contracting office;
    (iii) Total dollar value, as amended; and
    (iv) Approximate remaining unpaid balance.
    (3) Evidence of the transferee's capability to perform.
    (4) Any other relevant information requested by the responsible 
contracting officer.
    (f) Except as provided in paragraph (g) of this section, the 
contractor shall submit to the responsible contracting officer one copy 
of each of the following documents, as applicable, as the documents 
become available:
    (1) An authenticated copy of the instrument effecting the transfer 
of assets; e.g., bill of sale, certificate of merger, contract, deed, 
agreement, or court decree.
    (2) A certified copy of each resolution of the corporate parties' 
boards of directors authorizing the transfer of assets.
    (3) A certified copy of the minutes of each corporate party's 
stockholder meeting necessary to approve the transfer of assets.
    (4) An authenticated copy of the transferee's certificate and 
articles of incorporation, if a corporation was formed for the purpose 
of receiving the assets involved in performing the Government contracts.
    (5) The opinion of legal counsel for the transferor and transferee 
stating that the transfer was properly effected under applicable law and 
the effective date of transfer.
    (6) Balance sheets of the transferor and transferee as of the dates 
immediately before and after the transfer of assets, audited by 
independent accountants.
    (7) Evidence that any security clearance requirements have been met.
    (8) The consent of sureties on all contracts listed under paragraph 
(e)(2) of this section if bonds are required, or a statement from the 
transferor that none are required.
    (g) If the Government has acquired the documents during its 
participation in the pre-merger or pre-acquisition review process, or 
the Government's interests are adequately protected with

[[Page 886]]

an alternative formulation of the information, the responsible 
contracting officer may modify the list of documents to be submitted by 
the contractor.
    (h) When recognizing a successor in interest to a Government 
contract is consistent with the Government's interest, the responsible 
contracting officer shall execute a novation agreement with the 
transferor and the transferee. It shall ordinarily provide in part 
that--
    (1) The transferee assumes all the transferor's obligations under 
the contract;
    (2) The transferor waives all rights under the contract against the 
Government;
    (3) The transferor guarantees performance of the contract by the 
transferee (a satisfactory performance bond may be accepted instead of 
the guarantee); and
    (4) Nothing in the agreement shall relieve the transferor or 
transferee from compliance with any Federal law.
    (i) The responsible contracting officer shall use the following 
format for agreements when the transferor and transferee are 
corporations and all the transferor's assets are transferred. This 
format may be adapted to fit specific cases and may be used as a guide 
in preparing similar agreements for other situations.

                           NOVATION AGREEMENT

    The ABC CORPORATION (Transferor), a corporation duly organized and 
existing under the laws of -------- [insert State] with its principal 
office in -------- [insert city]; the XYZ CORPORATION (Transferee), [if 
appropriate add ``formerly known as the EFG Corporation''] a corporation 
duly organized and existing under the laws of -------- [insert State] 
with its principal office in -------- [insert city]; and the UNITED 
STATES OF AMERICA (Government) enter into this Agreement as of -------- 
[insert the date transfer of assets became effective under applicable 
State law].
    (a) THE PARTIES AGREE TO THE FOLLOWING FACTS:
    (1) The Government, represented by various Contracting Officers of 
the -------- [insert name(s) of agency(ies)], has entered into certain 
contracts with the Transferor, namely: -------- [insert contract or 
purchase order identifications]; [or delete ``namely'' and insert ``as 
shown in the attached list marked `Exhibit A' and incorporated in this 
Agreement by reference.'']. The term the contracts, as used in this 
Agreement, means the above contracts and purchase orders and all other 
contracts and purchase orders, including all modifications, made between 
the Government and the Transferor before the effective date of this 
Agreement (whether or not performance and payment have been completed 
and releases executed if the Government or the Transferor has any 
remaining rights, duties, or obligations under these contracts and 
purchase orders). Included in the term the contracts are also all 
modifications made under the terms and conditions of these contracts and 
purchase orders between the Government and the Transferee, on or after 
the effective date of this Agreement.
    (2) As of --------, 20--, the Transferor has transferred to the 
Transferee all the assets of the Transferor by virtue of a -------- 
[insert term descriptive of the legal transaction involved] between the 
Transferor and the Transferee.
    (3) The Transferee has acquired all the assets of the Transferor by 
virtue of the above transfer.
    (4) The Transferee has assumed all obligations and liabilities of 
the Transferor under the contracts by virtue of the above transfer.
    (5) The Transferee is in a position to fully perform all obligations 
that may exist under the contracts.
    (6) It is consistent with the Government's interest to recognize the 
Transferee as the successor party to the contracts.
    (7) Evidence of the above transfer has been filed with the 
Government.
    [When a change of name is also involved; e.g., a prior or concurrent 
change of the Transferee's name, an appropriate statement shall be 
inserted (see example in paragraph (8) below)].
    (8) A certificate dated --------, 20--, signed by the Secretary of 
State of -------- [insert State], to the effect that the corporate name 
of EFG CORPORATION was changed to XYZ CORPORATION on --------, 20--, has 
been filed with the Government.
    (b) IN CONSIDERATION OF THESE FACTS, THE PARTIES AGREE THAT BY THIS 
AGREEMENT--
    (1) The Transferor confirms the transfer to the Transferee, and 
waives any claims and rights against the Government that it now has or 
may have in the future in connection with the contracts.
    (2) The Transferee agrees to be bound by and to perform each 
contract in accordance with the conditions contained in the contracts. 
The Transferee also assumes all obligations and liabilities of, and all 
claims against, the Transferor under the contracts as if the Transferee 
were the original party to the contracts.
    (3) The Transferee ratifies all previous actions taken by the 
Transferor with respect to the contracts, with the same force and effect 
as if the action had been taken by the Transferee.

[[Page 887]]

    (4) The Government recognizes the Transferee as the Transferor's 
successor in interest in and to the contracts. The Transferee by this 
Agreement becomes entitled to all rights, titles, and interests of the 
Transferor in and to the contracts as if the Transferee were the 
original party to the contracts. Following the effective date of this 
Agreement, the term Contractor, as used in the contracts, shall refer to 
the Transferee.
    (5) Except as expressly provided in this Agreement, nothing in it 
shall be construed as a waiver of any rights of the Governmelt against 
the Transferor.
    (6) All payments and reimbursements previously made by the 
Governmelt to the Transferor, and all other previous actions taken by 
the Government under the contracts, shall be considered to have 
discharged those parts of the Government's obligations under the 
contracts. All payments and reimbursements made by the Government after 
the date of this Agreement in the name of or to the Transferor shall 
have the same force and effect as if made to the Transferee, and shall 
constitute a complete discharge of the Government's obligations under 
the contracts, to the extent of the amounts paid or reimbursed.
    (7) The Transferor and the Transferee agree that the Government is 
not obligated to pay or reimburse either of them for, or otherwise give 
effect to, any costs, taxes, or other expenses, or any related 
increases, directly or indirectly arising out of or resulting from the 
transfer or this Agreement, other than those that the Government in the 
absence of this transfer or Agreement would have been obligated to pay 
or reimburse under the terms of the contracts.
    (8) The Transferor guarantees payment of all liabilities and the 
performance of all obligations that the Transferee (i) assumes under 
this Agreement or (ii) may undertake in the future should these 
contracts be modified under their terms and conditions. The Transferor 
waives notice of, and consents to, any such future modifications.
    (9) The contracts shall remain in full force and effect, except as 
modified by this Agreement. Each party has executed this Agreement as of 
the day and year first above written.

    UNITED STATES OF AMERICA,

By______________________________________________________________________
Title___________________________________________________________________

    ABC CORPORATION,

By______________________________________________________________________
Title___________________________________________________________________


[CORPORATE SEAL]

    XYZ CORPORATION,

By______________________________________________________________________
Title___________________________________________________________________

[CORPORATE SEAL]

                               CERTIFICATE

    I, ----------, certify that I am the Secretary of ABC CORPORATION; 
that ----------, who signed this Agreement for this corporation, was 
then -------- of this corporation; and that this Agreement was duly 
signed for and on behalf of this corporation by authority of its 
governing body and within the scope of its corporate powers.
    Witness my hand and the seal of this corporation this -------- day 
of -------- 20--.

By______________________________________________________________________

[CORPORATE SEAL]

                               CERTIFICATE

    I, ----------, certify that I am the Secretary of XYZ CORPORATION; 
that ----------, who signed this Agreement for this corporation, was 
then ---------- of this corporation; and that this Agreement was duly 
signed for and on behalf of this corporation by authority of its 
governing body and within the scope of its corporate powers.
    Witness my hand and the seal of this corporation this -------- day 
of -------- 20--.

By______________________________________________________________________


[CORPORATE SEAL]

[48 FR 42370, Sept. 19, 1983, as amended at 62 FR 64935, Dec. 9, 1997; 
65 FR 24325, Apr. 25, 2000]



Sec. 42.1205  Agreement to recognize contractor's change of name.

    (a) If only a change of the contractor's name is involved and the 
Government's and contractor's rights and obligations remain unaffected, 
the parties shall execute an agreement to reflect the name change. The 
contractor shall forward to the responsible contracting officer three 
signed copies of the Change-of-Name Agreement, and one copy each of the 
following:
    (1) The document effecting the name change, authenticated by a 
proper official of the State having jurisdiction.
    (2) The opinion of the contractor's legal counsel stating that the 
change of name was properly effected under applicable law and showing 
the effective date.
    (3) A list of all affected contracts and purchase orders remaining 
unsettled between the contractor and the Government, showing for each 
the contract number and type, and name and address of the contracting 
office. The contracting officer may request the

[[Page 888]]

total dollar value as amended and the remaining unpaid balance for each 
contract.
    (b) The following suggested format for an agreement may be adapted 
for specific cases:

                        CHANGE-OF-NAME AGREEMENT

    The ABC CORPORATION (Contractor), a corporation duly organized and 
existing under the laws of ------ [insert State], and the UNITED STATES 
OF AMERICA (Government), enter into this Agreement as of -------- 
[insert date when the change of name became effective under applicable 
State law].
    (a) THE PARTIES AGREE TO THE FOLLOWING FACTS:
    (1) The Government, represented by various Contracting Officers of 
the -------- [insert name(s) of agency(ies)], has entered into certain 
contracts and purchase orders with the XYZ CORPORATION, namely: -------- 
[insert contract or purchase order identifications]; [or delete 
``namely'' and insert ``as shown in the attached list marked `Exhibit A' 
and incorporated in this Agreement by reference.'']. The term the 
contracts, as used in this Agreement, means the above contracts and 
purchase orders and all other contracts and purchase orders, including 
all modifications, made by the Government and the Contractor before the 
effective date of this Agreement (whether or not performance and payment 
have been completed and releases executed if the Government or the 
Contractor has any remaining rights, duties, or obligations under these 
contracts and purchase orders).
    (2) The XYZ CORPORATION, by an amendment to its certificate of 
incorporation, dated --------, 20--, has changed its corporate name to 
ABC CORPORATION.
    (3) This amendment accomplishes a change of corporate name only and 
all rights and obligations of the Government and of the Contractor under 
the contracts are unaffected by this change.
    (4) Documentary evidence of this change of corporate name has been 
filed with the Government.
    (b) IN CONSIDERATION OF THESE FACTS, THE PARTIES AGREE THAT--
    (1) The contracts covered by this Agreement are amended by 
substituting the name ``ABC CORPORATION'' for the name ``XYZ 
CORPORATION'' wherever it appears in the contracts; and
    (2) Each party has executed this Agreement as of the day and year 
first above written.

    UNITED STATES OF AMERICA,

By______________________________________________________________________
Title___________________________________________________________________

    ABC CORPORATION,

By______________________________________________________________________
Title___________________________________________________________________

[CORPORATE SEAL]

                               CERTIFICATE

    I, ----------, certify that I am the Secretary of ABC CORPORATION; 
that ----------, who signed this Agreement for this corporation, was 
then -------- of this corporation; and that this Agreement was duly 
signed for and on behalf of this corporation by authority of its 
governing body and within the scope of its corporate powers.
    Witness my hand and the seal of this corporation this ---- day of --
------ 20--.

By______________________________________________________________________

[CORPORATE SEAL]

[48 FR 42370, Sept. 19, 1983, as amended at 56 FR 67134, Dec. 27, 1991; 
65 FR 24325, Apr. 25, 2000]

Subpart 42.13_Suspension of Work, Stop-Work Orders, and Government Delay 
                                 of Work

    Source: 48 FR 42159, Sept. 19, 1983, unless otherwise noted. 
Redesignated at 60 FR 48241, Sept. 18, 1995.



Sec. 42.1301  General.

    Situations may occur during contract performance that cause the 
Government to order a suspension of work, or a work stoppage. This 
subpart provides clauses to meet these situations and a clause for 
settling contractor claims for unordered Government caused delays that 
are not otherwise covered in the contract.



Sec. 42.1302  Suspension of work.

    A suspension of work under a construction or architect-engineer 
contract may be ordered by the contracting officer for a reasonable 
period of time. If the suspension is unreasonable, the contractor may 
submit a written claim for increases in the cost of performance, 
excluding profit.



Sec. 42.1303  Stop-work orders.

    (a) Stop-work orders may be used, when appropriate, in any 
negotiated fixed-price or cost-reimbursement supply, research and 
development, or service contract if work stoppage may be

[[Page 889]]

required for reasons such as advancement in the state-of-the-art, 
production or engineering breakthroughs, or realignment of programs.
    (b) Generally, a stop-work order will be issued only if it is 
advisable to suspend work pending a decision by the Government and a 
supplemental agreement providing for the suspension is not feasible. 
Issuance of a stop-work order shall be approved at a level higher than 
the contracting officer. Stop-work orders shall not be used in place of 
a termination notice after a decision to terminate has been made.
    (c) Stop-work orders should include--
    (1) A description of the work to be suspended;
    (2) Instructions concerning the contractor's issuance of further 
orders for materials or services;
    (3) Guidance to the contractor on action to be taken on any 
subcontracts; and
    (4) Other suggestions to the contractor for minimizing costs.
    (d) Promptly after issuing the stop-work order, the contracting 
officer should discuss the stop-work order with the contractor and 
modify the order, if necessary, in light of the discussion.
    (e) As soon as feasible after a stop-work order is issued, but 
before its expiration, the contracting officer shall take appropriate 
action to--
    (1) Terminate the contract;
    (2) Cancel the stop-work order (any cancellation of a stop-work 
order shall be subject to the same approvals as were required for its 
issuance); or
    (3) Extend the period of the stop-work order if it is necessary and 
if the contractor agrees (any extension of the stop-work order shall be 
by a supplemental agreement).



Sec. 42.1304  Government delay of work.

    (a) The clause at 52.242-17, Government Delay of Work, provides for 
the administrative settlement of contractor claims that arise from 
delays and interruptions in the contract work caused by the acts, or 
failures to act, of the contracting officer. This clause is not 
applicable if the contract otherwise specifically provides for an 
equitable adjustment because of the delay or interruption; e.g., when 
the Changes clause is applicable.
    (b) The clause does not authorize the contracting officer to order a 
suspension, delay, or interruption of the contract work and it shall not 
be used as the basis or justification of such an order.
    (c) If the contracting officer has notice of an unordered delay or 
interruption covered by the clause, the contracting officer shall act to 
end the delay or take other appropriate action as soon as practicable.
    (d) The contracting officer shall retain in the file a record of all 
negotiations leading to any adjustment made under the clause, and 
related certified cost or pricing data, or data other than certified 
cost or pricing data.

[48 FR 42159, Sept. 19, 1983. Redesignated and amended at 60 FR 48241, 
48249, Sept. 18, 1995; 75 FR 53149, Aug. 30, 2010]



Sec. 42.1305  Contract clauses.

    (a) The contracting officer shall insert the clause at 52.242-14, 
Suspension of Work, in solicitations and contracts when a fixed-price 
construction or architect-engineer contract is contemplated.
    (b)(1) The contracting officer may, when contracting by negotiation, 
insert the clause at 52.242-15, Stop-Work Order, in solicitations and 
contracts for supplies, services, or research and development.
    (2) If a cost-reimbursement contract is contemplated, the 
contracting officer shall use the clause with its Alternate I.
    (c) The contracting officer shall insert the clause at 52.242-17, 
Government Delay of Work, in solicitations and contracts when a fixed-
price contract is contemplated for supplies other than commercial or 
modified-commercial items. The clause use is optional when a fixed-price 
contract is contemplated for services, or for supplies that are 
commercial or modified-commercial items.

[48 FR 42159, Sept. 19, 1983, as amended at 50 FR 2270, Jan. 15, 1985; 
50 FR 25680, June 20, 1985. Redesignated and amended at 60 FR 48241, 
48249, Sept. 18, 1995; 72 FR 27385, May 15, 2007]

Subpart 42.14 [Reserved]

[[Page 890]]

            Subpart 42.15_Contractor Performance Information

    Source: 60 FR 16719, Mar. 31, 1995, unless otherwise noted.



Sec. 42.1500  Scope of subpart.

    This subpart provides policies and establishes responsibilities for 
recording and maintaining contractor performance information. This 
subpart does not apply to procedures used by agencies in determining 
fees under award or incentive fee contracts. See subpart 16.4. However, 
the fee amount paid to contractors should be reflective of the 
contractor's performance and the past performance evaluation should 
closely parallel and be consistent with the fee determinations.

[78 FR 46788, Aug. 1, 2013]



Sec. 42.1501  General.

    (a) Past performance information (including the ratings and 
supporting narratives) is relevant information, for future source 
selection purposes, regarding a contractor's actions under previously 
awarded contracts or orders. It includes, for example, the contractor's 
record of--
    (1) Conforming to requirements and to standards of good workmanship;
    (2) Forecasting and controlling costs;
    (3) Adherence to schedules, including the administrative aspects of 
performance;
    (4) Reasonable and cooperative behavior and commitment to customer 
satisfaction;
    (5) Reporting into databases (see subparts 4.14 and 4.15, and 
reporting requirements in the solicitation provisions and clauses 
referenced in 9.104-7);
    (6) Integrity and business ethics; and
    (7) Business-like concern for the interest of the customer.
    (b) Agencies shall monitor their compliance with the past 
performance evaluation requirements (see 42.1502), and use the 
Contractor Performance Assessment Reporting System (CPARS) and Past 
Performance Information Retrieval System (PPIRS) metric tools to measure 
the quality and timely reporting of past performance information.

[78 FR 46788, Aug. 1, 2013]



Sec. 42.1502  Policy.

    (a) General. Past performance evaluations shall be prepared at least 
annually and at the time the work under a contract or order is 
completed. Past performance evaluations are required for contracts and 
orders for supplies, services, research and development, and contingency 
operations, including contracts and orders performed inside and outside 
the United States, with the exception of architect-engineer and 
construction contracts or orders, which will still be reported into the 
Architect-Engineer Contract Administration Support System (ACASS) and 
Construction Contractor Appraisal Support System (CCASS) databases of 
CPARS. These evaluations are generally for the entity, division, or unit 
that performed the contract or order. Past performance information shall 
be entered into CPARS, the Governmentwide evaluation reporting tool for 
all past performance reports on contracts and orders. Instructions for 
submitting evaluations into CPARS are available at http://
www.cpars.gov/.
    (b) Contracts. Except as provided in paragraphs (e), (f), and (h) of 
this section, agencies shall prepare evaluations of contractor 
performance for each contract (as defined in FAR part 2) that exceeds 
the simplified acquisition threshold and for each order that exceeds the 
simplified acquisition threshold. Agencies are required to prepare an 
evaluation if a modification to the contract causes the dollar amount to 
exceed the simplified acquisition threshold.
    (c) Orders under multiple-agency contracts. Agencies shall prepare 
an evaluation of contractor performance for each order that exceeds the 
simplified acquisition threshold that is placed under a Federal Supply 
Schedule contract or placed under a task-order contract or a delivery-
order contract awarded by another agency (i.e., Governmentwide 
acquisition contract or multi-agency contract). Agencies placing orders 
under their own multiple-agency contract shall also prepare evaluations 
for their own orders. This evaluation shall not consider the 
requirements under paragraph (g) of this section. Agencies are required 
to prepare an evaluation if a modification to

[[Page 891]]

the order causes the dollar amount to exceed the simplified acquisition 
threshold.
    (d) Orders under single-agency contracts. For single-agency task-
order and delivery-order contracts, the contracting officer may require 
performance evaluations for each order in excess of the simplified 
acquisition threshold when such evaluations would produce more useful 
past performance information for source selection officials than that 
contained in the overall contract evaluation (e.g., when the scope of 
the basic contract is very broad and the nature of individual orders 
could be significantly different). This evaluation need not consider the 
requirements under paragraph (g) of this section unless the contracting 
officer deems it appropriate.
    (e) Past performance evaluations shall be prepared for each 
construction contract of $650,000 or more, and for each construction 
contract terminated for default regardless of contract value. Past 
performance evaluations may also be prepared for construction contracts 
below $650,000.
    (f) Past performance evaluations shall be prepared for each 
architect-engineer services contract of $30,000 or more, and for each 
architect-engineer services contract that is terminated for default 
regardless of contract value. Past performance evaluations may also be 
prepared for architect-engineer services contracts below $30,000.
    (g) Past performance evaluations shall include an assessment of 
contractor performance against, and efforts to achieve, the goals 
identified in the small business subcontracting plan when the contract 
includes the clause at 52.219-9, Small Business Subcontracting Plan.
    (h) Agencies shall not evaluate performance for contracts awarded 
under Subpart 8.7.
    (i) Agencies shall promptly report other contractor information in 
accordance with 42.1503(h).

[74 FR 31560, July 1, 2009, as amended at 75 FR 53134, Aug. 30, 2010; 75 
FR 60260, Sept. 29, 2010; 78 FR 46788, Aug. 1, 2013]



Sec. 42.1503  Procedures.

    (a)(1) Agencies shall assign responsibility and management 
accountability for the completeness of past performance submissions. 
Agency procedures for the past performance evaluation system shall--
    (i) Generally provide for input to the evaluations from the 
technical office, contracting office, program management office and, 
where appropriate, quality assurance and end users of the product or 
service;
    (ii) Identify and assign past performance evaluation roles and 
responsibilities to those individuals responsible for preparing and 
reviewing interim evaluations, if prepared, and final evaluations (e.g., 
contracting officers, contracting officer representatives, project 
managers, and program managers). Those individuals identified may obtain 
information for the evaluation of performance from the program office, 
administrative contracting office, audit office, end users of the 
product or service, and any other technical or business advisor, as 
appropriate; and
    (iii) Address management controls and appropriate management reviews 
of past performance evaluations, to include accountability for 
documenting past performance on PPIRS.
    (2) If agency procedures do not specify the individuals responsible 
for past performance evaluation duties, the contracting officer is 
responsible for this function.
    (3) Interim evaluations may be prepared as required, in accordance 
with agency procedures.
    (b)(1) The evaluation should include a clear, non-technical 
description of the principal purpose of the contract or order. The 
evaluation should reflect how the contractor performed. The evaluation 
should include clear relevant information that accurately depicts the 
contractor's performance, and be based on objective facts supported by 
program and contract or order performance data. The evaluations should 
be tailored to the contract type, size, content, and complexity of the 
contractual requirements.
    (2) Evaluation factors for each assessment shall include, at a 
minimum, the following:
    (i) Technical (quality of product or service).

[[Page 892]]

    (ii) Cost control (not applicable for firm-fixed-price or fixed-
price with economic price adjustment arrangements).
    (iii) Schedule/timeliness.
    (iv) Management or business relations.
    (v) Small business subcontracting (as applicable, see Table 42-2).
    (vi) Other (as applicable) (e.g., late or nonpayment to 
subcontractors, trafficking violations, tax delinquency, failure to 
report in accordance with contract terms and conditions, defective cost 
or pricing data, terminations, suspension and debarments).
    (3) Evaluation factors may include subfactors.
    (4) Each factor and subfactor used shall be evaluated and a 
supporting narrative provided. Each evaluation factor, as listed in 
paragraph (b)(2) of this section, shall be rated in accordance with a 
five scale rating system (i.e., exceptional, very good, satisfactory, 
marginal, and unsatisfactory). The ratings and narratives must reflect 
the definitions in the tables 42-1 or 42-2 of this section.
    (c)(1) When the contract provides for incentive fees, the incentive-
fee contract performance evaluation shall be entered into CPARS.
    (2) When the contract provides for award fee, the award fee-contract 
performance adjectival rating as described in 16.401(e)(3) shall be 
entered into CPARS.
    (d) Agency evaluations of contractor performance, including both 
negative and positive evaluations, prepared under this subpart shall be 
provided to the contractor as soon as practicable after completion of 
the evaluation. The contractor will receive a CPARS-system generated 
notification when an evaluation is ready for comment. Contractors shall 
be given a minimum of 30 days to submit comments, rebutting statements, 
or additional information. Agencies shall provide for review at a level 
above the contracting officer to consider disagreements between the 
parties regarding the evaluation. The ultimate conclusion on the 
performance evaluation is a decision of the contracting agency. Copies 
of the evaluation, contractor response, and review comments, if any, 
shall be retained as part of the evaluation. These evaluations may be 
used to support future award decisions, and should therefore be marked 
``Source Selection Information''. Evaluation of Federal Prison 
Industries (FPI) performance may be used to support a waiver request 
(see 8.604) when FPI is a mandatory source in accordance with subpart 
8.6. The completed evaluation shall not be released to other than 
Government personnel and the contractor whose performance is being 
evaluated during the period the information may be used to provide 
source selection information. Disclosure of such information could cause 
harm both to the commercial interest of the Government and to the 
competitive position of the contractor being evaluated as well as impede 
the efficiency of Government operations. Evaluations used in determining 
award or incentive fee payments may also be used to satisfy the 
requirements of this subpart. A copy of the annual or final past 
performance evaluation shall be provided to the contractor as soon as it 
is finalized.
    (e) Agencies shall require frequent evaluation (e.g., monthly, 
quarterly) of agency compliance with the reporting requirements in 
42.1502, so agencies can readily identify delinquent past performance 
reports and monitor their reports for quality control.
    (f) Agencies shall prepare and submit all past performance 
evaluations electronically in the CPARS at http://www.cpars.gov/. These 
evaluations are automatically transmitted to PPIRS at http://
www.ppirs.gov. Past performance evaluations for classified contracts and 
special access programs shall not be reported in CPARS, but will be 
reported as stated in this subpart and in accordance with agency 
procedures. Agencies shall ensure that appropriate management and 
technical controls are in place to ensure that only authorized personnel 
have access to the data and the information safeguarded in accordance 
with 42.1503(d).
    (g) Agencies shall use the past performance information in PPIRS 
that is within three years (six for construction and architect-engineer 
contracts) of the completion of performance of the evaluated contract or 
order, and information contained in the Federal

[[Page 893]]

Awardee Performance and Integrity Information System (FAPIIS), e.g., 
terminations for default or cause.
    (h) Other contractor performance information. (1) Agencies shall 
ensure information is accurately reported in the Federal Awardee 
Performance and Integrity Information System (FAPIIS) module of CPARS 
within 3 calendar days after a contracting officer--
    (i) Issues a final determination that a contractor has submitted 
defective cost or pricing data;
    (ii) Makes a subsequent change to the final determination concerning 
defective cost or pricing data pursuant to 15.407-1(d);
    (iii) Issues a final termination for cause or default notice; or
    (iv) Makes a subsequent withdrawal or a conversion of a termination 
for default to a termination for convenience.
    (2) Agencies shall establish CPARS focal points who will register 
users to report data into the FAPIIS module of CPARS (available at 
http://www.cpars.gov/, then select FAPIIS).
    (3) With regard to information that may be covered by a disclosure 
exemption under the Freedom of Information Act, the contracting officer 
shall follow the procedures at 9.105-2(b)(2)(iv).

                                   Table 42-1--Evaluation Ratings Definitions
----------------------------------------------------------------------------------------------------------------
                    Rating                                Definition                           Note
----------------------------------------------------------------------------------------------------------------
(a) Exceptional..............................  Performance meets contractual     To justify an Exceptional
                                                requirements and exceeds many     rating, identify multiple
                                                to the Government's benefit.      significant events and state
                                                The contractual performance of    how they were of benefit to
                                                the element or sub-element        the Government. A singular
                                                being evaluated was               benefit, however, could be of
                                                accomplished with few minor       such magnitude that it alone
                                                problems for which corrective     constitutes an Exceptional
                                                actions taken by the contractor   rating. Also, there should
                                                were highly effective.            have been NO significant
                                                                                  weaknesses identified.
(b) Very Good................................  Performance meets contractual     To justify a Very Good rating,
                                                requirements and exceeds some     identify a significant event
                                                to the Government's benefit.      and state how it was a benefit
                                                The contractual performance of    to the Government. There
                                                the element or sub-element        should have been no
                                                being evaluated was               significant weaknesses
                                                accomplished with some minor      identified.
                                                problems for which corrective
                                                actions taken by the contractor
                                                were effective.
(c) Satisfactory.............................  Performance meets contractual     To justify a Satisfactory
                                                requirements. The contractual     rating, there should have been
                                                performance of the element or     only minor problems, or major
                                                sub-element contains some minor   problems the contractor
                                                problems for which corrective     recovered from without impact
                                                actions taken by the contractor   to the contract/order. There
                                                appear or were satisfactory.      should have been NO
                                                                                  significant weaknesses
                                                                                  identified. A fundamental
                                                                                  principle of assigning ratings
                                                                                  is that contractors will not
                                                                                  be evaluated with a rating
                                                                                  lower than Satisfactory solely
                                                                                  for not performing beyond the
                                                                                  requirements of the contract/
                                                                                  order.
(d) Marginal.................................  Performance does not meet some    To justify Marginal
                                                contractual requirements. The     performance, identify a
                                                contractual performance of the    significant event in each
                                                element or sub-element being      category that the contractor
                                                evaluated reflects a serious      had trouble overcoming and
                                                problem for which the             state how it impacted the
                                                contractor has not yet            Government. A Marginal rating
                                                identified corrective actions.    should be supported by
                                                The contractor's proposed         referencing the management
                                                actions appear only marginally    tool that notified the
                                                effective or were not fully       contractor of the contractual
                                                implemented.                      deficiency (e.g., management,
                                                                                  quality, safety, or
                                                                                  environmental deficiency
                                                                                  report or letter).

[[Page 894]]

 
(e) Unsatisfactory...........................  Performance does not meet most    To justify an Unsatisfactory
                                                contractual requirements and      rating, identify multiple
                                                recovery is not likely in a       significant events in each
                                                timely manner. The contractual    category that the contractor
                                                performance of the element or     had trouble overcoming and
                                                sub-element contains a serious    state how it impacted the
                                                problem(s) for which the          Government. A singular
                                                contractor's corrective actions   problem, however, could be of
                                                appear or were ineffective.       such serious magnitude that it
                                                                                  alone constitutes an
                                                                                  unsatisfactory rating. An
                                                                                  Unsatisfactory rating should
                                                                                  be supported by referencing
                                                                                  the management tools used to
                                                                                  notify the contractor of the
                                                                                  contractual deficiencies
                                                                                  (e.g., management, quality,
                                                                                  safety, or environmental
                                                                                  deficiency reports, or
                                                                                  letters).
----------------------------------------------------------------------------------------------------------------
Note 1: Plus or minus signs may be used to indicate an improving (+) or worsening (-) trend insufficient to
  change the evaluation status.
Note 2: N/A (not applicable) should be used if the ratings are not going to be applied to a particular area for
  evaluation.


                                   Table 42-2--Evaluation Ratings Definitions
                [For the Small Business Subcontracting Evaluation Factor, when 52.219-9 is used]
----------------------------------------------------------------------------------------------------------------
                    Rating                                Definition                           Note
----------------------------------------------------------------------------------------------------------------
(a) Exceptional..............................  Exceeded all statutory goals or   To justify an Exceptional
                                                goals as negotiated. Had          rating, identify multiple
                                                exceptional success with          significant events and state
                                                initiatives to assist, promote,   how they were a benefit to
                                                and utilize small business        small business utilization. A
                                                (SB), small disadvantaged         singular benefit, however,
                                                business (SDB), women-owned       could be of such magnitude
                                                small business (WOSB), HUBZone    that it constitutes an
                                                small business, veteran-owned     Exceptional rating. Small
                                                small business (VOSB) and         businesses should be given
                                                service disabled veteran owned    meaningful and innovative work
                                                small business (SDVOSB).          directly related to the
                                                Complied with FAR 52.219-8,       contract, and opportunities
                                                Utilization of Small Business     should not be limited to
                                                Concerns. Exceeded any other      indirect work such as cleaning
                                                small business participation      offices, supplies,
                                                requirements incorporated in      landscaping, etc. Also, there
                                                the contract/order, including     should have been no
                                                the use of small businesses in    significant weaknesses
                                                mission critical aspects of the   identified.
                                                program. Went above and beyond
                                                the required elements of the
                                                subcontracting plan and other
                                                small business requirements of
                                                the contract/order. Completed
                                                and submitted Individual
                                                Subcontract Reports and/or
                                                Summary Subcontract Reports in
                                                an accurate and timely manner.
(b) Very Good................................  Met all of the statutory goals    To justify a Very Good rating,
                                                or goals as negotiated. Had       identify a significant event
                                                significant success with          and state how it was a benefit
                                                initiatives to assist, promote    to small business utilization.
                                                and utilize SB, SDB, WOSB,        Small businesses should be
                                                HUBZone, VOSB, and SDVOSB.        given meaningful and
                                                Complied with FAR 52.219-8,       innovative opportunities to
                                                Utilization of Small Business     participate as subcontractors
                                                Concerns. Met or exceeded any     for work directly related to
                                                other small business              the contract, and
                                                participation requirements        opportunities should not be
                                                incorporated in the contract/     limited to indirect work such
                                                order, including the use of       as cleaning offices, supplies,
                                                small businesses in mission       landscaping, etc. There should
                                                critical aspects of the           be no significant weaknesses
                                                program. Endeavored to go above   identified.
                                                and beyond the required
                                                elements of the subcontracting
                                                plan. Completed and submitted
                                                Individual Subcontract Reports
                                                and/or Summary Subcontract
                                                Reports in an accurate and
                                                timely manner.

[[Page 895]]

 
(c) Satisfactory.............................  Demonstrated a good faith effort  To justify a Satisfactory
                                                to meet all of the negotiated     rating, there should have been
                                                subcontracting goals in the       only minor problems, or major
                                                various socio-economic            problems the contractor has
                                                categories for the current        addressed or taken corrective
                                                period. Complied with FAR         action. There should have been
                                                52.219-8, Utilization of Small    no significant weaknesses
                                                Business Concerns. Met any        identified. A fundamental
                                                other small business              principle of assigning ratings
                                                participation requirements        is that contractors will not
                                                included in the contract/order.   be assessed a rating lower
                                                Fulfilled the requirements of     than Satisfactory solely for
                                                the subcontracting plan           not performing beyond the
                                                included in the contract/order.   requirements of the contract/
                                                Completed and submitted           order.
                                                Individual Subcontract Reports
                                                and/or Summary Subcontract
                                                Reports in an accurate and
                                                timely manner.
(d) Marginal.................................  Deficient in meeting key          To justify Marginal
                                                subcontracting plan elements.     performance, identify a
                                                Deficient in complying with FAR   significant event that the
                                                52.219-8, Utilization of Small    contractor had trouble
                                                Business Concerns, and any        overcoming and how it impacted
                                                other small business              small business utilization. A
                                                participation requirements in     Marginal rating should be
                                                the contract/order. Did not       supported by referencing the
                                                submit Individual Subcontract     actions taken by the
                                                Reports and/or Summary            government that notified the
                                                Subcontract Reports in an         contractor of the contractual
                                                accurate or timely manner.        deficiency.
                                                Failed to satisfy one or more
                                                requirements of a corrective
                                                action plan currently in place;
                                                however, does show an interest
                                                in bringing performance to a
                                                satisfactory level and has
                                                demonstrated a commitment to
                                                apply the necessary resources
                                                to do so. Required a corrective
                                                action plan.
(e) Unsatisfactory...........................  Noncompliant with FAR 52.219-8    To justify an Unsatisfactory
                                                and 52.219-9, and any other       rating, identify multiple
                                                small business participation      significant events that the
                                                requirements in the contract/     contractor had trouble
                                                order. Did not submit             overcoming and state how it
                                                Individual Subcontract Reports    impacted small business
                                                and/or Summary Subcontract        utilization. A singular
                                                Reports in an accurate or         problem, however, could be of
                                                timely manner. Showed little      such serious magnitude that it
                                                interest in bringing              alone constitutes an
                                                performance to a satisfactory     Unsatisfactory rating. An
                                                level or is generally             Unsatisfactory rating should
                                                uncooperative. Required a         be supported by referencing
                                                corrective action plan.           the actions taken by the
                                                                                  government to notify the
                                                                                  contractor of the
                                                                                  deficiencies. When an
                                                                                  Unsatisfactory rating is
                                                                                  justified, the contracting
                                                                                  officer must consider whether
                                                                                  the contractor made a good
                                                                                  faith effort to comply with
                                                                                  the requirements of the
                                                                                  subcontracting plan required
                                                                                  by FAR 52.219-9 and follow the
                                                                                  procedures outlined in FAR
                                                                                  52.219-16, Liquidated Damages-
                                                                                  Subcontracting Plan.
----------------------------------------------------------------------------------------------------------------
Note 1: Plus or minus signs may be used to indicate an improving (+) or worsening (-) trend insufficient to
  change evaluation status.
Note 2: Generally, zero percent is not a goal unless the contracting officer determined when negotiating the
  subcontracting plan that no subcontracting opportunities exist in a particular socio-economic category. In
  such cases, the contractor shall be considered to have met the goal for any socio-economic category where the
  goal negotiated in the plan was zero.


[78 FR 46788, Aug. 1, 2013]

          Subpart 42.16_Small Business Contract Administration



Sec. 42.1601  General.

    The contracting officer shall make every reasonable effort to 
respond in writing within 30 days to any written request to the 
contracting officer from a small business concern with respect to a 
contract administration matter. In the event the contracting officer 
cannot respond to the request within the 30-day period, the contracting 
officer shall, within the period, transmit to the contractor a written 
notification of the specific date the contracting officer expects to 
respond.

[[Page 896]]

This provision shall not apply to a request for a contracting officer 
decision under the Contract Disputes Act of 1978 (41 U.S.C. 601-613).

[60 FR 48230, Sept. 18, 1995]

              Subpart 42.17_Forward Pricing Rate Agreements

    Source: 62 FR 51258, Sept. 30, 1997, unless otherwise noted.



Sec. 42.1701  Procedures.

    (a) Negotiation of forward pricing rate agreements (FPRA's) may be 
requested by the contracting officer or the contractor or initiated by 
the administrative contracting officer (ACO). In determining whether or 
not to establish such an agreement, the ACO should consider whether the 
benefits to be derived from the agreement are commensurate with the 
effort of establishing and monitoring it. Normally, FPRA's should be 
negotiated only with contractors having a significant volume of 
Government contract proposals. The cognizant contract administration 
agency shall determine whether an FPRA will be established.
    (b) The ACO shall obtain the contractor's forward pricing rate 
proposal and require that it include cost or pricing data that are 
accurate, complete, and current as of the date of submission (but see 
15.407-3(c)). The ACO shall invite the cognizant contract auditor and 
contracting offices having a significant interest to participate in 
developing a Government objective and in the negotiations. Upon 
completing negotiations, the ACO shall prepare a price negotiation 
memorandum (PNM) (see 15.406-3) and forward copies of the PNM and FPRA 
to the cognizant auditor and to all contracting offices that are known 
to be affected by the FPRA.
    (c) The FPRA shall provide specific terms and conditions covering 
expiration, application, and data requirements for systematic monitoring 
to ensure the validity of the rates. The agreement shall provide for 
cancellation at the option of either party and shall require the 
contractor to submit to the ACO and to the cognizant contract auditor 
any significant change in cost or pricing data used to support the FPRA.
    (d) When an FPRA is invalid, the contractor should submit and 
negotiate a new proposal to reflect the changed conditions. If an FPRA 
has not been established or has been invalidated, the ACO will issue a 
forward pricing rate recommendation (FPRR) to buying activities with 
documentation to assist negotiators. In the absence of an FPRA or FPRR, 
the ACO shall include support for rates utilized.
    (e) The ACO may negotiate continuous updates to the FPRA. The FPRA 
will provide specific terms and conditions covering notification, 
application, and data requirements for systematic monitoring to ensure 
the validity of the rates.

[62 FR 51258, Sept. 30, 1997, as amended at 75 FR 53149, Aug. 30, 2010]

                     PART 43_CONTRACT MODIFICATIONS

Sec.

Sec. 43.000 Scope of part.

                          Subpart 43.1_General


Sec. 43.101 Definitions.

Sec. 43.102 Policy.

Sec. 43.103 Types of contract modifications.

Sec. 43.104 Notification of contract changes.

Sec. 43.105 Availability of funds.

Sec. 43.106 [Reserved]

Sec. 43.107 Contract clause.

                       Subpart 43.2_Change Orders


Sec. 43.201 General.

Sec. 43.202 Authority to issue change orders.

Sec. 43.203 Change order accounting procedures.

Sec. 43.204 Administration.

Sec. 43.205 Contract clauses.

                           Subpart 43.3_Forms


Sec. 43.301 Use of forms.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 
20113.

    Source: 48 FR 42386, Sept. 19, 1983, unless otherwise noted.



Sec. 43.000  Scope of part.

    This part prescribes policies and procedures for preparing and 
processing contract modifications for all types of contracts including 
construction and

[[Page 897]]

architect-engineer contracts. It does not apply to--
    (a) Orders for supplies or services not otherwise changing the terms 
of contracts or agreements (e.g., delivery orders under indefinite-
delivery contracts); or
    (b) Modifications for extraordinary contractual relief (see Subpart 
50.1).

[48 FR 42386, Sept. 19, 1983, as amended at 72 FR 63030, Nov. 7, 2007]

                          Subpart 43.1_General



Sec. 43.101  Definitions.

    As used in this part--
    Administrative change means a unilateral (see 43.103(b)) contract 
change, in writing, that does not affect the substantive rights of the 
parties (e.g., a change in the paying office or the appropriation data).
    (a) For a solicitation amendment, change order, or administrative 
change, the effective date shall be the issue date of the amendment, 
change order, or administrative change.
    (b) For a supplemental agreement, the effective date shall be the 
date agreed upon by the contracting parties.
    (c) For a modification issued as a confirming notice of termination 
for the convenience of the Government, the effective date of the 
confirming notice shall be the same as the effective date of the initial 
notice.
    (d) For a modification converting a termination for default to a 
termination for the convenience of the Government, the effective date 
shall be the same as the effective date of the termination for default.
    (e) For a modification confirming the termination contracting 
officer's previous letter determination of the amount due in settlement 
of a contract termination for convenience, the effective date shall be 
the same as the effective date of the previous letter determination.

[48 FR 42386, Sept. 19, 1983, as amended at 66 FR 2133, Jan. 10, 2001]



Sec. 43.102  Policy.

    (a) Only contracting officers acting within the scope of their 
authority are empowered to execute contract modifications on behalf of 
the Government. Other Government personnel shall not--
    (1) Execute contract modifications;
    (2) Act in such a manner as to cause the contractor to believe that 
they have authority to bind the Government; or
    (3) Direct or encourage the contractor to perform work that should 
be the subject of a contract modification.
    (b) Contract modifications, including changes that could be issued 
unilaterally, shall be priced before their execution if this can be done 
without adversely affecting the interest of the Government. If a 
significant cost increase could result from a contract modification and 
time does not permit negotiation of a price, at least a ceiling price 
shall be negotiated unless impractical.
    (c) The Federal Acquisition Streamlining Act of 1994, Public Law 
103-355 (FASA), and Section 4402 of the Clinger-Cohen Act of 1996, 
Public Law 104-106, authorize, but do not require, contracting officers, 
if requested by the prime contractor, to modify contracts without 
requiring consideration to incorporate changes authorized by FASA or 
Clinger-Cohen Act amendments into existing contracts. Contracting 
officers are encouraged, if appropriate, to modify contracts without 
requiring consideration to incorporate these new policies. The contract 
modification should be accomplished by inserting into the contract, as a 
minimum, the current version of the applicable FAR clauses.

[48 FR 42386, Sept. 19, 1983, as amended at 61 FR 18915, Apr. 29, 1996; 
61 FR 69298, Dec. 31, 1996; 74 FR 28431, June 15, 2009]



Sec. 43.103  Types of contract modifications.

    Contract modifications are of the following types:
    (a) Bilateral. A bilateral modification (supplemental agreement) is 
a contract modification that is signed by the contractor and the 
contracting officer. Bilateral modifications are used to--
    (1) Make negotiated equitable adjustments resulting from the 
issuance of a change order;
    (2) Definitize letter contracts; and
    (3) Reflect other agreements of the parties modifying the terms of 
contracts.

[[Page 898]]

    (b) Unilateral. A unilateral modification is a contract modification 
that is signed only by the contracting officer. Unilateral modifications 
are used, for example, to--
    (1) Make administrative changes;
    (2) Issue change orders;
    (3) Make changes authorized by clauses other than a changes clause 
(e.g., Property clause, Options clause, or Suspension of Work clause); 
and
    (4) Issue termination notices.

[48 FR 42386, Sept. 19, 1983, as amended at 66 FR 2133, Jan. 10, 2001]



Sec. 43.104  Notification of contract changes.

    (a) When a contractor considers that the Government has effected or 
may effect a change in the contract that has not been identified as such 
in writing and signed by the contracting officer, it is necessary that 
the contractor notify the Government in writing as soon as possible. 
This will permit the Government to evaluate the alleged change and (1) 
confirm that it is a change, direct the mode of further performance, and 
plan for its funding; (2) countermand the alleged change; or (3) notify 
the contractor that no change is considered to have occurred.
    (b) The clause at 52.243-7, Notification of Changes, which is 
prescribed in 43.107, (1) incorporates the policy expressed in paragraph 
(a) above; (2) requires the contractor to notify the Government promptly 
of any Government conduct that the contractor considers a change to the 
contract, and (3) specifies the responsibilities of the contractor and 
the Government with respect to such notifications.

[48 FR 42386, Sept. 19, 1983, as amended at 56 FR 41744, Aug. 22, 1991]



Sec. 43.105  Availability of funds.

    (a) The contracting officer shall not execute a contract 
modification that causes or will cause an increase in funds without 
having first obtained a certification of fund availability, except for 
modifications to contracts that--
    (1) Are conditioned on availability of funds (see 32.703-2); or
    (2) Contain a limitation of cost or funds clause (see 32.704).
    (b) The certification required by paragraph (a) above shall be based 
on the negotiated price, except that modifications executed before 
agreement on price may be based on the best available estimate of cost.



Sec. 43.106  [Reserved]



Sec. 43.107  Contract clause.

    The contracting officer may insert a clause substantially the same 
as the clause at 52.243-7, Notification of Changes, in solicitations and 
contracts. The clause is available for use primarily in negotiated 
research and development or supply contracts for the acquisition of 
major weapon systems or principal subsystems. If the contract amount is 
expected to be less than $1,000,000, the clause shall not be used, 
unless the contracting officer anticipates that situations will arise 
that may result in a contractor alleging that the Government has 
effected changes other than those identified as such in writing and 
signed by the contracting officer.

[48 FR 42386, Sept. 19, 1983. Redesignated at 54 FR 20497, May 11, 1989]

                       Subpart 43.2_Change Orders



Sec. 43.201  General.

    (a) Generally, Government contracts contain a changes clause that 
permits the contracting officer to make unilateral changes, in 
designated areas, within the general scope of the contract. These are 
accomplished by issuing written change orders on Standard Form 30, 
Amendment of Solicitation/Modification of Contract (SF 30), unless 
otherwise provided (see 43.301).
    (b) The contractor must continue performance of the contract as 
changed, except that in cost-reimbursement or incrementally funded 
contracts the contractor is not obligated to continue performance or 
incur costs beyond the limits established in the Limitation of Cost or 
Limitation of Funds clause (see 32.706-2).
    (c) The contracting officer may issue a change order by telegraphic 
message under unusual or urgent circumstances; provided, that--

[[Page 899]]

    (1) Copies of the message are furnished promptly to the same 
addressees that received the basic contract;
    (2) Immediate action is taken to confirm the change by issuance of a 
SF 30;
    (3) The message contains substantially the information required by 
the SF 30 (except that the estimated change in price shall not be 
indicated), including in the body of the message the statement, ``Signed 
by (Name), Contracting Officer''; and
    (4) The contracting officer manually signs the original copy of the 
message.

[48 FR 42386, Sept. 19, 1983, as amended at 78 FR 37689, June 21, 2013]



Sec. 43.202  Authority to issue change orders.

    Change orders shall be issued by the contracting officer except when 
authority is delegated to an administrative contracting officer (see 
42.202(c)).



Sec. 43.203  Change order accounting procedures.

    (a) Contractors' accounting systems are seldom designed to segregate 
the costs of performing changed work. Therefore, before prospective 
contractors submit offers, the contracting officer should advise them of 
the possible need to revise their accounting procedures to comply with 
the cost segregation requirements of the Change Order Accounting clause 
at 52.243-6.
    (b) The following categories of direct costs normally are segregable 
and accountable under the terms of the Change Order Accounting clause:
    (1) Nonrecurring costs (e.g., engineering costs and costs of 
obsolete or reperformed work).
    (2) Costs of added distinct work caused by the change order (e.g., 
new subcontract work, new prototypes, or new retrofit or backfit kits).
    (3) Costs of recurring work (e.g., labor and material costs).



Sec. 43.204  Administration.

    (a) Change order documentation. When change orders are not forward 
priced, they require two documents: the change order and a supplemental 
agreement reflecting the resulting equitable adjustment in contract 
terms. If an equitable adjustment in the contract price or delivery 
terms or both can be agreed upon in advance, only a supplemental 
agreement need be issued, but administrative changes and changes issued 
pursuant to a clause giving the Government a unilateral right to make a 
change (e.g., an option clause) initially require only one document.
    (b) Definitization. (1) Contracting officers shall negotiate 
equitable adjustments resulting from change orders in the shortest 
practicable time.
    (2) Administrative contracting officers negotiating equitable 
adjustments by delegation under 42.302(b)(1), shall obtain the 
contracting officer's concurrence before adjusting the contract delivery 
schedule.
    (3) Contracting offices and contract administration offices, as 
appropriate, shall establish suspense systems adequate to ensure 
accurate identification and prompt definitization of unpriced change 
orders.
    (4) The contracting officer shall ensure that a cost analysis is 
made, if appropriate, under 15.404-1(c) and shall consider the 
contractor's segregable costs of the change, if available. If additional 
funds are required as a result of the change, the contracting officer 
shall secure the funds before making any adjustment to the contract.
    (5) When the contracting officer requires a field pricing review of 
requests for equitable adjustment, the contracting officer shall provide 
a list of any significant contract events which may aid in the analysis 
of the request. This list should include--
    (i) Date and dollar amount of contract award and/or modification;
    (ii) Date of submission of initial contract proposal and dollar 
amount;
    (iii) Date of alleged delays or disruptions;
    (iv) Performance dates as scheduled at date of award and/or 
modification;
    (v) Actual performance dates;
    (vi) Date entitlement to an equitable adjustment was determined or 
contracting officer decision was rendered, if applicable;
    (vii) Date of certification of the request for adjustment if 
certification is required; and
    (viii) Dates of any pertinent Government actions or other key events 
during contract performance which may

[[Page 900]]

have an impact on the contractor's request for equitable adjustment.
    (c) Complete and final equitable adjustments. To avoid subsequent 
controversies that may result from a supplemental agreement containing 
an equitable adjustment as the result of a change order, the contracting 
officer should--
    (1) Ensure that all elements of the equitable adjustment have been 
presented and resolved; and
    (2) Include, in the supplemental agreement, a release similar to the 
following:

                    CONTRACTOR'S STATEMENT OF RELEASE

    In consideration of the modification(s) agreed to herein as complete 
equitable adjustments for the Contractor's ---------------- (describe) 
------------------ ``proposal(s) for adjustment,'' the Contractor hereby 
releases the Government from any and all liability under this contract 
for further equitable adjustments attributable to such facts or 
circumstances giving rise to the ``proposal(s) for adjustment'' (except 
for -------------------- ).

[48 FR 42386, Sept. 19, 1983, as amended at 56 FR 15154, Apr. 15, 1991; 
62 FR 51271, Sept. 30, 1997]



Sec. 43.205  Contract clauses.

    (a)(1) The contracting officer shall insert the clause at 52.243-1, 
Changes--Fixed-Price, in solicitations and contracts when a fixed-price 
contract for supplies is contemplated.
    (2) If the requirement is for services, other than architect-
engineer or other professional services, and no supplies are to be 
furnished, the contracting officer shall use the clause with its 
Alternate I.
    (3) If the requirement is for services (other than architect-
engineer services, transportation, or research and development) and 
supplies are to be furnished, the contracting officer shall use the 
clause with its Alternate II.
    (4) If the requirement is for architect-engineer or other 
professional services, the contracting officer shall use the clause with 
its Alternate III.
    (5) If the requirement is for transportation services, the 
contracting officer shall use the clause with its Alternate IV.
    (6) If it is desired to include the clause in solicitations and 
contracts when a research and development contract is contemplated, the 
contracting officer shall use the clause with its Alternate V.
    (b)(1) The contracting officer shall insert the clause at 52.243-2, 
Changes--Cost-Reimbursement, in solicitations and contracts when a cost-
reimbursement contract for supplies is contemplated.
    (2) If the requirement is for services and no supplies are to be 
furnished, the contracting officer shall use the clause with its 
Alternate I.
    (3) If the requirement is for services and supplies are to be 
furnished, the contracting officer shall use the clause with its 
Alternate II.
    (4) If the requirement is for construction, the contracting officer 
shall use the clause with its Alternate III.
    (5) [Reserved]
    (6) If it is desired to include the clause in solicitations and 
contracts when a research and development contract is contemplated, the 
contracting officer shall use the clause with its Alternate V.
    (c) Insert the clause at 52.243-3, Changes--Time-and-Materials or 
Labor-Hours, in solicitations and contracts when a time-and-materials or 
labor-hour contract is contemplated. The contracting officer may vary 
the 30-day period in paragraph (c) of the clause according to agency 
procedures.
    (d) The contracting officer shall insert the clause at 52.243-4, 
Changes, in solicitations and contracts for (1) dismantling, demolition, 
or removal of improvements; and (2) construction, when a fixed-price 
contract is contemplated and the contract amount is expected to exceed 
the simplified acquisition threshold.
    (e) The contracting officer shall insert the clause at 52.243-5, 
Changes and Changed Conditions, in solicitations and contracts for 
construction, when the contract amount is not expected to exceed the 
simplified acquisition threshold.
    (f) The contracting officer may insert a clause, substantially the 
same as the clause at 52.243-6, Change Order Accounting, in 
solicitations and contracts

[[Page 901]]

for supply and research and development contracts of significant 
technical complexity, if numerous changes are anticipated. The clause 
may be included in solicitations and contracts for construction if 
deemed appropriate by the contracting officer.

[48 FR 42386, Sept. 19, 1983, as amended at 56 FR 15154, Apr. 15, 1991; 
60 FR 34760, July 3, 1995; 61 FR 39190, July 26, 1996; 65 FR 46072, July 
26, 2000; 72 FR 27385, May 15, 2007]

                           Subpart 43.3_Forms



Sec. 43.301  Use of forms.

    (a)(1) The Standard Form 30 (SF 30), Amendment of Solicitation/
Modification of Contract, exclusive of actions processed under part 15, 
shall (except for the options stated in 43.301(a)(2) or actions 
processed under part 15) be used for--
    (i) Any amendment to a solicitation;
    (ii) Change orders issued under the Changes clause of the contract;
    (iii) Any other unilateral contract modification issued under a 
contract clause authorizing such modification without the consent of the 
contractor;
    (iv) Administrative changes such as the correction of typographical 
mistakes, changes in the paying office, and changes in accounting and 
appropriation data;
    (v) Supplemental agreements (see 43.103); and
    (vi) Removal, reinstatement, or addition of funds to a contract.
    (2) The SF 30 may be used for (i) modifications that change the 
price of contracts for the acquisition of petroleum as a result of 
economic price adjustment, (ii) termination notices, and (iii) purchase 
order modifications as specified in 13.302-3.
    (3) If it is anticipated that a change will result in a price 
change, the estimated amount of the price change shall not be shown on 
copies of SF 30 furnished to the contractor.
    (b) The Optional Form 336 (OF 336), Continuation Sheet, or a blank 
sheet of paper, may be used as a continuation sheet for a contract 
modification.

[48 FR 42386, Sept. 19, 1983, as amended at 50 FR 26903, June 28, 1985; 
51 FR 27120, July 29, 1986; 62 FR 51259, Sept. 30, 1997; 62 FR 64926, 
Dec. 9, 1997]

             PART 44_SUBCONTRACTING POLICIES AND PROCEDURES

Sec.

Sec. 44.000 Scope of part.

                          Subpart 44.1_General


Sec. 44.101 Definitions.

                  Subpart 44.2_Consent to Subcontracts


Sec. 44.201 Consent and advance notification requirements.

Sec. 44.201-1 Consent requirements.

Sec. 44.201-2 Advance notification requirements.

Sec. 44.202 Contracting officer's evaluation.

Sec. 44.202-1 Responsibilities.

Sec. 44.202-2 Considerations.

Sec. 44.203 Consent limitations.

Sec. 44.204 Contract clauses.

          Subpart 44.3_Contractors' Purchasing Systems Reviews


Sec. 44.301 Objective.

Sec. 44.302 Requirements.

Sec. 44.303 Extent of review.

Sec. 44.304 Surveillance.

Sec. 44.305 Granting, withholding, or withdrawing approval.

Sec. 44.305-1 Responsibilities.

Sec. 44.305-2 Notification.

Sec. 44.305-3 Withholding or withdrawing approval.

Sec. 44.306 Disclosure of approval status.

Sec. 44.307 Reports.

Subpart 44.4_Subcontracts for Commercial Items and Commercial Components


Sec. 44.400 Scope of subpart.

Sec. 44.401 Applicability.

Sec. 44.402 Policy requirements.

Sec. 44.403 Contract clause.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 
20113.

    Source: 48 FR 42388, Sept. 19, 1983, unless otherwise noted.



Sec. 44.000  Scope of part.

    (a) This part prescribes policies and procedures for consent to 
subcontracts or advance notification of subcontracts, and for review, 
evaluation, and approval of contractors' purchasing systems.
    (b) The consent and advance notification requirements of subpart 
44.2 are not applicable to prime contracts for commercial items acquired 
pursuant to part 12.

[63 FR 34060, June 22, 1998]

[[Page 902]]

                          Subpart 44.1_General



Sec. 44.101  Definitions.

    As used in this part--
    Approved purchasing system means a contractor's purchasing system 
that has been reviewed and approved in accordance with this part.
    Contractor means the total contractor organization or a separate 
entity of it, such as an affiliate, division, or plant, that performs 
its own purchasing.
    Contractor purchasing system review (CPSR) means the complete 
evaluation of a contractor's purchasing of material and services, 
subcontracting, and subcontract management from development of the 
requirement through completion of subcontract performance.
    Subcontract means any contract as defined in subpart 2.1 entered 
into by a subcontractor to furnish supplies or services for performance 
of a prime contract or a subcontract. It includes but is not limited to 
purchase orders, and changes and modifications to purchase orders.
    Subcontractor means any supplier, distributor, vendor, or firm that 
furnishes supplies or services to or for a prime contractor or another 
subcontractor.

[48 FR 42388, Sept. 19, 1983, as amended at 50 FR 26903, June 28, 1985; 
66 FR 2133, Jan. 10, 2001; 72 FR 27385, May 15, 2007]

                  Subpart 44.2_Consent to Subcontracts



Sec. 44.201  Consent and advance notification requirements.



Sec. 44.201-1  Consent requirements.

    (a) If the contractor has an approved purchasing system, consent is 
required for subcontracts specifically identified by the contracting 
officer in the subcontracts clause of the contract. The contracting 
officer may require consent to subcontract if the contracting officer 
has determined that an individual consent action is required to protect 
the Government adequately because of the subcontract type, complexity, 
or value, or because the subcontract needs special surveillance. These 
can be subcontracts for critical systems, subsystems, components, or 
services. Subcontracts may be identified by subcontract number or by 
class of items (e.g., subcontracts for engines on a prime contract for 
airframes).
    (b) If the contractor does not have an approved purchasing system, 
consent to subcontract is required for cost-reimbursement, time-and-
materials, labor-hour, or letter contracts, and also for unpriced 
actions (including unpriced modifications and unpriced delivery orders) 
under fixed-price contracts that exceed the simplified acquisition 
threshold, for--
    (1) Cost-reimbursement, time-and-materials, or labor-hour 
subcontracts; and
    (2) Fixed-price subcontracts that exceed--
    (i) For the Department of Defense, the Coast Guard, and the National 
Aeronautics and Space Administration, the greater of the simplified 
acquisition threshold or 5 percent of the total estimated cost of the 
contract; or
    (ii) For civilian agencies other than the Coast Guard and the 
National Aeronautics and Space Administration, either the simplified 
acquisition threshold or 5 percent of the total estimated cost of the 
contract.
    (c) Consent may be required for subcontracts under prime contracts 
for architect-engineer services.
    (d) The contracting officer's written authorization for the 
contractor to purchase from Government sources (see part 51) constitutes 
consent.

[63 FR 34060, June 22, 1998]



Sec. 44.201-2  Advance notification requirements.

    Under cost-reimbursement contracts, the contractor is required by 
statute to notify the contracting officer as follows:
    (a) For the Department of Defense, the Coast Guard, and the National 
Aeronautics and Space Administration, unless the contractor maintains an 
approved purchasing system, 10 U.S.C. 2306 requires notification before 
the award of any cost-plus-fixed-fee subcontract, or any fixed-price 
subcontract that exceeds the greater of the simplified acquisition 
threshold or 5 percent of the total estimated cost of the contract.

[[Page 903]]

    (b) For civilian agencies other than the Coast Guard and the 
National Aeronautics and Space Administration, even if the contractor 
has an approved purchasing system, 41 U.S.C. 254(b) requires 
notification before the award of any cost-plus-fixed-fee subcontract, or 
any fixed-price subcontract that exceeds either the simplified 
acquisition threshold or 5 percent of the total estimated cost of the 
contract.

[70 FR 11762, Mar. 9, 2005]



Sec. 44.202  Contracting officer's evaluation.



Sec. 44.202-1  Responsibilities.

    (a) The cognizant administrative contracting officer (ACO) is 
responsible for consent to subcontracts, except when the contracting 
officer retains the contract for administration or withholds the consent 
responsibility from delegation to the ACO. In such cases, the contract 
administration office should assist the contracting office in its 
evaluation as requested.
    (b) The contracting officer responsible for consent shall review the 
contractor's notification and supporting data to ensure that the 
proposed subcontract is appropriate for the risks involved and 
consistent with current policy and sound business judgment.
    (c) Designation of specific subcontractors during contract 
negotiations does not in itself satisfy the requirements for advance 
notification or consent pursuant to the clause at 52.244-2. However, if, 
in the opinion of the contracting officer, the advance notification or 
consent requirements were satisfied for certain subcontracts evaluated 
during negotiations, the contracting officer shall identify those 
subcontracts in paragraph (j) of the clause at 52.244-2.

[48 FR 42388, Sept. 19, 1983, as amended at 55 FR 52796, Dec. 21, 1990; 
63 FR 34060, June 22, 1998; 72 FR 27385, May 15, 2007]



Sec. 44.202-2  Considerations.

    (a) The contracting officer responsible for consent must, at a 
minimum, review the request and supporting data and consider the 
following:
    (1) Is the decision to subcontract consistent with the contractor's 
approved make-or-buy program, if any (see 15.407-2)?
    (2) Is the subcontract for special test equipment, equipment or real 
property that are available from Government sources?
    (3) Is the selection of the particular supplies, equipment, or 
services technically justified?
    (4) Has the contractor complied with the prime contract requirements 
regarding--
    (i) Small business subcontracting, including, if applicable, its 
plan for subcontracting with small, veteran-owned, service-disabled 
veteran-owned, HUBZone, small disadvantaged and women-owned small 
business concerns (see part 19); and
    (ii) Purchase from nonprofit agencies designated by the Committee 
for Purchase From People Who Are Blind or Severely Disabled (Javits-
Wagner-O'Day Act (41 U.S.C. 48))(see part 8)?
    (5) Was adequate price competition obtained or its absence properly 
justified?
    (6) Did the contractor adequately assess and dispose of 
subcontractors' alternate proposals, if offered?
    (7) Does the contractor have a sound basis for selecting and 
determining the responsibility of the particular subcontractor?
    (8) Has the contractor performed adequate cost or price analysis or 
price comparisons and obtained certified cost or pricing data and data 
other than certified cost or pricing data?
    (9) Is the proposed subcontract type appropriate for the risks 
involved and consistent with current policy?
    (10) Has adequate consideration been obtained for any proposed 
subcontract that will involve the use of Government-provided equipment 
and real property?
    (11) Has the contractor adequately and reasonably translated prime 
contract technical requirements into subcontract requirements?
    (12) Does the prime contractor comply with applicable cost 
accounting standards for awarding the subcontract?
    (13) Is the proposed subcontractor in the System for Award 
Management Exclusions (see subpart 9.4)?

[[Page 904]]

    (b) Particularly careful and thorough consideration under paragraph 
(a) above is necessary when--
    (1) The prime contractor's purchasing system or performance is 
inadequate;
    (2) Close working relationships or ownership affiliations between 
the prime and subcontractor may preclude free competition or result in 
higher prices;
    (3) Subcontracts are proposed for award on a non-competitive basis, 
at prices that appear unreasonable, or at prices higher than those 
offered to the Government in comparable circumstances; or
    (4) Subcontracts are proposed on a cost-reimbursement, time-and-
materials, or labor-hour basis.

[48 FR 42388, Sept. 19, 1983, as amended at 60 FR 33066, June 26, 1995; 
60 FR 48264, Sept. 18, 1995; 62 FR 51271, Sept. 30, 1997; 63 FR 34060, 
June 22, 1998; 66 FR 65368, Dec. 18, 2001; 69 FR 76349, Dec. 20, 2004; 
72 FR 27385, May 15, 2007; 73 FR 53995, Sept. 17, 2008; 75 FR 53149, 
Aug. 30, 2010; 78 FR 37680, June 21, 2013]



Sec. 44.203  Consent limitations.

    (a) The contracting officer's consent to a subcontract or approval 
of the contractor's purchasing system does not constitute a 
determination of the acceptability of the subcontract terms or price, or 
of the allowability of costs, unless the consent or approval specifies 
otherwise.
    (b) Contracting officers shall not consent to--
    (1) Cost-reimbursement subcontracts if the fee exceeds the fee 
limitations of 15.404-4(c)(4)(i);
    (2) Subcontracts providing for payment on a cost-plus-a-percentage-
of-cost basis;
    (3) Subcontracts obligating the contracting officer to deal directly 
with the subcontractor;
    (4) Subcontracts that make the results of arbitration, judicial 
determination, or voluntary settlement between the prime contractor and 
subcontractor binding on the Government; or
    (5) Repetitive or unduly protracted use of cost-reimbursement, time-
and-materials, or labor-hour subcontracts (contracting officers should 
follow the principles of 16.103(c)).
    (c) Contracting officers should not refuse consent to a subcontract 
merely because it contains a clause giving the subcontractor the right 
of indirect appeal to an agency board of contract appeals if the 
subcontractor is affected by a dispute between the Government and the 
prime contractor. Indirect appeal means assertion by the subcontractor 
of the prime contractor's right to appeal or the prosecution of an 
appeal by the prime contractor on the subcontractor's behalf. The clause 
may also provide that the prime contractor and subcontractor shall be 
equally bound by the contracting officer's or board's decision. The 
clause may not attempt to obligate the contracting officer or the 
appeals board to decide questions that do not arise between the 
Government and the prime contractor or that are not cognizable under the 
clause at 52.233-1, Disputes.

[69 FR 76358, Dec. 20, 2004]



Sec. 44.204  Contract clauses.

    (a)(1) The contracting officer shall insert the clause at 52.244-2, 
Subcontracts, in solicitations and contracts when contemplating--
    (i) A cost-reimbursement contract;
    (ii) A letter contract that exceeds the simplified acquisition 
threshold;
    (iii) A fixed-price contract that exceeds the simplified acquisition 
threshold under which unpriced contract actions (including unpriced 
modifications or unpriced delivery orders) are anticipated;
    (iv) A time-and-materials contract that exceeds the simplified 
acquisition threshold; or
    (v) A labor-hour contract that exceeds the simplified acquisition 
threshold.
    (2) If a cost-reimbursement contract is contemplated, for civilian 
agencies other than the Coast Guard and the National Aeronautics and 
Space Administration, the contracting officer shall use the clause with 
its Alternate I.
    (3) Use of this clause is not required in--
    (i) Fixed-price architect-engineer contracts; or
    (ii) Contracts for mortuary services, refuse services, or shipment 
and storage of personal property, when an

[[Page 905]]

agency-prescribed clause on approval of subcontractors' facilities is 
required.
    (b) The contracting officer may insert the clause at 52.244-4, 
Subcontractors and Outside Associates and Consultants (Architect-
Engineer Services), in architect-engineer contracts.
    (c) The contracting officer shall, when contracting by negotiation, 
insert the clause at 52.244-5, Competition in Subcontracting, in 
solicitations and contracts when the contract amount is expected to 
exceed the simplified acquisition threshold, unless--
    (1) A firm-fixed-price contract, awarded on the basis of adequate 
price competition or whose prices are set by law or regulation, is 
contemplated; or
    (2) A time-and-materials, labor-hour, or architect-engineer contract 
is contemplated.

[63 FR 34060, June 22, 1998, as amended at 64 FR 51845, Sept. 24, 1999; 
71 FR 226, Jan. 3, 2006]

          Subpart 44.3_Contractors' Purchasing Systems Reviews



Sec. 44.301  Objective.

    The objective of a contractor purchasing system review (CPSR) is to 
evaluate the efficiency and effectiveness with which the contractor 
spends Government funds and complies with Government policy when 
subcontracting. The review provides the administrative contracting 
officer (ACO) a basis for granting, withholding, or withdrawing approval 
of the contractor's purchasing system.



Sec. 44.302  Requirements.

    (a) The ACO shall determine the need for a CPSR based on, but not 
limited to, the past performance of the contractor, and the volume, 
complexity and dollar value of subcontracts. If a contractor's sales to 
the Government (excluding competitively awarded firm-fixed-price and 
competitively awarded fixed-price with economic price adjustment 
contracts and sales of commercial items pursuant to Part 12) are 
expected to exceed $25 million during the next 12 months, perform a 
review to determine if a CPSR is needed. Sales include those represented 
by prime contracts, subcontracts under Government prime contracts, and 
modifications. Generally, a CPSR is not performed for a specific 
contract. The head of the agency responsible for contract administration 
may raise or lower the $25 million review level if it is considered to 
be in the Government's best interest.
    (b) Once an initial determination has been made under paragraph (a) 
of this section, at least every three years the ACO shall determine 
whether a purchasing system review is necessary. If necessary, the 
cognizant contract administration office will conduct a purchasing 
system review.

[63 FR 70288, Dec. 18, 1998]



Sec. 44.303  Extent of review.

    A CPSR requires an evaluation of the contractor's purchasing system. 
Unless segregation of subcontracts is impracticable, this evaluation 
shall not include subcontracts awarded by the contractor exclusively in 
support of Government contracts that are competitively awarded firm-
fixed-price, competitively awarded fixed-price with economic price 
adjustment, or awarded for commercial items pursuant to part 12. The 
considerations listed in 44.202-2 for consent evaluation of particular 
subcontracts also shall be used to evaluate the contractor's purchasing 
system, including the contractor's policies, procedures, and performance 
under that system. Special attention shall be given to--
    (a) The results of market research accomplished;
    (b) The degree of price competition obtained;
    (c) Pricing policies and techniques, including methods of obtaining 
certified cost or pricing data, and data other than certified cost or 
pricing data;
    (d) Methods of evaluating subcontractor responsibility, including 
the contractor's use of the System for Award Management Exclusions (see 
9.404) and, if the contractor has subcontracts with parties on the 
Exclusions list, the documentation, systems, and procedures the 
contractor has established to protect the Government's interests (see 
9.405-2);

[[Page 906]]

    (e) Treatment accorded affiliates and other concerns having close 
working arrangements with the contractor;
    (f) Policies and procedures pertaining to small business concerns, 
including small disadvantaged, women-owned, veteran-owned, HUBZone, and 
service-disabled veteran-owned small business concerns;
    (g) Planning, award, and postaward management of major subcontract 
programs;
    (h) Compliance with Cost Accounting Standards in awarding 
subcontracts;
    (i) Appropriateness of types of contracts used (see 16.103); and
    (j) Management control systems, including internal audit procedures, 
to administer progress payments to subcontractors.

[48 FR 42388, Sept. 19, 1983, as amended at 52 FR 9039, Mar. 20, 1987; 
54 FR 19827, May 8, 1989; 60 FR 33066, June 26, 1995; 60 FR 48264, Sept. 
18, 1995; 62 FR 12719, Mar. 17, 1997; 63 FR 70288, Dec. 18, 1998; 69 FR 
76349, Dec. 20, 2004; 70 FR 14955, Mar. 23, 2005; 75 FR 34278, June 16, 
2010; 75 FR 53150, Aug. 30, 2010; 78 FR 37680, June 21, 2013]



Sec. 44.304  Surveillance.

    (a) The ACO shall maintain a sufficient level of surveillance to 
ensure that the contractor is effectively managing its purchasing 
program.
    (b) Surveillance shall be accomplished in accordance with a plan 
developed by the ACO with the assistance of subcontracting, audit, 
pricing, technical, or other specialists as necessary. The plan should 
cover pertinent phases of a contractor's purchasing system (preaward, 
postaward, performance, and contract completion) and pertinent 
operations that affect the contractor's purchasing and subcontracting. 
The plan should also provide for reviewing the effectiveness of the 
contractor's corrective actions taken as a result of previous Government 
recommendations. Duplicative reviews of the same areas by CPSR and other 
surveillance monitors should be avoided.

[48 FR 42388, Sept. 19, 1983, as amended at 59 FR 67054, Dec. 28, 1994; 
62 FR 12719, Mar. 17, 1997]



Sec. 44.305  Granting, withholding, or withdrawing approval.



Sec. 44.305-1  Responsibilities.

    The cognizant ACO is responsible for granting, withholding, or 
withdrawing approval of a contractor's purchasing system. The ACO 
shall--
    (a) Approve a purchasing system only after determining that the 
contractor's purchasing policies and practices are efficient and provide 
adequate protection of the Government's interests; and
    (b) Promptly notify the contractor in writing of the granting, 
withholding, or withdrawal of approval.

[62 FR 12719, Mar. 17, 1997]



Sec. 44.305-2  Notification.

    (a) The notification granting system approval shall include--
    (1) Identification of the plant or plants covered by the approval;
    (2) The effective date of approval; and
    (3) A statement that system approval--
    (i) Applies to all Federal Government contracts at that plant to the 
extent that cross-servicing arrangements exist;
    (ii) Waives the contractual requirement for advance notification in 
fixed-price contracts, but not for cost-reimbursement contracts;
    (iii) Waives the contractual requirement for consent to subcontracts 
in fixed-price contracts and for specified subcontracts in cost-
reimbursement contracts but not for those subcontracts, if any, selected 
for special surveillance and identified in the contract Schedule; and
    (iv) May be withdrawn at any time at the ACO's discretion.
    (b) In exceptional circumstances, consent to certain subcontracts or 
classes of subcontracts may be required even though the contractor's 
purchasing system has been approved. The system approval notification 
shall identify the class or classes of subcontracts requiring consent. 
Reasons for selecting the subcontracts include the fact that a CPSR or 
continuing surveillance has revealed sufficient weaknesses in a 
particular area of subcontracting to warrant special attention by the 
ACO.

[[Page 907]]

    (c) When recommendations are made for improvement of an approved 
system, the contractor shall be requested to reply within 15 days with a 
position regarding the recommendations.

[48 FR 42388, Sept. 19, 1983, as amended at 62 FR 12719, Mar. 17, 1997]



Sec. 44.305-3  Withholding or withdrawing approval.

    (a) The ACO shall withhold or withdraw approval of a contractor's 
purchasing system when there are major weaknesses or when the contractor 
is unable to provide sufficient information upon which to make an 
affirmative determination. The ACO may withdraw approval at any time on 
the basis of a determination that there has been a deterioration of the 
contractor's purchasing system or to protect the Government's interest. 
Approval shall be withheld or withdrawn when there is a recurring 
noncompliance with requirements, including but not limited to--
    (1) Certified cost or pricing data (see 15.403);
    (2) Implementation of cost accounting standards (see 48 CFR chapter 
99 (Appendix B, FAR loose-leaf edition);
    (3) Advance notification as required by the clauses prescribed in 
44.204; or
    (4) Small business subcontracting (see subpart 19.7).
    (b) When approval of the contractor's purchasing system is withheld 
or withdrawn, the ACO shall within 10 days after completing the in-plant 
review (1) inform the contractor in writing, (2) specify the 
deficiencies that must be corrected to qualify the system for approval, 
and (3) request the contractor to furnish within 15 days a plan for 
accomplishing the necessary actions. If the plan is accepted, the ACO 
shall make a follow-up review as soon as the contractor notifies the ACO 
that the deficiencies have been corrected.

[48 FR 42388, Sept. 19, 1983, as amended at 59 FR 67043, Dec. 28, 1994; 
62 FR 51271, Sept. 30, 1997; 75 FR 53150, Aug. 30, 2010]



Sec. 44.306  Disclosure of approval status.

    Upon request, the ACO may inform a contractor that the purchasing 
system of a proposed subcontractor has been approved or disapproved, but 
shall caution that the Government will not keep the contractor advised 
of any changes in the approval status. If the proposed subcontractor's 
purchasing system has not been reviewed, the contractor shall be so 
advised.

[62 FR 12719, Mar. 17, 1997]



Sec. 44.307  Reports.

    The ACO shall distribute copies of CPSR reports; notifications 
granting, withholding, or withdrawing system approval; and Government 
recommendations for improvement of an approved system, including the 
contractor's response, to at least--
    (a) The cognizant contract audit office;
    (b) Activities prescribed by the cognizant agency; and
    (c) The contractor (except that furnishing copies of the 
contractor's response is optional).

[62 FR 12719, Mar. 17, 1997]

Subpart 44.4_Subcontracts for Commercial Items and Commercial Components

    Source: 60 FR 48249, Sept. 18, 1995, unless otherwise noted.



Sec. 44.400  Scope of subpart.

    This subpart prescribes the policies limiting the contract clauses a 
contractor may be required to apply to any subcontractors that are 
furnishing commercial items or commercial components in accordance with 
section 8002(b)(2) of Public Law 103-355.

[76 FR 14565, Mar. 16, 2011]



Sec. 44.401  Applicability.

    This subpart applies to all contracts and subcontracts. For the 
purpose of this subpart, the term ``subcontract'' has the same meaning 
as defined in part 12.



Sec. 44.402  Policy requirements.

    (a) Contractors and subcontractors at all tiers shall, to the 
maximum extent practicable:
    (1) Be required to incorporate commercial items or nondevelopmental 
items as components of items delivered to the Government; and

[[Page 908]]

    (2) Not be required to apply to any of its divisions, subsidiaries, 
affiliates, subcontractors or suppliers that are furnishing commercial 
items or commercial components any clause, except those--
    (i) Required to implement provisions of law or executive orders 
applicable to subcontractors furnishing commercial items or commercial 
components; or
    (ii) Determined to be consistent with customary commercial practice 
for the item being acquired.
    (b) The clause at 52.244-6, Subcontracts for Commercial Items and 
Commercial Components, implements the policy in paragraph (a) of this 
section. Notwithstanding any other clause in the prime contract, only 
those clauses identified in the clause at 52.244-6 are required to be in 
subcontracts for commercial items or commercial components.
    (c) Agencies may supplement the clause at 52.244-6 only as necessary 
to reflect agency unique statutes applicable to the acquisition of 
commercial items.

[60 FR 48249, Sept. 18, 1995, as amended at 75 FR 32479, June 16, 2010; 
76 FR 14565, Mar. 16, 2011]



Sec. 44.403  Contract clause.

    The contracting officer shall insert the clause at 52.244-6, 
Subcontracts for Commercial Items, in solicitations and contracts other 
than those for commercial items.

[76 FR 14565, Mar. 16, 2011]

                       PART 45_GOVERNMENT PROPERTY

Sec.

Sec. 45.000 Scope of part.

                          Subpart 45.1_General


Sec. 45.101 Definitions.

Sec. 45.102 Policy.

Sec. 45.103 General.

Sec. 45.104 Responsibility and liability for Government property.

Sec. 45.105 Contractors' property management system compliance.

Sec. 45.106 Transferring accountability.

Sec. 45.107 Contract clauses.

           Subpart 45.2_Solicitation and Evaluation Procedures


Sec. 45.201 Solicitation.

Sec. 45.202 Evaluation procedures.

   Subpart 45.3_Authorizing the Use and Rental of Government Property


Sec. 45.301 Use and rental.

Sec. 45.302 Contracts with foreign governments or international 
          organizations.

Sec. 45.303 Use of Government property on independent research and 
          development programs.

                Subpart 45.4_Title to Government Property


Sec. 45.401 Title to Government-furnished property.

Sec. 45.402 Title to contractor-acquired property.

         Subpart 45.5_Support Government Property Administration


Sec. 45.501 Prime contractor alternate locations.

Sec. 45.502 Subcontractor and alternate prime contractor locations.

Sec. 45.503 Support property administrator findings.

           Subpart 45.6_Reporting, Reutilization, and Disposal


Sec. 45.600 Scope of subpart.

Sec. 45.601 [Reserved]

Sec. 45.602 Reutilization of Government property.

Sec. 45.602-1 Inventory disposal schedules.

Sec. 45.602-2 Reutilization priorities.

Sec. 45.602-3 Screening.

Sec. 45.602-4 Interagency property transfer costs.

Sec. 45.603 Abandonment or destruction of personal property.

Sec. 45.604 Sale of surplus personal property.

Sec. 45.604-1 Sales procedures.

Sec. 45.604-2 Use of GSA sponsored sales centers.

Sec. 45.604-3 Proceeds from sales of surplus property.

Sec. 45.604-4 Sale of property pursuant to the exchange/sale authority.

Sec. 45.605 Inventory disposal reports.

Sec. 45.606 Contractor scrap procedures.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 
2473(c).

    Source: 48 FR 42392, Sept. 19, 1983, unless otherwise noted.



Sec. 45.000  Scope of part.

    (a) This part prescribes policies and procedures for providing 
Government property to contractors; contractors' management and use of 
Government property; and reporting, redistributing, and disposing of 
contractor inventory.
    (b) It does not apply to--

[[Page 909]]

    (1) Government property provided under any statutory leasing 
authority, except as to non-Government use of property under 45.301(f);
    (2) Property to which the Government has acquired a lien or title 
solely because of partial, advance, progress, or performance based 
payments;
    (3) Disposal of real property;
    (4) Software and intellectual property; or
    (5) Government property that is incidental to the place of 
performance, when the contract requires contractor personnel to be 
located on a Government site or installation, and when the property used 
by the contractor within the location remains accountable to the 
Government. Items considered to be incidental to the place of 
performance include, for example, office space, desks, chairs, 
telephones, computers, and fax machines.

[77 FR 12941, Mar. 2, 2012]

                          Subpart 45.1_General

    Source: 72 FR 27385, May 15, 2007, unless otherwise noted.



Sec. 45.101  Definitions.

    As used in this part--
    Cannibalize means to remove parts from Government property for use 
or for installation on other Government property.
    Contractor-acquired property means property acquired, fabricated, or 
otherwise provided by the contractor for performing a contract and to 
which the Government has title.
    Contractor inventory means--
    (1) Any property acquired by and in the possession of a contractor 
or subcontractor under a contract for which title is vested in the 
Government and which exceeds the amounts needed to complete full 
performance under the entire contract;
    (2) Any property that the Government is obligated or has the option 
to take over under any type of contract, e.g., as a result either of any 
changes in the specifications or plans thereunder or of the termination 
of the contract (or subcontract thereunder), before completion of the 
work, for the convenience or at the option of the Government; and
    (3) Government-furnished property that exceeds the amounts needed to 
complete full performance under the entire contract.
    Contractor's managerial personnel means the contractor's directors, 
officers, managers, superintendents, or equivalent representatives who 
have supervision or direction of--
    (1) All or substantially all of the contractor's business;
    (2) All or substantially all of the contractor's operation at any 
one plant or separate location; or
    (3) A separate and complete major industrial operation.
    Demilitarization means rendering a product unusable for, and not 
restorable to, the purpose for which it was designed or is customarily 
used.
    Discrepancies incident to shipment means any differences (e.g., 
count or condition) between the items documented to have been shipped 
and items actually received.
    Equipment means a tangible item that is functionally complete for 
its intended purpose, durable, nonexpendable, and needed for the 
performance of a contract. Equipment is not intended for sale, and does 
not ordinarily lose its identity or become a component part of another 
article when put into use. Equipment does not include material, real 
property, special test equipment or special tooling.
    Government-furnished property means property in the possession of, 
or directly acquired by, the Government and subsequently furnished to 
the contractor for performance of a contract. Government-furnished 
property includes, but is not limited to, spares and property furnished 
for repair, maintenance, overhaul, or modification. Government-furnished 
property also includes contractor-acquired property if the contractor-
acquired property is a deliverable under a cost contract when accepted 
by the Government for continued use under the contract.
    Government property means all property owned or leased by the 
Government. Government property includes both Government-furnished 
property and contractor-acquired property. Government property includes 
material,

[[Page 910]]

equipment, special tooling, special test equipment, and real property. 
Government property does not include intellectual property and software.
    Loss of Government property means unintended, unforeseen or 
accidental loss, damage, or destruction of Government property that 
reduces the Government's expected economic benefits of the property. 
Loss of Government property does not include occurrences such as 
purposeful destructive testing, obsolescence, normal wear and tear, or 
manufacturing defects. Loss of Government property includes, but is not 
limited to--
    (1) Items that cannot be found after a reasonable search;
    (2) Theft;
    (3) Damage resulting in unexpected harm to property requiring repair 
to restore the item to usable condition; or
    (4) Destruction resulting from incidents that render the item 
useless for its intended purpose or beyond economical repair.
    Material means property that may be consumed or expended during the 
performance of a contract, component parts of a higher assembly, or 
items that lose their individual identity through incorporation into an 
end-item. Material does not include equipment, special tooling, special 
test equipment or real property.
    Nonseverable means property that cannot be removed after 
construction or installation without substantial loss of value or damage 
to the installed property or to the premises where installed.
    Precious metals means silver, gold, platinum, palladium, iridium, 
osmium, rhodium, and ruthenium.
    Production scrap means unusable material resulting from production, 
engineering, operations and maintenance, repair, and research and 
development contract activities. Production scrap may have value when 
re-melted or reprocessed, e.g., textile and metal clippings, borings, 
and faulty castings and forgings.
    Property means all tangible property, both real and personal.
    Property Administrator means an authorized representative of the 
contracting officer appointed in accordance with agency procedures, 
responsible for administering the contract requirements and obligations 
relating to Government property in the possession of a contractor.
    Property records means the records created and maintained by the 
contractor in support of its stewardship responsibilities for the 
management of Government property.
    Provide means to furnish, as in Government-furnished property, or to 
acquire, as in contractor-acquired property.
    Real property. See Federal Management Regulation 102-71.20 (41 CFR 
102-71.20).
    Sensitive property means property potentially dangerous to the 
public safety or security if stolen, lost, or misplaced, or that shall 
be subject to exceptional physical security, protection, control, and 
accountability. Examples include weapons, ammunition, explosives, 
controlled substances, radioactive materials, hazardous materials or 
wastes, or precious metals.
    Unit acquisition cost means--
    (1) For Government-furnished property, the dollar value assigned by 
the Government and identified in the contract; and
    (2) For contractor-acquired property, the cost derived from the 
contractor's records that reflect consistently applied generally 
accepted accounting principles.

[72 FR 27385, May 15, 2007, as amended at 75 FR 38680, July 2, 2010; 77 
FR 12942, Mar. 2, 2012]



Sec. 45.102  Policy.

    (a) Contractors are ordinarily required to furnish all property 
necessary to perform Government contracts.
    (b) Contracting officers shall provide property to contractors only 
when it is clearly demonstrated--
    (1) To be in the Government's best interest;
    (2) That the overall benefit to the acquisition significantly 
outweighs the increased cost of administration, including ultimate 
property disposal;
    (3) That providing the property does not substantially increase the 
Government's assumption of risk; and
    (4) That Government requirements cannot otherwise be met.

[[Page 911]]

    (c) The contractor's inability or unwillingness to supply its own 
resources is not sufficient reason for the furnishing or acquisition of 
property.
    (d) Exception. Property provided under contracts for repair, 
maintenance, overhaul, or modification is not subject to the 
requirements of paragraph (b) of this section.
    (e) Government property, other than foundations and similar 
improvements necessary for installing special tooling, special test 
equipment, or equipment, shall not be installed or constructed on 
contractor-owned real property in such fashion as to become 
nonseverable, unless the head of the contracting activity determines 
that such installation or construction is necessary and in the 
Government's interest.

[72 FR 27385, May 15, 2007, as amended at 75 FR 38680, July 2, 2010; 77 
FR 12942, Mar. 2, 2012]



Sec. 45.103  General.

    (a) Agencies shall--
    (1) Allow and encourage contractors to use voluntary consensus 
standards (see FAR 11.101(b)) and industry-leading practices and 
standards to manage Government property in their possession;
    (2) Eliminate to the maximum practical extent any competitive 
advantage a prospective contractor may have by using Government 
property;
    (3) Ensure maximum practical reutilization of contractor inventory 
for government purposes;
    (4) Require contractors to use Government property already in their 
possession to the maximum extent practical in performing Government 
contracts;
    (5) Charge appropriate rentals when the property is authorized for 
use on other than a rent-free basis; and
    (6) Require contractors to justify retaining Government property not 
needed for contract performance and to declare property as excess when 
no longer needed for contract performance.
    (b) Agencies will not generally require contractors to establish 
property management systems that are separate from a contractor's 
established procedures, practices, and systems used to account for and 
manage contractor-owned property.

[72 FR 27385, May 15, 2007, as amended at 72 FR 63045, Nov. 7, 2007]



Sec. 45.104  Responsibility and liability for Government property.

    (a) Generally, contractors are not held liable for loss of 
Government property under the following types of contracts:
    (1) Cost-reimbursement contracts.
    (2) Time-and-material contracts.
    (3) Labor-hour contracts.
    (4) Fixed-price contracts awarded on the basis of submission of 
certified cost or pricing data.
    (b) The contracting officer may revoke the Government's assumption 
of risk when the property administrator determines that the contractor's 
property management practices are noncompliant with contract 
requirements.
    (c) A prime contractor that provides Government property to a 
subcontractor shall not be relieved of any responsibility to the 
Government that the prime contractor may have under the terms of the 
prime contract.
    (d) With respect to loss of Government property, the contracting 
officer, in consultation with the property administrator, shall 
determine--
    (1) The extent, if any, of contractor liability based upon the 
amount of damages corresponding to the associated property loss; and
    (2) The appropriate form and method of Government recovery (may 
include repair, replacement, or other restitution).
    (e) Any monies received as financial restitution shall be credited 
to the Treasury of the United States as miscellaneous receipts, unless 
otherwise authorized by statute (31 U.S.C. 3302(b)).

[72 FR 27385, May 15, 2007, as amended at 75 FR 38680, July 2, 2010; 75 
FR 53150, Aug. 30, 2010; 77 FR 12942, Mar. 2, 2012]



Sec. 45.105  Contractors' property management system compliance.

    (a) The agency responsible for contract administration shall conduct 
an analysis of the contractor's property management policies, 
procedures, practices, and systems. This analysis shall

[[Page 912]]

be accomplished as frequently as conditions warrant, in accordance with 
agency procedures.
    (b) The property administrator shall notify the contractor in 
writing when the contractor's property management system does not comply 
with contractual requirements, shall request prompt correction of 
deficiencies, and shall request from the contractor a corrective action 
plan, including a schedule for correction of the deficiencies. If the 
contractor does not correct the deficiencies in accordance with the 
schedule, the contracting officer shall notify the contractor, in 
writing, that failure to take the required corrective action(s) may 
result in--
    (1) Revocation of the Government's assumption of risk for loss of 
Government property; and/or
    (2) The exercise of other rights or remedies available to the 
contracting officer.
    (c) If the contractor fails to take the required corrective 
action(s) in response to the notification provided by the contracting 
officer in accordance with paragraph (b) of this section, the 
contracting officer shall notify the contractor in writing of any 
Government decision to apply the remedies described in paragraphs (b)(1) 
and (b)(2) of this section.
    (d) When the property administrator determines that a reported case 
of loss of Government property is a risk assumed by the Government, the 
property administrator shall notify the contractor in writing that it is 
granted relief of stewardship responsibility and liability in accordance 
with 52.245-1(f)(1)(vii). Where the property administrator determines 
that the risk of loss of Government property is not assumed by the 
Government, the property administrator shall request that the 
contracting officer hold the contractor responsible and liable.

[72 FR 27385, May 15, 2007, as amended at 75 FR 38680, July 2, 2010; 77 
FR 12942, Mar. 2, 2012]



Sec. 45.106  Transferring accountability.

    Government property shall be transferred from one contract to 
another only when firm requirements exist under the gaining contract 
(see 45.102). Such transfers shall be documented by modifications to 
both gaining and losing contracts. Once transferred, all property shall 
be considered Government-furnished property to the gaining contract. The 
warranties of suitability of use and timely delivery of Government-
furnished property do not apply to property acquired or fabricated by 
the contractor as contractor-acquired property that is subsequently 
transferred to another contract with the same contractor.



Sec. 45.107  Contract clauses.

    (a)(1) Except as provided in paragraph (d) of this section, the 
contracting officer shall insert the clause at 52.245-1, Government 
Property, in--
    (i) All cost-reimbursement and time-and-material type solicitations 
and contracts, and labor-hour solicitations when property is expected to 
be furnished for the labor-hour contracts.
    (ii) Fixed-price solicitations and contracts when the Government 
will provide Government property.
    (iii) Contracts or modifications awarded under FAR Part 12 
procedures where Government property that exceeds the simplified 
acquisition threshold, as defined in FAR 2.101, is furnished or where 
the contractor is directed to acquire property for use under the 
contract that is titled in the Government.
    (2) The contracting officer shall use the clause with its Alternate 
I in contracts other than those identified in FAR 45.104(a), 
Responsibility and Liability for Government Property.
    (3) The contracting officer shall use the clause with its Alternate 
II when a contract for the conduct of basic or applied research at 
nonprofit institutions of higher education or at nonprofit organizations 
whose primary purpose is the conduct of scientific research (see 35.014) 
is contemplated.
    (b) The contracting officer shall also insert the clause at 52.245-
2, Government Property (Installation Operation Services), in fixed-price 
service contracts to be performed on a Government installation when 
Government-furnished property will be provided for initial provisioning 
only and the Government is not responsible for repair or replacement.

[[Page 913]]

    (c) The contracting officer shall insert the clause at 52.245-9, Use 
and Charges, in solicitations and contracts when the clause at 52.245-1 
is included.
    (d) Purchase orders for property repair need not include a 
Government property clause when the unit acquisition cost of Government 
property to be repaired does not exceed the simplified acquisition 
threshold, unless other Government property (not for repair) is 
provided.

[72 FR 27385, May 15, 2007, as amended at 77 FR 12942, Mar. 2, 2012]

           Subpart 45.2_Solicitation and Evaluation Procedures

    Source: 72 FR 27385, May 15, 2007, unless otherwise noted.



Sec. 45.201  Solicitation.

    (a) The contracting officer shall insert a listing of the Government 
property to be offered in all solicitations where Government-furnished 
property is anticipated (see 45.102). The listing shall include at a 
minimum--
    (1) The name, part number and description, manufacturer, model 
number, and National Stock Number (if needed for additional item 
identification tracking and management, and disposition);
    (2) Quantity/unit of measure;
    (3) Unit acquisition cost;
    (4) Unique-item identifier or equivalent (if available and necessary 
for individual item tracking and management); and
    (5) A statement as to whether the property is to be furnished in an 
``as-is'' condition and instructions for physical inspection.
    (b) When Government property is offered for use in a competitive 
acquisition, solicitations should specify that the contractor is 
responsible for all costs related to making the property available for 
use, such as payment of all transportation, installation or 
rehabilitation costs.
    (c) The solicitation shall describe the evaluation procedures to be 
followed, including rental charges or equivalents and other costs or 
savings to be evaluated, and shall require all offerors to submit the 
following information with their offers--
    (1) A list or description of all Government property that the 
offeror or its subcontractors propose to use on a rent-free basis. The 
list shall identify the accountable contract under which the property is 
held and the authorization for its use (from the contracting officer 
having cognizance of the property);
    (2) The dates during which the property will be available for use 
(including the first, last, and all intervening months) and, for any 
property that will be used concurrently in performing two or more 
contracts, the amounts of the respective uses in sufficient detail to 
support prorating the rent;
    (3) The amount of rent that would otherwise be charged in accordance 
with FAR 52.245-9, Use and Charges; and
    (4) A description of the offeror's property management system, plan, 
and any customary commercial practices, voluntary consensus standards, 
or industry-leading practices and standards to be used by the offeror in 
managing Government property.
    (d) Any additional instructions to the contractor regarding property 
management, accountability, and use, not addressed in FAR clause 52.245-
1, Government Property, should be specifically addressed in the 
statement of work on the contract providing property or in a special 
provision.

[72 FR 27385, May 15, 2007, as amended at 75 FR 38680, July 2, 2010; 77 
FR 12942, Mar. 2, 2012]



Sec. 45.202  Evaluation procedures.

    (a) The contracting officer shall consider any potentially unfair 
competitive advantage that may result from an offeror or contractor 
possessing Government property. This shall be done by adjusting the 
offers by applying, for evaluation purposes only, a rental equivalent 
evaluation factor as specified in FAR 52.245-9.
    (b) The contracting officer shall ensure the offeror's property 
management plans, methods, practices, or procedures for accounting for 
property are

[[Page 914]]

consistent with the requirements of the solicitation.

[72 FR 27385, May 15, 2007, as amended at 77 FR 12943, Mar. 2, 2012]

   Subpart 45.3_Authorizing the Use and Rental of Government Property

    Source: 72 FR 27385, May 15, 2007, unless otherwise noted.



Sec. 45.301  Use and rental.

    This subpart prescribes policies and procedures for contractor use 
and rental of Government property.
    (a) Government property shall normally be provided on a rent-free 
basis in performance of the contract under which it is accountable or 
otherwise authorized.
    (b) Rental charges, to the extent authorized do not apply to 
Government property that is left in place or installed on contractor-
owned property for mobilization or future Government production 
purposes; however, rental charges shall apply to that portion of 
property or its capacity used for non-government commercial purposes or 
otherwise authorized for use.
    (c) The contracting officer cognizant of the Government property may 
authorize the rent-free use of property in the possession of nonprofit 
organizations when used for research, development, or educational work 
and--
    (1) The use of the property is in the national interest;
    (2) The property will not be used for the direct benefit of a 
profit-making organization; and
    (3) The Government receives some direct benefit, such as rights to 
use the results of the work without charge, from its use.
    (d) In exchange for consideration as determined by the cognizant 
contracting officer(s), the contractor may use Government property under 
fixed-price contracts other than the contract to which it is 
accountable. When, after contract award, a contractor requests the use 
of Government property, the contracting officer shall obtain a fair 
rental or other adequate consideration if use is authorized.
    (e) The cognizant contracting officer(s) may authorize the use of 
Government property on a rent-free basis on a cost type Government 
contract other than the contract to which it is accountable.
    (f) In exchange for consideration as determined by the cognizant 
contracting officer, the contractor may use Government property for 
commercial use. Prior approval of the Head of the Contracting Activity 
is required where non-Government use is expected to exceed 25 percent of 
the total use of Government and commercial work performed.



Sec. 45.302  Contracts with foreign governments or international 
          organizations.

    Requests by, or for the benefit of, foreign Governments or 
international organizations to use Government property shall be 
processed in accordance with agency procedures.



Sec. 45.303  Use of Government property on independent research and 
          development programs.

    The contracting officer may authorize a contractor to use the 
property on an independent research and development (IR&D) program, if--
    (a) Such use will not conflict with the primary use of the property 
or enable the contractor to retain property that could otherwise be 
released;
    (b) The contractor agrees not to claim reimbursement against any 
Government contract for the rental value of the property; and
    (c) A rental charge for the portion of the contractor's IR&D program 
cost allocated to commercial work is deducted from the claim for 
reimbursement of any agreed-upon Government share of the contractor's 
IR&D costs.

                Subpart 45.4_Title to Government Property

    Source: 72 FR 27385, May 15, 2007, unless otherwise noted.



Sec. 45.401  Title to Government-furnished property.

    The Government retains title to all Government-furnished property 
until properly disposed of, as authorized by

[[Page 915]]

law or regulation. Property that is leased by the Government and 
subsequently furnished to the contractor for use shall be considered 
Government-furnished property under the clause 52.245-1, Government 
Property.



Sec. 45.402  Title to contractor-acquired property.

    (a) Title vests in the Government for all property acquired or 
fabricated by the contractor in accordance with the financing provisions 
or other specific requirements for passage of title in the contract. 
Under fixed-price type contracts, in the absence of financing provisions 
or other specific requirements for passage of title in the contract, the 
contractor retains title to all property acquired by the contractor for 
use on the contract, except for property identified as a deliverable end 
item. If a deliverable item is to be retained by the contractor for use 
after inspection and acceptance by the Government, it shall be made 
accountable to the contract through a contract modification listing the 
item as Government-furnished property.
    (b) Under cost type and time-and-material contracts, the Government 
acquires title to all property to which the contractor is entitled to 
reimbursement, in accordance with paragraph (e)(3) of clause 52.245-1.

[72 FR 27385, May 15, 2007, as amended at 75 FR 38680, July 2, 2010]

         Subpart 45.5_Support Government Property Administration

    Source: 72 FR 27385, May 15, 2007, unless otherwise noted.



Sec. 45.501  Prime contractor alternate locations.

    The property administrator assigned to the prime contract may 
request support property administration from another contract 
administration office, for purposes of evaluating prime contractor 
management of property located at subcontractors and alternate 
locations.



Sec. 45.502  Subcontractor and alternate prime contractor locations.

    (a) To ensure subcontractor compliance with Government property 
administration requirements, and with prime contractor consent, the 
property administrator assigned to the prime contract may request 
support property administration from another contract administration 
office. If the prime contractor does not provide consent to support 
property administration at subcontractor locations, the property 
administrator shall refer the matter to the contracting officer for 
resolution.
    (b) The prime property administrator shall accept the findings of 
the delegated support property administrator and advise the prime 
contractor of the results of property management reviews, including 
deficiencies found with the subcontractor's property management system.
    (c) Prime contractor consent is not required for support delegations 
involving prime contractor alternate locations.

[75 FR 38680, July 2, 2010]



Sec. 45.503  Support property administrator findings.

    In instances where the prime contractor does not concur with the 
findings of the support Property Administrator, the prime property 
administrator shall immediately refer the matter to the contracting 
officer.

           Subpart 45.6_Reporting, Reutilization, and Disposal

    Source: 69 FR 17745, Apr. 4, 2004, unless otherwise noted.



Sec. 45.600  Scope of subpart.

    This subpart establishes policies and procedures for the reporting, 
reutilization, and disposal of contractor inventory excess to contracts 
and of property that forms the basis of a claim against the Government 
(e.g., termination inventory under fixed-price contracts). This subpart 
does not apply to the disposal of real property or to property for which 
the Government has a

[[Page 916]]

lien or title solely as a result of advance, progress, or performance-
based payments that have been liquidated.

[72 FR 27389, May 15, 2007]



Sec. 45.601  [Reserved]



Sec. 45.602  Reutilization of Government property.

    This section is applicable to the reutilization, including transfer 
and donation, of Government property that is not required for continued 
performance of a Government contract. Except for 45.602-1, this section 
does not apply to scrap other than scrap aircraft parts.



Sec. 45.602-1  Inventory disposal schedules.

    (a) Plant clearance officers should review and accept, or return for 
correction, inventory disposal schedules within 10 days following 
receipt from a contractor. Schedules that are completed in accordance 
with the instructions for Standard Form 1428 should be accepted.
    (b) Plant clearance officers shall--
    (1) Use Standard Form 1423 to verify, in accordance with agency 
procedures, accepted schedules within 20 days following acceptance;
    (2) Require the contractor to correct any discrepancies found during 
verification;
    (3) Require the contractor to correct any failure to complete 
predisposal requirements of the contract; and
    (4) Provide the contractor disposition instructions for property 
identified on an acceptable inventory disposal schedule within 120 days. 
A failure to provide timely disposition instructions may entitle the 
contractor to an equitable adjustment.
    (c) The contractor may request the plant clearance officer's 
approval to remove the Government property from an inventory schedule.
    (1) Plant clearance officers should approve removal of Government 
property from an inventory schedule when--
    (i) The contractor wishes to purchase a contractor-acquired or 
contractor-produced item at unit acquisition cost and credit the 
contract;
    (ii) The contractor is able to return unused property to the 
supplier at fair market value and credit the contract (less, if 
applicable, a reasonable restocking fee that is consistent with the 
supplier's customary practices);
    (iii) The Government has authorized the contractor to use the 
property on another Government contract; or
    (iv) The contractor has requested continued use of the Government 
property, and the contracting officer has authorized its retention and 
further use.
    (2) If the screening process (see 45.602-3) has not begun, the plant 
clearance officer shall adjust the schedule or return the schedule to 
the contractor for correction. If screening has begun, the plant 
clearance officer shall promptly notify the activity performing the 
screening that the items should be removed from the screening process.

[69 FR 17745, Apr. 4, 2004, as amended at 77 FR 12943, Mar. 2, 2012]



Sec. 45.602-2  Reutilization priorities.

    Plant clearance officers shall initiate reutilization actions for 
all property not meeting the abandonment or destruction criteria of 
45.603(b). Authorized methods, listed in descending order from highest 
to lowest priority, are--
    (a) Reuse within the owning agency;
    (b) Transfer of educationally useful equipment to schools and 
nonprofit organizations (see Executive Order 12999, Educational 
Technology: Ensuring Opportunity For All Children In The Next Century, 
April 17, 1996, and 15 U.S.C. 3710(i));
    (c) Report to GSA for reuse within the Federal Government or 
donation as surplus property;
    (d) Dispose of the following property in accordance with agency 
procedures without reporting to GSA:
    (1) Property determined appropriate for abandonment or destruction 
(see Federal Management Regulation (FMR) 102-36.305, 41 CFR 102-36.305).
    (2) Property furnished to nonappropriated fund activities (see FMR 
102-36.165, 41 CFR 102-36.165).
    (3) Foreign excess personal property (see FMR 102-36.380, 41 CFR 
102-36.380).
    (4) Scrap, except aircraft in scrap condition.
    (5) Perishables, defined for the purposes of this section as any 
personal property subject to spoilage or decay.
    (6) Trading stamps and bonus goods.

[[Page 917]]

    (7) Hazardous waste or toxic and hazardous materials.
    (8) Controlled substances.
    (9) Property dangerous to public health and safety.
    (10) Classified items or property determined to be sensitive for 
reasons of national security; and
    (e) Dispose of nuclear materials (see 45.603-3(b)(5)) in accordance 
with the Nuclear Regulatory Commission, applicable state licenses, 
applicable Federal regulations, and agency regulations.

[77 FR 12943, Mar. 2, 2012]



Sec. 45.602-3  Screening.

    The screening period begins upon the plant clearance officer's 
acceptance of an inventory disposal schedule. The plant clearance 
officer shall determine whether standard or special screening is 
appropriate and initiate screening actions.
    (a) Standard screening. The standard screening period is 46 days.
    (1) First through twentieth day--Screening by the contracting 
agency. The contracting agency has 20 days to screen property reported 
on the inventory disposal schedule for: Other use within the agency; 
transfer of educationally useful equipment to other Federal agencies 
that have expressed a need for the property; and transfer of 
educationally useful equipment to schools and nonprofit organizations if 
a Federal agency has not expressed a need for the property. Excess 
personal property, meeting the conditions of 45.603, may be abandoned, 
destroyed, or donated to public bodies. No later than the 21st day, the 
plant clearance officer shall submit four copies of the revised 
schedules and Standard Form (SF) 120, Report of Excess Personal 
Property, or an electronic equivalent to GSA (see 41 CFR 102-36.215).
    (2) Twenty-first through forty-sixth day (21 days concurrent 
screening plus 5 days donation processing)--(i) Screening by other 
Federal agencies. GSA will normally honor requests for transfers of 
property on a first-come-first-served basis through the 41st day. When a 
request is honored, the GSA regional office shall promptly transmit to 
the plant clearance officer an approved transfer order that includes 
shipping instructions.
    (ii) Screening for possible donation. Screening for donation is also 
completed during days 21 through 41. Property is not available for 
allocation to donees until after the completion of screening. Days 42 
through 46 are reserved for GSA to make such allocation.
    (3) Screening period transfer request. If an agency receives an 
intra-agency transfer request during the screening periods described in 
paragraph (a)(2) of this subsection, the plant clearance officer shall 
request GSA approval to withdraw the item from the inventory disposal 
schedule.
    (b) Special screening requirements--(1) Special tooling and special 
test equipment without commercial components. Agencies shall follow the 
procedures in paragraph (a) of this subsection. This property owned by 
the Department of Defense (DoD) or the National Aeronautics and Space 
Administration (NASA) may be screened for reutilization only within 
these agencies.
    (2) Special test equipment with commercial components. (i) Agencies 
shall complete the screening required by paragraph (a) of this 
subsection. If an agency has no further need for the property and the 
contractor has not expressed an interest in using or acquiring the 
property by annotating the inventory disposal schedule, the plant 
clearance officer shall forward the inventory disposal schedule to the 
GSA regional office that serves the region in which the property is 
located.
    (ii) If the contractor has expressed an interest in using the 
property on another Government contract, the plant clearance officer 
shall contact the contracting officer for that contract. If the 
contracting officer concurs with the proposed use, the contracting 
officer for the contract under which the property is accountable shall 
transfer the property's accountability to that contract. If the 
contracting officer does not concur with the proposed use, the plant 
clearance officer shall deny the contractor's request and shall continue 
the screening process.
    (iii) If the property is contractor-acquired or -produced, and the 
contractor or subcontractor has expressed an interest in acquiring the 
property, and no other party expresses an interest

[[Page 918]]

during agency or GSA screening, the property may be sold to the 
contractor or subcontractor at acquisition cost.
    (3) Printing equipment. Agencies shall report all excess printing 
equipment to the Public Printer, Government Printing Office, 732 North 
Capitol Street, NW., Washington, DC 20401, after screening within the 
agency (see 44 U.S.C. 312). If the Public Printer does not express a 
need for the equipment within 21 days, the agency shall submit the 
report to GSA for further use and donation screening as described in 
paragraph (a) of this subsection.
    (4) Non-nuclear hazardous materials, hazardous wastes, and 
classified items. These items shall be screened in accordance with 
agency procedures. Report non-nuclear hazardous materials to GSA if the 
agency has no requirement for them.
    (5) Nuclear materials. The possession, use, and transfer of certain 
nuclear materials are subject to the regulatory controls of the Nuclear 
Regulatory Commission (NRC). Contracting activities shall screen excess 
nuclear materials in the following categories:
    (i) By-product material. Any radioactive material (except special 
nuclear material) yielded in or made radioactive by exposure to the 
radiation incident to producing or using special nuclear material.
    (ii) Source material. Uranium or thorium, or any combination 
thereof, in any physical or chemical form; or ores that contain by 
weight one-twentieth of 1 percent (0.05 percent) or more of uranium, 
thorium, or any combination thereof. Source material does not include 
special nuclear material.
    (iii) Special nuclear material. Plutonium, Uranium 233, Uranium 
enriched in the isotope 233 or in the isotope 235, any other material 
that the NRC determines to be special nuclear material (but not 
including source material); or any material artificially enriched by any 
nuclear material.

[69 FR 17745, Apr. 4, 2004, as amended at 75 FR 38681, July 2, 2010]



Sec. 45.602-4  Interagency property transfer costs.

    Agencies whose property is transferred to other agencies shall not 
be reimbursed for the property in any manner unless the circumstances of 
FMR 102-36.285 (41 CFR 102-36.285) apply. The agency receiving the 
property shall pay any transportation costs that are not the 
contractor's responsibility and any costs to pack, crate, or otherwise 
prepare the property for shipment. The contract administration office 
shall process appropriate contract modifications. To accelerate plant 
clearance, the receiving agency shall promptly furnish funding data, and 
transfer or shipping documents to the contract administration office.



Sec. 45.603  Abandonment or destruction of personal property.

    (a) When contractor inventory is processed through the reutilization 
screening process prescribed in 45.602-2 without success, and provided 
the property has no commercial value, does not require demilitarization, 
and does not constitute a danger to public health or welfare, plant 
clearance officers or other authorized officials may without further 
approval--
    (1) Direct the contractor to destroy the property;
    (2) Abandon non-sensitive property at the contractor's or 
subcontractor's premises; or
    (3) Abandon sensitive property at the contractor's or 
subcontractor's premises, with contractor consent.
    (b) Provided a Government reviewing official at least one level 
higher than the plant clearance officer or other agency authorized 
official approves, plant clearance officers or other agency authorized 
officials may authorize the abandonment, or order the destruction of 
other contractor inventory at the contractor's or subcontractor's 
premises, in accordance with FMR 102-36.305 through 325 (41 CFR 102-
36.305-325) and consistent with the following:
    (1) The property is not considered sensitive, does not require 
demilitarization, has no commercial value or reutilization, transfer or 
donation potential, and does not constitute a danger to public health or 
welfare.
    (2) The estimated cost of continued care and handling of the 
property (including advertising, storage and other costs associated with 
making the sale), exceed the estimated proceeds from its sale.

[[Page 919]]

    (c) In lieu of abandonment or its authorized destruction, the plant 
clearance officer or authorized official may authorize the donation of 
property including unsold surplus property to public bodies, provided 
that the property is not sensitive property, does not require 
demilitarization, and it does not constitute a danger to public health 
or welfare. The Government will not bear any of the costs incident to 
such donations.
    (d) Unless the property qualifies for one of the exceptions under 
FMR 102-36.330 (41 CFR 102-36.330), the plant clearance officer or 
requesting official will ensure prior public notice of such actions of 
abandonment or destruction consistent with FMR 102-36.325 (41 CFR 102-
36.325).

[77 FR 12943, Mar. 2, 2012]



Sec. 45.604  Sale of surplus personal property.



Sec. 45.604-1  Sales procedures.

    Surplus personal property that has completed screening in accordance 
with 45.602-3(a) shall be sold in accordance with the policy for the 
sale of surplus personal property contained in the Federal Management 
Regulation, at part 102-38 (41 CFR part 102-38). Agencies may specify 
implementing procedures.

[77 FR 12943, Mar. 2, 2012]



Sec. 45.604-2  Use of GSA sponsored sales centers.

    Agencies may use sales center services. Use of such centers for sale 
of surplus property is authorized when in the best interest of the 
Government, consistent with contract terms and conditions.

[77 FR 12944, Mar. 2, 2012]



Sec. 45.604-3  Proceeds from sales of surplus property.

    Proceeds of any sale are to be credited to the Treasury of the 
United States as miscellaneous receipts, unless otherwise authorized by 
statute or the contract or any subcontract thereunder authorizes the 
proceeds to be credited to the price or cost of the work (40 U.S.C. 571 
and 574).

[69 FR 17745, Apr. 4, 2004. Redesignated at 77 FR 12944, Mar. 2, 2012]



Sec. 45.604-4  Sale of property pursuant to the exchange/sale authority.

    Agencies should consider the sale of property pursuant to the 
exchange/sale authority in FMR 102-39 (41 CFR part 102-39) when agencies 
are acquiring or plan to acquire similar products and other requirements 
of the authority are satisfied.

[77 FR 12944, Mar. 2, 2012]



Sec. 45.605  Inventory disposal reports.

    The plant clearance officer shall promptly prepare an SF 1424, 
Inventory Disposal Report, following disposition of the property 
identified on an inventory disposal schedule and the crediting of any 
related proceeds. The report shall identify any lost or otherwise 
unaccounted for property and any changes in quantity or value of the 
property made by the contractor after submission of the initial 
inventory disposal schedule. The report shall be provided to the 
administrative contracting officer or, for termination inventory, to the 
termination contracting officer, with a copy to the property 
administrator.

[77 FR 12944, Mar. 2, 2012]



Sec. 45.606  Contractor scrap procedures.

    (a) The property administrator should, in coordination with the 
plant clearance officer, ensure that contractor scrap disposal 
processes, methods, and practices allow for effective, efficient, and 
proper disposition and are properly documented in the contractor's 
property management procedures.
    (b) The property administrator should determine the extent to which 
separate disposal processing or physical segregation for different scrap 
types is or may be required. Such scrap may require physical 
segregation, unique disposal processing, or separate plant clearance 
reporting. For example, the scope of work may create scrap--
    (1) Consisting of sensitive items;

[[Page 920]]

    (2) Containing hazardous materials or wastes;
    (3) Contaminated with hazardous materials or wastes;
    (4) That is classified or otherwise controlled;
    (5) Containing precious or strategic metals; or
    (6) That is dangerous to public health or safety.
    (c) Absent contract terms and conditions to the contrary, the 
Government may abandon parts removed and replaced from property as a 
result of normal maintenance actions or removed from property as a 
result of the repair, maintenance, overhaul, or modification process.

[77 FR 12944, Mar. 2, 2012]

                        PART 46_QUALITY ASSURANCE

Sec.

Sec. 46.000 Scope of part.

                          Subpart 46.1_General


Sec. 46.101 Definitions.

Sec. 46.102 Policy.

Sec. 46.103 Contracting office responsibilities.

Sec. 46.104 Contract administration office responsibilities.

Sec. 46.105 Contractor responsibilities.

               Subpart 46.2_Contract Quality Requirements


Sec. 46.201 General.

Sec. 46.202 Types of contract quality requirements.

Sec. 46.202-1 Contracts for commercial items.

Sec. 46.202-2 Government reliance on inspection by contractor.

Sec. 46.202-3 Standard inspection requirements.

Sec. 46.202-4 Higher-level contract quality requirements.

Sec. 46.203 Criteria for use of contract quality requirements.

Sec. 46.204 [Reserved]

                      Subpart 46.3_Contract Clauses


Sec. 46.301 Contractor inspection requirements.

Sec. 46.302 Fixed-price supply contracts.

Sec. 46.303 Cost-reimbursement supply contracts.

Sec. 46.304 Fixed-price service contracts.

Sec. 46.305 Cost-reimbursement service contracts.

Sec. 46.306 Time-and-material and labor-hour contracts.

Sec. 46.307 Fixed-price research and development contracts.

Sec. 46.308 Cost-reimbursement research and development contracts.

Sec. 46.309 Research and development contracts (short form).

Sec. 46.310 [Reserved]

Sec. 46.311 Higher-level contract quality requirement.

Sec. 46.312 Construction contracts.

Sec. 46.313 Contracts for dismantling, demolition, or removal of 
          improvements.

Sec. 46.314 Transportation contracts.

Sec. 46.315 Certificate of conformance.

Sec. 46.316 Responsibility for supplies.

           Subpart 46.4_Government Contract Quality Assurance


Sec. 46.401 General.

Sec. 46.402 Government contract quality assurance at source.

Sec. 46.403 Government contract quality assurance at destination.

Sec. 46.404 Government contract quality assurance for acquisitions at or 
          below the simplified acquisition threshold.

Sec. 46.405 Subcontracts.

Sec. 46.406 Foreign governments.

Sec. 46.407 Nonconforming supplies or services.

Sec. 46.408 Single-agency assignments of Government contract quality 
          assurance.

                         Subpart 46.5_Acceptance


Sec. 46.501 General.

Sec. 46.502 Responsibility for acceptance.

Sec. 46.503 Place of acceptance.

Sec. 46.504 Certificate of conformance.

Sec. 46.505 Transfer of title and risk of loss.

         Subpart 46.6_Material Inspection and Receiving Reports


Sec. 46.601 General.

                         Subpart 46.7_Warranties


Sec. 46.701 [Reserved]

Sec. 46.702 General.

Sec. 46.703 Criteria for use of warranties.

Sec. 46.704 Authority for use of warranties.

Sec. 46.705 Limitations.

Sec. 46.706 Warranty terms and conditions.

Sec. 46.707 Pricing aspects of fixed-price incentive contract 
          warranties.

Sec. 46.708 Warranties of data.

Sec. 46.709 Warranties of commercial items.

Sec. 46.710 Contract clauses.

 Subpart 46.8_Contractor Liability for Loss of or Damage to Property of 
                             the Government


Sec. 46.800 Scope of subpart.

Sec. 46.801 Applicability.

Sec. 46.802 Definition.

Sec. 46.803 Policy.

Sec. 46.805 Contract clauses.

Sec. 46.806 Subcontracts.


[[Page 921]]


    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 
2473(c).

    Source: 48 FR 42415, Sept. 19, 1983, unless otherwise noted.



Sec. 46.000  Scope of part.

    This part prescribes policies and procedures to ensure that supplies 
and services acquired under Government contract conform to the 
contract's quality and quantity requirements. Included are inspection, 
acceptance, warranty, and other measures associated with quality 
requirements.

                          Subpart 46.1_General



Sec. 46.101  Definitions.

    As used in this part--
    Acceptance means the act of an authorized representative of the 
Government by which the Government, for itself or as agent of another, 
assumes ownership of existing identified supplies tendered or approves 
specific services rendered as partial or complete performance of the 
contract.
    Conditional acceptance means acceptance of supplies or services that 
do not conform to contract quality requirements, or are otherwise 
incomplete, that the contractor is required to correct or otherwise 
complete by a specified date.
    Contract quality requirements means the technical requirements in 
the contract relating to the quality of the product or service and those 
contract clauses prescribing inspection, and other quality controls 
incumbent on the contractor, to assure that the product or service 
conforms to the contractual requirements.
    Critical nonconformance means a nonconformance that is likely to 
result in hazardous or unsafe conditions for individuals using, 
maintaining, or depending upon the supplies or services; or is likely to 
prevent performance of a vital agency mission.
    Government contract quality assurance means the various functions, 
including inspection, performed by the Government to determine whether a 
contractor has fulfilled the contract obligations pertaining to quality 
and quantity.
    Major nonconformance means a nonconformance, other than critical, 
that is likely to result in failure of the supplies or services, or to 
materially reduce the usability of the supplies or services for their 
intended purpose.
    Minor nonconformance means a nonconformance that is not likely to 
materially reduce the usability of the supplies or services for their 
intended purpose, or is a departure from established standards having 
little bearing on the effective use or operation of the supplies or 
services.
    Off-the-shelf item means an item produced and placed in stock by a 
contractor, or stocked by a distributor, before receiving orders or 
contracts for its sale. The item may be commercial or produced to 
military or Federal specifications or description.
    Patent defect means any defect which exists at the time of 
acceptance and is not a latent defect.
    Subcontractor (see 44.101).
    Testing means that element of inspection that determines the 
properties or elements, including functional operation of supplies or 
their components, by the application of established scientific 
principles and procedures.

[48 FR 42415, Sept. 19, 1983, as amended at 60 FR 48249, Sept. 18, 1995; 
61 FR 31662, June 20, 1996; 64 FR 51846, Sept. 24, 1999; 66 FR 2133, 
Jan. 10, 2001]



Sec. 46.102  Policy.

    Agencies shall ensure that--
    (a) Contracts include inspection and other quality requirements, 
including warranty clauses when appropriate, that are determined 
necessary to protect the Government's interest.
    (b) Supplies or services tendered by contractors meet contract 
requirements;
    (c) Government contract quality assurance is conducted before 
acceptance (except as otherwise provided in this part), by or under the 
direction of Government personnel;
    (d) No contract precludes the Government from performing inspection;
    (e) Nonconforming supplies or services are rejected, except as 
otherwise provided in 46.407;
    (f) Contracts for commercial items shall rely on a contractor's 
existing

[[Page 922]]

quality assurance system as a substitute for compliance with Government 
inspection and testing before tender for acceptance unless customary 
market practices for the commercial item being acquired permit in-
process inspection (Section 8002 of Public Law 103-355). Any in-process 
inspection by the Government shall be conducted in a manner consistent 
with commercial practice; and
    (g) The quality assurance and acceptance services of other agencies 
are used when this will be effective, economical, or otherwise in the 
Government's interest (see subpart 42.1.)

[48 FR 42415, Sept. 19, 1983, as amended at 60 FR 48249, Sept. 18, 1995]



Sec. 46.103  Contracting office responsibilities.

    Contracting offices are responsible for--
    (a) Receiving from the activity responsible for technical 
requirements any specifications for inspection, testing, and other 
contract quality requirements essential to ensure the integrity of the 
supplies or services (the activity responsible for technical 
requirements is responsible for prescribing contract quality 
requirements, such as inspection and testing requirements or, for 
service contracts, a quality assurance surveillance plan);
    (b) Including in solicitations and contracts the appropriate 
requirements for the contractor's control of quality for the supplies or 
services to be acquired;
    (c) Issuing any necessary instructions to the cognizant contract 
administration office and acting on recommendations submitted by that 
office (see 42.301 and 46.104(f);
    (d) When contract administration is retained (see 42.201), verifying 
that the contractor fulfills the contract quality requirements; and
    (e) Ensuring that nonconformances are identified, and establishing 
the significance of a nonconformance when considering the acceptability 
of supplies or services which do not meet contract requirements.

[48 FR 42415, Sept. 19, 1983, as amended at 61 FR 31663, June 20, 1996; 
62 FR 44816, Aug. 22, 1997; 63 FR 9065, Feb. 23, 1998]



Sec. 46.104  Contract administration office responsibilities.

    When a contract is assigned for administration to the contract 
administration office cognizant of the contractor's plant, that office, 
unless specified otherwise, shall--
    (a) Develop and apply efficient procedures for performing Government 
contract quality assurance actions under the contract in accordance with 
the written direction of the contracting office:
    (b) Perform all actions necessary to verify whether the supplies or 
services conform to contract quality requirements;
    (c) Maintain, as part of the performance records of the contract, 
suitable records reflecting--
    (1) The nature of Government contract quality assurance actions, 
including, when appropriate, the number of observations made and the 
number and type of defects; and
    (2) Decisions regarding the acceptability of the products, the 
processes, and the requirements, as well as action to correct defects.
    (d) Implement any specific written instructions from the contracting 
office;
    (e) Report to the contracting office any defects observed in design 
or technical requirements, including contract quality requirements; and
    (f) Recommend any changes necessary to the contract, specifications, 
instructions, or other requirements that will provide more effective 
operations or eliminate unnecessary costs (see 46.103(c)).

[48 FR 42415, Sept. 19, 1983, as amended at 63 FR 9065, Feb. 23, 1998]



Sec. 46.105  Contractor responsibilities.

    (a) The contractor is responsible for carrying out its obligations 
under the contract by--
    (1) Controlling the quality of supplies or services;
    (2) Tendering to the Government for acceptance only those supplies 
or services that conform to contract requirements;
    (3) Ensuring that vendors or suppliers of raw materials, parts, 
components, subassemblies, etc., have an acceptable quality control 
system; and

[[Page 923]]

    (4) Maintaining substantiating evidence, when required by the 
contract, that the supplies or services conform to contract quality 
requirements, and furnishing such information to the Government as 
required.
    (b) The contractor may be required to provide and maintain an 
inspection system or program for the control of quality that is 
acceptable to the Government (see 46.202).
    (c) The control of quality by the contractor may relate to, but is 
not limited to--
    (1) Manufacturing processes, to ensure that the product is produced 
to, and meets, the contract's technical requirements;
    (2) Drawings, specifications, and engineering changes, to ensure 
that manufacturing methods and operations meet the contract's technical 
requirements;
    (3) Testing and examination, to ensure that practices and equipment 
provide the means for optimum evaluation of the characteristics subject 
to inspection;
    (4) Reliability and maintainability assessment (life, endurance, and 
continued readiness);
    (5) Fabrication and delivery of products, to ensure that only 
conforming products are tendered to the Government;
    (6) Technical documentation, including drawings, specifications, 
handbooks, manuals, and other technical publications;
    (7) Preservation, packaging, packing, and marking; and
    (8) Procedures and processes for services to ensure that services 
meet contract performance requirements.
    (d) The contractor is responsible for performing all inspections and 
test required by the contract except those specifically reserved for 
performance by the Government (see 46.201(c).

[48 FR 42415, Sept. 19, 1983, as amended at 55 FR 38517, Sept. 18, 1990]

               Subpart 46.2_Contract Quality Requirements



Sec. 46.201  General.

    (a) The contracting officer shall include in the solicitation and 
contract the appropriate quality requirements. The type and extent of 
contract quality requirements needed depends on the particular 
acquisition and may range from inspection at time of acceptance to a 
requirement for the contractor's implementation of a comprehensive 
program for controlling quality.
    (b) As feasible, solicitations and contracts may provide for 
alternative, but substantially equivalent, inspection methods to obtain 
wide competition and low cost. The contracting officer may also 
authorize contractor-recommended alternatives when in the Government's 
interest and approved by the activity responsible for technical 
requirements.
    (c) Although contracts generally make contractors responsible for 
performing inspection before tendering supplies to the Government, there 
are situations in which contracts will provide for specialized 
inspections to be performed solely by the Government. Among situations 
of this kind are--
    (1) Tests that require use of specialized test equipment or 
facilities not ordinarily available in suppliers' plants or commercial 
laboratories (e.g., ballistic testing of ammunition, unusual 
environmental tests, and simulated service tests); and
    (2) Contracts that require Government testing for first article 
approval (see subpart 9.3).
    (d) Except as otherwise specified by the contract, required 
contractor testing may be performed in the contractor's or 
subcontractor's laboratory or testing facility, or in any other 
laboratory or testing facility acceptable to the Government.



Sec. 46.202  Types of contract quality requirements.

    Contract quality requirements fall into four general categories, 
depending on the extent of quality assurance needed by the Government 
for the acquisition involved.

[48 FR 42415, Sept. 19, 1983, as amended at 60 FR 48249, Sept. 18, 1995]



Sec. 46.202-1  Contracts for commercial items.

    When acquiring commercial items (see part 12), the Government shall 
rely

[[Page 924]]

on contractors' existing quality assurance systems as a substitute for 
Government inspection and testing before tender for acceptance unless 
customary market practices for the commercial item being acquired 
include in-process inspection. Any in-process inspection by the 
Government shall be conducted in a manner consistent with commercial 
practice.

[60 FR 48249, Sept. 18, 1995]



Sec. 46.202-2  Government reliance on inspection by contractor.

    (a) Except as specified in (b) below, the Government shall rely on 
the contractor to accomplish all inspection and testing needed to ensure 
that supplies or services acquired at or below the simplified 
acquisition threshold conform to contract quality requirements before 
they are tendered to the Government (see 46.301).
    (b) The Government shall not rely on inspection by the contractor if 
the contracting officer determines that the Government has a need to 
test the supplies or services in advance of their tender for acceptance, 
or to pass judgment upon the adequacy of the contractor's internal work 
processes. In making the determination, the contracting officer shall 
consider--
    (1) The nature of the supplies and services being purchased and 
their intended use;
    (2) The potential losses in the event of defects;
    (3) The likelihood of uncontested replacement or correction of 
defective work; and
    (4) The cost of detailed Government inspection.

[48 FR 42415, Sept. 19, 1983, as amended at 51 FR 2666, Jan. 17, 1986; 
60 FR 34760, July 3, 1995. Redesignated and amended at 60 FR 48249, 
Sept. 18, 1995]



Sec. 46.202-3  Standard inspection requirements.

    (a) Standard inspection requirements are contained in the clauses 
prescribed in 46.302 through 46.308, and in the product and service 
specifications that are included in solicitations and contracts.
    (b) The clauses referred to in (a) above--
    (1) Require the contractor to provide and maintain an inspection 
system that is acceptable to the Government;
    (2) Give the Government the right to make inspections and tests 
while work is in process; and
    (3) Require the contractor to keep complete, and make available to 
the Government, records of its inspection work.

[48 FR 42415, Sept. 19, 1983. Redesignated at 60 FR 48249, Sept. 18, 
1995; 72 FR 27389, May 15, 2007]



Sec. 46.202-4  Higher-level contract quality requirements.

    (a) Requiring compliance with higher-level quality standards is 
appropriate in solicitations and contracts for complex or critical items 
(see 46.203(b) and (c)) or when the technical requirements of the 
contract require--
    (1) Control of such things as work operations, in-process controls, 
and inspection; or
    (2) Attention to such factors as organization, planning, work 
instructions, documentation control, and advanced metrology.
    (b) When the contracting officer, in consultation with technical 
personnel, finds it is in the Government's interest to require that 
higher-level quality standards be maintained, the contracting officer 
shall use the clause prescribed at 46.311. The contracting fficer shall 
indicate in the clause which higher-level quality standards will satisfy 
the Government's requirement. Examples of higher-level quality standards 
are ISO 9001, 9002, or 9003; ANSI/ISO/ASQ Q9001-2000; ANSI/ASQC Q9001, 
Q9002, or Q9003; QS-9000; AS-9000; ANSI/ASQC E4; and ANSI/ASME NQA-1.

[63 FR 70289, Dec. 18, 1998, as amended at 67 FR 6120, Feb. 8, 2002]



Sec. 46.203  Criteria for use of contract quality requirements.

    The extent of contract quality requirements, including contractor 
inspection, required under a contract shall usually be based upon the 
classification of the contract item (supply or service) as determined by 
its technical description, its complexity, and the criticality of its 
application.

[[Page 925]]

    (a) Technical description. Contract items may be technically 
classified as--
    (1) Commercial (described in commercial catalogs, drawings, or 
industrial standards; see part 2); or
    (2) Military-Federal (described in Government drawings and 
specifications).
    (b) Complexity. (1) Complex items have quality characteristics, not 
wholly visible in the end item, for which contractual conformance must 
be established progressively through precise measurements, tests, and 
controls applied during purchasing, manufacturing, performance, 
assembly, and functional operation either as an individual item or in 
conjunction with other items.
    (2) Noncomplex items have quality characteristics for which simple 
measurement and test of the end item are sufficient to determine 
conformance to contract requirements.
    (c) Criticality. (1) A critical application of an item is one in 
which the failure of the item could injure personnel or jeopardize a 
vital agency mission. A critical item may be either peculiar, meaning it 
has only one application, or common, meaning it has multiple 
applications.
    (2) A noncritical application is any other application. Noncritical 
items may also be either peculiar or common.

[48 FR 42415, Sept. 19, 1983, as amended at 60 FR 48249, Sept. 18, 1995]



Sec. 46.204  [Reserved]

                      Subpart 46.3_Contract Clauses



Sec. 46.301  Contractor inspection requirements.

    The contracting officer shall insert the clause at 52.246-1, 
Contractor Inspection Requirements, in solicitations and contracts for 
supplies or services when the contract amount is expected to be at or 
below the simplified acquisition threshold and (a) inclusion of the 
clause is necessary to ensure an explicit understanding of the 
contractor's inspection responsibilities, or (b) inclusion of the clause 
is required under agency procedures. The clause shall not be used if the 
contracting officer has made the determination specified in 46.202-2(b).

[48 FR 42415, Sept. 19, 1983, as amended at 60 FR 34760, July 3, 1995; 
60 FR 48250, Sept. 18, 1995]



Sec. 46.302  Fixed-price supply contracts.

    The contracting officer shall insert the clause at 52.246-2, 
Inspection of Supplies--Fixed-Price, in solicitations and contracts for 
supplies, or services that involve the furnishing of supplies, when a 
fixed-price contract is contemplated and the contract amount is expected 
to exceed the simplified acquisition threshold. The contracting officer 
may insert the clause in such solicitations and contracts when the 
contract amount is expected to be at or below the simplified acquisition 
threshold and inclusion of the clause is in the Government's interest. 
If a fixed-price incentive contract is contemplated, the contracting 
officer shall use the clause with its Alternate I. If a fixed-ceiling-
price contract with retroactive price redetermination is contemplated, 
the contracting officer shall use the clause with its Alternate II.

[48 FR 42415, Sept. 19, 1983, as amended at 60 FR 34760, July 3, 1995]



Sec. 46.303  Cost-reimbursement supply contracts.

    The contracting officer shall insert the clause at 52.246-3, 
Inspection of Supplies--Cost-Reimbursement, in solicitations and 
contracts for supplies, or services that involve the furnishing of 
supplies, when a cost-reimbursement contract is contemplated.



Sec. 46.304  Fixed-price service contracts.

    The contracting officer shall insert the clause at 52.246-4, 
Inspection of Services--Fixed-Price, in solicitations and contracts for 
services, or supplies that involve the furnishing of services, when a 
fixed-price contract is contemplated and the contract amount is expected 
to exceed the simplified acquisition threshold. The contracting officer 
may insert the clause in such solicitations and contracts when the 
contract amount is expected to be at or below the simplified acquisition

[[Page 926]]

threshold and inclusion is in the Government's interest.

[48 FR 42415, Sept. 19, 1983, as amended at 60 FR 34760, July 3, 1995]



Sec. 46.305  Cost-reimbursement service contracts.

    The contracting officer shall insert the clause at 52.246-5, 
Inspection of Services--Cost Reimbursement, in solicitations and 
contracts for services, or supplies that involve the furnishing of 
services, when a cost-reimbursement contract is contemplated.



Sec. 46.306  Time-and-material and labor-hour contracts.

    The contracting officer shall insert the clause at 52.246-6, 
Inspection--Time-and-Material and Labor-Hour, in solicitations and 
contracts when a time-and-material contract or a labor-hour contract is 
contemplated. If Government inspection and acceptance are to be 
performed at the contractor's plant, the contracting officer shall use 
the clause with its Alternate I.

[48 FR 42415, Sept. 19, 1983, as amended at 51 FR 2666, Jan. 17, 1986]



Sec. 46.307  Fixed-price research and development contracts.

    (a) The contracting officer shall insert the clause at 52.246-7, 
Inspection of Research and Development--Fixed-Price, in solicitations 
and contracts for research and development when (1) the primary 
objective of the contract is the delivery of end items other than 
designs, drawings, or reports, (2) a fixed-price contract is 
contemplated, and (3) the contract amount is expected to exceed the 
simplified acquisition threshold; unless use of the clause is 
impractical and the clause prescribed in 46.309 is considered to be more 
appropriate.
    (b) The contracting officer may insert the clause in such 
solicitations and contracts when the contract amount is expected to be 
at or below the simplified acquisition threshold, and its use is in the 
Government's interest.

[48 FR 42415, Sept. 19, 1983, as amended at 60 FR 34760, July 3, 1995]



Sec. 46.308  Cost-reimbursement research and development contracts.

    The contracting officer shall insert the clause at 52.246-8, 
Inspection of Research and Development--Cost-Reimbursement, in 
solicitations and contracts for research and development when (a) the 
primary objective of the contract is the delivery of end items other 
than designs, drawings, or reports, and (b) a cost-reimbursement 
contract is contemplated; unless use of the clause is impractical and 
the clause prescribed in 46.309 is considered to be more appropriate. If 
it is contemplated that the contract will be on a no-fee basis, the 
contracting officer shall use the clause with its Alternate I.



Sec. 46.309  Research and development contracts (short form).

    The contracting officer shall insert the clause at 52.246-9, 
Inspection of Research and Development (Short Form), in solicitations 
and contracts for research and development when the clause prescribed in 
46.307 or the clause prescribed in 46.308 is not used.

[51 FR 27120, July 29, 1986]



Sec. 46.310  [Reserved]



Sec. 46.311  Higher-level contract quality requirement.

    The contracting officer shall insert the clause at 52.246-11, 
Higher-Level Contract Quality Requirement, in solicitations and 
contracts when the inclusion of a higher-level contract quality 
requirement is appropriate (see 46.202-4).

[63 FR 70289, Dec. 18, 1998]



Sec. 46.312  Construction contracts.

    The contracting officer shall insert the clause at 52.246-12, 
Inspection of Construction, in solicitations and contracts for 
construction when a fixed-price contract is contemplated and the 
contract amount is expected to exceed the simplified acquisition 
threshold. The contracting officer may insert the clause in such 
solicitations and contracts when the contract amount is expected to be 
at or below the simplified

[[Page 927]]

acquisition threshold, and its use is in the Government's interest.

[48 FR 42415, Sept. 19, 1983, as amended at 60 FR 34760, July 3, 1995]



Sec. 46.313  Contracts for dismantling, demolition, or removal of 
          improvements.

    The contracting officer shall insert the clause at 52.246-13, 
Inspection--Dismantling, Demolition, or Removal of Improvements, in 
solicitations and contracts for dismantling, demolition, or removal of 
improvements.



Sec. 46.314  Transportation contracts.

    The contracting officer shall insert the clause at 52.246-14, 
Inspection of Transportation, in solicitations and contracts for freight 
transportation services (including local drayage) by rail, motor 
(including bus), domestic freight forwarder, and domestic water carriers 
(including inland, coastwise, and intercoastal). The contracting officer 
shall not use the clause for the acquisition of transportation services 
by domestic or international air carriers or by international ocean 
carriers, or to freight services provided under bills of lading or to 
those negotiated for reduced rates under 49 U.S.C. 10721 or 13712. (See 
part 47, Transportation.)

[48 FR 42415, Sept. 19, 1983, as amended at 71 FR 202, Jan. 3, 2006]



Sec. 46.315  Certificate of conformance.

    The contracting officer shall insert the clause at 52.246-15, 
Certificate of Conformance, in solicitations and contracts for supplies 
or services when the conditions in 46.504 apply.



Sec. 46.316  Responsibility for supplies.

    The contracting officer shall insert the clause at 52.246-16, 
Responsibility for Supplies, in solicitations and contracts for (a) 
supplies, (b) services involving the furnishing of supplies, or (c) 
research and development, when a fixed-price contract is contemplated 
and the contract amount is expected to exceed the simplified acquisition 
threshold. The contracting officer may insert the clause in such 
solicitations and contracts when the contract amount is not expected to 
exceed the simplified acquisition threshold and inclusion of the clause 
is authorized under agency procedures.

[48 FR 42415, Sept. 19, 1983, as amended at 60 FR 34760, July 3, 1995]

           Subpart 46.4_Government Contract Quality Assurance



Sec. 46.401  General.

    (a) Government contract quality assurance shall be performed at such 
times (including any stage of manufacture or performance of services) 
and places (including subcontractors' plants) as may be necessary to 
determine that the supplies or services conform to contract 
requirements. Quality assurance surveillance plans should be prepared in 
conjunction with the preparation of the statement of work. The plans 
should specify--
    (1) All work requiring surveillance; and
    (2) The method of surveillance.
    (b) Each contract shall designate the place or places where the 
Government reserves the right to perform quality assurance.
    (c) If the contract provides for performance of Government quality 
assurance at source, the place or places of performance may not be 
changed without the authorization of the contracting officer.
    (d) If a contract provides for delivery and acceptance at 
destination and the Government inspects the supplies at a place other 
than destination, the supplies shall not ordinarily be reinspected at 
destination, but should be examined for quantity, damage in transit, and 
possible substitution or fraud.
    (e) Government inspection shall be performed by or under the 
direction or supervision of Government personnel.
    (f) Government inspection shall be documented on an inspection or 
receiving report form or commercial shipping document/packing list, 
under agency procedures (see subpart 46.6).
    (g) Agencies may prescribe the use of inspection approval or 
disapproval stamps to identify and control supplies and material that 
have been inspected for conformance with contract quality requirements.

[48 FR 42415, Sept. 19, 1983, as amended at 62 FR 44816, Aug. 22, 1997]

[[Page 928]]



Sec. 46.402  Government contract quality assurance at source.

    Agencies shall perform contract quality assurance, including 
inspection, at source if--
    (a) Performance at any other place would require uneconomical 
disassembly or destructive testing;
    (b) Considerable loss would result from the manufacture and shipment 
of unacceptable supplies, or from the delay in making necessary 
corrections;
    (c) Special required instruments, gauges, or facilities are 
available only at source;
    (d) Performance at any other place would destroy or require the 
replacement of costly special packing and packaging;
    (e) Government inspection during contract performance is essential; 
or
    (f) It is determined for other reasons to be in the Government's 
interest.

[48 FR 42415, Sept. 19, 1983, as amended at 60 FR 48250, Sept. 18, 1995; 
63 FR 70290, Dec. 18, 1998]



Sec. 46.403  Government contract quality assurance at destination.

    (a) Government contract quality assurance that can be performed at 
destination is normally limited to inspection of the supplies or 
services. Inspection shall be performed at destination under the 
following circumstances--
    (1) Supplies are purchased off-the-shelf and require no technical 
inspection;
    (2) Necessary testing equipment is located only at destination;
    (3) Perishable subsistence supplies purchased within the United 
States, except that those supplies destined for overseas shipment will 
normally be inspected for condition and quantity at points of 
embarkation;
    (4) Brand name products purchased for authorized resale through 
commissaries or similar facilities (however, supplies destined for 
direct overseas shipment may be accepted by the contracting officer or 
an authorized representative on the basis of a tally sheet evidencing 
receipt of shipment signed by the port transportation officer or other 
designated official at the transshipment point);
    (5) The products being purchased are processed under direct control 
of the National Institutes of Health or the Food and Drug Administration 
of the Department of Health and Human Services;
    (6) The contract is for services performed at destination; or
    (7) It is determined for other reasons to be in the Government's 
interest.
    (b) Overseas inspection of supplies shipped from the United States 
shall not be required except in unusual circumstances, and then only 
when the contracting officer determines in advance that inspection can 
be performed or makes necessary arrangements for its performance.



Sec. 46.404  Government contract quality assurance for acquisitions at 
          or below the simplified acquisition threshold.

    (a) In determining the type and extent of Government contract 
quality assurance to be required for contracts at or below the 
simplified acquisition threshold, the contracting officer shall consider 
the criticality of application of the supplies or services, the amount 
of possible losses, and the likelihood of uncontested replacement of 
defective work (see 46.202-2).
    (b) When the conditions in 46.202-2(b) apply, the following policies 
shall govern:
    (1) Unless a special situation exists, the Government shall inspect 
contracts at or below the simplified acquisition threshold at 
destination and only for type and kind; quantity; damage; operability 
(if readily determinable); and preservation, packaging, packing, and 
marking, if applicable.
    (2) Special situations may require more detailed quality assurance 
and the use of a standard inspection or higher-level contract quality 
requirement. These situations include those listed in 46.402 and 
contracts for items having critical applications.
    (3) Detailed Government inspection may be limited to those 
characteristics that are special or likely to cause harm to personnel or 
property. When repetitive purchases of the same item are made from the 
same manufacturer with a history of defect-free work, Government 
inspection may be reduced to

[[Page 929]]

a periodic check of occasional purchases.

[48 FR 42415, Sept. 19, 1983, as amended at 60 FR 34760, July 3, 1995; 
60 FR 48250, Sept. 18, 1995]



Sec. 46.405  Subcontracts.

    (a) Government contract quality assurance on subcontracted supplies 
or services shall be performed only when required in the Government's 
interest. The primary purpose is to assist the contract administration 
office cognizant of the prime contractor's plant in determining the 
conformance of subcontracted supplies or services with contract 
requirements or to satisfy one or more of the factors included in (b) 
below. It does not relieve the prime contractor of any responsibilities 
under the contract. When appropriate, the prime contractor shall be 
requested to arrange for timely Government access to the subcontractor 
facility.
    (b) The Government shall perform quality assurance at the 
subcontract level when--
    (1) The item is to be shipped from the subcontractor's plant to the 
using activity and inspection at source is required;
    (2) The conditions for quality assurance at source are applicable 
(see 46.402);
    (3) The contract specifies that certain quality assurance functions, 
which can be performed only at the subcontractor's plant, are to be 
performed by the Government; or
    (4) It is otherwise required by the contract or determined to be in 
the Government's interest.
    (c) Supplies or services for which certificates, records, reports, 
or similar evidence of quality are available at the prime contractor's 
plant shall not be inspected at the subcontractor's plant, except 
occasionally to verify this evidence or when required under (b) above.
    (d) All oral and written statements and contract terms and 
conditions relating to Government quality assurance actions at the 
subcontract level shall be worded so as not to--
    (1) Affect the contractual relationship between the prime contractor 
and the Government, or between the prime contractor and the 
subcontractor;
    (2) Establish a contractual relationship between the Government and 
the subcontractor; or
    (3) Constitute a waiver of the Government's right to accept or 
reject the supplies or services.

[48 FR 42415, Sept. 19, 1983, as amended at 60 FR 34760, July 3, 1995]



Sec. 46.406  Foreign governments.

    Government contract quality assurance performed for foreign 
governments or international agencies shall be administered according to 
the foreign policy and security objectives of the United States. Such 
support shall be furnished only when consistent with or required by 
legislation, executive orders, or agency policies concerning mutual 
international programs.



Sec. 46.407  Nonconforming supplies or services.

    (a) The contracting officer should reject supplies or services not 
conforming in all respects to contract requirements (see 46.102). In 
those instances where deviation from this policy is found to be in the 
Government's interest, such supplies or services may be accepted only as 
authorized in this section.
    (b) The contracting officer ordinarily must give the contractor an 
opportunity to correct or replace nonconforming supplies or services 
when this can be accomplished within the required delivery schedule. 
Unless the contract specifies otherwise (as may be the case in some 
cost-reimbursement contracts), correction or replacement must be without 
additional cost to the Government. Subparagraph (e)(2) of the clause at 
52.246-2, Inspection of Supplies--Fixed-Price, reserves to the 
Government the right to charge the contractor the cost of Government 
reinspection and retests because of prior rejection.
    (c)(1) In situations not covered by paragraph (b) of this section, 
the contracting officer ordinarily must reject supplies or services when 
the nonconformance is critical or major or the supplies or services are 
otherwise incomplete. However, there may be circumstances (e.g., reasons 
of economy

[[Page 930]]

or urgency) when the contracting officer determines acceptance or 
conditional acceptance of supplies or services is in the best interest 
of the Government. The contracting officer must make this determination 
based upon--
    (i) Advice of the technical activity that the item is safe to use 
and will perform its intended purpose;
    (ii) Information regarding the nature and extent of the 
nonconformance or otherwise incomplete supplies or services;
    (iii) A request from the contractor for acceptance of the 
nonconforming or otherwise incomplete supplies or services (if 
feasible);
    (iv) A recommendation for acceptance, conditional acceptance, or 
rejection, with supporting rationale; and
    (v) The contract adjustment considered appropriate, including any 
adjustment offered by the contractor.
    (2) The cognizant contract administration office, or other 
Government activity directly involved, must, furnish this data to the 
contracting officer in writing, except that in urgent cases it may be 
furnished orally and later confirmed in writing. Before making a 
decision to accept, the contracting officer must, obtain the concurrence 
of the activity responsible for the technical requirements of the 
contract and, where health factors are involved, of the responsible 
health official of the agency concerned.
    (d) If the nonconformance is minor, the cognizant contract 
administration office may make the determination to accept or reject, 
except where this authority is withheld by the contracting office of the 
contracting activity. To assist in making this determination, the 
contract administration office may establish a joint contractor-contract 
administrative office review group. Acceptance of supplies and services 
with critical or major nonconformances is outside the scope of the 
review group.
    (e) The contracting officer must discourage the repeated tender of 
nonconforming supplies or services, including those with only minor 
nonconformances, by appropriate action, such as rejection and 
documenting the contractor's performance record.
    (f) When supplies or services are accepted with critical or major 
nonconformances as authorized in paragraph (c) of this section, the 
contracting officer must modify the contract to provide for an equitable 
price reduction or other consideration. In the case of conditional 
acceptance, amounts withheld from payments generally should be at least 
sufficient to cover the estimated cost and related profit to correct 
deficiencies and complete unfinished work. The contracting officer must 
document in the contract file the basis for the amounts withheld. For 
services, the contracting officer can consider identifying the value of 
the individual work requirements or tasks (subdivisions) that may be 
subject to price or fee reduction. This value may be used to determine 
an equitable adjustment for nonconforming services. However, when 
supplies or services involving minor nonconformances are accepted, the 
contract need not be modified unless it appears that the savings to the 
contractor in fabricating the nonconforming supplies or performing the 
nonconforming services will exceed the cost to the Government of 
processing the modification.
    (g) Notices of rejection must include the reasons for rejection and 
be furnished promptly to the contractor. Promptness in giving this 
notice is essential because, if timely nature of rejection is not 
furnished, acceptance may in certain cases be implied as a matter of 
law. The notice must, be in writing if--
    (1) The supplies or services have been rejected at a place other 
than the contractor's plant;
    (2) The contractor persists in offering nonconforming supplies or 
services for acceptance; or
    (3) Delivery or performance was late without excusable cause.

[48 FR 42415, Sept. 19, 1983, as amended at 61 FR 31663, June 20, 1996; 
62 FR 44816, Aug. 22, 1997; 64 FR 51846, Sept. 24, 1999]

[[Page 931]]



Sec. 46.408  Single-agency assignments of Government contract quality 
          assurance.

    (a) Government-wide responsibility for quality assurance support for 
acquisitions of certain commodities is assigned as follows:
    (1) For drugs, biologics, and other medical supplies--the Food and 
Drug Administration;
    (2) For food, except seafood--the Department of Agriculture.
    (3) For seafood--the National Marine Fisheries Service of the 
Department of Commerce.
    (b) Agencies requiring quality assurance support for acquiring these 
supplies should request the support directly from the cognizant office.

                         Subpart 46.5_Acceptance



Sec. 46.501  General.

    Acceptance constitutes acknowledgment that the supplies or services 
conform with applicable contract quality and quantity requirements, 
except as provided in this subpart and subject to other terms and 
conditions of the contract. Acceptance may take place before delivery, 
at the time of delivery, or after delivery, depending on the provisions 
of the terms and conditions of the contract. Supplies or services shall 
ordinarily not be accepted before completion of Government contract 
quality assurance actions (however, see 46.504). Acceptance shall 
ordinarily be evidenced by execution of an acceptance certificate on an 
inspection or receiving report form or commercial shipping document/
packing list.



Sec. 46.502  Responsibility for acceptance.

    Acceptance of supplies or services is the responsibility of the 
contracting officer. When this responsibility is assigned to a cognizant 
contract administration office or to another agency (see 42.202(g)), 
acceptance by that office or agency is binding on the Government.

[48 FR 42415, Sept. 19, 1983, as amended at 63 FR 9065, Feb. 23, 1998]



Sec. 46.503  Place of acceptance.

    Each contract shall specify the place of acceptance. Contracts that 
provide for Government contract quality assurance at source shall 
ordinarily provide for acceptance at source. Contracts that provide for 
Government contract quality assurance at destination shall ordinarily 
provide for acceptance at destination. (For transportation terms, see 
subpart 47.3). Supplies accepted at a place other than destination shall 
not be reinspected at destination for acceptance purposes, but should be 
examined at destination for quantity, damage in transit, and possible 
substitution or fraud.



Sec. 46.504  Certificate of conformance.

    A certificate of conformance (see 46.315) may be used in certain 
instances instead of source inspection (whether the contract calls for 
acceptance at source or destination) at the discretion of the 
contracting officer if the following conditions apply:
    (a) Acceptance on the basis of a contractor's certificate of 
conformance is in the Government's interest.
    (b)(1) Small losses would be incurred in the event of a defect; or
    (2) Because of the contractor's reputation or past performance, it 
is likely that the supplies or services furnished will be acceptable and 
any defective work would be replaced, corrected, or repaired without 
contest. In no case shall the Government's right to inspect supplies 
under the inspection provisions of the contract be prejudiced.



Sec. 46.505  Transfer of title and risk of loss.

    (a) Title to supplies shall pass to the Government upon formal 
acceptance, regardless of when or where the Government takes physical 
possession, unless the contract specifically provides for earlier 
passage of title.
    (b) Unless the contract specifically provides otherwise, risk of 
loss of or damage to supplies shall remain with the contractor until, 
and shall pass to the Government upon--
    (1) Delivery of the supplies to a carrier if transportation is 
f.o.b. origin; or
    (2) Acceptance by the Government or delivery of the supplies to the 
Government at the destination specified in the contract, whichever is 
later, if transportation is f.o.b. destination.

[[Page 932]]

    (c) Paragraph (b) above shall not apply to supplies that so fail to 
conform to contract requirements as to give a right of rejection. The 
risk of loss of or damage to such nonconforming supplies remains with 
the contractor until cure or acceptance. After cure or acceptance, 
paragraph (b) above shall apply.
    (d) Under paragraph (b) above, the contractor shall not be liable 
for loss of or damage to supplies caused by the negligence of officers, 
agents, or employees of the Government acting within the scope of their 
employment.
    (e) The policy expressed in (a) through (d) above is specified in 
the clause at 52.246-16, Responsibility for Supplies, which is 
prescribed in 46.316.

         Subpart 46.6_Material Inspection and Receiving Reports



Sec. 46.601  General.

    Agencies shall prescribe procedures and instructions for the use, 
preparation, and distribution of material inspection and receiving 
reports and commercial shipping document/packing lists to evidence 
Government inspection (see 46.401) and acceptance (see 46.501).

                         Subpart 46.7_Warranties



Sec. 46.701  [Reserved]



Sec. 46.702  General.

    (a) The principal purposes of a warranty in a Government contract 
are (1) to delineate the rights and obligations of the contractor and 
the Government for defective items and services and (2) to foster 
quality performance.
    (b) Generally, a warranty should provide--
    (1) A contractual right for the correction of defects 
notwithstanding any other requirement f the contract pertaining to 
acceptance of the supplies or services by the Government; and
    (2) A stated period of time or use, or the occurrence of a specified 
event, after acceptance by the Government to assert a contractual right 
for the correction of defects.
    (c) The benefits to be derived from a warranty must be commensurate 
with the cost of the warranty to the Government.



Sec. 46.703  Criteria for use of warranties.

    The use of warranties is not mandatory. In determining whether a 
warranty is appropriate for a specific acquisition, the contracting 
officer shall consider the following factors:
    (a) Nature and use of the supplies or services. This includes such 
factors as--
    (1) Complexity and function;
    (2) Degree of development;
    (3) State of the art;
    (4) End use;
    (5) Difficulty in detecting defects before acceptance; and
    (6) Potential harm to the Government if the item is defective.
    (b) Cost. Warranty costs arise from--
    (1) The contractor's charge for accepting the deferred liability 
created by the warranty; and
    (2) Government administration and enforcement of the warranty (see 
paragraph (c) below).
    (c) Administration and enforcement. The Government's ability to 
enforce the warranty is essential to the effectiveness of any warranty. 
There must be some assurance that an adequate administrative system for 
reporting defects exists or can be established. The adequacy of a 
reporting system may depend upon such factors as the--
    (1) Nature and complexity of the item;
    (2) Location and proposed use of the item;
    (3) Storage time for the item;
    (4) Distance of the using activity from the source of the item;
    (5) Difficulty in establishing existence of defects; and
    (6) Difficulty in tracing responsibility for defects.
    (d) Trade practice. In many instances an item is customarily 
warranted in the trade, and, as a result of that practice, the cost of 
an item to the Government will be the same whether or not a warranty is 
included. In those instances, it would be in the Government's interest 
to include such a warranty.
    (e) Reduced requirements. The contractor's charge for assumption of 
added liability may be partially or completely offset by reducing the 
Government's

[[Page 933]]

contract quality assurance requirements where the warranty provides 
adequate assurance of a satisfactory product.



Sec. 46.704  Authority for use of warranties.

    The use of a warranty in an acquisition shall be approved in 
accordance with agency procedures.



Sec. 46.705  Limitations.

    (a) Except for the warranties in the clauses at 52.246-3, Inspection 
of Supplies--Cost-Reimbursement, and 52.246-8, Inspection of Research 
and Development--Cost-Reimbursement, the contracting officer shall not 
include warranties in cost-reimbursement contracts, unless authorized in 
accordance with agency regulations (see 46.708).
    (b) Warranty clauses shall not limit the Government's rights under 
an inspection clause (see subpart 46.3) in relation to latent defects, 
fraud, or gross mistakes that amount to fraud.
    (c) Except for warranty clauses in construction contracts, warranty 
clauses shall provide that the warranty applies notwithstanding 
inspection and acceptance or other clauses or terms of the contract.



Sec. 46.706  Warranty terms and conditions.

    (a) To facilitate the pricing and enforcement of warranties, the 
contracting officer shall ensure that warranties clearly state the--
    (1) Exact nature of the item and its components and characteristics 
that the contractor warrants;
    (2) Extent of the contractor's warranty including all of the 
contractor's obligations to the Government for breach of warranty;
    (3) Specific remedies available to the Government; and
    (4) Scope and duration of the warranty.
    (b) The contracting officer shall consider the following guidelines 
when preparing warranty terms and conditions:
    (1) Extent of contractor obligations (i) Generally, the contractor's 
obligations under warranties extend to all defects discovered during the 
warranty period, but do not include damage caused by the Government. 
When a warranty for the entire item is not advisable, a warranty may be 
required for a particular aspect of the item that may require special 
protection (e.g., installation, components, accessories, subassemblies, 
preservation, packaging, and packing, etc.).
    (ii) If the Government specifies the design of the end item and its 
measurements, tolerances, materials, tests, or inspection requirements, 
the contractor's obligations for correction of defects shall usually be 
limited to defects in material and workmanship or failure to conform to 
specifications. If the Government does not specify the design, the 
warranty extends also to the usefulness of the design.
    (iii) If express warranties are included in a contract (except 
contracts for commercial items), all implied warranties of 
merchantability and fitness for a particular purpose shall be negated by 
the use of specific language in the clause (see clauses 52.246-17, 
Warranty of Supplies of a Noncomplex Nature; 52.246-18, Warranty of 
Supplies of a Complex Nature; and 52.246-19, Warranty of Systems and 
Equipment under Performance Specifications or Design Criteria).
    (2) Remedies (i) Normally, a warranty shall provide as a minimum 
that the Government may (A) obtain an equitable adjustment of the 
contract, or (B) direct the contractor to repair or replace the 
defective items at the contractor's expense.
    (ii) If it is not practical to direct the contractor to make the 
repair or replacement, or, because of the nature of the item, the repair 
or replacement does not afford an appropriate remedy to the Government, 
the warranty should provide alternate remedies, such as authorizing the 
Government to--
    (A) Retain the defective item and reduce the contract price by an 
amount equitable under the circumstances; or
    (B) Arrange for the repair or replacement of the defective item, by 
the Government or by another source, at the contractor's expense.
    (iii) If it can be foreseen that it will not be practical to return 
an item to the contractor for repair, to remove it to an alternate 
source for repair, or to

[[Page 934]]

replace the defective item, the warranty should provide that the 
Government may repair, or require the contractor to repair, the item in 
place at the contractor's expense. The contract shall provide that in 
the circumstance where the Government is to accomplish the repair, the 
contractor will furnish at the place of delivery the material or parts, 
and the installation instructions required to successfully accomplish 
the repair.
    (iv) Unless provided otherwise in the warranty, the contractor's 
obligation to repair or replace the defective item, or to agree to an 
equitable adjustment of the contract, shall include responsibility for 
the costs of furnishing all labor and material to (A) reinspect items 
that the Government reasonably expected to be defective, (B) accomplish 
the required repair or replacement of defective items, and (C) test, 
inspect, package, pack, and mark repaired or replaced items.
    (v) If repair or replacement of defective items is required, the 
contractor shall generally be required by the warranty to bear the 
expense of transportation for returning the defective item from the 
place of delivery specified in the contract (irrespective of the f.o.b. 
point or the point of acceptance) to the contractor's plant and 
subsequent return. When defective items are returned to the contractor 
from other than the place of delivery specified in the contract, or when 
the Government exercises alternate remedies, the contractor's liability 
for transportation charges incurred 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 subsequent return.
    (3) Duration of the warranty. The time period or duration of the 
warranty must be clearly specified and shall be established after 
consideration of such factors as (i) the estimated useful life of the 
item, (ii) the nature of the item including storage or shelf-life, and 
(iii) trade practice. The period specified shall not extend the 
contractor's liability for patent defects beyond a reasonable time after 
acceptance by the Government.
    (4) Notice. The warranty shall specify a reasonable time for 
furnishing notice to the contractor regarding the discovery of defects. 
This notice period, which shall apply to all defects discovered during 
the warranty period, shall be long enough to assure that the Government 
has adequate time to give notice to the contractor. The contracting 
officer shall consider the following factors when establishing the 
notice period:
    (i) The time necessary for the Government to discover the defects.
    (ii) The time reasonably required for the Government to take 
necessary administrative steps and make a timely report of discovery of 
the defects to the contractor.
    (iii) The time required to discover and report defective 
replacements.
    (5) Markings. The packaging and preservation requirements of the 
contract shall require the contractor to stamp or mark the supplies 
delivered or otherwise furnish notice with the supplies of the existence 
of the warranty. The purpose of the markings or notice is to inform 
Government personnel who store, stock, or use the supplies that the 
supplies are under warranty. Markings may be brief but should include 
(i) a brief statement that a warranty exists, (ii) the substance of the 
warranty, (iii) its duration, and (iv) who to notify if the supplies are 
found to be defective. For commercial items (see 46.709), the 
contractor's trade practice in warranty marking is acceptable if 
sufficient information is presented for supply personnel and users to 
identify warranted supplies.
    (6) Consistency. Contracting officers shall ensure that the warranty 
clause and any other warranty conditions in the contract (e.g., in the 
specifications or an inspection clause) are consistent. To the extent 
practicable, all of the warranties to be contained in the contract 
should be expressed in the warranty clause.



Sec. 46.707  Pricing aspects of fixed-price incentive contract 
          warranties.

    If a fixed-price incentive contract contains a warranty (see 
46.708), the estimated cost of the warranty to the contractor should be 
considered in establishing the incentive target price

[[Page 935]]

and the ceiling price of the contract. All costs incurred, or estimated 
to be incurred, by the contractor in complying with the warranty shall 
be considered when establishing the total final price. Contractor 
compliance with the warranty after the establishment of the total final 
price shall be at no additional cost to the Government.



Sec. 46.708  Warranties of data.

    Warranties of data shall be developed and used in accordance with 
agency regulations.



Sec. 46.709  Warranties of commercial items.

    The contracting officer should take advantage of commercial 
warranties, including extended warranties, where appropriate and in the 
Government's best interests, offered by the contractor for the repair 
and replacement of commercial items (see part 12).

[60 FR 48250, Sept. 18, 1995]



Sec. 46.710  Contract clauses.

    The clauses and alternates prescribed in this section may be used in 
solicitations and contracts in which inclusion of a warranty is 
appropriate (see 46.709 for warranties for commercial items). However, 
because of the many situations that may influence the warranty terms and 
conditions appropriate to a particular acquisition, the contracting 
officer may vary the terms and conditions of the clauses and alternates 
to the extent necessary. The alternates prescribed in this section 
address the clauses; however, the conditions pertaining to each 
alternate must be considered if the terms and conditions are varied to 
meet a particular need.
    (a)(1) The contracting officer may insert a clause substantially the 
same as the clause at 52.246-17, Warranty of Supplies of a Noncomplex 
Nature, in solicitations and contracts for noncomplex items when a 
fixed-price supply contract is contemplated and the use of a warranty 
clause has been approved under agency procedures. If the contractor's 
design rather than the Government's design will be used, insert the word 
``design'' before ``material'' in paragraph (b)(1)(i).
    (2) If it is desirable to specify that necessary transportation 
incident to correction or replacement will be at the Government's 
expense (as might be the case if, for example, the cost of a warranty 
would otherwise be prohibitive), the contracting officer may use the 
clause with its Alternate II.
    (3) If the supplies cannot be obtained from another source, the 
contracting officer may use the clause with its Alternate III.
    (4) If a fixed-price incentive contract is contemplated, the 
contracting officer may use the clause with its Alternate IV.
    (5) If it is anticipated that recovery of the warranted item will 
involve considerable Government expense for disassembly and/or 
reassembly of larger items, the contracting officer may use the clause 
with its Alternate V.
    (b)(1) The contracting officer may insert a clause substantially the 
same as the clause at 52.246-18, Warranty of Supplies of a Complex 
Nature, in solicitations and contracts for deliverable complex items 
when a fixed-price supply or research and development contract is 
contemplated and the use of a warranty clause has been approved under 
agency procedures. If the contractor's design rather than the 
Government's design will be used, insert the word ``design'' before 
``material'' in paragraph (b)(1).
    (2) If it is desirable to specify that necessary transportation 
incident to correction or replacement will be at the Government's 
expense (as might be the case if, for example, the cost of a warranty 
would otherwise be prohibitive), the contracting officer may use the 
clause with its Alternate II.
    (3) If a fixed-price incentive contract is contemplated, the 
contracting officer may use the clause with its Alternate III.
    (4) If it is anticipated that recovery of the warranted item will 
involve considerable Government expense for disassembly and/or 
reassembly of larger items, the contracting officer may use the clause 
with its Alternate IV.
    (c)(1) The contracting officer may insert a clause substantially the 
same as the clause at 52.246-19, Warranty of Systems and Equipment under 
Performance Specifications or Design Criteria, in solicitations and 
contracts

[[Page 936]]

when performance specifications or design are of major importance; a 
fixed-price supply, service, or research and development contract for 
systems and equipment is contemplated; and the use of a warranty clause 
has been approved under agency procedures.
    (2) If it is desirable to specify that necessary transportation 
incident to correction or replacement will be at the Government's 
expense (as might be the case if, for example, the cost of a warranty 
would otherwise be prohibitive), the contracting officer may use the 
clause with its Alternate I.
    (3) If a fixed-price incentive contract is contemplated, the 
contracting officer may use the clause with its Alternate II.
    (4) If it is anticipated that recovery of the warranted item will 
involve considerable Government expense for disassembly and/or 
reassembly of larger items, the contracting officer may use the clause 
with its Alternate III.
    (d) The contracting officer may insert a clause substantially the 
same as the clause at 52.246-20, Warranty of Services, in solicitations 
and contracts for services when a fixed-price contract for services is 
contemplated and the use of a warranty clause has been approved under 
agency procedures; unless a clause substantially the same as the clause 
at 52.246-19, Warranty of Systems and Equipment under Performance 
Specifications or Design Criteria, has been used.
    (e)(1) The contracting officer may insert a clause substantially the 
same as the clause at 52.246-21, Warranty of Construction, in 
solicitations and contracts when a fixed-price construction contract 
(see 46.705(c)) is contemplated and the use of a warranty clause has 
been approved under agency procedures.
    (2) If the Government specifies in the contract the use of any 
equipment by brand name and model, the contracting officer may use the 
clause with its Alternate I.

[48 FR 42415, Sept. 19, 1983, as amended at 60 FR 48250, Sept. 18, 1995; 
66 FR 2133, Jan. 10, 2001]

 Subpart 46.8_Contractor Liability for Loss of or Damage to Property of 
                             the Government



Sec. 46.800  Scope of subpart.

    This subpart prescribes policies and procedures for limiting 
contractor liability for loss of or damage to property of the Government 
that (a) occurs after acceptance and (b) results from defects or 
deficiencies in the supplies delivered or services performed.



Sec. 46.801  Applicability.

    (a) This subpart applies to contracts other than those for (1) 
information technology, including telecommunications, (2) construction, 
(3) architect-engineer services, and (4) maintenance and rehabilitation 
of real property. This subpart does not apply to commercial items.
    (b) See subpart 46.7, Warranties, for policies and procedures 
concerning contractor liability caused by nonconforming technical data.

[48 FR 42415, Sept. 19, 1983, as amended at 61 FR 41471, Aug. 8, 1996; 
66 FR 53484, Oct. 22, 2001]



Sec. 46.802  Definition.

    High-value item, as used in this subpart, means a contract end item 
that (a) has a high unit cost (normally exceeding $100,000 per unit), 
such as an aircraft, an aircraft engine, a communication system, a 
computer system, a missile, or a ship, and (b) is designated by the 
contracting officer as a high-value item.



Sec. 46.803  Policy.

    (a) General. The Government will generally act as a self-insurer by 
relieving contractors, as specified in this subpart, of liability for 
loss of or damage to property of the Government that (1) occurs after 
acceptance of supplies delivered or services performed under a contract 
and (2) results from defects or deficiencies in the supplies or 
services. However, the Government will not relieve the contractor of 
liability for loss of or damage to the contract end item itself, except 
for high-value items.
    (b) High-value items. In contracts requiring delivery of high-value 
items,

[[Page 937]]

the Government will relieve contractors of contractual liability for 
loss of or damage to those items. However, this relief shall not limit 
the Government's rights arising under the contract to--
    (1) Have any defective item or its components corrected, repaired, 
or replaced when the defect or deficiency is discovered before the loss 
of or damage to a high-value item occurs; or
    (2) Obtain equitable relief when the defect or deficiency is 
discovered after such loss or damage occurs.
    (c) Exception. The Government will not provide contractual relief 
under paragraphs (a) and (b) above when contractor liability can be 
preserved without increasing the contract price.
    (d) Limitations. Subject to the specific terms of the limitation of 
liability clause included in the contract, the relief provided under 
paragraphs (a) and (b) above does not apply--
    (1) To the extent that contractor liability is expressly provided 
under a contract clause authorized by this regulation;
    (2) When a defect or deficiency in, or the Government's acceptance 
of, the supplies or services results from willful misconduct or lack of 
good faith on the part of the contractor's managerial personnel; or
    (3) To the extent that any contractor insurance, or self-insurance 
reserve, covers liability for loss or damage suffered by the Government 
through purchase or use of the supplies delivered or services performed 
under the contract.



Sec. 46.805  Contract clauses.

    (a) Contracts that exceed the simplified acquisition threshold. The 
contracting officer shall insert the appropriate clause or combination 
of clauses specified in subparagraphs (a)(1) through (a)(5) of this 
section in solicitations and contracts when the contract amount is 
expected to be in excess of the simplified acquisition threshold and the 
contract is subject to the requirements of this subpart as indicated in 
46.801:
    (1) In contracts requiring delivery of end items that are not high-
value items, insert the clause at 52.246-23, Limitation of Liability.
    (2) In contracts requiring delivery of high-value items, insert the 
clause at 52.246-24, Limitation of Liability--High-Value Items.
    (3) In contracts requiring delivery of both high-value items and 
other end items, insert both clauses prescribed in (1) and (2) above, 
Alternate I of the clause at 52.246-24, and identify clearly in the 
contract schedule the line items designated as high-value items.
    (4) In contracts requiring the performance of services, insert the 
clause at 52.246-25, Limitation of Liability--Services.
    (5) In contracts requiring both the performance of services and the 
delivery of end items, insert the clause prescribed in subparagraph (4) 
above and the appropriate clause or clauses prescribed in subparagraph 
(1), (2), or (3) above, and identify clearly in the contract schedule 
any high-value line items.
    (b) Acquisitions at or below the simplified acquisition threshold. 
The clauses prescribed by paragraph (a) of this section are not required 
for contracts at or below the simplified acquisition threshold. However, 
in response to a contractor's specific request, the contracting officer 
may insert the clauses prescribed in paragraph (a)(1) or (a)(4) of this 
section in a contract at or below the simplified acquisition threshold 
and may obtain any price reduction that is appropriate.

[48 FR 42415, Sept. 19, 1983, as amended at 55 FR 3886, Feb. 5, 1990; 60 
FR 34760, July 3, 1995; 61 FR 39190, July 26, 1996]



Sec. 46.806  Subcontracts.

    (a) The clause at 52.246-23, Limitation of Liability, and the clause 
at 52.246-25, Limitation of Liability--Services, each require the 
contractor to insert the same clause in all subcontracts.
    (b) The clause at 52.246-24, Limitation of Liability--High-Value 
Items, and its Alternate I require the contractor to insert that clause, 
the clause at 52.246-23, Limitation of Liability, or both, as 
appropriate, in all subcontracts. However, they require the contractor 
to obtain the contracting officer's written approval before including 
the clause at 52.246-24, Limitation of Liability--High-Value Items.

[[Page 938]]

The contracting officer shall approve the use of this clause in a 
subcontract only if the clause would have been used had the subcontract 
been a prime contract with the Government.

                         PART 47_TRANSPORTATION

Sec.

Sec. 47.000 Scope of subpart.

Sec. 47.001 Definitions.

Sec. 47.002 Applicability.

                          Subpart 47.1_General


Sec. 47.101 Policies.

Sec. 47.102 Transportation insurance.

Sec. 47.103 Transportation Payment and Audit Regulation.

Sec. 47.103-1 General.

Sec. 47.103-2 Contract clause.

Sec. 47.104 Government rate tenders under section 10721 of the 
          Interstate Commerce Act.

Sec. 47.104-1 Government freight.

Sec. 47.104-2 Fixed-price contracts.

Sec. 47.104-3 Cost-reimbursement contracts.

Sec. 47.104-4 Contract clauses.

Sec. 47.104-5 Citation of Government rate tenders.

Sec. 47.105 Transportation assistance.

Subpart 47.2_Contracts for Transportation or for Transportation-Related 
                                Services


Sec. 47.200 Scope of subpart.

Sec. 47.201 Definitions.

Sec. 47.202 Presolicitation planning.

Sec. 47.203 [Reserved]

Sec. 47.204 Single-movement contracts.

Sec. 47.205 Availability of term contracts and basic ordering agreements 
          for transportation or for transportation-related services.

Sec. 47.206 Preparation of solicitations and contracts.

Sec. 47.207 Solicitation provisions, contract clauses, and special 
          requirements.

Sec. 47.207-1 Qualifications of offerors.

Sec. 47.207-2 Duration of contract and time of performance.

Sec. 47.207-3 Description of shipment, origin, and destination.

Sec. 47.207-4 Determination of weights.

Sec. 47.207-5 Contractor responsibilities.

Sec. 47.207-6 Rates and charges.

Sec. 47.207-7 Liability and insurance.

Sec. 47.207-8 Government responsibilities.

Sec. 47.207-9 Annotation and distribution of shipping and billing 
          documents.

Sec. 47.207-10 Discrepancies incident to shipments.

Sec. 47.207-11 Volume movements within the contiguous United States.

Sec. 47.208 Report of shipment (REPSHIP).

Sec. 47.208-1 Advance notice.

Sec. 47.208-2 Contract clause.

             Subpart 47.3_Transportation in Supply Contracts


Sec. 47.300 Scope of subpart.

Sec. 47.301 General.

Sec. 47.301-1 Responsibilities of contracting officers.

Sec. 47.301-2 Participation of transportation officers.

Sec. 47.301-3 Using the Defense Transportation System (DTS).

Sec. 47.302 Place of delivery--f.o.b. point.

Sec. 47.303 Standard delivery terms and contract clauses.

Sec. 47.303-1 F.o.b. origin.

Sec. 47.303-2 F.o.b. origin, contractor's facility.

Sec. 47.303-3 F.o.b. origin, freight allowed.

Sec. 47.303-4 F.o.b. origin, freight prepaid.

Sec. 47.303-5 F.o.b. origin, with differentials.

Sec. 47.303-6 F.o.b. destination.

Sec. 47.303-7 F.o.b. destination, within consignee's premises.

Sec. 47.303-8 F.a.s. vessel, port of shipment.

Sec. 47.303-9 F.o.b. vessel, port of shipment.

Sec. 47.303-10 F.o.b. inland carrier, point of exportation.

Sec. 47.303-11 F.o.b. inland point, country of importation.

Sec. 47.303-12 Ex dock, pier, or warehouse, port of importation.

Sec. 47.303-13 C.& f. destination.

Sec. 47.303-14 C.i.f. destination.

Sec. 47.303-15 F.o.b. designated air carrier's terminal, point of 
          exportation.

Sec. 47.303-16 F.o.b. designated air carrier's terminal, point of 
          importation.

Sec. 47.303-17 Contractor-prepaid commercial bills of lading, small 
          package shipments.

Sec. 47.304 Determination of delivery terms.

Sec. 47.304-1 General.

Sec. 47.304-2 Shipments within CONUS.

Sec. 47.304-3 Shipments from CONUS for overseas delivery.

Sec. 47.304-4 Shipments originating outside CONUS.

Sec. 47.304-5 Exceptions.

Sec. 47.305 Solicitation provisions, contract clauses, and 
          transportation factors.

Sec. 47.305-1 Solicitation requirements.

Sec. 47.305-2 Solicitations f.o.b. origin and f.o.b. destination--lowest 
          overall cost.

Sec. 47.305-3 F.o.b. origin solicitations.

Sec. 47.305-4 F.o.b. destination solicitations.

Sec. 47.305-5 Destination unknown.

Sec. 47.305-6 Shipments to ports and air terminals.

Sec. 47.305-7 Quantity analysis, direct delivery, and reduction of 
          crosshauling and backhauling.

Sec. 47.305-8 Consolidation of small shipments and the use of stopoff 
          privileges.

Sec. 47.305-9 Commodity description and freight classification.

Sec. 47.305-10 Packing, marking, and consignment instructions.

[[Page 939]]


Sec. 47.305-11 Options in shipment and delivery.

Sec. 47.305-12 Delivery of Government-furnished property.

Sec. 47.305-13 Transit arrangements.

Sec. 47.305-14 Mode of transportation.

Sec. 47.305-15 Loading responsibilities of contractors.

Sec. 47.305-16 Shipping characteristics.

Sec. 47.305-17 Returnable cylinders.

Sec. 47.306 Transportation factors in the evaluation of offers.

Sec. 47.306-1 Transportation cost determinations.

Sec. 47.306-2 Lowest overall transportation costs.

Sec. 47.306-3 Adequacy of loading and unloading facilities.

          Subpart 47.4_Air Transportation by U.S.-Flag Carriers


Sec. 47.401 Definitions.

Sec. 47.402 Policy.

Sec. 47.403 Guidelines for implementation of the Fly America Act.

Sec. 47.403-1 Availability and unavailability of U.S.-flag air carrier 
          service.

Sec. 47.403-2 Air transport agreements between the United States and 
          foreign governments.

Sec. 47.403-3 Disallowance of expenditures.

Sec. 47.404 Air freight forwarders.

Sec. 47.405 Contract clause.

         Subpart 47.5_Ocean Transportation by U.S.-Flag Vessels


Sec. 47.500 Scope of subpart.

Sec. 47.501 Definitions.

Sec. 47.502 Policy.

Sec. 47.503 Applicability.

Sec. 47.504 Exceptions.

Sec. 47.505 Construction contracts.

Sec. 47.506 Procedures.

Sec. 47.507 Contract clauses.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 
2473(c).

    Source: 48 FR 42424, Sept. 19, 1983, unless otherwise noted.



Sec. 47.000  Scope of subpart.

    (a) This part prescribes policies and procedures for--
    (1) Applying transportation and traffic management considerations in 
the acquisition of supplies; and
    (2) Acquiring transportation or transportation-related services by 
contract methods other than bills of lading, transportation requests, 
transportation warrants, and similar transportation forms. 
Transportation and transportation services can be obtained by 
acquisition subject to the FAR or by acquisition under 49 U.S.C. 10721 
or 49 U.S.C. 13712. Even though the FAR does not regulate the 
acquisition of transportation or transportation-related services when 
the bill of lading is the contract, this contract method is widely used 
and, therefore, relevant guidance on the use of the bill of lading is 
provided in this part (see 47.104).
    (b) The definitions in this part have been condensed from statutory 
definitions. In case of inconsistency between the language of this part 
and the statutory requirements, the statute shall prevail.

[48 FR 42424, Sept. 19, 1983, as amended at 71 FR 202, Jan. 3, 2006]



Sec. 47.001  Definitions.

    As used in this part--
    Bill of lading means a transportation document, used as a receipt of 
goods, as documentary evidence of title, for clearing customs, and 
generally used as a contract of carriage.
    (1) Commercial bill of lading (CBL), unlike the Government bill of 
lading, is not an accountable transportation document.
    (2) Government bill of lading (GBL) is an accountable transportation 
document, authorized and prepared by a Government official.
    Carrier or commercial carrier means a common carrier or a contract 
carrier.
    Common carrier means a person holding itself out to the general 
public to provide transportation for compensation.
    Contract carrier means a person providing transportation for 
compensation under continuing agreements with one person or a limited 
number of persons.
    Government rate tender under 49 U.S.C. 10721 and 13712 means an 
offer by a common carrier to the United States at a rate below the 
regulated rate offered to the general public.
    Household goods in accordance with 49 U.S.C. 13102 means personal 
effects and property used or to be used in a dwelling, when a part of 
the equipment or supply of such dwelling, and similar property if the 
transportation of such effects or property is arranged and paid for by--
    (1) The householder, except such term does not include property 
moving from a factory or store, other than

[[Page 940]]

property that the householder has purchased with the intent to use in 
his or her dwelling and is transported at the request of, and the 
transportation charges are paid to the carrier by, the householder; or
    (2) Another party.
    Noncontiguous domestic trade means transportation (except with 
regard to bulk cargo, forest products, recycled metal scrap, waste 
paper, and paper waste) subject to regulation by the Surface 
Transportation Board involving traffic originating in or destined to 
Alaska, Hawaii, or a territory or possession of the United States (see 
49 U.S.C. 13102(15) and 13702).
    Released or declared value means the assigned value of the cargo for 
reimbursement purposes, not necessarily the actual value of the cargo. 
Released value may be more or less than the actual value of the cargo. 
The released value is the maximum amount that could be recovered by the 
agency in the event of loss or damage for the shipments of freight and 
household goods.

[48 FR 42424, Sept. 19, 1983, as amended at 66 FR 2133, Jan. 10, 2001; 
68 FR 28084, May 22, 2003; 71 FR 203, Jan. 3, 2006]



Sec. 47.002  Applicability.

    All Government personnel concerned with the following activities 
shall follow the regulations in Part 47 as applicable:
    (a) Acquisition of supplies.
    (b) Acquisition of transportation and transportation-related 
services.
    (c) Transportation assistance and traffic management.
    (d) Administration of transportation contracts, transportation-
related services, and other contracts that involve transportation.
    (e) The making and administration of contracts under which payments 
are made from Government funds for--
    (1) The transportation of supplies;
    (2) Transportation-related services; or
    (3) Transportation of contractor personnel and their personal 
belongings.

[71 FR 203, Jan. 3, 2006]

                          Subpart 47.1_General



Sec. 47.101  Policies.

    (a) For domestic shipments, the contracting officer shall authorize 
shipments on commercial bills of lading (CBL's). Government bills of 
lading (GBL's) may be used for international or noncontiguous domestic 
trade shipments or when otherwise authorized.
    (b) The contract administration office (CAO) shall ensure that 
instructions to contractors result in the most efficient and economical 
use of transportation services and equipment. Transportation personnel 
will assist and provide transportation management expertise to the CAO. 
Specific responsibilities and details on transportation management are 
located in the Federal Management Regulation at 41 CFR parts 102-117 and 
102-118. (For the Department of Defense, DoD 4500.9-R, Defense 
Transportation Regulation.)
    (c) The contracting officer shall obtain traffic management advice 
and assistance (see 47.105) in the consideration of transportation 
factors required for--
    (1) Solicitations and awards;
    (2) Contract administration, modification, and termination; and
    (3) Transportation of property by the Government to and from 
contractors' plants.
    (d)(1) The preferred method of transporting supplies for the 
Government is by commercial carriers. However, Government-owned, leased, 
or chartered vehicles, aircraft, and vessels may be used if (i) they are 
available and not fully utilized, (ii) their use will result in 
substantial economies, and (iii) their use is in accordance with all 
applicable statutes, agency policies and regulations.
    (2) If the three circumstances listed in paragraph (d)(1) of this 
section apply, Government vehicles may be used for purposes such as--
    (i) Local transportation of supplies between Government 
installations;
    (ii) Pickup and delivery services that commercial carriers do not 
perform in connection with line-haul transportation;
    (iii) Transportation of supplies to meet emergencies; and

[[Page 941]]

    (iv) Accomplishment of program objectives that cannot be attained by 
using commercial carriers.
    (e) Agencies shall not accord preferential treatment to any mode of 
transportation or to any particular carrier either in awarding or 
administering contracts for the acquisition of supplies or in awarding 
contracts for the acquisition of transportation. (See subparts 47.2 and 
47.3 for situations in which the contracting officer is permitted to use 
specific modes of transportation.)
    (f) Agencies shall place with small business concerns purchases and 
contracts for transportation and transportation-related services as 
prescribed in part 19.
    (g) Agencies shall comply with the Fly America Act, the Cargo 
Preference Act, and related statutes as prescribed in subparts 47.4, Air 
Transportation by U.S.-Flag Carriers, and 47.5, Ocean Transportation by 
U.S.-Flag Vessels.
    (h) When a contract specifies delivery of supplies f.o.b. origin 
with transportation costs to be paid by the Government, the contractor 
shall make shipments on bills of lading, or on other shipping documents 
prescribed by Military Surface Deployment and Distribution Command 
(SDDC) in the case of seavan containers, either at the direction of or 
furnished by the CAO or the appropriate agency transportation office.

[48 FR 42424, Sept. 19, 1983, as amended at 71 FR 203, Jan. 3, 2006]



Sec. 47.102  Transportation insurance.

    (a) The Government generally (1) retains the risk of loss of and/or 
damage to its property that is not the legal liability of commercial 
carriers and (2) does not buy insurance coverage for its property in the 
possession of commercial carriers (40 U.S.C. 17307). (See part 28, Bonds 
and Insurance.)
    (b) Under special circumstances the Government may, if such action 
is considered necessary and in the Government's interest, (1) buy 
insurance coverage for Government property or (2) require the carrier to 
(i) assume full responsibility for loss of or damage to the Government 
property in its possession and (ii) buy insurance to cover the carrier's 
assumed responsibility. The cost of this insurance to the carrier shall 
be part of the transportation cost. (The Secretary of the Treasury 
prescribes regulations regarding shipments of valuables in 31 CFR parts 
361 and 362.)
    (c)(1) If special circumstances dictate the need for the Government 
to buy insurance coverage, the contracting officer shall ascertain that 
(i) there is no statutory prohibition and (ii) funds for insurance are 
available.
    (2) The contracting officer shall document the need and 
authorization for insurance coverage in the contract file.

[48 FR 42424, Sept. 19, 1983, as amended at 70 FR 57455, Sept. 30, 2005; 
71 FR 203, Jan. 3, 2006]



Sec. 47.103  Transportation Payment and Audit Regulation.



Sec. 47.103-1  General.

    (a)(1) Regulations and procedures governing the bill of lading, 
documentation, payment, and audit of transportation services acquired by 
the United States Government are prescribed in 41 CFR part 102-118, 
Transportation Payment and Audit.
    (2) For DoD shipments, corresponding guidance is in DoD 4500.9-R, 
Defense Transportation Regulation, Part II.
    (b) Under 31 U.S.C. 3726, all agencies are required to establish a 
prepayment audit program. For details on the establishment of a 
prepayment audit, see 41 CFR part 102-118.
    (c) The agency designated in paragraph (a)(3) of the clause at 
52.247-67 shall forward original copies of paid freight bills/invoices, 
bills of lading, passenger coupons, and supporting documents as soon as 
possible following the end of the month, in one package for postpayment 
audit to the General Services Administration, Transportation Audit 
Division (QMCA), Crystal Plaza 4, Room 300, 2200 Crystal Drive, 
Arlington, VA 22202.. The specified agency shall include the paid 
freight bills/invoices, bills of lading, passenger coupons, and 
supporting documents for first-tier subcontractors under a cost-
reimbursement contract. If the inclusion of the paid freight bills/
invoices, bills of lading, passenger coupons, and

[[Page 942]]

supporting documents for any subcontractor in the shipment is not 
practicable, the documents may be forwarded to GSA in a separate 
package.
    (d) Any original transportation bills or other documents requested 
by GSA shall be forwarded promptly. The specified agency shall ensure 
that the name of the contracting agency is stamped or written on the 
face of the bill before sending it to GSA.
    (e) A statement prepared in duplicate by the specified agency shall 
accompany each shipment of transportation documents. GSA will 
acknowledge receipt of the shipment by signing and returning the copy of 
the statement. The statement shall show--
    (1) The name and address of the specified agency;
    (2) The contract number, including any alpha-numeric prefix 
identifying the contracting office;
    (3) The name and address of the contracting office;
    (4) The total number of bills submitted with the statement; and
    (5) A listing of the respective amounts paid or, in lieu of such 
listing, an adding machine tape of the amounts paid showing the 
Contractor's voucher or check numbers.

[71 FR 203, Jan. 2, 2006, as amended at 74 FR 11832, Mar. 19, 2009]



Sec. 47.103-2  Contract clause.

    Complete and insert the clause at 52.247-67, Submission of 
Transportation Documents for Audit, in solicitations and contracts when 
a cost-reimbursement contract is contemplated and the contract or a 
first-tier cost-reimbursement subcontract thereunder will authorize 
reimbursement of transportation as a direct charge to the contract or 
subcontract.

[71 FR 203, Jan. 2, 2006]



Sec. 47.104  Government rate tenders under sections 10721 and 13712 of 
          the Interstate Commerce Act (49 U.S.C. 10721 and 13712).

    (a) This section explains statutory authority for common carriers 
subject to the jurisdiction of the Surface Transportation Board (motor 
carrier, water carrier, freight forwarder, rail carrier) to offer to 
transport persons or property for the account of the United States 
without charge or at ``a rate reduced from the applicable commercial 
rate.'' Reduced rates are offered in a Government rate tender. 
Additional information for civilian agencies is available in the Federal 
Management Regulation (41 CFR parts 102-117 and 102-118) and for DoD in 
the Defense Transportation Regulation (DoD 4500.9-R).
    (b) Reduced rates offered in a Government rate tender are authorized 
for transportation provided by a rail carrier, for the movement of 
household goods, and for movement by or with a water carrier in 
noncontiguous domestic trade.
    (1) For Government rate tenders submitted by a rail carrier, a rate 
reduced from the applicable commercial rate is a rate reduced from a 
rate regulated by the Surface Transportation Board.
    (2) For Government rate tenders submitted for the movement of 
household goods, ``a rate reduced from the applicable commercial rate'' 
is a rate reduced from a rate contained in a published tariff subject to 
regulation by the Surface Transportation Board.
    (3) For Government rate tenders submitted for movement by or with a 
water carrier in noncontiguous domestic trade, ``a rate reduced from the 
applicable commercial rate'' is a rate reduced from a rate contained in 
a published tariff required to be filed with the Surface Transportation 
Board.

[71 FR 204, Jan. 3, 2006]



Sec. 47.104-1  Government rate tender procedures.

    (a) 49 U.S.C. 10721 and 13712 rates are published in Government rate 
tenders and apply to shipments moving for the account of the Government 
on--
    (1) Commercial bills of lading endorsed to show that total 
transportation charges are assignable to, and will be reimbursed by, the 
Government (see the clause at 52.247-1, Commercial Bill of Lading 
Notations); and
    (2) Government bills of lading.
    (b) Agencies may negotiate with carriers for additional or revised 
49 U.S.C. 10721 and 13712 rates in appropriate situations. Only 
personnel authorized in agency procedures may carry out these 
negotiations. The following are examples of situations in which 
negotiations

[[Page 943]]

for additional or revised 49 U.S.C. 10721 and 13712 rates may be 
appropriate:
    (1) Volume movements are expected.
    (2) Shipments will be made on a recurring basis between designated 
places, and substantial savings in transportation costs appear possible 
even though a volume movement is not involved.
    (3) Transit arrangements are feasible and advantageous to the 
Government.

[71 FR 204, Jan. 3, 2006]



Sec. 47.104-2  Fixed-price contracts.

    (a) F.o.b. destination. 49 U.S.C. 10721 and 13712 rates do not apply 
to shipments under fixed-price f.o.b. destination contracts (delivered 
price).
    (b) F.o.b. origin. If it is advantageous to the Government, the 
contracting officer may occasionally require the contractor to prepay 
the freight charges to a specific destination. In such cases, the 
contractor shall use a commercial bill of lading and be reimbursed for 
the direct and actual transportation cost as a separate item in the 
invoice. The clause at 52.247-1, Commercial Bill of Lading Notations, 
will ensure that the Government in this type of arrangement obtains the 
benefit of 49 U.S.C. 10721 and 13712 rates.

[71 FR 204, Jan. 3, 2006]



Sec. 47.104-3  Cost-reimbursement contracts.

    (a) 49 U.S.C. 10721 and 13712 rates may be applied to shipments 
other than those made by the Government if the total benefit accrues to 
the Government, i.e., the Government shall pay the charges or directly 
and completely reimburse the party that initially bears the freight 
charges. Therefore, 49 U.S.C. 10721 and 13712 rates may be used for 
shipments moving on commercial bills of lading in cost reimbursement 
contracts under which the transportation costs are direct and allowable 
costs under the cost principles of Part 31.
    (b) 49 U.S.C. 10721 and 13712 rates may be applied to the movement 
of household goods and personal effects of contractor employees who are 
relocated for the convenience and at the direction of the Government and 
whose total transportation costs are reimbursed by the Government.
    (c) The clause at 52.247-1, Commercial Bill of Lading Notations, 
will ensure that the Government receives the benefit of lower 49 U.S.C. 
10721 and 13712 rates in cost-reimbursement contracts as described in 
paragraphs (a) and (b) of this section.
    (d) Contracting officers shall--
    (1) Include in contracts a statement requiring the contractor to use 
carriers that offer acceptable service at reduced rates if available; 
and
    (2) Ensure that contractors receive the name and location of the 
transportation officer designated to furnish support and guidance when 
using Government rate tenders.
    (e) The transportation office shall--
    (1) Advise and assist contracting officers and contractors; and
    (2) Make available to contractors the names of carriers that provide 
service under 49 U.S.C. 10721 and 13712 rates, cite applicable rate 
tenders, and advise contractors of the statement that must be shown on 
the carrier's commercial bill of lading (see the clause at 52.247-1, 
Commercial Bill of Lading Notations).

[71 FR 204, Jan. 3, 2006]



Sec. 47.104-4  Contract clause.

    (a) In order to ensure the application of 49 U.S.C. 10721 and 13712 
rates, where authorized (see 47.104(b)), insert the clause at 52.247-1, 
Commercial Bill of Lading Notations, in solicitations and contracts when 
the contracts will be--
    (1) Cost-reimbursement contracts, including those that may involve 
the movement of household goods (see 47.104-3(b)); or
    (2) Fixed-price f.o.b. origin contracts (other than contracts at or 
below the simplified acquisition threshold) (see 47.104-2(b) and 47.104-
3).
    (b) The contracting officer may insert the clause at 52.247-1, 
Commercial Bill of Lading Notations, in solicitations and contracts made 
at or below the simplified acquisition threshold when it is contemplated 
that the delivery terms will be f.o.b. origin.

[71 FR 204, Jan. 3, 2006]

[[Page 944]]



Sec. 47.104-5  Citation of Government rate tenders.

    When 49 U.S.C. 10721 and 13712 rates apply, transportation offices 
or contractors, as appropriate, shall identify the applicable Government 
rate tender by endorsement on bills of lading.

[71 FR 204, Jan. 3, 2006]



Sec. 47.105  Transportation assistance.

    (a) Civilian Government activities that do not have transportation 
officers, or otherwise need assistance on transportation matters, shall 
obtain assistance from (1) the GSA Regional Federal Supply Service 
Bureau that provides support to the activity or (2) the transportation 
element of the contract administration office designated in the 
contract.
    (b) Military installations shall obtain transportation assistance 
from the transportation office of the contracting activity, unless 
another military activity has been designated as responsible for 
furnishing assistance, guidance, or data. Military transportation 
offices shall request needed additional aid from the Military Surface 
Deployment and Distribution Command (SDDC).

[48 FR 42424, Sept. 19, 1983, as amended at 54 FR 29282, July 11, 1989; 
71 FR 205, Jan. 3, 2006]

Subpart 47.2_Contracts for Transportation or for Transportation-Related 
                                Services



Sec. 47.200  Scope of subpart.

    (a) This subpart prescribes procedures for the acquisition by sealed 
bid or negotiated contracts of--
    (1) Freight transportation (including local drayage) from rail, 
motor (including bus), domestic water (including inland, coastwise, and 
intercoastal) carriers, and from freight forwarders; and
    (2) Transportation-related services including but not limited to 
stevedoring, storage, packing, marking, and ocean freight forwarding.
    (b) Except as provided in paragraph (c) below, this subpart does not 
apply to--
    (1) The acquisition of freight transportation from (i) domestic or 
international air carriers and (ii) international ocean carriers (see 
subparts 47.4 and 47.5);
    (2) Freight transportation acquired by bills of lading;
    (3) Household goods for which rates are negotiated under 49 U.S.C. 
10721 and 13712. (These statutes do not apply in intrastate moves); or
    (4) Contracts at or below the simplified acquisition threshold.
    (c) With appropriate modifications, the procedures in this subpart 
may be applied to the acquisition of freight transportation from the 
carriers listed in paragraph (b)(1) above and passenger transportation 
from any carrier or mode.
    (d) The procedures in this subpart are applicable to the 
transportation of household goods of persons being relocated at 
Government expense except when acquired--
    (1) Under the commuted rate schedules as required in the Federal 
Travel Regulation (41 CFR Chapter 302);
    (2) By DoD under the DoD 4500.9-R, Defense Transportation 
Regulation; or
    (3) Under 49 U.S.C. 10721 and 13712 rates. (These statutes do not 
apply in intrastate moves.)
    (e) Additional guidance for DoD acquisition of freight and passenger 
transportation is in the Defense Transportation Regulation.

[48 FR 42424, Sept. 19, 1983, as amended at 50 FR 1745, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985; 59 FR 11383, Mar. 10, 1994; 60 FR 34760, 
July 3, 1995; 61 FR 39190, July 26, 1996; 71 FR 205, Jan. 3, 2006]



Sec. 47.201  Definitions.

    As used in this subpart--
    General freight means supplies, goods, and transportable property 
not encompassed in the definitions of household goods or office 
furniture.
    Office furniture means furniture, equipment, fixtures, records, and 
other equipment and materials used in Government offices, hospitals, and 
similar establishments.

[48 FR 42424, Sept. 19, 1983, as amended at 66 FR 2133, Jan. 10, 2001; 
71 FR 205, Jan. 3, 2006]

[[Page 945]]



Sec. 47.202  Presolicitation planning.

    Contracting officers shall inform activities that plan to acquire 
transportation or transportation-related services of the applicable 
lead-time requirements, that is--
    (a) The Service Contract Act of 1965 (SCA) requirement to obtain a 
wage determination by accessing the Wage Determination OnLine website 
(http://www.wdol.gov) using the WDOL process or by submitting a request 
directly to the Department of Labor on this website using the e98 
process before the issuance of an invitation for bid, request for 
proposal, or commencement of negotiations for any contract exceeding 
$2,500 that may be subject to the SCA (see Subpart 22.10);
    (b) The possible requirement to provide, during the solicitation 
period, time for prospective offerors or contractors to inspect origin 
and destination locations; or
    (c) The possible requirement for inspection by agency personnel of 
prospective contractor facilities and equipment.

[48 FR 42424, Sept. 19, 1983, as amended at 71 FR 36935, June 28, 2006]



Sec. 47.203  [Reserved]



Sec. 47.204  Single-movement contracts.

    Single-movement contracts may be awarded for unique transportation 
services that are not otherwise available under carrier tariffs or 
covered by DOD or GSA contracts; e.g., special requirements at origin 
and/or destination.



Sec. 47.205  Availability of term contracts and basic ordering 
          agreements for transportation or for transportation-related 
          services.

    (a) All Government agencies may contract for transportation or for 
transportation-related services and execute basic ordering agreements 
(BOA's) (see subpart 16.7) unless agency regulations prescribe 
otherwise. However, it is generally more economical and efficient for 
most agencies to make use of term contracts and basic ordering 
agreements that have been executed by agencies that employ personnel 
experienced in contracting for transportation or for transportation-
related services. The Department of Defense (DOD) and the General 
Services Administration (GSA) contract for transportation or for 
transportation-related services on behalf of other activities and 
agencies. For instance, GSA awards term contracts for services such as 
local drayage, office moves, and ocean-freight forwarding (see 47.105 
for assistance).
    (b) Agencies may obtain transportation or transportation-related 
services for which the cost does not exceed the simplified acquisition 
threshold, if term contracts or basic ordering agreements are not 
available.

[48 FR 42424, Sept. 19, 1983, as amended at 60 FR 34760, July 3, 1995; 
61 FR 39198, July 26, 1996]



Sec. 47.206  Preparation of solicitations and contracts.

    (a) Contracting officers shall prepare solicitations and contracts 
for transportation or for transportation-related services as prescribed 
elsewhere in the FAR for fixed-price service contracts to the extent 
that those requirements are applicable and not inconsistent with the 
requirements in subpart 47.2.
    (b) In addition, the contracting officer shall include in 
solicitations and contracts for transportation or for transportation-
related services provisions, clauses, and instructions as prescribed in 
section 47.207.

[48 FR 42424, Sept. 19, 1983. Redesignated at 50 FR 1745, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985]



Sec. 47.207  Solicitation provisions, contract clauses, and special 
          requirements.

    The contracting officer shall include provisions, clauses, and 
special requirements in solicitations and contracts for transportation 
or for transportation-related services as prescribed in 47.207-1 through 
47.207-9.



Sec. 47.207-1  Qualifications of offerors.

    (a) Operating authorities. The contracting officer shall insert the 
clause at 52.247-2, Permits, Authorities, or Franchises, when regulated 
transportation is involved. The clause need not be used when a Federal 
office move is intrastate and the contracting officer

[[Page 946]]

determines that it is in the Government's interest not to apply the 
requirement for holding or obtaining State authority to operate within 
the State.
    (b) Performance capability for Federal office moving contracts. (1) 
The contracting officer shall insert the clause at 52.247-3, Capability 
to Perform a Contract for the Relocation of a Federal Office, when a 
Federal office is relocated, to ensure that offerors are capable to 
perform interstate or intrastate moving contracts involving the 
relocation of Federal offices.
    (2) If a Federal office move is intrastate and the contracting 
officer determines that it is in the Government's interest not to apply 
the requirements for holding or obtaining State authority to operate 
within the State, and to maintain a facility within the State or 
commercial zone, the contracting officer shall use the clause with its 
Alternate I.
    (c) Inspection of shipping and receiving facilities. The contracting 
officer shall insert the provision at 52.247-4, Inspection of Shipping 
and Receiving Facilities, when it is desired for offerors to inspect the 
shipping, receiving, or other sites to ensure realistic bids.
    (d) Familiarization with conditions. The contracting officer shall 
insert the clause at 52.247-5, Familiarization with Conditions, to 
ensure that offerors become familiar with conditions under which and 
where the services will be performed.
    (e) Financial statement. The contracting officer shall insert the 
provision at 52.247-6, Financial Statement, to ensure that offerors are 
prepared to furnish financial statements.



Sec. 47.207-2  Duration of contract and time of performance.

    The contracting officer shall--
    (a) Establish a specific expiration date (month, day, and year) for 
the contract or state the length of time that the contract will remain 
in effect; e.g., 6 months commencing from the date of award; and
    (b) Include the following items as appropriate:
    (1) A statement of the time period during which the service is 
required when the service is a one-time job; e.g., a routine office 
relocation.
    (2) A time schedule for the performance of segments of a major job; 
e.g., an office relocation for which the work phases must be coordinated 
to meet other needs of the agency.
    (3) Statements of performance times for particular services; e.g., 
pickup and delivery services. Specify--
    (i) On which days of the week and during which hours of the day 
pickup and delivery services may be required;
    (ii) The maximum time allowable to the contractor for accomplishing 
delivery under regular or priority service; and
    (iii) How much advance notice the contractor will be given for 
regular pickup services and, if applicable, priority pickup services.



Sec. 47.207-3  Description of shipment, origin, and destination.

    (a) Origin of shipments. The contracting officer shall include in 
solicitations full details regarding the location from which the freight 
is to be shipped. For example, if a single location is shown, furnish 
the shipper's name, street address, city, State, and ZIP code. If 
several or indefinite locations are involved, as in the case of multiple 
shippers or drayage contracts, describe the area of origin including 
boundaries and ZIP codes.
    (b) Destination of shipments. The contracting officer shall include 
full details regarding delivery points. For example, if a single 
delivery point is shown, furnish the consignee's name, street address, 
city, State, and ZIP code. If several or indefinite delivery points are 
involved, describe the delivery area, including boundaries and ZIP 
codes.
    (c) Description of the freight. The contracting officer shall 
include in solicitations--
    (1) An inventory if the freight consists of nonbulk items; and
    (2) The freight classification description, which should be obtained 
from the transportation office. If a freight classification description 
is not available, use a clear nontechnical description. Include 
additional details necessary to ensure that the prospective offerors 
have complete information

[[Page 947]]

about the freight; e.g., size, weight, hazardous material, whether 
packed for export, or unusual value.
    (d) Exclusion of freight. The contracting officer shall (1) clearly 
identify any freight or types of shipments that are subject to 
exclusion; e.g., bulk freight, hazardous commodities, or shipments under 
or over specified weights; and (2) insert a clause substantially the 
same as the clause at 52.247-7, Freight Excluded, when any commodities 
or types of shipments have been identified for exclusion.
    (e) Quantity. (1) The contracting officer shall state the actual 
weight of the freight or a reasonably accurate estimate. The following 
are examples:
    (i) If the contract covers transportation services required over an 
extended period of time, include a schedule of actual or estimated 
tonnage or number of items to be transported per week, month, or other 
time period.
    (ii) If the contract covers a group movement of household goods, 
give an estimate of the aggregate weights and the basis for determining 
the aggregate weight.
    (2) The contracting officer shall insert the clause at 52.247-8, 
Estimated Weights or Quantities Not Guaranteed, when weights or 
quantities are estimates.



Sec. 47.207-4  Determination of weights.

    The contracting officer shall specify in the contract the method of 
determining the weights of shipments as appropriate for the kind of 
freight involved and the type of service required.
    (a) Shipments of freight other than household goods and office 
furniture. (1) The contracting officer shall insert the clause at 
52.247-9, Agreed Weight--General Freight, when the shipping activity 
determines the weight of shipments of freight other than household goods 
or office furniture.
    (2) The contracting officer shall insert the clause at 52.247-10, 
Net Weight--General Freight, when the weight of shipments of freight 
other than household goods or office furniture is not known at the time 
of shipment and the contractor is responsible for determining the net 
weight of the shipments.
    (b) Shipments of household goods or office furniture. The 
contracting officer shall insert the clause at 52.247-11, Net Weight--
Household Goods or Office Furniture, when movements of Government 
employees' household goods or relocations of Government offices are 
involved.



Sec. 47.207-5  Contractor responsibilities.

    Contractor responsibilities vary with the kinds of freight to be 
shipped and services required. The contracting officer shall specify 
clearly those service requirements that are not considered normal 
transportation or transportation-related requirements.
    (a) Type of equipment. If appropriate, the contracting officer shall 
specify the type and size of equipment to be furnished by the 
contractor. Otherwise, state that the contractor shall furnish clean and 
sound closed-type equipment of sufficient size to accommodate the 
shipment.
    (b) Supervision, labor, or materials. The contracting officer shall 
insert a clause substantially the same as the clause at 52.247-12, 
Supervision, Labor, or Materials, when the contractor is required to 
furnish supervision, labor, or materials.
    (c) Accessorial services--moving contracts. The contracting officer 
shall insert a clause substantially the same as the clause at 52.247-13, 
Accessorial Services--Moving Contracts, in contracts for the 
transportation of household goods or office furniture.
    (d) Receipt of shipment. The contracting officer shall insert the 
clause at 52.247-14, Contractor Responsibility for Receipt of Shipment.
    (e) Loading and unloading. The contracting officer shall insert the 
clause at 52.247-15, Contractor Responsibility for Loading and 
Unloading, when the contractor is responsible for loading and unloading 
shipments.
    (f) Return of undelivered freight. The contracting officer shall 
insert the clause at 52.247-16, Contractor Responsibility for Returning 
Undelivered Freight, when the contractor is responsible for returning 
undelivered freight.



Sec. 47.207-6  Rates and charges.

    (a)(1) The contracting officer shall include in the solicitation a 
statement

[[Page 948]]

that the charges in the contract shall not exceed the contractor's 
charges for the same service that is--
    (i) Available to the general public; or
    (ii) Otherwise tendered to the Government.
    (2) The contracting officer shall insert the clause at 52.247-17, 
Charges.
    (b) The contracting officer shall include in the solicitation a 
tabulation listing each required service and the basis for the rate 
(price); e.g., unit of weight or per work-hour, leaving sufficient space 
for offerors to insert the rates offered for each service.
    (c) The following guidelines apply to the composition of a 
tabulation of transportation or of transportation-related services and 
their rate (price) bases:
    (1) Combination of pricing bases. If various types of services with 
different bases for assessing charges are required under the same 
contract, show each service separately and the applicable basis for that 
service.
    (2) Hourly rate basis. If charges are based on an hourly rate, state 
the method for charging for fractions of an hour; e.g., (i) a period of 
30 minutes or less is charged at one-half the hourly rate and (ii) the 
hourly rate applies to any portion of an hour that exceeds 30 minutes.
    (3) Shipments of varying weights. If charges are based on weight and 
shipments will vary in weight, request rates on a graduated weight 
basis. Include a table of graduated weights for offerors to insert 
rates.
    (4) Multiple origins and/or destinations. Specify whether rates are 
requested for each origin and/or each destination or for specific groups 
of origins and/or destinations.
    (5) Multiple shipments from one origin. If multiple shipments will 
be tendered at one time to the contractor for delivery to two or more 
consignees at the same destination, request the rate applicable to the 
aggregate weight. If such shipments are for delivery to various 
destinations along the route between origin and last destination, 
request the rate applicable to the aggregate weight and a stopoff charge 
for each intermediate destination.
    (i) The contracting officer shall insert the clause at 52.247-18, 
Multiple Shipments, when multiple shipments are tendered at one time to 
the contractor for transportation from one origin to two or more 
consignees at the same destination.
    (ii) The contracting officer shall insert the clause at 52.247-19, 
Stopping in Transit for Partial Unloading, when multiple shipments are 
tendered at one time to the contractor for transportation from one 
origin to two or more consignees along the route between origin and last 
destination.
    (6) Estimated quantities or weights. The contracting officer shall 
insert in solicitations the provision at 52.247-20, Estimated Quantities 
or Weights for Evaluation of Offers, when quantities or weights of 
shipments between each origin and destination are not known, stating 
estimated quantity or weight for each origin/destination pair.
    (7) Additional services. If services in addition to those covered in 
the basic rate are anticipated; e.g., inside delivery, state the 
conditions under which payment will be made for those services.



Sec. 47.207-7  Liability and insurance.

    (a) The contracting officer shall specify--
    (1) The contractor's liability for injury to persons or damage to 
property other than the freight being transported;
    (2) The contractor's liability for loss of and/or damage to the 
freight being transported; and
    (3) The amount of insurance the contractor is required to maintain.
    (b) When the contractor's liability for loss of and/or damage to the 
freight being transported is not specified, the usual measure of 
liability as prescribed in section 11706 of the Interstate Commerce Act 
(49 U.S.C. 11706) applies.
    (c) The contracting officer shall insert the clause at 52.247-21, 
Contractor Liability for Personal Injury and/or Property Damage.
    (d) The contracting officer shall insert the clause at 52.247-22, 
Contractor Liability for Loss of and/or Damage to Freight other than 
Household Goods, in solicitations and contracts for the transportation 
of freight other than household goods.

[[Page 949]]

    (e) The contracting officer shall insert the clause at 52.247-23, 
Contractor Liability for Loss of and/or Damage to Household Goods, in 
solicitations and contracts for the transportation of household goods, 
including the rate per pound appropriate to the situation.
    (f) When freight is not shipped under rates subject to released or 
declared value, see 28.313(a) and the clause at 52.228-9, Cargo 
Insurance.
    (g) When the contracting officer determines that vehicular liability 
and/or general public liability insurance required by law are not 
sufficient for a contract, see 28.313(b) and the clause at 52.228-10, 
Vehicular and General Public Liability Insurance.

[48 FR 42424, Sept. 19, 1983, as amended at 71 FR 205, Jan. 3, 2006]



Sec. 47.207-8  Government responsibilities.

    (a) The contracting officer shall state clearly the Government's 
responsibilities that have a direct bearing on the contractor's 
performance under the contract; e.g., the Government's responsibility to 
notify the contractor in advance when hazardous materials are included 
in a shipment.
    (1) Advance notification. The contracting officer shall insert the 
clause at 52.247-24, Advance Notification by the Government, when the 
Government is responsible for notifying the contractor of specific 
service times or unusual shipments.
    (2) Government equipment with or without operators (i) The 
contracting officer shall insert the clause at 52.247-25, Government-
Furnished Equipment with or without Operators, when the Government 
furnishes equipment with or without operators.
    (ii) Insert the kind of equipment and the locations where the 
equipment will be furnished.
    (3) Direction and marking. The contracting officer shall insert the 
clause at 52.247-26, Government Direction and Marking, when office 
relocations are involved.
    (b) The contracting officer shall insert the clause at 52.247-27, 
Contract Not Affected by Oral Agreement.



Sec. 47.207-9  Annotation and distribution of shipping and billing 
          documents.

    (a) The contracting officer shall state in detail the 
responsibilities of the contractor, the contracting agency, and, if 
appropriate, the consignee for the annotation and distribution of 
shipping and billing documents. See 41 CFR part 102-118, Transportation 
Payment and Audit.
    (b) In instances of mass movements of freight made available to the 
contractor at one time, it is particularly important that the 
contracting officer specifies that bills of lading be cross-referenced 
so that the Government benefits from applicable volume rates.
    (c) The contracting officer shall insert the clause at 52.247-28, 
Contractor's Invoices, in drayage or other term contracts.

[48 FR 42424, Sept. 19, 1983, as amended at 71 FR 205, Jan. 3, 2006]



Sec. 47.207-10  Discrepancies incident to shipments.

    Discrepancies incident to shipment include overage, shortage, loss, 
damage, and other discrepancies between the quantity and/or condition of 
supplies received from commercial carrier and the quantity and/or 
condition of these supplies as shown on the covering bill of lading or 
other transportation document. Regulations and procedures for reporting 
and adjusting discrepancies in Government shipments are in 41 CFR parts 
102-117 and 118. (For the Department of Defense (DoD), see DoD 4500.9-R, 
Defense Transportation Regulation, Part II, Chapter 210).

[71 FR 205, Jan. 3, 2006]



Sec. 47.207-11  Volume movements within the contiguous United States.

    (a) For purposes of contract administration, a volume movement is--
    (1) In DoD, the aggregate of freight shipments amounting to or 
exceeding 25 carloads, 25 truckloads, or 500,000 pounds, to move during 
the contract period from one origin point for delivery to one 
destination point or area; and
    (2) In civilian agencies, 50 short tons (100,000 pounds) in the 
aggregate to move during the contract period from

[[Page 950]]

one origin point for delivery to one destination point or area.
    (b) Transportation personnel assigned to or supporting the CAO, or 
appropriate agency personnel, shall report planned and actual volume 
movements in accordance with agency regulations. DoD activities report 
to the Military Surface Deployment and Distribution Command (SDDC) under 
DoD 4500.9-R, Defense Transportation Regulation. Civilian agencies 
report to the local office of GSA's Office of Transportation (see 
www.gsa.gov/transportation (click on Transportation Management Zone 
Offices in left-hand column, then click on Transportation Management 
Zones under Contacts on right-hand column).

[71 FR 205, Jan. 3, 2006]



Sec. 47.208  Report of shipment (REPSHIP).



Sec. 47.208-1  Advance notice.

    Military (and as required, civilian agency) storage and distribution 
points, depots, and other receiving activities require advance notice of 
shipments en route from contractors' plants. Generally, this 
notification is required only for classified material; sensitive, 
controlled, and certain other protected material; explosives, and some 
other hazardous materials; selected shipments requiring movement 
control; or minimum carload or truckload shipments. It facilitates 
arrangements for transportation control, labor, space, and use of 
materials handling equipment at destination. Also, timely receipt of 
notices by the consignee transportation office precludes the incurring 
of demurrage and vehicle detention charges.

[71 FR 205, Jan. 3, 2006]



Sec. 47.208-2  Contract clause.

    The contracting officer shall insert the clause at 52.247-68, Report 
of Shipment (REPSHIP), in solicitations and contracts when advance 
notice of shipment is required for safety or security reasons, or where 
carload or truckload shipments will be made to DoD installations or, as 
required, to civilian agency facilities.

[71 FR 205, Jan. 3, 2006]

             Subpart 47.3_Transportation in Supply Contracts



Sec. 47.300  Scope of subpart.

    (a) This subpart prescribes policies and procedures for the 
application of transportation and traffic management considerations in 
the acquisition of supplies. The terms and conditions contained in this 
subpart are applicable to fixed-price contracts.
    (b) If a special requirement exists for application of any of these 
terms and conditions to other types of contracts; e.g., cost-
reimbursement contracts, for which transportation arrangements are 
normally the responsibility of the contractor and transportation costs 
are allowable, the contracting officer shall use the terms and 
conditions prescribed in this subpart as a guide for (1) contract 
coverage of transportation and (2) instructions to the contractor to 
minimize the ultimate transportation costs to the Government.

[48 FR 42424, Sept. 19, 1983, as amended at 68 FR 28092, May 22, 2003]



Sec. 47.301  General.

    (a) Transportation and traffic management factors are important in 
awarding and administering contracts to ensure that (1) acquisitions are 
made on the basis most advantageous to the Government and (2) supplies 
arrive in good order and condition and on time at the required place. 
(See 47.104 for possible reduced transportation rates for Government 
shipments).
    (b) The requiring activity shall--
    (1) Consider all transportation factors including present and future 
requirements, positioning of supplies, and subsequent distribution to 
the extent known or ascertainable; and
    (2) Provide the contracting office with information and instructions 
reflecting transportation factors applicable to the particular 
acquisition.



Sec. 47.301-1  Responsibilities of contracting officers.

    (a) Contracting officers shall obtain from traffic management 
offices transportation factors required for (1) solicitations and awards 
and (2) contract administration, modification, and termination, 
including the movement of

[[Page 951]]

property by the Government to and from contractors' plants.
    (b) Contracting officers shall request transportation office 
participation especially before making an initial acquisition of 
supplies that are unusually large, heavy, high, wide, or long; have 
sensitive or dangerous characteristics; or lend themselves to 
containerized movements from the source. In determining total 
transportation charges, contracting officers shall also consider 
additional costs arising from factors such as the use of special 
equipment, excess blocking and bracing material, or circuitous routing.



Sec. 47.301-2  Participation of transportation officers.

    Agencies' transportation officers shall participate in the 
solicitation and evaluation of offers to ensure that all necessary 
transportation factors, such as transportation costs, transit 
arrangements, time in transit, and port capabilities, are considered and 
result in solicitations and contracts advantageous to the Government. 
Transportation officers shall provide traffic management assistance 
throughout the acquisition cycle (see 47.105 Transportation assistance).

[48 FR 42424, Sept. 19, 1983, as amended at 50 FR 1745, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985]



Sec. 47.301-3  Using the Defense Transportation System (DTS).

    (a) All military and civilian agencies shipping, or arranging for 
the acquisition and shipment by Government contractors, through the use 
of military-controlled transport or through military transshipment 
facilities shall follow Department of Defense (DoD) Regulation DoD 
4500.9-R, Defense Transportation Regulation Part II. This establishes 
uniform procedures and documents for the generation, documentation, 
communication, and use of transportation information, thus providing the 
capability for control of shipments moving in the DTS. DoD 4500.9-R, 
Defense Transportation Regulation Part II has been implemented on a 
world-wide basis.
    (b) Contracting activities are responsible for (1) ensuring that the 
requirements of the DoD 4500.9-R, Defense Transportation Regulation Part 
II regulation are included in appropriate contracts for all applicable 
shipments and (2) enforcing these requirements with regard to shipments 
under their control. This includes requirements relating to 
documentation, marking, advance notification of shipment dates, and 
terminal clearances.
    (c) Contractual documents shall designate a contract administration 
office (see 42.202(a)) as the contact point to which the contractor will 
provide necessary information to (1) effect DoD 4500.9-R, Defense 
Transportation Regulation Part II documentation and movement control, 
including air or water terminal shipment clearances; and (2) obtain data 
necessary for shipment marking and freight routing. Contractual 
documents shall specify that the contractor shall not ship directly to a 
military air or water port terminal without authorization from the 
designated contract administration office (see 47.305-6(f)).

[48 FR 42424, Sept. 19, 1983, as amended at 51 FR 2666, Jan. 17, 1986; 
55 FR 38517, Sept. 18, 1990; 63 FR 9065, Feb. 23, 1998; 71 FR 205, Jan. 
3, 2006]



Sec. 47.302  Place of delivery--f.o.b. point.

    (a) The policies and procedures in 47.304-1, -2, and -3 govern the 
transportation of supplies from sources in the Contiguous United States 
(CONUS), except when identifiable costs, nature of the supplies 
(security, safety, or value), delivery requirements (premium modes of 
transport, escorts, transit arrangements, and tentative conditions), or 
other advantages, limitations, or requirements dictate otherwise. The 
policies and procedures in 47.304-4 govern the transportation of 
supplies from sources outside CONUS.
    (b) Generally, the contracting officer shall solicit offers, and 
award contracts, with delivery terms on the basis prescribed in 47.304. 
The contracting officer shall document the contract file (see 4.801) 
with justifications for solicitations that do not specify delivery on 
the basis prescribed in 47.304.
    (c)(1) The place of performance of Government acquisition quality 
assurance actions and the place of acceptance shall not control the 
delivery term, except that if acceptance is at

[[Page 952]]

destination, transportation shall be f.o.b. destination (see 47.304-
1(f)).
    (2) The fact that transportation is f.o.b. destination does not 
alone necessitate changing the place of acceptance from origin to 
destination; and the fact that acceptance is at origin does not 
necessitate an f.o.b. origin delivery term. Providing for inspection and 
acceptance at origin (if appropriate under 46.402), in conjunction with 
an f.o.b. destination term, may be advantageous to both the Government 
and the contractor. Acceptance of title at origin by the Government 
permits payment of the contractor, provided the invoice is supported 
either by a copy of the signed commercial bill of lading (indicating the 
carrier's receipt of the supplies covered by the invoice for 
transportation to the particular destination specified in the contract) 
or by other appropriate evidence of shipment to the particular 
destination for the contractor's account.

[48 FR 42424, Sept. 19, 1983, as amended at 68 FR 28084, May 22, 2003]



Sec. 47.303  Standard delivery terms and contract clauses.

    Standard delivery terms are listed in 47.303-1 through 47.303-16 
(but see 47.300 regarding applicability to cost reimbursement 
contracts).

[53 FR 34228, Sept. 2, 1988]



Sec. 47.303-1  F.o.b. origin.

    (a) Explanation of delivery term. F.o.b. origin means free of 
expense to the Government delivered--
    (1) On board the indicated type of conveyance of the carrier (or of 
the Government, if specified) at a designated point in the city, county, 
and State from which the shipment will be made and from which line-haul 
transportation service (as distinguished from switching, local drayage, 
or other terminal service) will begin;
    (2) To, and placed on, the carrier's wharf (at shipside, within 
reach of the ship's loading tackle, when the shipping point is within a 
port area having water transportation service) or the carrier's freight 
station;
    (3) To a U.S. Postal Service facility; or
    (4) If stated in the solicitation, to any Government-designated 
point located within the same city or commercial zone as the f.o.b. 
origin point specified in the contract (the Federal Motor Carrier Safety 
Administration prescribes commercial zones at Subpart B of 49 CFR part 
372).
    (b) Contractor responsibilities. The contractor shall--
    (1)(i) Pack and mark the shipment to comply with contract 
specifications; or
    (ii) In the absence of specifications, prepare the shipment in 
conformance with carrier requirements to protect the goods and to ensure 
assessment of the lowest applicable transportation charge;
    (2)(i) Order specified carrier equipment when requested by the 
Government; or
    (ii) If not specified, order appropriate carrier equipment not in 
excess of capacity to accommodate shipment;
    (3) Deliver the shipment in good order and condition to the carrier, 
and load, stow, trim, block, and/or brace carload or truckload shipment 
(when loaded by the contractor) on or in the carrier's conveyance as 
required by carrier rules and regulations;
    (4) Be responsible for any loss of and/or damage to the goods--
    (i) Occurring before delivery to the carrier;
    (ii) Resulting from improper packing and marking; or
    (iii) Resulting from improper loading, stowing, trimming, blocking, 
and/or bracing of the shipment, if loaded by the contractor on or in the 
carrier's conveyance;
    (5) Complete the Government bill of lading supplied by the ordering 
agency or, when a Government bill of lading is not supplied, prepare a 
commercial bill of lading or other transportation receipt. The bill of 
lading shall show--
    (i) A description of the shipment in terms of the governing freight 
classification or tariff (or Government rate tender) under which lowest 
freight rates are applicable;
    (ii) The seals affixed to the conveyance with their serial numbers 
or other identification;
    (iii) Lengths and capacities of cars or trucks ordered and 
furnished;

[[Page 953]]

    (iv) Other pertinent information required to effect prompt delivery 
to the consignee, including name, delivery address, postal address and 
ZIP code of consignee, routing, etc.;
    (v) Special instructions or annotations requested by the ordering 
agency for commercial bills of lading; e.g., ``This shipment is the 
property of, and the freight charges paid to the carrier(s) will be 
reimbursed by, the Government''; and
    (vi) The signature of the carrier's agent and the date the shipment 
is received by the carrier; and
    (6) Distribute the copies of the bill of lading, or other 
transportation receipts, as directed by the ordering agency.
    (c) Contract clause. The contracting officer shall insert in 
solicitations and contracts the clause at 52.247-29, F.o.b. Origin, when 
the delivery term is f.o.b. origin.

[48 FR 42424, Sept. 19, 1983, as amended at 53 FR 17859, May 18, 1988; 
71 FR 206, Jan. 3, 2006]



Sec. 47.303-2  F.o.b. origin, contractor's facility.

    (a) Explanation of delivery term. F.o.b. origin, contractor's 
facility means free of expense to the Government delivered on board the 
indicated type of conveyance of the carrier (or of the Government if 
specified) at the designated facility, on the named street or highway, 
in the city, county, and State from which the shipment will be made.
    (b) Contractor responsibilities. The contractor's responsibilities 
are the same as those listed in 47.303-1(b).
    (c) Contract clause. The contracting officer shall insert in 
solicitations and contracts the clause at 52.247-30, F.o.b. Origin, 
Contractor's Facility, when the delivery term is f.o.b. origin, 
contractor's facility.



Sec. 47.303-3  F.o.b. origin, freight allowed.

    (a) Explanation of delivery term. F.o.b. origin, freight allowed 
means--
    (1) Free of expense to the Government delivered--
    (i) On board the indicated type or conveyance of the carrier (or of 
the Government, if specified) at a designated point in the city, county, 
and State from which the shipments will be made and from which line-haul 
transportation service (as distinguished from switching, local drayage, 
or other terminal service) will begin;
    (ii) To, and placed on, the carrier's wharf (at shipside, within 
reach of the ship's loading tackle, when the shipping point is within a 
port area having water transportation service) or the carrier's freight 
station;
    (iii) To a U.S. Postal Service facility; or
    (iv) If stated in the solicitation, to any Government-designated 
point located within the same city or commercial zone as the f.o.b. 
origin point specified in the contract (the Federal Motor Carrier Safety 
Administration prescribes commercial zones at Subpart B of 49 CFR part 
372); and
    (2) An allowance for freight, based on applicable published tariff 
rates (or Government rate tenders) between the points specified in the 
contract, is deducted from the contract price.
    (b) Contractor responsibilities. The contractor's responsibilities 
are the same as those listed in 47.303-1(b).
    (c) Contract clause. The contracting officer shall insert in 
solicitations and contracts the clause at 52.247-31, F.o.b. Origin, 
Freight Allowed, when the delivery term is f.o.b. origin, freight 
allowed.

[48 FR 42424, Sept. 19, 1983, as amended at 53 FR 17859, May 18, 1988; 
71 FR 206, Jan. 3, 2006]



Sec. 47.303-4  F.o.b. origin, freight prepaid.

    (a) Explanation of delivery term. F.o.b. origin, freight prepaid 
means--
    (1) Free of expense to the Government delivered--
    (i) On board the indicated type of conveyance of the carrier (or of 
the Government, if specified) at a designated point in the city, county, 
and State from which the shipments will be made and from which line-haul 
transportation service (as distinguished from switching, local drayage, 
or other terminal service) will begin;
    (ii) To, and placed on, the carrier's wharf (at shipside, within 
reach of the ship's loading tackle, when the shipping point is within a 
port area having water transportation service) or the carrier's freight 
station;
    (iii) To a U.S. Postal Service facility; or

[[Page 954]]

    (iv) If stated in the solicitation, to any Government-designated 
point located within the same city or commercial zone as the f.o.b. 
origin point specified in the contract (the Federal Motor Carrier Safety 
Administration prescribes commercial zones at Subpart B of 49 CFR part 
372); and
    (2) The cost of transportation, ultimately the Government's 
obligation, is prepaid by the contractor to the point specified in the 
contract.
    (b) Contractor responsibilities. The contractor's responsibilities 
are the same as those listed in 47.303-1(b), except that the contractor 
shall prepare commercial bills of lading or other transportation 
receipts and shall prepay all freight charges to the extent specified in 
the contract.
    (c) Contract clause. The contracting officer shall insert in 
solicitations and contracts the clause at 52.247-32, F.o.b. Origin, 
Freight Prepaid, when the delivery term is f.o.b. origin, freight 
prepaid.

[48 FR 42424, Sept. 19, 1983, as amended at 53 FR 17859, May 18, 1988; 
71 FR 206, Jan. 3, 2006]



Sec. 47.303-5  F.o.b. origin, with differentials.

    (a) Explanation of delivery term. F.o.b. origin, with differentials 
means--
    (1) Free of expense to the Government delivered--
    (i) On board the indicated type of conveyance of the carrier (or of 
the Government, if specified) at a designated point in the city, county, 
and State from which the shipments will be made and from which line-haul 
transportation service (as distinguished from switching, local drayage, 
or other terminal service) will begin;
    (ii) To, and placed on, the carrier's wharf (at shipside, within 
reach of the ship's loading tackle, when the shipping point is within a 
port area having water transportation service) or the carrier's freight 
station;
    (iii) To a U.S. Postal Service facility; or
    (iv) If stated in the solicitation, to any Government-designated 
point located within the same city or commercial zone as the f.o.b. 
origin point specified in the contract (the Federal Motor Carrier Safety 
Administration prescribes commercial zones at Subpart B of 49 CFR part 
372); and
    (2) Differentials for mode of transportation, type of vehicle, or 
place of delivery as indicated in contractor's offer may be added to the 
contract price.
    (b) Contractor responsibilities. The contractor's responsibilities 
are the same as those listed in 47.303-1(b).
    (c) Contract clause. Insert in solicitations and contracts the 
clause at 52.247-33, F.o.b. Origin, with Differentials, when it is 
likely that offerors may include in f.o.b. origin offers a contingency 
to compensate for unfavorable routing conditions by the Government at 
the time of shipment.

[48 FR 42424, Sept. 19, 1983, as amended at 53 FR 17859, May 18, 1988; 
71 FR 206, Jan. 3, 2006]



Sec. 47.303-6  F.o.b. destination.

    (a) Explanation of delivery term. F.o.b. destination means--
    (1) Free of expense to the Government delivered, on board the 
carrier's conveyance, at a specified delivery point where the 
consignee's facility (plant, warehouse, store, lot, or other location to 
which shipment can be made) is located; and
    (2) Supplies shall be delivered to the destination consignee's wharf 
(if destination is a port city and supplies are for export), warehouse 
unloading platform, or receiving dock, at the expense of the contractor. 
The Government shall not be liable for any delivery, storage, demurrage, 
accessorial, or other charges involved before the actual delivery (or 
constructive placement as defined in carrier tariffs) of the supplies to 
the destination, unless such charges are caused by an act or order of 
the Government acting in its contractual capacity. If rail carrier is 
used, supplies shall be delivered to the specified unloading platform of 
the consignee. If motor carrier (including ``piggyback'') is used, 
supplies shall be delivered to truck tailgate at the unloading platform 
of the consignee, except when the supplies delivered meet the 
requirements of Item 568 of the National Motor Freight Classification 
for ``heavy or bulky freight.'' When supplies meeting the requirements 
of the referenced Item 568 are delivered, unloading (including movement 
to the

[[Page 955]]

tailgate) shall be performed by the consignee, with assistance from the 
truck driver, if requested. If the contractor uses rail carrier or 
freight forwarder for less than carload shipments, the contractor shall 
ensure that the carrier will furnish tailgate delivery when required, if 
transfer to truck is required to complete delivery to consignee.
    (b) Contractor responsibilities. The contractor shall--
    (1)(i) Pack and mark the shipment to comply with contract 
specifications; or
    (ii) In the absence of specifications, prepare the shipment in 
conformance with carrier requirements;
    (2) Prepare and distribute commercial bills of lading;
    (3) Deliver the shipment in good order and condition to the point of 
delivery specified in the contract;
    (4) Be responsible for any loss of and/or damage to the goods 
occurring before receipt of the shipment by the consignee at the 
delivery point specified in the contract;
    (5) Furnish a delivery schedule and designate the mode of delivering 
carrier; and
    (6) Pay and bear all charges to the specified point of delivery.
    (c) Contract clause. The contracting officer shall insert in 
solicitations and contracts the clause at 52.247-34, F.o.b. Destination, 
when the delivery term is f.o.b. destination.

[48 FR 42424 Sept. 19, 1983, as amended at 55 FR 52796, Dec. 21, 1990]



Sec. 47.303-7  F.o.b. destination, within consignee's premises.

    (a) Explanation of delivery term. F.o.b. destination, within 
consignee's premises means free of expense to the Government delivered 
and laid down within the doors of the consignee's premises, including 
delivery to specific rooms within a building if so specified.
    (b) Contractor responsibilities. The contractor's responsibilities 
are the same as those listed in 47.303-6(b).
    (c) Contract clause. The contracting officer shall insert in 
solicitations and contracts the clause at 52.247-35, F.o.b. Destination, 
within Consignee's Premises, when the delivery term is f.o.b. 
destination, within consignee's premises.



Sec. 47.303-8  F.a.s. vessel, port of shipment.

    (a) Explanation of delivery term. F.a.s. vessel, port of shipment 
means free of expense to the Government delivered alongside the ocean 
vessel and within reach of its loading tackle at the specified port of 
shipment.
    (b) Contractor responsibilities. The contractor shall--
    (1)(i) Pack and mark the shipment to comply with contract 
specifications; or
    (ii) In the absence of specifications, prepare the shipment for 
ocean transportation in conformance with carrier requirements to protect 
the goods and to ensure assessment of the lowest applicable 
transportation charge;
    (2)(i) Deliver the shipment in good order and condition alongside 
the ocean vessel and within reach of its loading tackle, at the point of 
delivery and on the date or within the period specified in the contract; 
and
    (ii) Pay and bear all applicable charges, including transportation 
costs, wharfage, handling, and heavy lift charges, if necessary, up to 
this point;
    (3) Provide a clean dock or ship's receipt;
    (4) Be responsible for any loss of and/or damage to the goods 
occurring before delivery of the shipment to the point specified in the 
contract; and
    (5) At the Government's request and expense, assist in obtaining the 
documents required for (i) exportation or (ii) importation at 
destination.
    (c) Contract clause. The contracting officer shall insert in 
solicitations and contracts the clause at 52.247-36, F.a.s. Vessel, Port 
of Shipment, when the delivery term is f.a.s. vessel, port of shipment.



Sec. 47.303-9  F.o.b. vessel, port of shipment.

    (a) Explanation of delivery term. F.o.b. vessel, port shipment means 
free of expense to the Government loaded, stowed, and trimmed on board 
the ocean vessel at the specified port of shipment.
    (b) Contractor responsibilities. The contractor shall--
    (1)(i) Pack and mark the shipment to comply with contract 
specifications; or

[[Page 956]]

    (ii) In the absence of specifications, prepare the shipment for 
ocean transportation in conformance with carrier requirements to protect 
the goods and to ensure assessment of the lowest applicable 
transportation charge;
    (2)(i) Deliver the shipment on board the ocean vessel in good order 
and condition on the date or within the period fixed; and
    (ii) Pay and bear all charges incurred in placing the shipment 
actually on board;
    (3) Provide a clean ship's receipt or on-board ocean bill of lading;
    (4) Be responsible for any loss of and/or damage to the goods 
occurring before delivery of the shipment on board the ocean vessel; and
    (5) At the Government's request and expense, assist in obtaining the 
documents required for (i) exportation or (ii) importation at 
destination.
    (c) Contract clause. The contracting officer shall insert in 
solicitations and contracts the clause at 52.247-37, F.o.b. Vessel, Port 
of Shipment, when the delivery term is f.o.b. vessel, port of shipment.



Sec. 47.303-10  F.o.b. inland carrier, point of exportation.

    (a) Explanation of delivery term. F.o.b. inland carrier, point of 
exportation means free of expense to the Government, on board the 
conveyance of the inland carrier, delivered to the specified point of 
exportation.
    (b) Contractor responsibilities. The contractor shall--
    (1)(i) Pack and mark the shipment to comply with contract 
specifications; or
    (ii) In the absence of specifications, prepare the shipment for 
ocean transportation in conformance with carrier requirements to protect 
the goods and to ensure assessment of the lowest applicable 
transportation charge;
    (2) Prepare and distribute commercial bills of lading;
    (3)(i) Deliver the shipment in good order and condition in or on the 
conveyance of the carrier on the date or within the period specified; 
and
    (ii) Pay and bear all applicable charges, including transportation 
costs, to the point of delivery specified in the contract;
    (4) Be responsible for any loss of and/or damage to the goods 
occurring before delivery of the shipment to the point of delivery 
specified in the contract; and
    (5) At the Government's request and expense, assist in obtaining the 
documents required for (i) exportation or (ii) importation at 
destination.
    (c) Contract clause. The contracting officer shall insert in 
solicitations and contracts the clause at 52.247-38, F.o.b. Inland 
Carrier, Point of Exportation, when the delivery term is f.o.b. inland 
carrier, point of exportation.



Sec. 47.303-11  F.o.b. inland point, country of importation.

    (a) Explanation of delivery term. F.o.b. inland point, country of 
importation means free of expense to the Government, on board the 
indicated type of conveyance of the carrier, delivered to the specified 
inland point where the consignee's facility is located.
    (b) Contractor responsibilities. The contractor shall--
    (1)(i) Pack and mark the shipment to comply with contract 
specifications; or
    (ii) In the absence of specifications, prepare the shipment for 
ocean transportation in conformance with carrier requirements to protect 
the goods;
    (2)(i) Deliver, in or on the inland carrier's conveyance, the 
shipment in good order and condition to the specified inland point where 
the consignee's facility is located;
    (ii) Pay and bear all applicable charges incurred up to the point of 
delivery, including transportation costs; export, import, or other fees 
or taxes; costs of landing; wharfage costs; customs duties and costs of 
certificates of origin; consular invoices; and other documents that may 
be required for importation; and
    (3) Be responsible for any loss of and/or damage to the goods until 
their arrival on or in the carrier's conveyance at the specified inland 
point.
    (c) Contract clause. The contracting officer shall insert in 
solicitations and contracts the clause at 52.247-39, F.o.b. Inland 
Point, Country of Importation, when the delivery term is f.o.b. inland 
point, country of importation.

[[Page 957]]



Sec. 47.303-12  Ex dock, pier, or warehouse, port of importation.

    (a) Explanation of delivery term. Ex dock, pier, or warehouse, port 
of importation means free of expense to the Government delivered on the 
designated dock or pier or in the warehouse at the specified port of 
importation.
    (b) Contractor responsibilities. The contractor shall--
    (1)(i) Pack and mark the shipment to comply with contract 
specifications; or
    (ii) In the absence of specifications, prepare the shipment for 
ocean transportation in conformance with carrier requirements to protect 
the goods;
    (2)(i) Deliver shipment in good order and condition; and
    (ii) Pay and bear all charges up to the point of delivery specified 
in the contract, including transportation costs; export, import, or 
other fees or taxes; costs of wharfage and landing, if any; customs 
duties; and costs of certificates of origin, consular invoices, or other 
documents that may be required for exportation or importation; and
    (3) Be responsible for any loss of and/or damage to the goods 
occurring before delivery of the shipment to the point of delivery 
specified in the contract.
    (c) Contract clause. The contracting officer shall insert in 
solicitations and contracts the clause at 52.247-40, Ex Dock, Pier, or 
Warehouse, Port of Importation, when the delivery term is ex dock, pier, 
or warehouse, port of importation.



Sec. 47.303-13  C.& f. destination.

    (a) Explanation of delivery term. C.& f. (cost & freight) 
destination means free of expense to the Government delivered on board 
the ocean vessel to the specified point of destination, with the cost of 
transportation paid by the contractor.
    (b) Contractor responsibilities. The contractor shall--
    (1)(i) Pack and mark the shipment to comply with contract 
specifications; or
    (ii) In the absence of specifications, prepare the shipment for 
ocean transportation in conformance with carrier requirements;
    (2)(i) Deliver the shipment in good order and condition; and
    (ii) Pay and bear all applicable charges to the point of destination 
specified in the contract, including transportation costs and export 
taxes or other fees or charges levied because of exportation;
    (3) Obtain and dispatch promptly to the Government clean on-board 
ocean bills of lading to the specified point of destination;
    (4) Be responsible for any loss of and/or damage to the goods 
occurring before delivery; and
    (5) At the Government's request and expense, provide certificates of 
origin, consular invoices, or any other documents issued in the country 
of origin or of shipment, or both, that may be required for importation 
into the country of destination.
    (c) Contract clause. The contracting officer shall insert in 
solicitations and contracts the clause at 52.247-41, C.&f. Destination, 
when the delivery term is c.& f. (Cost & freight) destination.

[48 FR 42424, Sept. 19, 1983, as amended at 71 FR 206, Jan. 3, 2006]



Sec. 47.303-14  C.i.f. destination.

    (a) Explanation of delivery term. C.i.f. (Cost, insurance, freight) 
destination means free of expense to the Government delivered on board 
the ocean vessel to the specified point of destination, with the cost of 
transportation and marine insurance paid by the contractor.
    (b) Contractor responsibilities. The contractor's responsibilities 
are the same as those listed in 47.303-13(b), except that, in addition, 
the contractor shall obtain and dispatch to the Government an insurance 
policy or certificate providing the amount and extent of marine 
insurance coverage specified in the contract or agreed upon by the 
Government contracting officer.
    (c) Contract clause. The contracting officer shall insert in 
solicitations and contracts the clause at 52.247-42, C.i.f. (Cost, 
insurance, freight) Destination, when the delivery term is c.i.f. 
destination.

[48 FR 42424, Sept. 19, 1983, as amended at 71 FR 206, Jan. 3, 2006]

[[Page 958]]



Sec. 47.303-15  F.o.b. designated air carrier's terminal, point of 
          exportation.

    (a) Explanation of delivery term. F.o.b. designated air carrier's 
terminal, point of exportation means free of expense to the Government 
loaded aboard the aircraft, or delivered to the custody of the air 
carrier (if only the air carrier performs the loading), at the air 
carrier's terminal specified in the contract.
    (b) Contractor responsibilities. The contractor shall--
    (1)(i) Pack and mark the shipment to comply with contract 
specifications; or
    (ii) In the absence of specifications, prepare the shipment for air 
transportation in conformance with carrier requirements to protect the 
goods and to ensure assessment of the lowest applicable transportation 
charge;
    (2)(i) Deliver the shipment in good order and condition into the 
conveyance of the carrier, or to the custody of the carrier (if only the 
carrier performs the loading), at the point of delivery and on the date 
or within the period specified in the contract; and
    (ii) Pay and bear all applicable charges up to this point;
    (3) Provide a clean bill of lading and/or air waybill;
    (4) Be responsible for any loss of and/or damage to the goods 
occurring before delivery of the goods to the point specified in the 
contract; and
    (5) At the Government's request and expense, assist in obtaining the 
documents required for the purpose of exportation.
    (c) Contract clause. The contracting officer shall insert in 
solicitations and contracts the clause at 52.247-43, F.o.b. Designated 
Air Carrier's Terminal, Point of Exportation, when the delivery term is 
f.o.b. designated air carrier's terminal, point of exportation.

[48 FR 42424, Sept. 19, 1983, as amended at 71 FR 206, Jan. 3, 2006]



Sec. 47.303-16  F.o.b. designated air carrier's terminal, point of 
          importation.

    (a) Explanation of delivery term. F.o.b. designated air carrier's 
terminal, point of importation means free of expense to the Government 
delivered to the air carrier's terminal at the point of importation 
specified in the contract.
    (b) Contractor responsibilities. The contractor shall--
    (1)(i) Pack and mark the shipment to comply with contract 
specifications; or
    (ii) In the absence of specifications, prepare the shipment for air 
transportation in conformance with carrier requirements to protect the 
goods;
    (2) Prepare and distribute bills of lading or air waybills;
    (3)(i) Deliver the shipment in good order and condition to the point 
of delivery specified in the contract; and
    (ii) Pay and bear all charges incurred up to the point of delivery 
specified in the contract, including transportation costs; export, 
import, or other fees or taxes; cost of landing, if any; customs duties; 
and costs of certificates of origin, consular invoices, or other 
documents that may be required for exportation or importation; and
    (4) Be responsible for any loss of and/or damage to the goods until 
delivery of the goods to the Government at the designated air carrier's 
terminal.
    (c) Contract clause. The contracting officer shall insert in 
solicitations and contracts the clause at 52.247-44, F.o.b. Designated 
Air Carrier's Terminal, Point of Importation, when the delivery term is 
f.o.b. designated air carrier's terminal, point of importation.



Sec. 47.303-17  Contractor-prepaid commercial bills of lading, small 
          package shipments.

    (a) If it is advantageous to the Government, the contracting officer 
may authorize the contractor to ship supplies, which have been acquired 
f.o.b. origin, to domestic destinations, including DOD air and water 
terminals, by common carriers on commercial bills of lading. Such 
shipments shall not exceed 150 pounds by commercial air or 1,000 pounds 
by other commercial carriers and shall not have a security 
classification.
    (b) The contracting officer may authorize the shipments under 
paragraph (a) of this subsection to be consolidated with the 
contractor's own prepaid shipments for delivery to one or more 
destinations, if all appropriate f.o.b. origin shipments under one or 
more Government contracts have been consolidated

[[Page 959]]

initially. The contractor may be authorized to consolidate less-than-
carload or less-than-truckload Government shipments with its own 
shipments so that the Government can take advantage of lower carload or 
truckload freight costs. The Government shall assume its pro rata share 
of the combined shipment cost. Agency transportation personnel shall 
evaluate overall transportation costs before authorizing any movement to 
ensure savings to the Government consistent with other contract and 
traffic management considerations. When consolidation is authorized, a 
copy of the commercial bill of lading shall be mailed promptly to each 
consignee.
    (c) Shipments under prepaid commercial bills of lading, as 
authorized in paragraph (a) of this subsection, do not require a 
contract modification. Unless otherwise provided in the contract, the 
supplies move for the account of, and at the risk of, the Government. 
The supplies become Government property when loaded on the carrier's 
equipment and the contractor has obtained the carrier's receipt. The 
contractor pays the transportation charges and is reimbursed by the 
Government. Loss or damage claims shall be processed in accordance with 
agency regulations.
    (d) The contractor's invoice for reimbursement by the Government 
shall show the prepaid transportation charges as agreed (see paragraph 
(b) of this subsection), as a separate item for each individual 
shipment. The contractor shall support the transportation charges with a 
copy of the carrier's receipted freight bill or other evidence of 
receipt, except as follows:
    (1) A Government agency may determine that receipted freight bills 
or other evidence of receipt are not required for transportation charges 
of $100 or less.
    (2) A Government agency may pay an invoiced but unsupported 
transportation charge of $250 or less per transaction (i.e., purchase, 
invoice, or aggregate billing or payment for multiple purchases), if--
    (i) The contractor cannot reasonably provide a receipted freight 
bill; and
    (ii) The agency has determined that the charges are reasonable. 
Determination of reasonableness may be based on--
    (A) Past experience (authenticated transportation charges for 
similar shipments);
    (B) Rate checks;
    (C) Copies of previous freight bills submitted by the contractor; or
    (D) Other information submitted by the contractor to substantiate 
the amount claimed.
    (3) Receipted freight bills in support of invoiced transportation 
charges of $100 or less are not required for reimbursement by the 
Government, if--
    (i) The underlying contract specifies retention by the contractor of 
all records for at least 3 years after final payment under the contract; 
and
    (ii) The contractor agrees to furnish evidence of payment when 
requested by the Government.
    (e) Shipments and invoices shall not be split to reduce 
transportation charges to $100 or less per transaction as a means of 
avoiding the required documented support for the charges. See paragraph 
(d)(2) of this subsection for unsupported transportation charges of $250 
or less.
    (f) The contracting officer shall insert the clause at 52.247-65, 
F.o.b. Origin, Prepaid Freight-Small Package Shipments, in solicitations 
and contracts when f.o.b. origin shipments are to be made.

[55 FR 52796, Dec. 21, 1990, as amended at 62 FR 237, Jan. 2, 1997; 62 
FR 64936, Dec. 9, 1997]



Sec. 47.304  Determination of delivery terms.



Sec. 47.304-1  General.

    (a) The contracting officer shall determine f.o.b. terms generally 
on the basis of overall costs, giving due consideration to the criteria 
given in 47.304.
    (b) Solicitations shall specify whether offerors must submit offers 
f.o.b. origin, f.o.b. destination, or both; or whether offerors may 
choose the basis on which they make an offer. The contracting officer 
shall consider the most advantageous delivery point, such as (1) f.o.b. 
origin, carrier's equipment, wharf, or specified freight station near 
contractor's plant; or (2) f.o.b. destination.

[[Page 960]]

    (c) In determining whether f.o.b. origin or f.o.b. destination is 
more advantageous to the Government, the contracting officer shall 
consider the availability of lower freight rates (Government rate 
tenders) to the Government for f.o.b. origin acquisitions. F.o.b. origin 
contracts also present other desirable traffic management features, in 
that they--
    (1) Permit use of transit privileges (see 47.305-13);
    (2) Permit diversions to new destinations without price adjustment 
for transportation (see 47.305-11);
    (3) Facilitate use of special routings or types of equipment (e.g., 
circuitous routing or oversize shipments) (see 47.305-14);
    (4) Facilitate, if necessary, use of premium cost transportation and 
permit Government-controlled transportation;
    (5) Permit negotiations for reduced freight rates (see 47.104-1(b)); 
and
    (6) Permit use of small shipment consolidation stations.
    (d) When destinations are tentative or unknown, the solicitation 
shall be f.o.b. origin only (see 47.305-5).
    (e) When the size or quantity of supplies with confidential or 
higher security classification requires commercial transportation 
services, the contracting officer shall generally specify f.o.b. origin 
acquisitions.
    (f) When acceptance must be at destination, solicitation shall be on 
an f.o.b. destination only basis.
    (g) Following are examples of situations when solicitations shall 
normally be on an f.o.b. destination only basis because it is 
advantageous to the Government (see 47.305-4):
    (1) Bulk supplies, such as coal, that require other than Government-
owned or operated handling, storage, and loading facilities, are 
destined for shipment outside CONUS.
    (2) Steel or other bulk construction products are destined for 
shipment outside CONUS.
    (3) Supplies consist of forest products such as lumber.
    (4) Perishable or medical supplies are subject to in-transit 
deterioration.
    (5) Evaluation of f.o.b. origin offers is anticipated to result in 
increased administrative lead time or administrative cost that would 
outweigh the potential advantages of an f.o.b. origin determination.

[48 FR 42424, Sept. 19, 1983, as amended at 68 FR 28084, May 22, 2003]



Sec. 47.304-2  Shipments within CONUS.

    (a) Solicitations shall provide that offers may be submitted on the 
basis of either or both f.o.b origin and f.o.b. destination and that 
they will be evaluated on the basis of the lowest overall cost to the 
Government.
    (b) When sufficient reasons exist not to follow this policy, the 
contract file shall be documented to include the reasons.



Sec. 47.304-3  Shipments from CONUS for overseas delivery.

    (a) When Government acquisitions involve shipments from CONUS to 
overseas destinations, delivery f.o.b. origin may afford not only the 
economies of lower freight rates available to the Government within 
CONUS, but also flexibility for selection of (1) the port of export and 
(2) the ocean transportation providing the lowest overall cost to the 
Government.
    (b)(1) Unless there are valid reasons to the contrary (see 47.304-
5), acquisition of supplies originating within CONUS for ultimate 
delivery to destinations outside CONUS shall be made on the basis of 
f.o.b. origin. This policy applies to supplies and equipment to be 
shipped either directly to a port area for export or to a storage or 
holding area for subsequent forwarding to a port area for export.
    (2) Justification for the solicitation of offers on other than an 
f.o.b. origin basis shall be recorded and the contract file documented 
accordingly.
    (c) Export cargo involves considerations of operational and cost 
factors from the point of origin within CONUS to the overseas port 
destination. The lowest cost of shipping can be determined only by 
evaluating and comparing the various prospective landed costs (including 
inland, terminal, and ocean costs). Also, agencies may have export 
licensing privileges for shipments to foreign destinations. The 
contracting officer shall obtain advice

[[Page 961]]

from the transportation officer to ensure full use of these privileges.

[48 FR 42424, Sept. 19, 1983, as amended at 68 FR 28084, May 22, 2003]



Sec. 47.304-4  Shipments originating outside CONUS.

    (a) Unless there are valid reasons to the contrary (see 47.304-5), 
acquisition of supplies originating outside CONUS for ultimate delivery 
to destinations within CONUS or elsewhere, regardless of the quantity of 
the shipments, shall be on the basis of f.o.b. origin or f.o.b. 
destination, whichever is more advantageous to the Government.
    (b) The contracting officer shall request the advice of the 
transportation officer to determine the most appropriate place of 
delivery to be specified in acquisition documents, giving full 
consideration to the possible use of Government transportation 
facilities, reduced rates available, special licensing or custom 
requirements, and availability of U.S.-flag shipping services between 
the points involved (see subpart 47.5).



Sec. 47.304-5  Exceptions.

    (a) Unusual conditions or circumstances may require the use of terms 
other than f.o.b. origin or f.o.b. destination. Such conditions or 
circumstances include, but are not limited to--
    (1) Transportation disabilities at origin or destination;
    (2) Mode of transportation required;
    (3) Availability of Government or commercial loading, unloading, or 
transshipment facilities;
    (4) Characteristics of the supplies;
    (5) Trade customs related to certain supplies;
    (6) Origins or destinations in Alaska and Hawaii; and
    (7) Program requirements.
    (b) Contracting officers shall obtain assistance from transportation 
officers before issuing solicitations when unusual conditions or 
circumstances exist that relate to f.o.b. terms.



Sec. 47.305  Solicitation provisions, contract clauses, and 
          transportation factors.

    (a) The contracting officer shall coordinate transportation factors 
with the transportation office during the planning, solicitation, and 
award phases of the acquisition process (see 47.105).
    (b) To the extent feasible, activities shall schedule deliveries to 
effect savings in transportation costs, and concomitant reductions in 
energy consumption by carriers (see 47.305-7 and 47.305-8 for specific 
possibilities).



Sec. 47.305-1  Solicitation requirements.

    When the acquisition of supplies is on f.o.b. origin or f.o.b. 
destination delivery terms, the contracting officer shall include in 
solicitations a requirement that the offeror furnish the Government as 
much of the following data as is applicable to the particular 
acquisition:
    (a) Modes of transportation and, if rail transportation is used, 
names of rail carriers serving the offeror's facility.
    (b) The number of railroad cars, motor trucks, or other conveyances 
that can be loaded per day.
    (c) Type of packaging; e.g., box, carton, crate, drum, bundle, 
skids, and when applicable, package number from the governing freight 
classification.
    (d) Number of units packed in one container.
    (e) Guaranteed maximum shipping weight; cubic measurement; and 
length, width, and height of each container.
    (f) Minimum size of each shipment.
    (g) Number of containers or units that can be loaded in a car, 
truck, or other conveyance of the size normally used (specify type and 
size) for the commodity.
    (h) Description of material in terms of the governing freight 
classification or tariff (or Government rate tender) under which lowest 
freight rates are applicable.
    (i) Benefits available to the Government under transit arrangements 
made by the offeror.
    (j) Other requirements as stated under specific section headings.



Sec. 47.305-2  Solicitations f.o.b. origin and f.o.b. destination--
          lowest overall cost.

    (a) Solicitations, when appropriate, shall specify that offers may 
be f.o.b. origin, f.o.b. destination, or both; and

[[Page 962]]

that they will be evaluated on the basis of the lowest overall cost to 
the Government.
    (b) When offers are solicited on the basis of both f.o.b. origin and 
f.o.b. destination, the contracting officer shall insert in 
solicitations the provision at 52.247-45, F.o.b. Origin and/or F.o.b. 
Destination Evaluation.



Sec. 47.305-3  F.o.b. origin solicitations.

    When preparing f.o.b. origin solicitations, the contracting officer 
shall refer to 47.303, where f.o.b. origin clauses relating to standard 
delivery terms are prescribed. Supply solicitations that will or may 
result in f.o.b. origin contracts shall also contain requirements, 
information, provisions, and clauses concerning the following items:
    (a) Delivery in carload or truckload lots f.o.b. carrier's 
equipment, wharf, or freight station.
    (b) The requirement that the offeror furnish the following 
information with the offer:
    (1) Location of the offeror's actual shipping point(s) (street 
address, city, State, and ZIP code) from which supplies will be 
delivered to the Government.
    (2) Whether the offeror's shipping point has a private railroad 
siding, and the name of the rail carrier serving it.
    (3) When the offeror's shipping point does not have a private 
siding, the names and addresses of the nearest public rail siding and of 
the carrier serving it. (This will enable transportation officers, when 
issuing routing instructions, to select the mode of transportation that 
will provide the required service at the lowest possible overall cost.)
    (4)(i) The quantity of supplies to be shipped from each shipping 
point.
    (ii) The contracting officer shall insert in f.o.b. origin 
solicitations the provision at 52.247-46, Shipping Point(s) Used in 
Evaluation of F.o.b. Origin Offers, when price evaluation for shipments 
from various shipping points is contemplated.
    (c) When delivery is f.o.b. origin, contractor's facility, and the 
designated facility is not covered by the line-haul transportation rate, 
the charges required to deliver the shipment to the point where the 
line-haul rate is applicable.
    (d) When delivery is f.o.b. origin, freight allowed, the basis on 
which transportation charges will be allowed, including the origin and 
destination from and to which transportation charges will be allowed.
    (e) If f.o.b. origin offers only are desired, a statement that 
offers submitted on any other basis will be rejected as nonresponsive.
    (f)(1) The methods of transportation used in evaluating offers. The 
Government normally uses land transportation by regulated common 
carriers between points in the 48 contiguous United States and the 
District of Columbia.
    (2) The contracting officer shall insert the provision at 52.247-47, 
Evaluation--F.o.b. Origin, in solicitations that require prices f.o.b. 
origin for the purpose of establishing the basis on which offers will be 
evaluated.
    (g)(1) When it is believed that prospective contractors are likely 
to include in f.o.b. origin offers a contingency to compensate for what 
may be an unfavorable routing condition by the Government at the time of 
shipment, the contracting officer may permit prospective contractors to 
state in offers a reimbursable differential that represents the cost of 
bringing the supplies to any f.o.b. origin place of delivery specified 
by the Government at the time of shipment (see the clause at 52.247-33, 
F.o.b. Origin, with Differentials).
    (2) Following are situations that might impose on the contractor a 
substantial cost above at plant or commercial shipping point prices 
because of Government-required routings:
    (i) The loading nature of the supplies; e.g., wheeled vehicles.
    (ii) The different methods of shipment specified by the Government; 
e.g., towaway, driveaway, tri-level vehicle, or rail car, that may 
increase the contractor's cost in varying amounts for bringing the 
supplies to, or loading and bracing the supplies at, the specified place 
of delivery.
    (iii) The contractor's f.o.b. origin shipping point is a port city 
served by United States inland, coastwise, or intercoastal water 
transportation, and

[[Page 963]]

the contractor would incur additional costs to make delivery f.o.b. a 
wharf in that city to accommodate water routing specified by the 
Government.
    (iv) The contractor's plant does not have a private rail siding and 
in order to ship by Government-specified rail routing, the contractor 
would be required to deliver the supplies to a public siding or freight 
terminal and to load, brace, and install dunnage in rail cars.

[48 FR 42424, Sept. 19, 1986, as amended at 51 FR 31426, Sept. 3, 1986; 
71 FR 206, Jan. 3, 2006]



Sec. 47.305-4  F.o.b. destination solicitations.

    (a) When preparing f.o.b destination solicitations, the contracting 
officer shall refer to 47.303 for the prescription of f.o.b. destination 
clauses relating to standard delivery terms.
    (b) If f.o.b. destination only offers are desired, the solicitation 
shall state that offers submitted on a basis other than f.o.b. 
destination will be rejected as nonresponsive.
    (c) When supplies will or may be purchased f.o.b. destination but 
inspection and acceptance will be at origin, the contracting officer 
shall insert in solicitations and contracts the clause at 52.247-48, 
F.o.b. Destination--Evidence of Shipment.



Sec. 47.305-5  Destination unknown.

    (a)(1) When destinations are unknown, solicitations shall be f.o.b. 
origin only.
    (2) The contracting officer shall include in the contract file 
justifications for such solicitations.
    (b)(1) When the exact destination of the supplies to be acquired is 
not known, but the general location of the users can be reasonably 
established, the acquiring activity shall designate tentative 
destinations for the purpose of computing transportation costs, showing 
estimated quantities for each tentative destination.
    (2) The contracting officer shall insert in solicitations the 
provision at 52.247-49, Destination Unknown, when destinations are 
tentative and only for the purpose of evaluating offers.
    (3) If it is necessary to control subsequent shipping weights, the 
solicitation shall state that subsequent shipments shall be made in 
carloads or truckloads (see the clause at 52.247-59, F.o.b. Origin--
Carload and Truckload Shipments).
    (c)(1) When exact destinations are not known and it is impracticable 
to establish tentative or general delivery places for the purpose of 
evaluating transportation costs, the contracting officer shall insert in 
solicitations the provision at 52.247-50, No Evaluation of 
Transportation Costs.
    (2) The solicitation shall also state that the transportation costs 
of subsequent shipments must be controlled (see, for example, the clause 
at 52.247-61, F.o.b. Origin--Minimum Size of Shipments).



Sec. 47.305-6  Shipments to ports and air terminals.

    (a) When supplies are acquired on the basis of the delivery terms in 
47.303-8 through 47.303-16, the solicitation shall include a requirement 
that the offeror furnish the Government the following information:
    (1) When the delivery term is f.a.s. vessel, port of shipment, 
f.o.b. vessel, port of shipment, or f.o.b. inland carrier, point of 
exportation, the required data shall include--
    (i) A delivery schedule in number of units and/or long or short 
tons;
    (ii) Maximum quantities available per shipment;
    (iii) The quantity that can be made available for loading to vessel 
per running day of 24 hours (if acquisition involves a commodity to be 
shipped in bulk);
    (iv) The minimum leadtime required to make supplies available for 
loading to vessel; and
    (v) The port and pier or other designation and, when applicable, the 
maximum draft of vessel (in feet) that can be accommodated.
    (2) When the delivery term is f.o.b. inland point, country of 
importation or f.o.b. designated air carrier's terminal, point of 
importation, the required data shall include--
    (i) A delivery schedule in number of units and/or long or short 
tons;
    (ii) Maximum quantities available per shipment; and
    (iii) Other data appropriate to shipment by air carrier.

[[Page 964]]

    (3) When the delivery term is ex dock, pier, or warehouse, port of 
importation or c.& f. (cost & freight) destination, the required data 
shall include--
    (i) A delivery schedule in number of units and/or long or short 
tons;
    (ii) Maximum quantities available per shipment; and
    (iii) The number of containers or units that can be loaded in a car, 
truck, or other conveyance of the size normally used (specify type and 
size) for the commodity.
    (4) When the delivery term is c.i.f. (cost, insurance, freight) 
destination, the required data shall include--
    (i) The same as specified in 47.305-6(a)(3); and
    (ii) The amount and type of marine insurance coverage; e.g., whether 
the coverage is With Average or Free of Particular Average and whether 
it covers any special risks or excludes any of the usual risks 
associated with the specific commodity involved.
    (5) When the delivery term is f.o.b. designated air carrier's 
terminal, point of exportation, the required data shall include--
    (i) A delivery schedule in number of units, type of package, and 
individual weight and dimensions of each package;
    (ii) Minimum leadtime required to make supplies available for 
loading into aircraft;
    (iii) Name of airport and location to which shipment will be 
delivered; and
    (iv) Other data appropriate to shipment by air carrier.
    (b) When supplies are acquired for known destinations outside CONUS 
and originate within CONUS, the contracting officer shall, for 
transportation evaluation purposes, note in the solicitation the CONUS 
port of loading or point of exit (aerial or water) and the water port of 
debarkation that serves the overseas destination.
    (c) The contracting officer may also, for evaluation purposes, list 
in the solicitation other CONUS ports that meet the eligibility criteria 
compatible with the nature and quantity of the supplies, their 
destination, type of carrier required, and specified overseas delivery 
dates. This permits offerors that are geographically remote from the 
port that normally serves the overseas destination to be competitive as 
far as transportation costs are concerned.
    (d) Unless logistics requirements limit the ports of loading to the 
ports listed in the solicitation, the solicitation shall state that--
    (1) Offerors may nominate additional ports (including ports in 
Alaska and Hawaii) more favorably located to their shipping points; and
    (2) These ports will be considered in the evaluation of offers if 
they possess all requisite capabilities of the listed ports in relation 
to the supplies being acquired.
    (e) When supplies are to be exported through CONUS ports and offers 
are solicited on an f.o.b. origin or f.o.b. destination basis, the 
contracting officer shall insert in solicitations the provision at 
52.247-51, Evaluation of Export Offers. The contracting officer shall 
use the provision with its--
    (1) Alternate I, when the CONUS ports of export are DOD water 
terminals;
    (2) Alternate II, when offers are solicited on an f.o.b. origin only 
basis; or
    (3) Alternate III, when offers are solicited on an f.o.b. 
destination only basis.
    (f)(1) When the supplies are to move in the Defense Transportation 
System (DTS) (see 47.301-3), the contract shall specify that--
    (i) A Transportation Control Movement Document (TCMD) must be 
dispatched to the appropriate DOD air or water clearance authority in 
accordance with DoD 4500.9-R, Defense Transportation Regulation, Part 
II, procedures for all shipments consigned to DOD air or water terminal 
transshipment points; and
    (ii) An Export Release must be obtained for supplies to be 
transshipped via a water port of loading to overseas destinations, 
except for shipments for which an Export Release is not required, 
generally shipments of less than 10,000 pounds, (see DoD 4500.9-R, 
Defense Transportation Regulation, Part II).
    (2) When shipments will be consigned to DOD air or water terminal 
transshipment points, the contracting officer shall insert in 
solicitations and contracts the clause at 52.247-52, Clearance and 
Documentation Requirements--Shipments to DOD Air or Water Terminal 
Transshipment Points.

[[Page 965]]

    (g) When a contract will not generate any shipments that require an 
Export Release, only the DOD CONUS ports that serve the overseas 
destination shall be listed in the solicitation, except that the 
responsible contracting officer may limit the water ports listed when 
such limitation is considered necessary to meet delivery or other 
requirements.
    (h) The award shall specify the United States ports of loading that 
afford the lowest overall cost to the overseas destination.
    (i) When supplies will be from origins outside CONUS to destinations 
either within or outside CONUS, the contracting officer shall use the 
appropriate f.o.b. term and include evaluation-of-offers information.
    (j) In furtherance of the Cargo Preference Act of 1954 (46 U.S.C. 
1241(b)), to encourage and foster the American Merchant Marine, the port 
of delivery of supplies originating outside the United States and 
shipped by ocean vessel shall be based on the availability of United 
States-flag vessels between the ports involved, unless the acquiring 
activity has given other specific instructions. (See subpart 47.5--Ocean 
Transportation by U.S.-Flag Vessels.)
    (k) For application of the Fly America Act to the transportation of 
supplies and personnel when the Government is responsible for the 
transportation costs, see subpart 47.4--Air Transportation by U.S.-Flag 
Carriers.
    (l) Military and civilian agencies shall obtain assistance from 
transportation offices in connection with all export shipments (see 
47.105).

[48 FR 42424, Sept. 19, 1983, as amended at 59 FR 11383, Mar. 10, 1994; 
71 FR 206, Jan. 3, 2006]



Sec. 47.305-7  Quantity analysis, direct delivery, and reduction of 
          crosshauling and backhauling.

    (a) Quantity analysis. (1) The requiring activity shall consider the 
acquisition of carload or truckload quantities.
    (2) When additional quantities of the supplies being acquired can be 
transported at lower unit transportation costs or with a relatively 
small increase in total transportation costs, with no impairment to the 
program schedule, the contracting officer shall ascertain from the 
requiring activity whether there is a known requirement for additional 
quantities. This may be the case, for example, when the additional 
quantity could profitably be stored by the activity for future use, or 
could be distributed advantageously to several using activities on the 
same transportation route or in the same geographical area.
    (b) Direct delivery. When it is the usual practice of a requiring 
activity to acquire supplies in large quantities for shipment to a 
central point and subsequent distribution to using activities, as 
needed, consideration shall be given, if sufficient quantities are 
involved to warrant scheduling direct delivery, to the feasibility of 
providing for direct delivery from the contractor to the using activity, 
thereby reducing the cost of transportation and handling.
    (c) Crosshauling and backhauling. The contracting officer shall 
select distribution and transshipment facilities intermediate to origins 
and ultimate destinations to reduce crosshauling and backhauling; i.e., 
the transportation of personal property of the same kind in opposite 
directions or the return of the property to or through areas previously 
traversed in shipment.



Sec. 47.305-8  Consolidation of small shipments and the use of stopoff 
          privileges.

    (a) Consolidation of small shipments. Consolidation of small 
shipments into larger lots frequently results in lower transportation 
costs. Therefore, the contracting officer, after consultation with the 
transportation office and the activity requiring the supplies, may 
revise the delivery schedules to provide for deliveries in larger 
quantities.
    (b) Stopping for partial unloading. When feasible, schedules for 
delivery of supplies to multiple destinations shall be consolidated and 
the stopoff privileges permitted under carrier tariffs shall be used for 
partial unloading at one or more points directly en route between the 
point of origin and the last destination.

[[Page 966]]



Sec. 47.305-9  Commodity description and freight classification.

    (a) Generally, the freight rate for supplies is based on the rating 
applicable to the freight classification description published in the 
National Motor Freight Classification (NMFC) (for carriers) and the 
Uniform Freight Classification (UFC) (for rail) filed with Federal and 
State regulatory bodies. Therefore, the contracting officer shall show 
in the solicitation a complete description of the commodity to be 
acquired and of packing requirements to determine proper transportation 
charges for the evaluation of offers. If supplies cannot be properly 
classified through reference to freight classification tariffs or if 
doubt exists, the contracting officer shall obtain the applicable 
freight classification from the transportation office. In some 
situations prospective contractors have established an official freight 
classification description that can be applied.
    (b)(1) When the supplies being acquired are new to the supply 
system, nonstandard, or modifications of previously shipped items, and 
different freight classifications may apply, the contracting officer 
shall insert in solicitations the provision at 52.247-53, Freight 
Classification Description.
    (2) The contracting officer shall alert the transportation officer 
to the possibility of negotiations for appropriate freight 
classification ratings and reasonable transportation rates.
    (c) The solicitation shall contain adequate descriptions of 
explosives and other dangerous supplies according to (1) the regular 
freight classification and (2) the hazardous material description and 
hazard class as shown in 49 CFR 172.101.
    (d) The contracting officer shall furnish the freight classification 
information developed in 47.305-9(a), (b), and (c) above to the contract 
administration office.

[48 FR 42424, Sept. 19, 1983, as amended at 71 FR 206, Jan. 3, 2006]



Sec. 47.305-10  Packing, marking, and consignment instructions.

    (a) Acquisition documents shall include packing and marking 
requirements necessary to prevent deterioration of supplies and damages 
due to the hazards of shipping, handling, and storage, and, when 
appropriate, marking in accordance with the requirements of 49 CFR 
172.300.
    (b) Contracts shall include complete consignment and marking 
instructions at the time the contract is awarded to ensure that supplies 
are delivered to proper destinations without delay. If complete 
consignment information is not initially known, the contracting officer 
shall issue amended delivery instructions under the Changes clause of 
the contract (see 43.205) as soon as the information becomes known.
    (c) If necessary to meet required delivery schedules, the 
contracting officer may issue instructions by telephone, teletype, or 
telegram. The contracting officer shall confirm these instructions in 
writing.
    (d) Marking and consignment instructions for military shipments 
shall conform to the current issue of MIL-STD-129 (Military Standard 
Marking for Shipment and Storage) and other applicable DOD regulations. 
Shipments for civilian agencies shall be marked as specified in Federal 
Standard 123, Marking for Domestic Shipment (Civil Agencies).



Sec. 47.305-11  Options in shipment and delivery.

    Although the clauses prescribed in subpart 43.2 allow certain 
changes to be made in regard to shipment and delivery, it may be 
desirable to provide specifically for certain options in the 
solicitation. The Government may reserve the right to--
    (a) Direct deliveries of all or part of the contract quantity to 
destinations or to consignees other than those specified in the 
solicitation and in the contract;
    (b) Direct shipments in quantities that may require transportation 
rates different from those on which the contract price is based; and
    (c) Direct shipments by a mode of transportation other than that 
stipulated in the solicitation and in the contract.

[48 FR 42424, Sept. 19, 1983, as amended at 62 FR 237, Jan. 2, 1997]

[[Page 967]]



Sec. 47.305-12  Delivery of Government-furnished property.

    (a)(1) When Government property is furnished to a contractor and 
transportation costs to the Government are a factor in the evaluation of 
offers, the contracting officer shall include in the solicitation a 
clear description of the property, its location, and other information 
necessary for the preparation of cost estimates.
    (2) The contracting officer shall insert in solicitations and 
contracts the clause at 52.247-55, F.o.b. Point for Delivery of 
Government-Furnished Property, when Government property is to be 
furnished under a contract and the Government will be responsible for 
transportation arrangements and costs.
    (b) The contracting officer shall describe explosive and dangerous 
material according to (1) the regular freight classification and (2) the 
hazardous material description and hazard class as shown in 49 CFR 
172.101.



Sec. 47.305-13  Transit arrangements.

    (a) Transit privileges. (1) Transit arrangements permit the stopping 
of a carload or truckload shipment at a specific intermediate point en 
route to the final destination for storage, processing, or other 
purposes, as specified in carrier tariffs or rate tenders. A single 
through rate is charged from origin to final destination plus a transit 
or other related charge, rather than a more expensive combination of 
rates to and from the transit point.
    (2) The contracting officer shall consider possible benefits 
available to the Government through the use of existing transit 
arrangements or through efforts to obtain additional transit privileges 
from the carriers. Solicitations incorporating transit arrangements 
shall be restricted to f.o.b. origin offers, as f.o.b. destination 
offers can only quote fixed overall delivered prices at first 
destination.
    (3)(i) Traffic management personnel shall furnish information and 
analyses of situations in which transit arrangements may be beneficial. 
The quantity to be awarded must be of sufficient tonnage to ensure that 
carload/truckload shipments can be made by the contractor, and there 
should be reasonable certainty that shipments out of the transit point 
will be requested in carload/truckload quantities.
    (ii) The contracting officer shall insert in solicitations the 
provision at 52.247-56, Transit Arrangements, when benefits may accrue 
to the Government because transit arrangements may apply.
    (b) Transit credits. (1) In evaluations of f.o.b. origin offers for 
large quantities of supplies that contractors normally have in process 
or storage at intermediate points, contracting officers shall make use 
of contractors' earned commercial transit credits, which are recorded 
with the carriers. A transit credit represents the transportation costs 
for a recorded tonnage from the initial point to an intermediate point. 
The remaining transportation charges from the intermediate point to the 
Government destination, because they are based on through rates, are 
frequently lower than the transportation charges that would apply for 
the same tonnage if the intermediate point were the initial origin 
point.
    (2) If transit credits apply, the contract shall state that the 
contractor shall ship the goods on prepaid commercial bills of lading, 
subject to reimbursement by the Government. The contracting officer 
shall ensure that this does not preclude a proper change in delivery 
terms under the Changes clause. The shipments move for the account and 
at the risk of the Government, as they become Government property at 
origin.
    (3) The contractor shall show the transportation and transit charges 
as separate amounts on the invoice for each individual shipment. The 
amount to be reimbursed by the Government shall not exceed the amount 
quoted in the offer.
    (4) The contracting officer shall insert in solicitations and 
contracts the clause at 52.247-57, Transportation Transit Privilege 
Credits, when supplies are of such a nature, or when it is the custom of 
the trade, that offerors may have potential transit credits available 
and the Government may reduce transportation costs through the use of 
transit credits.

[48 FR 42424, Sept. 19, 1983, as amended at 71 FR 206, Jan. 3, 2006]

[[Page 968]]



Sec. 47.305-14  Mode of transportation.

    Generally, solicitations shall not specify a particular mode of 
transportation or a particular carrier. If the use of particular types 
of carriers is necessary to meet program requirements, the solicitation 
shall provide that only offers involving the specified types of carriers 
will be considered. The contracting officer shall obtain all 
specifications for mode, route, delivery, etc., from the transportation 
office.



Sec. 47.305-15  Loading responsibilities of contractors.

    (a)(1) Contractors are responsible for loading, blocking, and 
bracing carload shipments as specified in standards published by the 
Association of American Railroads.
    (2) The contracting officer shall insert in solicitations and 
contracts the clause at 52.247-58, Loading, Blocking, and Bracing of 
Freight Car Shipments, when supplies may be shipped in carload lots by 
rail.
    (b) If the nature of the supplies or safety, environmental, or 
transportability factors require special methods for securing the 
supplies on the carrier's equipment, or if only a special mode of 
transportation or type vehicle is appropriate, the contracting officer 
shall include in solicitations detailed specifications that have been 
coordinated with the transportation office.



Sec. 47.305-16  Shipping characteristics.

    (a) Required shipping weights. The contracting officer shall insert 
in solicitations and contracts the clause at 52.247-59, F.o.b. Origin--
Carload and Truckload Shipments, when it is contemplated that they may 
result in f.o.b. origin contracts with shipments in carloads or 
truckloads. This will facilitate realistic freight cost evaluations of 
offers and ensure that contractors produce economical shipments of 
agreed size.
    (b) Guaranteed shipping characteristics. (1) The contracting officer 
shall insert in soliciations and contracts, excluding those at or below 
the simplified acquisition threshold, the clause at 52.247-60, 
Guaranteed Shipping Characteristics, when shipping and other 
characteristics are required to evaluate offers as to transportation 
costs. When all of the shipping characteristics listed in paragraph (a) 
of the clause at 52.247-60 are not required to evaluate offers as to 
transportation costs, the contracting officer shall delete the 
characteristics not required from the clause.
    (2) The award document shall show the shipping characteristics used 
in the evaluation.
    (c) Minimum size of shipments. When volume rates may apply, the 
contracting officer shall insert in solicitations and contracts the 
clause at 52.247-61, F.o.b. Origin--Minimum Size of Shipments.
    (d) Specific quantities unknown. (1) When total requirements and 
destinations to which shipments will be made are known, but the specific 
quantity to be shipped to each destination cannot be predetermined, 
solicitations shall state that offers are to be submitted on the basis 
of delivery f.o.b. origin and/or f.o.b. destination and that offers will 
be evaluated on both bases.
    (2) The contracting officer shall insert in solicitations and 
contracts the clause at 52.247-62, Specific Quantities Unknown, when 
total requirements and destinations to which shipments will be made are 
known, but the specific quantity to be shipped to each destination 
cannot be predetermined. This clause protects the interests of both the 
Government and the contractor during the course of the performance of 
the contract.

[48 FR 42424, Sept. 19, 1983, as amended at 54 FR 48990, Nov. 28, 1989; 
60 FR 34760, July 3, 1995; 61 FR 39190, July 26, 1996]



Sec. 47.305-17  Returnable cylinders.

    The contracting officer shall insert the clause at 52.247-66, 
Returnable Cylinders, in a solicitation and contract whenever the 
contract involves the purchase of gas in contractor-furnished returnable 
cylinders and the contractor retains title to the cylinders.

[59 FR 11386, Mar. 10, 1994]



Sec. 47.306  Transportation factors in the evaluation of offers.

    When evaluating offers, contracting officers shall consider 
transportation and transportation-related costs as well as the offerors' 
shipping and receiving facilities.

[[Page 969]]



Sec. 47.306-1  Transportation cost determinations.

    When requesting the transportation officer to assist in evaluating 
offers, the contracting officer shall give the transportation officer 
all pertinent data, including the following information:
    (a) A complete description of the commodity being acquired including 
packaging instructions.
    (b) Planned date of award.
    (c) Date of initial shipment.
    (d) Total quantity to be shipped (including weight and cubic 
content, when appropriate).
    (e) Delivery schedule.
    (f) Contract period.
    (g) Possible use of transit privileges, including stopoffs for 
partial loading or unloading, or both.



Sec. 47.306-2  Lowest overall transportation costs.

    (a) For the evaluation of offers, the transportation officer shall 
give to the contracting officer, and the contracting officer shall use, 
the lowest available freight rates and related accessorial and 
incidental charges that (1) are in effect on, or become effective 
before, the expected date of the initial shipment and (2) are on file or 
published on the date of the bid opening.
    (b) If rates or related charges become available after the bid 
opening or the due date of offers, they shall not be used in the 
evaluation unless they cover transportation for which no applicable 
rates or accessorial or incidental costs were in existence at the time 
of bid opening or due date of the offers.



Sec. 47.306-3  Adequacy of loading and unloading facilities.

    (a) When determining the transportation capabilities of an offeror, 
the contracting officer shall consider the type and adequacy of the 
offeror's shipping facilities, including the ability to consolidate and 
ship in carload or truckload lots.
    (b) The contracting officer shall consider the type and adequacy of 
the consignee's receiving facilities to avoid shipping schedules that 
cannot be properly accommodated.

          Subpart 47.4_Air Transportation by U.S.-Flag Carriers



Sec. 47.401  Definitions.

    As used in this subpart--
    Air freight forwarder means an indirect air carrier that is 
responsible for the transportation of property from the point of receipt 
to the point of destination, and utilizes for the whole or any part of 
such transportation the services of a direct air carrier or its agent, 
or of another air freight forwarder.
    Gateway airport abroad means the airport from which the traveler 
last embarks en route to the United States or at which the traveler 
first debarks incident to travel from the United States.
    Gateway airport in the United States means the last U.S. airport 
from which the traveler's flight departs or the first U.S. airport at 
which the traveler's flight arrives.
    International air transportation means transportation by air between 
a place in the United States and a place outside the United States or 
between two places both of which are outside the United States.
    United States means the 50 States, the District of Columbia, and 
outlying areas of the United States.
    U.S.-flag air carrier means an air carrier holding a certificate 
under section 401 of the Federal Aviation Act of 1958 (49 U.S.C. 41102).

[48 FR 42424, Sept. 19, 1983, as amended at 66 FR 2134, Jan. 10, 2001; 
68 FR 28084, May 22, 2003]



Sec. 47.402  Policy.

    Federal employees and their dependents, consultants, contractors, 
grantees, and others must use U.S.-flag air carriers for U.S. 
Government-financed international air travel and transportation of their 
personal effects or property, if available (section 5 of the 
International Air Transportation Fair Competitive Practices Act of 1974 
(49 U.S.C. 40118) (Fly America Act)).

[68 FR 28084, May 22, 2003]

[[Page 970]]



Sec. 47.403  Guidelines for implementation of the Fly America Act.

    This section 47.403 is based on the Guidelines for Implementation of 
the Fly America Act (case number B-138942), issued by the Comptroller 
General of the United States on March 31, 1981.



Sec. 47.403-1  Availability and unavailability of U.S.-flag air carrier 
          service.

    (a) If a U.S.-flag air carrier cannot provide the international air 
transportation needed or if the use of U.S.-flag air carrier service 
would not accomplish an agency's mission, foreign-flag air carrier 
service may be deemed necessary.
    (b) U.S.-flag air carrier service is considered available even 
though--
    (1) Comparable or a different kind of service can be provided at 
less cost by a foreign-flag air carrier;
    (2) Foreign-flag air carrier service is preferred by, or is more 
convenient for, the agency or traveler; or
    (3) Service by a foreign-flag air carrier can be paid for in excess 
foreign currency (unless U.S.-flag air carriers decline to accept excess 
or near excess foreign currencies for transportation payable only out of 
such monies).
    (c) Except as provided in paragraph 47.403-1(a), U.S.-flag air 
carrier service shall be used for U.S. Government-financed commercial 
foreign air travel if service provided by U.S.-flag air carriers is 
available. In determining availability of a U.S.-flag air carrier, the 
following scheduling principles shall be followed unless their 
application would result in the last or first leg of travel to or from 
the United States being performed by a foreign-flag air carrier:
    (1) U.S.-flag air carrier service available at point of origin shall 
be used to destination or, in the absence of direct or through service, 
to the farthest interchange point on a usually traveled route.
    (2) When an origin or interchange point is not served by a U.S.-flag 
air carrier, foreign-flag air carrier service shall be used only to the 
nearest interchange point on a usually traveled route to connect with 
U.S.-flag air carrier service.
    (3) When a U.S.-flag air carrier involuntarily reroutes the traveler 
via a foreign-flag air carrier, the foreign-flag air carrier may be used 
notwithstanding the availability of alternative U.S.-flag air carrier 
service.
    (d) For travel between a gateway airport in the United States and a 
gateway airport abroad, passenger service by U.S.-flag air carrier shall 
not be considered available if--
    (1) The gateway airport abroad is the traveler's origin or 
destination airport and the use of U.S.-flag air carrier service would 
extend the time in a travel status, including delay at origin and 
accelerated arrival at destination, by at least 24 hours more than 
travel by a foreign-flag air carrier; or
    (2) The gateway airport abroad is an interchange point and the use 
of U.S.-flag air carrier service would require the traveler to wait 6 
hours or more to make connections at that point, or if delayed departure 
from, or accelerated arrival at, the gateway airport in the United 
States would extend time in a travel status by at least 6 hours more 
than travel by a foreign-flag air carrier.
    (e) For travel between two points outside the United States, the 
rules in paragraphs 47.403-1(a), (b), and (c) shall be applicable, but 
passenger service by a U.S.-flag air carrier shall not be considered to 
be reasonably available if--
    (1) Travel by a foreign-flag air carrier would eliminate two or more 
aircraft changes en route;
    (2) One of the two points abroad is the gateway airport en route to 
or from the United States and the use of a U.S.-flag air carrier would 
extend the time in a travel status by at least 6 hours more than travel 
by a foreign-flag air carrier, including accelerated arrival at the 
overseas destination or delayed departure from the overseas origin, as 
well as delay at the gateway airport or other interchange point abroad; 
or
    (3) The travel is not part of the trip to or from the United States 
and the use of a U.S.-flag air carrier would extend the time in a travel 
status by at least 6 hours more than travel by a foreign-flag air 
carrier including delay at origin, delay en route, and accelerated 
arrival at destination.

[[Page 971]]

    (f) For all short-distance travel under either paragraph (d) or 
paragraph (e) of 47.403-1, U.S. air carrier service shall not be 
considered available when the elapsed traveltime on a scheduled flight 
from origin to destination airport by foreign-flag air carrier is 3 
hours or less and service by a U.S.-flag air carrier would involve twice 
such traveltime.



Sec. 47.403-2  Air transport agreements between the United States and 
          foreign governments.

    Nothing in the guidelines of the Comptroller General (see 47.403) 
shall preclude, and no penalty shall attend, the use of a foreign-flag 
air carrier that provides transportation under an air transport 
agreement between the United States and a foreign government, the terms 
of which are consistent with the international aviation policy goals at 
49 U.S.C. 1502(b) and provide reciprocal rights and benefits.



Sec. 47.403-3  Disallowance of expenditures.

    (a) Agencies shall disallow expenditures for U.S. Government-
financed commercial international air transportation on foreign-flag air 
carriers unless there is attached to the appropriate voucher a 
memorandum adequately explaining why service by U.S.-flag air carriers 
was not available, or why it was necessary to use foreign-flag air 
carriers.
    (b) When the travel is by indirect route or the traveler otherwise 
fails to use available U.S.-flag air carrier service, the amount to be 
disallowed against the traveler is based on the loss of revenues 
suffered by U.S.-flag air carriers as determined under the following 
formula, which is prescribed and more fully explained in 56 Comp. Gen. 
209 (1977):
[GRAPHIC] [TIFF OMITTED] TC03AP91.004

[GRAPHIC] [TIFF OMITTED] TC03AP91.005

    (c) The justification requirement is satisfied by the contractor's 
use of a statement similar to the one contained in the clause at 52.247-
63, Preference for U.S.-Flag Air Carriers. (See 47.405.)

[48 FR 42424, Sept. 19, 1983, as amended at 62 FR 237, Jan. 2, 1997]



Sec. 47.404  Air freight forwarders.

    (a) Agencies may use air freight forwarders that are engaged in 
international air transportation (49 U.S.C. 1301(24)(c)) for U.S. 
Government-financed movements of property. The rule on disallowance of 
expenditures in 47.403-3(a) applies also to the air carriers used by 
these international air freight forwarders.
    (b) Agency personnel shall inform international air freight 
forwarders that to facilitate prompt payments of their bills, they shall 
submit with their bills (1) a copy of the airway bill or manifest 
showing the air carriers used and (2) justification for the use of 
foreign-flag air carriers similar to the one shown in the clause at 
52.247-63, Preference for U.S.-Flag Air Carriers.

[48 FR 42424, Sept. 19, 1983, as amended at 62 FR 237, Jan. 2, 1997]



Sec. 47.405  Contract clause.

    The contracting officer shall insert the clause at 52.247-63, 
``Preference for U.S.-Flag Air Carriers, in solicitations and contracts 
whenever it is possible that U.S. Government-financed international air 
transportation of personnel (and their personal effects) or property 
will occur in the performance of the contract.'' This clause does not 
apply to contracts awarded using the simplified acquisition procedures 
in part 13 or contracts for commercial items (see part 12).

[48 FR 42424, Sept. 19, 1983, as amended at 53 FR 27468, July 20, 1988; 
60 FR 48250, Sept. 18, 1995]

[[Page 972]]

         Subpart 47.5_Ocean Transportation by U.S.-Flag Vessels



Sec. 47.500  Scope of subpart.

    This subpart prescribes policy and procedures for giving preference 
to U.S.-flag vessels when transportation of supplies by ocean vessel is 
required. This subpart does not apply to the Department of Defense 
(DoD). Policy and procedures applicable to DoD appear in DFARS subpart 
247.5.

[48 FR 42424, Sept. 19, 1983, as amended at 55 FR 3886, Feb. 5, 1990]



Sec. 47.501  Definitions.

    As used in this subpart--
    Dry bulk carrier means a vessel used primarily for the carriage of 
shipload lots of homogeneous unmarked nonliquid cargoes such as grain, 
coal, cement, and lumber.
    Dry cargo liner means a vessel used for the carriage of 
heterogeneous marked cargoes in parcel lots. However, any cargo may be 
carried in these vessels, including part cargoes of dry bulk items or, 
when carried in deep tanks, bulk liquids such as petroleum and vegetable 
oils.
    Foreign-flag vessel means any vessel of foreign registry including 
vessels owned by U.S. citizens but registered in a nation other than the 
United States.
    Government vessel means a vessel owned by the U.S. Government and 
operated directly by the Government or for the Government by an agent or 
contractor, including a privately owned U.S.-flag vessel under bareboat 
charter to the Government.
    Privately owned U.S.-flag commercial vessel means a vessel (1) 
registered and operated under the laws of the United States, (2) used in 
commercial trade of the United States, (3) owned and operated by U.S. 
citizens, including a vessel under voyage or time charter to the 
Government, and (4) a Government-owned vessel under bareboat charter to, 
and operated by, U.S. citizens.
    Tanker means a vessel used primarily for the carriage of bulk liquid 
cargoes such as liquid petroleum products, vegetable oils, and molasses.
    U.S.-flag vessel when used independently means either a Government 
vessel or a privately owned U.S.-flag commercial vessel.

[48 FR 42424, Sept. 19, 1983, as amended at 66 FR 2134, Jan. 10, 2001]



Sec. 47.502  Policy.

    (a) The policy of the United States regarding the use of U.S.-flag 
vessels is stated in the following acts:
    (1) The Cargo Preference Act of 1904 (10 U.S.C. 2631), which 
requires the Department of Defense to use only U.S.-flag vessels for 
ocean transportation of supplies for the Army, Navy, Air Force, or 
Marine Corps unless those vessels are not available at fair and 
reasonable rates.
    (2) The Merchant Marine Act of 1936 (46 U.S.C. 1101), which declares 
it is the policy of the United States to foster the development and 
encourage the maintenance of its merchant marine.
    (3) The Cargo Preference Act of 1954 (46 U.S.C. 1241(b), which is 
Section 901(b) of the Merchant Marine Act). Under this Act, Government 
agencies acquiring, either within or outside the United States, supplies 
that may require ocean transportation shall ensure that at least 50 
percent of the gross tonnage of these supplies (computed separately for 
dry bulk carriers, dry cargo liners, and tankers) is transported on 
privately owned U.S.-flag commercial vessels to the extent that such 
vessels are available at rates that are fair and reasonable for U.S.-
flag commercial vessels. This applies when the supplies are--
    (i) Acquired for the account of the United States;
    (ii) Furnished to, or for the account of, a foreign nation without 
provision for reimbursement;
    (iii) Furnished for the account of a foreign nation in connection 
with which the United States advances funds or credits, or guarantees 
the convertibility of foreign currencies; or
    (iv) Acquired with advance of funds, loans, or guaranties made by or 
on behalf of the United States.
    (b) Additional policies providing preference for the use of U.S.-
flag vessels are contained in--
    (1) 10 U.S.C. 2634 for the transporation of privately-owned vehicles 
belonging to service members

[[Page 973]]

when making permanent change of station moves;
    (2) 46 U.S.C. 1241(a) for official business travel by officers and 
employees of the United States and for the transportation of their 
personal effects; and
    (3) 46 U.S.C. 1241(e) for the transportation of motor vehicles owned 
by Government personnel when transportation is at Government expense or 
otherwise authorized by law.
    (c) The provisions of the Cargo Preference Act of 1954 may be 
temporarily waived when the Congress, the President, or the Secretary of 
Defense declares that an emergency justifying a temporary waiver exists 
and so notifies the appropriate agency or agencies.



Sec. 47.503  Applicability.

    (a) Except as stated in paragraph (b) below and in 47.504, the Cargo 
Preference Acts of 1904 and 1954 described in 47.502(a) apply to the 
following cargoes:
    (1) Supplies owned by the Government and in the possession of--
    (i) The Government;
    (ii) A contractor; or
    (iii) A subcontractor at any tier.
    (2) Supplies for use of the Government that are contracted for and 
require subsequent delivery to a Government activity but are not owned 
by the Government at the time of shipment.
    (3) Supplies not owned by the Government at the time of shipment 
that are to be transported for distribution to foreign assistance 
programs, but only if these supplies are not acquired or contracted for 
with local currency funds (see 47.504(b)).
    (b) Government-owned supplies to be shipped commercially that are 
(1) in the possession of a department, a contractor, or a subcontractor 
at any tier and (2) for use of military departments shall be transported 
exclusively in privately owned U.S.-flag commercial vessels if such 
vessels are available at rates that are fair and reasonable for U.S.-
flag commercial vessels.
    (c) The 50-percent requirement shall not prevent the use of 
privately owned U.S.-flag commercial vessels for transportation of up to 
100 percent of the cargo subject to the Cargo Preference Act of 1954.



Sec. 47.504  Exceptions.

    The policy and procedures in this subpart do not apply to the 
following:
    (a) Shipments aboard vessels as required or authorized by law or 
treaty.
    (b) Ocean transportation between foreign countries of supplies 
purchased with foreign currencies made available, or derived from funds 
that are made available, under the Foreign Assistance Act of 1961 (22 
U.S.C. 2353).
    (c) Shipments of classified supplies when the classification 
prohibits the use of non-Government vessels.
    (d) Subcontracts for the acquisition of commercial items or 
commercial components (see 12.504(a)(1) and (a)(11)). This exception 
does not apply to--
    (1) Grants-in-aid shipments, such as agricultural and food-aid 
shipments;
    (2) Shipments covered under 46 U.S.C. Appx 1241-1, such as those 
generated by Export-Import Bank loans or guarantees;
    (3) Subcontracts under--
    (i) Government contracts or agreements for ocean transportation 
services; or
    (ii) Construction contracts; or
    (4) Shipments of commercial items that are--
    (i) Items the contractor is reselling or distributing to the 
Government without adding value (see FAR 12.501(b)). Generally, the 
contractor does not add value to the items when it subcontracts items 
for f.o.b. destination shipment; or
    (ii) Shipped in direct support of U.S. military--
    (A) Contingency operations;
    (B) Exercises; or
    (C) Forces deployed in connection with United Nations or North 
Atlantic Treaty Organization humanitarian or peacekeeping operations.

[48 FR 42424, Sept. 19, 1983, as amended at 60 FR 34760, July 3, 1995; 
60 FR 48250, Sept. 18, 1995; 65 FR 24324, Apr. 25, 2000; 68 FR 13203, 
Mar. 18, 2003; 71 FR 206, Jan. 3, 2006]

    Editorial Note: At 65 FR 36031, June 6, 2000, section 47.504 was 
amended in the first sentence of paragraph (e) by removing ``(see 
12.504(a)(13))'' and adding ``(see 12.504(a)(11))''. However, prior to 
this amendment paragraph (e) was redesignated as (d).

[[Page 974]]



Sec. 47.505  Construction contracts.

    (a) Except as stated in paragraph (b) below, construction 
contractors, including subcontractors and suppliers, engaged in overseas 
work shall comply with the policies and regulations in this subpart.
    (b) These requirements shall not apply to military assistance, 
foreign aid, or similar projects under the auspices of the U.S. 
Government when the recipient nation furnishes, or pays for, at least 50 
percent of the transportation, in which event foreign-flag vessels may 
be used for a portion not to exceed 50 percent of the gross tonnage for 
the project.



Sec. 47.506  Procedures.

    (a) The contracting officer shall obtain assistance from the 
transportation activity (see 47.105) in developing appropriate shipping 
instructions and delivery terms for inclusion in solicitations and 
contracts that may involve ocean transportation of supplies subject to 
the requirements of the Cargo Preference Act of 1954 (see 47.502(a)(3)).
    (b) When the contractor notifies the contracting officer that a 
privately owned U.S.-flag commercial vessel is not available, the 
contracting officer shall seek assistance from the transportation 
activity.
    (c) For purposes of determining the availability of privately owned 
U.S.-flag commercial vessels at fair and reasonable rates, rates filed 
and published in accordance with the requirements of the Federal 
Maritime Commission may be accepted as fair and reasonable. When 
applicable rates for charter cargoes are not in published tariffs, a 
determination as to whether the rates are fair and reasonable shall be 
obtained from the Maritime Administration.
    (d) The Maritime Administration has issued regulations (46 CFR 381) 
that require agencies to submit reports regarding ocean shipments. 
Contracting officers shall follow agency regulations when preparing, or 
furnishing information for, these reports.



Sec. 47.507  Contract clauses.

    (a)(1) Insert the clause at 52.247-64, Preference for Privately 
Owned U.S.-Flag Commercial Vessels, in solicitations and contracts that 
may involve ocean transportation of supplies subject to the Cargo 
Preference Act of 1954. (For application of the Cargo Preference Act of 
1954, see 47.502(a)(3), 47.503(a), and 47.504.)
    (2) If an applicable statute requires, or if it has been determined 
under agency procedures, that the supplies to be furnished under the 
contracts must be transported exclusively in privately owned U.S.-flag 
commercial vessels (see 47.502(a)(1) and 47.503(b)), use the clause with 
its Alternate I.
    (3) Except for contracts or agreements for ocean transportation 
services or construction contracts, use the clause with its Alternate II 
if any of the supplies to be transported are commercial items that are 
shipped in direct support of U.S. military--
    (i) Contingency operations;
    (ii) Exercises; or
    (iii) Forces deployed in connection with United Nations or North 
Atlantic Treaty Organization humanitarian or peacekeeping operations.
    (b) The contracting officer may insert in solicitations and 
contracts, under agency procedures, additional appropriate clauses 
concerning the vessels to be used.

[68 FR 13203, Mar. 18, 2003]

                        PART 48_VALUE ENGINEERING

Sec.

Sec. 48.000 Scope of part.

Sec. 48.001 Definitions.

                  Subpart 48.1_Policies and Procedures


Sec. 48.101 General.

Sec. 48.102 Policies.

Sec. 48.103 Processing value engineering change proposals.

Sec. 48.104 Sharing arrangements.

Sec. 48.104-1 Determining sharing period.

Sec. 48.104-2 Sharing acquisition savings.

Sec. 48.104-3 Sharing collateral savings.

Sec. 48.104-4 Sharing alternative--no-cost settlement method.

Sec. 48.105 Relationship to other incentives.

                      Subpart 48.2_Contract Clauses


Sec. 48.201 Clauses for supply or service contracts.

Sec. 48.202 Clause for construction contracts.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 
2473(c).

[[Page 975]]


    Source: 48 FR 42443, Sept. 19, 1983, unless otherwise noted.



Sec. 48.000  Scope of part.

    This part prescribes policies and procedures for using and 
administering value engineering techniques in contracts.



Sec. 48.001  Definitions.

    As used in this subpart--
    Acquisition savings means savings resulting from the application of 
a value engineering change proposal (VECP) to contracts awarded by the 
same contracting office of its successor for essentially the same unit. 
Acquisition savings include--
    (1) Instant contract savings, that are the net cost reductions on 
the contract under which the VECP is submitted and accepted, and that 
are equal to the instant unit cost reduction multiplied by the number of 
instant contract units affected by the VECP, less the contractor's 
allowable development and implementation costs;
    (2) Concurrent contract savings, that are net reductions in the 
prices of other contracts that are definitized and ongoing at the time 
the VECP is accepted; and
    (3) Future contract savings, that are the product of the future unit 
cost reduction multiplied by the number of future contract units in the 
sharing base. On an instant contract, future contract savings include 
savings on increases in quantities after VECP acceptance that are due to 
contract modifications, exercise of options, additional orders, and 
funding of subsequent year requirements on a multiyear contract.
    Collateral costs means agency costs of operation, maintenance 
logistic support, or Government-furnished property.
    Collateral savings means those measurable net reductions resulting 
from a VECP in the agency's overall projected collateral costs, 
exclusive of acquisition savings, whether or not the acquisition cost 
changes.
    Contracting office includes any contracting office that the 
acquisition is transferred to, such as another branch of the agency or 
another agency's office that is performing a joint acquisition action.
    Contractor's development and implementation costs means those costs 
the contractor incurs on a VECP specifically in developing, testing, 
preparing, and submitting the VECP, as well as those costs the 
contractor incurs to make the contractual changes required by Government 
acceptance of a VECP.
    Future unit cost reduction means the instant unit cost reduction 
adjusted as the contracting officer considers necessary for projected 
learning or changes in quantity during the sharing period. It is 
calculated at the time the VECP is accepted and applies either (1) 
throughout the sharing period, unless the contracting officer decides 
that recalculation is necessary because conditions are significantly 
different from those previously anticipated or (2) to the calculation of 
a lump-sum payment, that cannot later be revised.
    Government costs means those agency costs that result directly from 
developing and implementing the VECP, such as any net increases in the 
cost of testing, operations, maintenance, and logistics support. The 
term does not include the normal administrative costs of processing the 
VECP or any increase in instant contract cost or price resulting from 
negative instant contract savings, except that for use in 52.248-3, see 
the definition at 52.248-3(b).
    Instant contract means the contract under which the VECP is 
submitted. It does not include increases in quantities after acceptance 
of the VECP that are due to contract modifications, exercise of options, 
or additional orders. If the contract is a multiyear contract, the term 
does not include quantities funded after VECP acceptance. In a fixed-
price contract with prospective price redetermination, the term refers 
to the period for which firm prices have been established.
    Instant unit cost reduction means the amount of the decrease in unit 
cost of performance (without deducting any contractor's development or 
implementation costs) resulting from using the VECP on the instant 
contract. In service contracts, the instant unit cost reduction is 
normally equal to the number of hours per line-item task saved

[[Page 976]]

by using the VECP on the instant contract, multiplied by the appropriate 
contract labor rate.
    Negative instant contract savings means the increase in the instant 
contract cost or price when the acceptance of a VECP results in an 
excess of the contractor's allowable development and implementation 
costs over the product of the instant unit cost reduction multiplied by 
the number of instant contract units affected.
    Net acquisition savings means total acquisition savings, including 
instant, concurrent, and future contract savings, less Government costs.
    Sharing base means the number of affected end items on contracts of 
the contracting office accepting the VECP.
    Sharing period means the period beginning with acceptance of the 
first unit incorporating the VECP and ending at a calendar date or event 
determined by the contracting officer for each VECP.
    Unit means the item or task to which the contracting officer and the 
contractor agree the VECP applies.
    Value engineering proposal means, in connection with an A-E 
contract, a change proposal developed by employees of the Federal 
Government or contractor value engineering personnel under contract to 
an agency to provide value engineering services for the contract or 
program.

[48 FR 42443, Sept. 19, 1983, as amended at 54 FR 5057, Jan. 31, 1989; 
55 FR 3887, Feb. 5, 1990; 61 FR 39220, July 26, 1996; 64 FR 51847, Sept. 
24, 1999; 66 FR 2134, Jan. 10, 2001]

                  Subpart 48.1_Policies and Procedures



Sec. 48.101  General.

    (a) Value engineering is the formal technique by which contractors 
may (1) voluntarily suggest methods for performing more economically and 
share in any resulting savings or (2) be required to establish a program 
to identify and submit to the Government methods for performing more 
economically. Value engineering attempts to eliminate, without impairing 
essential functions or characteristics, anything that increases 
acquisition, operation, or support costs.
    (b) There are two value engineering approaches:
    (1) The first is an incentive approach in which contractor 
participation is voluntary and the contractor uses its own resources to 
develop and submit any value engineering change proposals (VECP's). The 
contract provides for sharing of savings and for payment of the 
contractor's allowable development and implementation costs only if a 
VECP is accepted. This voluntary approach should not in itself increase 
costs to the Government.
    (2) The second approach is a mandatory program in which the 
Government requires and pays for a specific value engineering program 
effort. The contractor must perform value engineering of the scope and 
level of effort required by the Government's program plan and included 
as a separately priced item of work in the contract Schedule. No value 
engineering (VE) sharing is permitted in architect-engineer contracts. 
All other contracts with a program clause share in savings on accepted 
VECP's, but at a lower percentage rate than under the voluntary 
approach. The objective of this value engineering program requirement is 
to ensure that the contractor's value engineering effort is applied to 
areas of the contract that offer opportunities for considerable savings 
consistent with the functional requirements of the end item of the 
contract.

[48 FR 42443, Sept. 19, 1983, as amended at 54 FR 5057, Jan. 31, 1989]



Sec. 48.102  Policies.

    (a) As required by Section 36 of the Office of Federal Procurement 
Policy Act (41 U.S.C. 401, et seq.), agencies shall establish and 
maintain cost-effective value engineering procedures and processes. 
Agencies shall provide contractors a substantial financial incentive to 
develop and submit VECP's. Contracting activities will include value 
engineering provisions in appropriate supply, service, architect-
engineer and construction contracts as prescribed by 48.201 and 48.202 
except where exemptions are granted on a case-by-case basis, or for 
specific classes of contracts, by the agency head.
    (b) Agencies shall: (1) establish guidelines for processing VECP's; 
(2) process

[[Page 977]]

VECP's objectively and expeditiously; and (3) provide contractors a fair 
share of the savings on accepted VECP's.
    (c) Agencies shall consider requiring incorporation of value 
engineering clauses in appropriate subcontracts.
    (d)(1) Agencies other than the Department of Defense shall use the 
value engineering program requirement clause (52.248-1, Alternates I or 
II) in initial production contracts for major systems programs (see 
definition of major system in 34.001) and for contracts for major 
systems research and development except where the contracting officer 
determines and documents the file to reflect that such use is not 
appropriate
    (2) In Department of Defense contracts, the VE program requirement 
clause (52.248-1, Alternates I or II), shall be placed in initial 
production solicitations and contracts (first and second production 
buys) for major system acquisition programs as defined in DoD Directive 
5000.1, except as specified in subdivisions (d)(2)(i) and (ii) of this 
section. A program requirement clause may be included in initial 
production contracts for less than major systems acquisition programs if 
there is a potential for savings. The contracting officer is not 
required to include a program requirement clause in initial production 
contracts--
    (i) Where, in the judgment of the contracting officer, the prime 
contractor has demonstrated an effective VE program during either 
earlier program phases, or during other recent comparable production 
contracts.
    (ii) Which are awarded on the basis of competition.
    (e) Value engineering incentive payments do not constitute profit or 
fee within the limitations imposed by 10 U.S.C. 2306(d) and 41 U.S.C. 
254(b) (see 15.404-4(c)(4)(i).
    (f) Generally, profit or fee on the instant contact should not be 
adjusted downward as a result of acceptance of a VECP. Profit or fee 
shall be excluded when calculating instant or future contract savings.
    (g) The contracting officer determines the sharing periods and 
sharing rates on a case-by-case basis using the guidelines in 48.104-1 
and 48.104-2, respectively. In establishing a sharing period and sharing 
rate, the contracting officer must consider the following, as 
appropriate, and must insert supporting rationale in the contract file:
    (1) Extent of the change.
    (2) Complexity of the change.
    (3) Development risk (e.g., contractor's financial risk).
    (4) Development cost.
    (5) Performance and/or reliability impact.
    (6) Production period remaining at the time of VECP acceptance.
    (7) Number of units affected.
    (h) Contracts for architect-engineer services must require a 
mandatory value engineering program to reduce total ownership cost in 
accordance with 48.101(b)(2). However, there must be no sharing of value 
engineering savings in contracts for architect-engineer services.
    (i) Agencies shall establish procedures for funding and payment of 
the contractor's share of collateral savings and future contract 
savings.

[48 FR 42443, Sept. 19, 1983, as amended at 51 FR 2666, Jan. 17, 1986; 
54 FR 5057, Jan. 31, 1989; 55 FR 3887, Feb. 5, 1990; 61 FR 39221, July 
26, 1996; 62 FR 51271, Sept. 30, 1997; 64 FR 51847, Sept. 24, 1999]



Sec. 48.103  Processing value engineering change proposals.

    (a) Instructions to the contractor for preparing a VECP and 
submitting it to the Government are included in paragraphs (c) and (d) 
of the value engineering clauses prescribed in subpart 48.2. Upon 
receiving a VECP, the contracting officer or other designated official 
shall promptly process and objectively evaluate the VECP in accordance 
with agency precedures and shall document the contract file with the 
rationale for accepting or rejecting the VECP.
    (b) The contracting officer is responsible for accepting or 
rejecting the VECP within 45 days from its receipt by the Government. If 
the Government will need more time to evaluate the VECP, the contracting 
officer shall notify the contractor promptly in writing giving the 
reasons and the anticipated decision date. The contractor may withdraw, 
in whole or in part, any VECP not accepted by the Government

[[Page 978]]

within the period specified in the VECP. Any VECP may be approved, in 
whole or in part, by a contract modification incorporating the VECP. 
Until the effective date of the contract modification, the contractor 
shall perform in accordance with the existing contract. If the 
Government accepts the VECP, but properly rejects units subsequently 
delivered or does not receive units on which a savings share was paid, 
the contractor shall reimburse the Government for the proportionate 
share of these payments. If the VECP is not accepted, the contracting 
officer shall provide the contractor with prompt written notification, 
explaining the reasons for rejection.
    (c) The following Government decisions are unilateral decisions made 
solely at the discretion of the Government:
    (1) The decision to accept or reject a VECP.
    (2) The determination of collateral costs or collateral savings.
    (3) The decision as to which of the sharing rates applies when 
Alternate II of the clause at 52.248-1, Value Engineering, is used.
    (4) The contracting officer's determination of the duration of the 
sharing period and the contractor's sharing rate.

[48 FR 42443, Sept. 19, 1983, as amended at 54 FR 5057, Jan. 31, 1989; 
64 FR 72449, Dec. 27, 1999]



Sec. 48.104  Sharing arrangements.



Sec. 48.104-1  Determining sharing period.

    (a) Contracting officers must determine discrete sharing periods for 
each VECP. If more than one VECP is incorporated into a contract, the 
sharing period for each VECP need not be identical.
    (b) The sharing period begins with acceptance of the first unit 
incorporating the VECP. Except as provided in paragraph (c) of this 
section, the end of the sharing period is a specific calendar date that 
is the later of--
    (1) 36 to 60 consecutive months (set at the discretion of the 
contracting officer for each VECP) after the first unit affected by the 
VECP is accepted; or
    (2) The last scheduled delivery date of an item affected by the VECP 
under the instant contract delivery schedule in effect at the time the 
VECP is accepted.
    (c) For engineering-development contracts and contracts containing 
low-rate-initial-production or early production units, the end of the 
sharing period is based not on a calendar date, but on acceptance of a 
specified quantity of future contract units. This quantity is the number 
of units affected by the VECP that are scheduled to be delivered over a 
period of between 36 and 60 consecutive months (set at the discretion of 
the contracting officer for each VECP) that spans the highest planned 
production, based on planning and programming or production 
documentation at the time the VECP is accepted. The specified quantity 
begins with the first future contract unit affected by the VECP and 
continues over consecutive deliveries until the sharing period ends at 
acceptance of the last of the specified quantity of units.
    (d) For contracts (other than those in paragraph (c) of this 
subsection) for items requiring a prolonged production schedule (e.g., 
ship construction, major system acquisition), the end of the sharing 
period is determined according to paragraph (b) of this subsection. 
Agencies may prescribe sharing of future contract savings on all future 
contract units to be delivered under contracts awarded within the 
sharing period for essentially the same item, even if the scheduled 
delivery date is outside the sharing period.

[64 FR 51847, Sept. 24, 1999]



Sec. 48.104-2  Sharing acquisition savings.

    (a) Supply or service contracts. (1) The sharing base for 
acquisition savings is the number of affected end items on contracts of 
the contracting office accepting the VECP. The sharing rates 
(Government/contractor) for net acquisition savings for supplies and 
services are based on the type of contract, the value engineering clause 
or alternate used, and the type of savings, as follows:

[[Page 979]]



         Government/Contractor Shares of Net Acquisition Savings
                          [Figures in percent]
------------------------------------------------------------------------
                                          Sharing arrangement
                             -------------------------------------------
                                    Incentive        Program requirement
                                   (voluntary)           (mandatory)
        Contract type        -------------------------------------------
                                        Concurrent            Concurrent
                               Instant  and future   Instant  and future
                              contract   contract   contract   contract
                                rate       rate       rate       rate
------------------------------------------------------------------------
Fixed-price (includes fixed-  \1\ 50/   \1\ 50/50     75/25      75/25
 price-award-fee; excludes         50
 other fixed-price incentive
 contracts)
Incentive (fixed-price or       (\2\)   \1\ 50/50     (\2\)      75/25
 cost) (other than award
 fee)
Cost-reimbursement (includes  \3\ 75/   \3\ 75/25     85/15      85/15
 cost-plus-award-fee;              25
 excludes other cost-type
 incentive contracts)
------------------------------------------------------------------------
\1\ The contracting officer may increase the contractor's sharing rate
  to as high as 75 percent for each VECP. (See 48.102(g) (1) through
  (7).)
\2\ Same sharing arrangement as the contract's profit or fee adjustment
  formula.
\3\ The contracting officer may increase the contractor's sharing rate
  to as high as 50 percent for each VECP. (See 48.102(g) (1) through
  (7).)

    (2) Acquisition savings may be realized on the instant contract, 
concurrent contracts, and future contracts. The contractor is entitled 
to a percentage share (see paragraph (a)(1) of this section) of any net 
acquisition savings. Net acquisition savings result when the total of 
acquisition savings becomes greater than the total of Government costs 
and any negative instant contract savings. This may occur on the instant 
contract or it may not occur until reductions have been negotiated on 
concurrent contracts or until future contract savings are calculated, 
either through lump-sum payment or as each future contract is awarded.
    (i) When the instant contract is not an incentive contract, the 
contractor's share of net acquisition savings is calculated and paid 
each time such savings are realized. This may occur once, several times, 
or, in rare cases, not at all.
    (ii) When the instant contract is an incentive contract, the 
contractor shares in instant contract savings through the contract's 
incentive structure. In calculating acquisition savings under incentive 
contracts, the contracting officer shall add any negative instant 
contract savings to the target cost or to the target price and ceiling 
price and then offset these negative instant contract savings and any 
Government costs against concurrent and future contract savings.
    (3) The contractor shares in the savings on all affected units 
scheduled for delivery during the sharing period. The contractor is 
responsible for maintaining, for 3 years after final payment on the 
contract under which the VECP was accepted, records adequate to identify 
the first delivered unit incorporating the applicable VECP.
    (4) Contractor shares of savings are paid through the contract under 
which the VECP was accepted. On incentive contracts, the contractor's 
share of concurrent and future contract savings and of collateral 
savings shall be paid as a separate firm-fixed-price contract line item 
on the instant contract.
    (5) Within 3 months after concurrent contracts have been modified to 
reflect price reductions attributable to use of the VECP, the 
contracting officer shall modify the instant contract to provide the 
contractor's share of savings.
    (6) The contractor's share of future contract savings may be paid as 
subsequent contracts are awarded or in a lump-sum payment at the time 
the VECP is accepted. The lump-sum method may be used only if the 
contracting officer has established that this is the best way to proceed 
and the contractor agrees. The contracting officer ordinarily shall make 
calculations as future contracts are awarded and, within 3 months after 
their award, modify the instant contract to provide the contractor's 
share of savings. For future contract savings calculated under the 
optional lump-sum method, the sharing base is an estimate of the number 
of items that the contracting office will purchase for delivery during 
the sharing period. In deciding whether or not to use the more 
convenient lump-sum method for an individual VECP, the contracting 
officer shall consider--
    (i) The accuracy with which the number of items to be delivered 
during the sharing period can be estimated and

[[Page 980]]

the probability of actual production of the projected quantity;
    (ii) The availability of funds for a lump-sum payment; and
    (iii) The administrative expense of amending the instant contract as 
future contracts are awarded.
    (b) Construction contracts. Sharing on construction contracts 
applies only to savings on the instant contract and to collateral 
savings. The Government's share of savings is determined by subtracting 
Government costs from instant contract savings and multiplying the 
result by (1) 45 percent for fixed-price contracts; or (2) 75 percent 
for cost-reimbursement contracts. Value engineering sharing does not 
apply to incentive construction contracts.

[48 FR 42443, Sept. 19, 1983, as amended at 54 FR 5057, Jan. 31, 1989; 
55 FR 3887, Feb. 5, 1990; 59 FR 11387, Mar. 10, 1994. Redesignated and 
amended at 64 FR 51847, 51848, Sept. 24, 1999]



Sec. 48.104-3  Sharing collateral savings.

    (a) The Government shares collateral savings with the contractor, 
unless the head of the contracting activity has determined that the cost 
of calculating and tracking collateral savings will exceed the benefits 
to be derived (see 48.201(e)).
    (b) The contractor's share of collateral savings may range from 20 
to 100 percent of the estimated savings to be realized during a typical 
year of use but must not exceed the greater of--
    (1) The contract's firm-fixed-price, target price, target cost, or 
estimated cost, at the time the VECP is accepted; or
    (2) $100,000.
    (c) The contracting officer must determine the sharing rate for each 
VECP.
    (d) In determining collateral savings, the contracting officer must 
consider any degradation of performance, service life, or capability.

[64 FR 51848, Sept. 24, 1999]



Sec. 48.104-4  Sharing alternative--no-cost settlement method.

    In selecting an appropriate mechanism for incorporating a VECP into 
a contract, the contracting officer shall analyze the different 
approaches available to determine which one would be in the Government's 
best interest. Contracting officers should balance the administrative 
costs of negotiating a settlement against the anticipated savings. A no-
cost settlement may be used if, in the contracting officer's judgment, 
reliance on other VECP approaches likely would not be more cost-
effective, and the no-cost settlement would provide adequate 
consideration to the Government. Under this method of settlement, the 
contractor would keep all of the savings on the instant contract, and 
all savings on its concurrent contracts only. The Government would keep 
all savings resulting from concurrent contracts placed with other 
sources, savings from all future contracts, and all collateral savings. 
Use of this method must be by mutual agreement of both parties for 
individual VECPs.

[63 FR 34079, June 22, 1998. Redesignated at 64 FR 51847, Sept. 24, 
1999]



Sec. 48.105  Relationship to other incentives.

    Contractors should be offered the fullest possible range of 
motivation, yet the benefits of an accepted VECP should not be rewarded 
both as value engineering shares and under performance, design-to-cost, 
or similar incentives of the contract. To that end, when performance, 
design-to-cost, or similar targets are set and incentivized, the targets 
of such incentives affected by the VECP are not to be adjusted because 
of the acceptance of the VECP. Only those benefits of an accepted VECP 
not rewardable under other incentives are rewarded under a value 
engineering clause.

[48 FR 42443, Sept. 19, 1983, as amended at 54 FR 5057, Jan. 31, 1989]

                      Subpart 48.2_Contract Clauses



Sec. 48.201  Clauses for supply or service contracts.

    (a) General. The contracting officer shall insert a value 
engineering clause in solicitations and contracts when the contract 
amount is expected to exceed the simplified acquisition threshold, 
except as specified in subparagraphs (1) through (5) and in paragraph 
(f) below. A value engineering clause may be included in contracts of 
lesser value if

[[Page 981]]

the contracting officer sees a potential for significant savings. Unless 
the chief of the contracting office authorizes its inclusion, the 
contracting officer shall not include a value engineering clause in 
solicitations and contracts--
    (1) For research and development other than full-scale development;
    (2) For engineering services from not-for-profit or nonprofit 
organizations;
    (3) For personal services (see subpart 37.1);
    (4) Providing for product or component improvement, unless the value 
engineering incentive application is restricted to areas not covered by 
provisions for product or component improvement;
    (5) For commercial products (see part 11) that do not involve 
packaging specifications or other special requirements or 
specifications; or
    (6) When the agency head has exempted the contract (or a class of 
contracts) from the requirements of part 48.
    (b) Value engineering incentive. To provide a value engineering 
incentive, the contracting officer shall insert the clause at 52.248-1, 
Value Engineering, in solicitations and contracts except as provided in 
paragraph (a) above (but see subparagraph (e)(1) below).
    (c) Value engineering program requirement. (1) If a mandatory value 
engineering effort is appropriate (i.e., if the contracting officer 
considers that substantial savings to the Government may result from a 
sustained value engineering effort of a specified level), the 
contracting officer shall use the clause with its Alternate I (but see 
subparagraph (e)(2) below).
    (2) The value engineering program requirement may be specified by 
the Government in the solicitation or, in the case of negotiated 
contracting, proposed by the contractor as part of its offer and 
included as a subject for negotiation. The program requirement shall be 
shown as a separately priced line item in the contract Schedule.
    (d) Value engineering incentive and program requirement. (1) If both 
a value engineering incentive and a mandatory program requirement are 
appropriate, the contracting officer shall use the clause with its 
Alternate II (but see subparagraph (e)(3) below).
    (2) The contract shall restrict the value engineering program 
requirement to well-defined areas of performance designated by line item 
in the contract Schedule. Alternate II applies a value engineering 
program to the specified areas and a value engineering incentive to the 
remaining areas of the contract.
    (e) Collateral savings computation not cost-effective. If the head 
of the contracting activity determines for a contract or class of 
contracts that the cost of computing and tracking collateral savings 
will exceed the benefits to be derived, the contracting officer shall 
use the clause with its--
    (1) Alternate III if a value engineering incentive is involved;
    (2) Alternate III and Alternate I if a value engineering program 
requirement is involved; or
    (3) Alternate III and Alternate II if both an incentive and a 
program requirement are involved.
    (f) Architect-engineering contracts. The contracting officer shall 
insert the clause at 52.248-2, Value Engineering--Architect-Engineer, in 
solicitations and contracts whenever the Government requires and pays 
for a specific value engineering effort in architect-engineer contracts. 
The clause at 52.248-1, Value Engineering, shall not be used in 
solicitations and contracts for architect-engineer services.
    (g) Engineering-development solicitations and contracts. For 
engineering-development solicitations and contracts, and solicitations 
and contracts containing low-rate-initial-production or early production 
units, the contracting officer must modify the clause at 52.248-1, Value 
Engineering, by--
    (1) Revising paragraph (i)(3)(i) of the clause by substituting ``a 
number equal to the quantity required to be delivered over a period of 
between 36 and 60 consecutive months (set at the discretion of the 
Contracting Officer for each VECP) that spans the highest planned 
production, based on planning and programming or production 
documentation at the time the VECP is accepted;'' for ``the number of 
future contract units scheduled for delivery during the sharing 
period;'' and

[[Page 982]]

    (2) Revising the first sentence under paragraph (3) of the 
definition of ``acquisition savings'' by substituting ``a number equal 
to the quantity to be delivered over a period of between 36 and 60 
consecutive months (set at the discretion of the Contracting Officer for 
each VECP) that spans the highest planned production, based on planning 
and programming or production documentation at the time the VECP is 
accepted.'' for ``the number of future contract units in the sharing 
base.''
    (h) Extended production period solicitations and contracts. In 
solicitations and contracts for items requiring an extended period for 
production (e.g., ship construction, major system acquisition), if 
agency procedures prescribe sharing of future contract savings on all 
units to be delivered under contracts awarded during the sharing period 
(see 48.104-1(c)), the contracting officer must modify the clause at 
52.248-1, Value Engineering, by revising paragraph (i)(3)(i) of the 
clause and the first sentence under paragraph (3) of the definition of 
``acquisition savings'' by substituting ``under contracts awarded during 
the sharing period'' for ``during the sharing period.''

[48 FR 42443, Sept. 19, 1983, as amended at 54 FR 5057, Jan. 31, 1989; 
55 FR 3887, Feb. 5, 1990; 64 FR 51848, Sept. 24, 1999; 71 FR 57368, 
Sept. 28, 2006]



Sec. 48.202  Clause for construction contracts.

    The contracting officer shall insert the clause at 52.248-3, Value 
Engineering--Construction, in construction solicitations and contracts 
when the contract amount is estimated to exceed the simplified 
acquisition threshold, unless an incentive contract is contemplated. The 
contracting officer may include the clause in contracts of lesser value 
if the contracting officer sees a potential for significant savings. The 
contracting officer shall not include the clause in incentive-type 
construction contracts. If the head of the contracting activity 
determines that the cost of computing and tracking collateral savings 
for a contract will exceed the benefits to be derived, the contracting 
officer shall use the clause with its Alternate I.

[48 FR 42443, Sept. 19, 1983, as amended at 71 FR 57368, Sept. 28, 2006]

                    PART 49_TERMINATION OF CONTRACTS

Sec.

Sec. 49.000 Scope of part.

Sec. 49.001 Definitions.

Sec. 49.002 Applicability.

                     Subpart 49.1_General Principles


Sec. 49.100 Scope of subpart.

Sec. 49.101 Authorities and responsibilities.

Sec. 49.102 Notice of termination.

Sec. 49.103 Methods of settlement.

Sec. 49.104 Duties of prime contractor after receipt of notice of 
          termination.

Sec. 49.105 Duties of termination contracting officer after issuance of 
          notice of termination.

Sec. 49.105-1 Termination status reports.

Sec. 49.105-2 Release of excess funds.

Sec. 49.105-3 Termination case file.

Sec. 49.105-4 Cleanup of construction site.

Sec. 49.106 Fraud or other criminal conduct.

Sec. 49.107 Audit of prime contract settlement proposals and subcontract 
          settlements.

Sec. 49.108 Settlement of subcontract settlement proposals.

Sec. 49.108-1 Subcontractor's rights.

Sec. 49.108-2 Prime contractor's rights and obligations.

Sec. 49.108-3 Settlement procedure.

Sec. 49.108-4 Authorization for subcontract settlements without approval 
          or ratification.

Sec. 49.108-5 Recognition of judgments and arbitration awards.

Sec. 49.108-6 Delay in settling subcontractor settlement proposals.

Sec. 49.108-7 Government assistance in settling subcontracts.

Sec. 49.108-8 Assignment of rights under subcontracts.

Sec. 49.109 Settlement agreements.

Sec. 49.109-1 General.

Sec. 49.109-2 Reservations.

Sec. 49.109-3 Government property.

Sec. 49.109-4 No-cost settlement.

Sec. 49.109-5 Partial settlements.

Sec. 49.109-6 Joint settlement of two or more settlement proposals.

Sec. 49.109-7 Settlement by determination.

Sec. 49.110 Settlement negotiation memorandum.

Sec. 49.111 Review of proposed settlements.

Sec. 49.112 Payment.

Sec. 49.112-1 Partial payments.

Sec. 49.112-2 Final payment.

Sec. 49.113 Cost principles.

Sec. 49.114 Unsettled contract changes.

[[Page 983]]


Sec. 49.115 Settlement of terminated incentive contracts.

Subpart 49.2_Additional Principles for Fixed-Price Contracts Terminated 
                             for Convenience


Sec. 49.201 General.

Sec. 49.202 Profit.

Sec. 49.203 Adjustment for loss.

Sec. 49.204 Deductions.

Sec. 49.205 Completed end items.

Sec. 49.206 Settlement proposals.

Sec. 49.206-1 Submission of settlement proposals.

Sec. 49.206-2 Bases for settlement proposals.

Sec. 49.206-3 Submission of inventory disposal schedules.

Sec. 49.207 Limitation on settlements.

Sec. 49.208 Equitable adjustment after partial termination.

  Subpart 49.3_Additional Principles for Cost-Reimbursement Contracts 
                       Terminated for Convenience


Sec. 49.301 General.

Sec. 49.302 Discontinuance of vouchers.

Sec. 49.303 Procedure after discontinuing vouchers.

Sec. 49.303-1 Submission of settlement proposal.

Sec. 49.303-2 Submission of inventory disposal schedules.

Sec. 49.303-3 Audit of settlement proposal.

Sec. 49.303-4 Adjustment of indirect costs.

Sec. 49.303-5 Final settlement.

Sec. 49.304 Procedure for partial termination.

Sec. 49.304-1 General.

Sec. 49.304-2 Submission of settlement proposal (fee only).

Sec. 49.304-3 Submission of vouchers.

Sec. 49.305 Adjustment of fee.

Sec. 49.305-1 General.

Sec. 49.305-2 Construction contracts.

                  Subpart 49.4_Termination for Default


Sec. 49.401 General.

Sec. 49.402 Termination of fixed-price contracts for default.

Sec. 49.402-1 The Government's right.

Sec. 49.402-2 Effect of termination for default.

Sec. 49.402-3 Procedure for default.

Sec. 49.402-4 Procedure in lieu of termination for default.

Sec. 49.402-5 Memorandum by the contracting officer.

Sec. 49.402-6 Repurchase against contractor's account.

Sec. 49.402-7 Other damages.

Sec. 49.402-8 Reporting information.

Sec. 49.403 Termination of cost-reimbursement contracts for default.

Sec. 49.404 Surety-takeover agreements.

Sec. 49.405 Completion by another contractor.

Sec. 49.406 Liquidation of liability.

                Subpart 49.5_Contract Termination Clauses


Sec. 49.501 General.

Sec. 49.502 Termination for convenience of the Government.

Sec. 49.503 Termination for convenience of the Government and default.

Sec. 49.504 Termination of fixed-price contracts for default.

Sec. 49.505 Other termination clauses.

           Subpart 49.6_Contract Termination Forms and Formats


Sec. 49.601 Notice of termination for convenience.

Sec. 49.601-1 Telegraphic notice.

Sec. 49.601-2 Letter notice.

Sec. 49.602 Forms for settlement of terminated contracts.

Sec. 49.602-1 Termination settlement proposal forms.

Sec. 49.602-2 Inventory forms.

Sec. 49.602-3 Schedule of accounting information.

Sec. 49.602-4 Partial payments.

Sec. 49.602-5 Settlement agreement.

Sec. 49.603 Formats for termination for convenience settlement 
          agreements.

Sec. 49.603-1 Fixed-price contracts--complete termination.

Sec. 49.603-2 Fixed-price contracts--partial termination.

Sec. 49.603-3 Cost-reimbursement contracts--complete termination, if 
          settlement includes cost.

Sec. 49.603-4 Cost-reimbursement contracts--complete termination, with 
          settlement limited to fee.

Sec. 49.603-5 Cost-reimbursement contracts--partial termination.

Sec. 49.603-6 No-cost settlement agreement--complete termination.

Sec. 49.603-7 No-cost settlement agreement--partial termination.

Sec. 49.603-8 Fixed-price contracts--settlements with subcontractors 
          only.

Sec. 49.603-9 Settlement of reservations.

Sec. 49.604 Release of excess funds under terminated contracts.

Sec. 49.605 Request to settle subcontractor settlement proposals.

Sec. 49.606 Granting subcontract settlement authorization.

Sec. 49.607 Delinquency notices.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 
20113.

    Source: 48 FR 42447, Sept. 19, 1983, unless otherwise noted.



Sec. 49.000  Scope of part.

    This part establishes policies and procedures relating to the 
complete or partial termination of contracts for the

[[Page 984]]

convenience of the Government or for default. It prescribes contract 
clauses relating to termination and excusable delay and includes 
instructions for using termination and settlement forms.



Sec. 49.001  Definitions.

    As used in this part--
    Other work means any current or scheduled work of the contractor, 
whether Government or commercial, other than work related to the 
terminated contract.
    Plant clearance period, as used in this subpart, means the period 
beginning on the effective date of contract completion or termination 
and ending 90 days (or such longer period as may be agreed to) after 
receipt by the contracting officer of acceptable inventory schedules for 
each property classification. The final phase of the plant clearance 
period means that period after receipt of acceptable inventory 
schedules.
    Settlement agreement means a written agreement in the form of a 
contract modification settling all or a severable portion of a 
settlement proposal.
    Settlement proposal means a proposal for effecting settlement of a 
contract terminated in whole or in part, submitted by a contractor or 
subcontractor in the form, and supported by the data, required by this 
part. A settlement proposal is included within the generic meaning of 
the word claim under false claims acts (see 18 U.S.C. 287 and 31 U.S.C. 
3729).
    Unsettled contract change means any contract change or contract term 
for which a definitive modification is required but has not been 
executed.

[48 FR 42443, Sept. 19, 1983, as amended at 51 FR 2666, Jan. 17, 1986; 
66 FR 2134, Jan. 10, 2001; 67 FR 43514, June 27, 2002; 69 FR 17748, Apr. 
5, 2004]



Sec. 49.002  Applicability.

    (a)(1) This part applies to contracts that provide for termination 
for the convenience of the Government or for the default of the 
contractor (see also 12.403 and 13.302-4).
    (2) This part does not apply to commercial item contracts awarded 
using part 12 procedures. See 12.403 for termination policies for 
contracts for the acquisition of commercial items. However, for 
contracts for the acquisition of commercial items, this part provides 
administrative guidance which may be followed unless it is inconsistent 
with the requirements and procedures in 12.403, Termination, and the 
clause at 52.212-4, Contract Terms and Conditions--Commercial Items.
    (b) Contractors shall use this part, unless inappropriate, to settle 
subcontracts terminated as a result of modification of prime contracts. 
The contracting officer shall use this part as a guide in evaluating 
settlements of subcontracts terminated for the convenience of a 
contractor whenever the settlement will be the basis of a proposal for 
reimbursement from the Government under a cost-reimbursement contract.
    (c) The contracting officer may use this part in determining an 
equitable adjustment resulting from a modification under the Changes 
clause of any contract, except cost-reimbursement contracts.
    (d) When action to be taken or authority to be exercised under this 
part depends upon the amount of the settlement proposal, that amount 
shall be determined by deducting from the gross settlement proposed the 
amounts payable for completed articles or work at the contract price and 
amounts for the settlement of subcontractor settlement proposals. 
Credits for retention or other disposal of termination inventory and 
amounts for advance or partial payments shall not be deducted.

[48 FR 42447, Sept. 19, 1983, as amended at 62 FR 64927, Dec. 9, 1997; 
75 FR 82577, Dec. 30, 2010]

                     Subpart 49.1_General Principles



Sec. 49.100  Scope of subpart.

    (a) This subpart deals with--
    (1) The authority and responsibility of contracting officers to 
terminate contracts in whole or in part for the convenience of the 
Government or for default;
    (2) Duties of the contractor and the contracting officer after 
issuance of the notice of termination;
    (3) General procedures for the settlement of terminated contracts; 
and
    (4) Settlement agreements.

[[Page 985]]

    (b) Additional principles applicable to the termination for 
convenience and settlement of fixed-price and cost-reimbursement 
contracts are included in subparts 49.2 and 49.3. Additional principles 
applicable to the termination of contracts for default are included in 
subpart 49.4.



Sec. 49.101  Authorities and responsibilities.

    (a) The termination clauses or other contract clauses authorize 
contracting officers to terminate contracts for convenience, or for 
default, and to enter into settlement agreements under this regulation.
    (b) The contracting officer shall terminate contracts, whether for 
default or convenience, only when it is in the Government's interest. 
The contracting officer shall effect a no-cost settlement instead of 
issuing a termination notice when (1) it is known that the contractor 
will accept one, (2) Government property was not furnished, and (3) 
there are no outstanding payments, debts due the Government, or other 
contractor obligations.
    (c) When the price of the undelivered balance of the contract is 
less than $5,000, the contract should not normally be terminated for 
convenience but should be permitted to run to completion.
    (d) After the contracting officer issues a notice of termination, 
the termination contracting officer (TCO) is responsible for negotiating 
any settlement with the contractor, including a no-cost settlement if 
appropriate. Auditors and TCO's shall promptly schedule and complete 
audit reviews and negotiations, giving particular attention to the need 
for timely action on all settlements involving small business concerns.
    (e) If the same item is under contract with both large and small 
business concerns and it is necessary to terminate for convenience part 
of the units still to be delivered, preference shall be given to the 
continuing performance of small business contracts over large business 
contracts unless the chief of the contracting office determines that 
this is not in the Government's interest.
    (f) The contracting officer is responsible for the release of excess 
funds resulting from the termination unless this responsibility is 
specifically delegated to the TCO.

[48 FR 42447, Sept. 19, 1983, as amended at 55 FR 52797, Dec. 21, 1990; 
56 FR 67134, Dec. 27, 1991]



Sec. 49.102  Notice of termination.

    (a) General. The contracting officer shall terminate contracts for 
convenience or default only by a written notice to the contractor (see 
49.601). When the notice is mailed, it shall be sent by certified mail, 
return receipt requested. When the contracting office arranges for hand 
delivery of the notice, a written acknowledgment shall be obtained from 
the contractor. The notice shall state--
    (1) That the contract is being terminated for the convenience of the 
Government (or for default) under the contract clause authorizing the 
termination;
    (2) The effective date of termination;
    (3) The extent of termination;
    (4) Any special instructions; and
    (5) The steps the contractor should take to minimize the impact on 
personnel if the termination, together with all other outstanding 
terminations, will result in a significant reduction in the contractor's 
work force (see paragraph (g) of the notice in 49.601-2). If the 
termination notice is by telegram, include these steps in the confirming 
letter or modification.
    (b) Distribution of copies. The contracting officer shall 
simultaneously send the termination notice to the contractor, and a copy 
to the contract administration office and to any known assignee, 
guarantor, or surety of the contractor.
    (c) Amendment of termination notice. The contracting officer may 
amend a termination notice to--
    (1) Correct nonsubstantive mistakes in the notice;
    (2) Add supplemental data or instructions; or
    (3) Rescind the notice if it is determined that items terminated had 
been completed or shipped before the contractor's receipt of the notice.

[[Page 986]]

    (d) Reinstatement of terminated contracts. Upon written consent of 
the contractor, the contracting office may reinstate the terminated 
portion of a contract in whole or in part by amending the notice of 
termination if it has been determined in writing that--
    (1) Circumstances clearly indicate a requirement for the terminated 
items; and
    (2) Reinstatement is advantageous to the Government.



Sec. 49.103  Methods of settlement.

    Settlement of terminated cost-reimbursement contracts and fixed-
price contracts terminated for convenience may be effected by (a) 
negotiated agreement, (b) determination by the TCO, (c) costing-out 
under vouchers using SF 1034, Public Voucher for Purchases and Services 
Other Than Personal, for cost-reimbursement contracts (as prescribed in 
subpart 49.3), or (d) a combination of these methods. When possible, the 
TCO should negotiate a fair and prompt settlement with the contractor. 
The TCO shall settle a settlement proposal by determination only when it 
cannot be settled by agreement.



Sec. 49.104  Duties of prime contractor after receipt of notice of 
          termination.

    After receipt of the notice of termination, the contractor shall 
comply with the notice and the termination clause of the contract, 
except as otherwise directed by the TCO. The notice and clause 
applicable to convenience terminations generally require that the 
contractor--
    (a) Stop work immediately on the terminated portion of the contract 
and stop placing subcontracts thereunder;
    (b) Terminate all subcontracts related to the terminated portion of 
the prime contract;
    (c) Immediately advise the TCO of any special circumstances 
precluding the stoppage of work;
    (d) Perform the continued portion of the contract and submit 
promptly any request for an equitable adjustment of price for the 
continued portion, supported by evidence of any increase in the cost, if 
the termination is partial;
    (e) Take necessary or directed action to protect and preserve 
property in the contractor's possession in which the Government has or 
may acquire an interest and, as directed by the TCO, deliver the 
property to the Government;
    (f) Promptly notify the TCO in writing of any legal proceedings 
growing out of any subcontract or other commitment related to the 
terminated portion of the contract;
    (g) Settle outstanding liabilities and proposals arising out of 
termination of subcontracts, obtaining any approvals or ratifications 
required by the TCO;
    (h) Promptly submit the contractor's own settlement proposal, 
supported by appropriate schedules; and
    (i) Dispose of termination inventory, as directed or authorized by 
the TCO.



Sec. 49.105  Duties of termination contracting officer after issuance of 
          notice of termination.

    (a) Consistent with the termination clause and the notice of 
termination, the TCO shall--
    (1) Direct the action required of the prime contractor;
    (2) Examine the settlement proposal of the prime contractor and, 
when appropriate, the settlement proposals of subcontractors;
    (3) Promptly negotiate settlement with the contractor and enter into 
a settlement agreement; and
    (4) Promptly settle the contractor's settlement proposal by 
determination for the elements that cannot be agreed on, if unable to 
negotiate a complete settlement.
    (b) To expedite settlement, the TCO may request specially qualified 
personnel to--
    (1) Assist in dealings with the contractor;
    (2) Advise on legal and contractual matters;
    (3) Conduct accounting reviews and advise and assist on accounting 
matters; and
    (4) Perform the following functions regarding termination inventory 
(see subpart 45.6):
    (i) Verify its existence.
    (ii) Determine qualitative and quantitative allocability.
    (iii) Make recommendations concerning serviceability.
    (iv) Undertake necessary screening and redistribution.

[[Page 987]]

    (v) Assist the contractor in accomplishing other disposition.
    (c) The TCO should promptly hold a conference with the contractor to 
develop a definite program for effecting the settlement. When 
appropriate in the judgment of the TCO, after consulting with the 
contractor, principal subcontractors should be requested to attend. 
Topics that should be discussed at the conference and documented 
include--
    (1) General principles relating to the settlement of any settlement 
proposal, including obligations of the contractor under the termination 
clause of the contract;
    (2) Extent of the termination, point at which work is stopped, and 
status of any plans, drawings, and information that would have been 
delivered had the contract been completed;
    (3) Status of any continuing work;
    (4) Obligation of the contractor to terminate subcontracts and 
general principles to be followed in settling subcontractor settlement 
proposals;
    (5) Names of subcontractors involved and the dates termination 
notices were issued to them;
    (6) Contractor personnel handling review and settlement of 
subcontractor settlement proposals and the methods being used;
    (7) Arrangements for transfer of title and delivery to the 
Government of any material required by the Government;
    (8) General principles and procedures to be followed in the 
protection, preservation, and disposition of the contractor's and 
subcontractors' termination inventories, including the preparation of 
termination inventory schedules;
    (9) Contractor accounting practices and preparation of SF 1439 
(Schedule of Accounting Information (49.602-3);
    (10) Form in which to submit settlement proposals;
    (11) Accounting review of settlement proposals;
    (12) Any requirement for interim financing in the nature of partial 
payments;
    (13) Tentative time schedule for negotiation of the settlement, 
including submission by the contractor and subcontractors of settlement 
proposals, termination inventory schedules, and accounting information 
schedules (see 49.206-3 and 49.303-2);
    (14) Actions taken by the contractor to minimize impact upon 
employees affected adversely by the termination (see paragraph (g) of 
the letter notice in 49.601-2); and
    (15) Obligation of the contractor to furnish accurate, complete, and 
current cost or pricing data, and to certify to that effect in 
accordance with 15.403-4(a)(1) when the amount of a termination 
settlement agreement, or a partial termination settlement agreement plus 
the estimate to complete the continued portion of the contract exceeds 
the threshold in 15.403-4.

[48 FR 42447, Sept. 19, 1983, as amended at 61 FR 39221, July 26, 1996; 
62 FR 51271, Sept. 30, 1997]



Sec. 49.105-1  Termination status reports.

    When the TCO and contracting officer are in different activities, 
the TCO will furnish periodic status reports on termination actions to 
the contracting office upon request. The contracting office shall 
specify the information required.



Sec. 49.105-2  Release of excess funds.

    (a) The TCO shall estimate the funds required to settle the 
termination, and within 30 days after the receipt of the termination 
notice, recommend the release of excess funds to the contracting 
officer. The initial deobligation of excess funds should be accomplished 
in a timely manner by the contracting officer, or the TCO, if delegated 
the responsibility. The TCO shall not recommend the release of amounts 
under $1,000, unless requested by the contracting officer.
    (b) The TCO shall maintain continuous surveillance of required funds 
to permit timely release of any additional excess funds (a recommended 
format for release of excess funds is in 49.604). If previous releases 
of excess funds result in a shortage of the amount required for 
settlement, the TCO shall promptly inform the contracting officer, who 
shall reinstate the funds within 30 days.

[56 FR 67134, Dec. 27, 1991]

[[Page 988]]



Sec. 49.105-3  Termination case file.

    The TCO responsible for negotiating the final settlement shall 
establish a separate case file for each termination. This file will 
include memoranda and records of all actions relative to the settlement 
(see 4.801).



Sec. 49.105-4  Cleanup of construction site.

    In the case of terminated construction contracts, the contracting 
officer shall direct action to ensure the cleanup of the site, 
protection of serviceable materials, removal of hazards, and other 
action necessary to leave a safe and healthful site.



Sec. 49.106  Fraud or other criminal conduct.

    If the TCO suspects fraud or other criminal conduct related to the 
settlement of a terminated contract, the TCO shall discontinue 
negotiations and report the facts under agency procedures.



Sec. 49.107  Audit of prime contract settlement proposals and 
          subcontract settlements.

    (a) The TCO shall refer each prime contractor settlement proposal of 
$100,000 or more to the appropriate audit agency for review and 
recommendations. The TCO may submit settlement proposals of less than 
$100,000 to the audit agency. Referrals shall indicate any specific 
information or data that the TCO desires and shall include facts and 
circumstances that will assist the audit agency in performing its 
function. The audit agency shall develop requested information and may 
make any further accounting reviews it considers appropriate. After its 
review, the audit agency shall submit written comments and 
recommendations to the TCO. When a formal examination of settlement 
proposals under $100,000 is not warranted, the TCO will perform or have 
performed a desk review and include a written summary of the review in 
the termination case file.
    (b) The TCO shall refer subcontract settlements received for 
approval or ratification to the appropriate audit agency for review and 
recommendations when (1) the amount exceeds $100,000 or (2) the TCO 
wants a complete or partial accounting review. The audit agency shall 
submit written comments and recommendations to the TCO. The review by 
the audit agency does not relieve the prime contractor or higher tier 
subcontractor of the responsibility for performing an accounting review.
    (c)(1) The responsibility of the prime contractor and of each 
subcontractor (see 49.108) includes performance of accounting reviews 
and any necessary field audits. However, the TCO should request the 
Government audit agency to perform the accounting review of a 
subcontractor's settlement proposal when--
    (i) A subcontractor objects, for competitive reasons, to an 
accounting review of its records by an upper tier contractor;
    (ii) The Government audit agency is currently performing audit work 
at the subcontractor's plant, or can perform the audit more economically 
or efficiently;
    (iii) Audit by the Government is necessary for consistent audit 
treatment and orderly administration; or
    (iv) The contractor has a substantial or controlling financial 
interest in the subcontractor.
    (2) The audit agency should avoid duplication of accounting reviews 
performed by the upper tier contractor on subcontractor settlement 
proposals. However, this should not preclude the Government from making 
additional reviews when appropriate. When the contractor is performing 
accounting reviews according to this section, the TCO should request the 
audit agency to periodically examine the contractor's accounting review 
procedures and performance, and to make appropriate comments and 
recommendations to the TCO.
    (d) The audit report is advisory only, and is for the TCO to use in 
negotiating a settlement or issuing a unilateral determination. 
Government personnel handling audit reports must be careful not to 
reveal privileged information or information that will jeopardize the 
negotiation position of the Government, the prime contractor, or a 
higher tier subcontractor. Consistent with this, and when in the 
Government's interest, the TCO may furnish

[[Page 989]]

audit reports under paragraph (c) above to prime and higher tier 
subcontractors for their use in settling subcontract settlement 
proposals.

[48 FR 42447, Sept. 19, 1983, as amended at 55 FR 52797, Dec. 21, 1990]



Sec. 49.108  Settlement of subcontract settlement proposals.



Sec. 49.108-1  Subcontractor's rights.

    A subcontractor has no contractual rights against the Government 
upon the termination of a prime contract. A subcontractor may have 
rights against the prime contractor or intermediate subcontractor with 
whom it has contracted. Upon termination of a prime contract, the prime 
contractor and each subcontractor are responsible for the prompt 
settlement of the settlement proposals of their immediate 
subcontractors.



Sec. 49.108-2  Prime contractor's rights and obligations.

    (a) Termination for convenience clauses provide that after receipt 
of a termination notice the prime contractor shall, unless directed 
otherwise by the TCO, terminate all subcontracts to the extent that they 
relate to the performance of prime work terminated. Therefore, prime 
contractors should include a termination clause in their subcontracts 
for their own protection. Suggestions regarding use of subcontract 
termination clauses are in subpart 49.5.
    (b) The failure of a prime contractor to include an appropriate 
termination clause in any subcontract, or to exercise the clause rights, 
shall not--
    (1) Affect the Government's right to require the termination of the 
subcontract; or
    (2) Increase the obligation of the Government beyond what it would 
have been if the subcontract had contained an appropriate clause.
    (c) In any case, the reasonableness of the prime contractor's 
settlement with the subcontractor should normally be measured by the 
aggregate amount due under paragraph (f) of the subcontract termination 
clause suggested in 49.502(e). The TCO shall allow reimbursement in 
excess of that amount only in unusual cases and then only to the extent 
that the terms of the subcontract did not unreasonably increase the 
rights of the subcontractor.



Sec. 49.108-3  Settlement procedure.

    (a) Contractors shall settle with subcontractors in general 
conformity with the policies and principles relating to settlement of 
prime contracts in this subpart and subparts 49.2 or 49.3. However, the 
basis and form of the subcontractor's settlement proposal must be 
acceptable to the prime contractor or the next higher tier 
subcontractor. Each settlement must be supported by accounting data and 
other information sufficient for adequate review by the Government. In 
no event will the Government pay the prime contractor any amount for 
loss of anticipatory profits or consequential damages resulting from the 
termination of any subcontract (but see 49.108-5).
    (b) Except as provided in 49.108-4, the TCO shall require that--
    (1) All subcontractor termination inventory be disposed of and 
accounted for in accordance with the procedures contained in paragraph 
(j) of the clause at 52.245-1, Government Property; and
    (2) The prime contractor submit, for approval or ratification, all 
termination settlements with subcontractors.
    (c) The TCO shall promptly examine each subcontract settlement 
received to determine that the subcontract termination was made 
necessary by the termination of the prime contract (or by issuance of a 
change order--see 49.002(b)). The TCO will also determine if the 
settlement was arrived at in good faith, is reasonable in amount, and is 
allocable to the terminated portion of the contract (or, if allocable 
only in part, that the proposed allocation is reasonable). In 
considering the reasonableness of any subcontract settlement, the TCO 
shall generally be guided by the provisions of this part relating to the 
settlement of prime contracts, and shall comply with any applicable 
requirements of 49.107 and 49.111 relating to accounting and other 
reviews. After the examination, the TCO shall notify the contractor in

[[Page 990]]

writing of (1) approval or ratification, or (2) the reasons for 
disapproval.

[48 FR 42424, Sept. 19, 1983, as amended at 62 FR 237, Jan. 2, 1997; 69 
FR 17748, Apr. 5, 2004; 72 FR 27389, May 15, 2007]



Sec. 49.108-4  Authorization for subcontract settlements without 
          approval or ratification.

    (a)(1) The TCO may, upon written request, give written authorization 
to the prime contractor to conclude settlements of subcontracts 
terminated in whole or in part without approval or ratification when the 
amount of settlement (see 49.002(d)) is $100,000 or less, if--
    (i) The TCO is satisfied with the adequacy of the procedures used by 
the contractor in settling settlement proposals, including proposals for 
retention, sale, or other disposal of termination inventory of the 
immediate and lower tier subcontractors (the TCO shall obtain the advice 
and recommendations of (A) the appropriate audit agency relating to the 
adequacy of the contractor's audit administration, including personnel, 
and (B) the cognizant plant clearance officer relating to the adequacy 
of the contractor's procedures and personnel for the administration of 
property disposal matters);
    (ii) Any termination inventory included in determining the amount of 
the settlement will be disposed of as directed by the prime contractor, 
except that the disposition of the inventory shall not be subject to--
    (A) Review by the TCO under 49.108-3(c); or
    (B) The screening requirements in 45.602-3; and
    (iii) A certificate similar to the certificate in the settlement 
proposal form in 49.602-1(a) will accompany the settlement.
    (2) Except as provided in subparagraph (4) below, authority granted 
to a prime contractor under subparagraph (1) above by any TCO shall 
apply to all Executive agencies' prime contracts that are terminated, or 
modified by change orders.
    (3) Except as provided in subparagraph (4) below, the TCO shall 
accept, as part of the prime contractor's settlement proposal, 
settlements of terminated lower tier subcontracts concluded by any of 
the prime contractor's immediate or lower tier subcontractors who have 
been granted authority as prime contractors to settle subcontracts; 
provided, that the settlement is within the limit of the authority. 
Authorization to settle proposals of lower tier subcontractors shall not 
be granted directly to subcontractors. However, a prime contractor 
authorized to approve subcontractor settlements may also exercise this 
authority in its capacity as a subcontractor, with respect to its 
terminated subcontracts and orders. When exercising this authority as a 
subcontractor, the contractor shall notify the purchaser.
    (4) The provisions of subparagraphs (1), (2), and (3) above shall 
not apply to contracts under the administration of any contracting 
officer if the contracting officer so notifies the prime contractor 
concerned. This notice shall (i) be in writing, and (ii) if subparagraph 
(3) above is involved, specify any subcontractor affected.
    (b) Section 45.602 shall apply to disposal of completed end items 
allocable to the terminated subcontract. However, these items may be 
disposed of without review by the TCO under 49.108-3 and without 
screening under 45.602-3, if the items do not require demilitarization 
and the total amount (at the subcontract price) when added to the amount 
of the settlement does not exceed the amount authorized under this 
subsection.
    (c) A TCO granting the authorization in subparagraph (a)(1) above 
shall periodically (at least annually) make a selective review of 
settlements and settlement procedures to determine if the contractor is 
making adequate reviews and fair settlements, and whether the 
authorization should remain in effect. The TCO shall obtain the advice 
and recommendations of the appropriate audit agency and the cognizant 
plant clearance officer. When it is determined that the contractor's 
procedures are not adequate, or that improper settlements are being 
made, or when the authority has not been used in the preceding 2 years, 
the TCO shall revoke the authorization by written notice to the 
contractor, effective on the date of receipt.

[[Page 991]]

    (d) The contractor may make any number of separate settlements with 
a single subcontractor but shall not divide settlement proposals solely 
to bring them under an authorization limit. Separate settlement 
proposals that would normally be included in a single proposal, such as 
those based on a series of separate orders for the same item under one 
contract, shall be consolidated whenever possible.
    (e) Upon written request of the contractor, the TCO may increase an 
authorization granted under subparagraph (a)(1) of this subsection to 
authorize the contractor to conclude settlements under a particular 
prime contract. The TCO may limit the increased authorization to 
specific subcontracts or classes of subcontracts.
    (f) Authorizations granted under this 49.108-4 shall not authorize 
the settlement of requisitions or orders placed with any unit within the 
contractor's corporate entity.
    (g) Recommended formats for a request to settle subcontractor 
settlement proposals and the TCO's letter of authorization to the 
contractor are in 49.605 and 49.606, respectively.

[48 FR 42447, Sept. 19, 1983, as amended at 55 FR 52797, Dec. 21, 1990; 
69 FR 17748, Apr. 5, 2004]



Sec. 49.108-5  Recognition of judgments and arbitration awards.

    (a) When a subcontractor obtains a final judgment against a prime 
contractor, the TCO shall, for the purposes of settling the prime 
contract, treat the amount of the judgment as a cost of settling with 
the contractor, to the extent the judgment is properly allocable to the 
terminated portion of the prime contract, if--
    (1) The prime contractor has made reasonable efforts to include in 
the subcontract a termination clause described in 49.502(e), 49.503(c), 
or a similar clause excluding payment of anticipatory profits or 
consequential damages;
    (2) The provisions of the subcontract relating to the rights of the 
parties upon its termination are fair and reasonable and do not 
unreasonably increase the common law rights of the subcontractor;
    (3) The contractor made reasonable efforts to settle the settlement 
proposal of the subcontractor;
    (4) The contractor gave prompt notice to the contracting officer of 
the initiation of the proceedings in which the judgment was rendered and 
did not refuse to give the Government control of the defense of the 
proceedings; and
    (5) The contractor diligently defended the suit or, if the 
Government assumed control of the defense of the proceedings, rendered 
reasonable assistance requested by the Government.
    (b) If the conditions in subparagraphs (a)(1) through (5) above are 
not all met, the TCO may allow the contractor the part of the judgment 
considered fair for settling the subcontract settlement proposal, giving 
due regard to the policies in this part for settlement of proposals.
    (c) When a contractor and a subcontractor submit the subcontractor's 
settlement proposal to arbitration under any applicable law or contract 
provision, the TCO shall recognize the arbitration award as the cost of 
settling the proposal of the contractor to the same extent and under the 
same conditions as in paragraphs (a) and (b) above.



Sec. 49.108-6  Delay in settling subcontractor settlement proposals.

    When a prime contractor's inability to settle with a subcontractor 
delays the settlement of the prime contract, the TCO may settle with the 
prime contractor. The TCO shall except the subcontractor settlement 
proposal from the settlement in whole or part and reserve the rights of 
the Government and the prime contractor with respect to the 
subcontractor proposal.



Sec. 49.108-7  Government assistance in settling subcontracts.

    In unusual cases the TCO may determine, with the consent of the 
prime contractor, that it is in the Government's interest to provide 
assistance to the prime contractor in the settlement of a particular 
subcontract. In these situations, the Government, the prime contractor, 
and a subcontractor may enter into an agreement covering the settlement 
of one or more subcontracts. In these settlements, the

[[Page 992]]

subcontractor shall be paid through the prime contractor as part of the 
overall settlement with the prime contractor.



Sec. 49.108-8  Assignment of rights under subcontracts.

    (a) The termination for convenience clauses in 52.249, except the 
short-form clauses, obligate the prime contractor to assign to the 
Government, as directed by the TCO, all rights, titles, and interest 
under any subcontract terminated because of termination of the prime 
contract. The TCO shall not require the assignment unless it is in the 
Government's interest.
    (b) The termination for convenience clauses (except the short-form 
clauses) also provide the Government the right, in its discretion, to 
settle and pay any settlement proposal arising out of the termination of 
subcontracts. This right does not obligate the Government to settle and 
pay settlement proposals of subcontractors. As a general rule, the prime 
contractor is obligated to settle and pay these proposals. However, when 
the TCO determines that it is in the Government's interest, the TCO 
shall, after notifying the contractor, settle the subcontractor's 
proposal using the procedures for settlement of prime contracts. An 
example in which the Government's interest would be served is when a 
subcontractor is a sole source and it appears that a delay by the prime 
contractor in settlement or payment of the subcontractor's proposal will 
jeopardize the financial position of the subcontractor. Direct 
settlements with subcontractors are not encouraged.



Sec. 49.109  Settlement agreements.



Sec. 49.109-1  General.

    When a termination settlement has been negotiated and all required 
reviews have been obtained, the contractor and the TCO shall execute a 
settlement agreement on Standard Form 30 (Amendment of Solicitation/
Modification of Contract) (see 49.603). The settlement shall cover (a) 
any setoffs that the Government has against the contractor that may be 
applied against the terminated contract and (b) all settlement proposals 
of subcontractors, except proposals that are specifically excepted from 
the agreement and reserved for separate settlement.



Sec. 49.109-2  Reservations.

    (a) The TCO shall--
    (1) Reserve in the settlement agreement any rights or demands of the 
parties that are excepted from the settlement;
    (2) Ensure that the wording of the reservation does not create any 
rights for the parties beyond those in existence before execution of the 
settlement agreement;
    (3) Mark each applicable settlement agreement with ``This settlement 
agreement contains a reservation'' and retain the contract file until 
the reservation is removed;
    (4) Ensure that sufficient funds are retained to cover complete 
settlement of the reserved items; and
    (5) At the appropriate time, prepare a separate settlement of 
reserved items and include it in a separate settlement agreement.
    (b) A recommended format for settlement of reservations appears in 
49.603-9.



Sec. 49.109-3  Government property.

    Before execution of a settlement agreement, the TCO shall determine 
the accuracy of the Government property account for the terminated 
contract. If an audit discloses property for which the contractor cannot 
account, the TCO shall reserve in the settlement agreement the rights of 
the Government regarding that property or make an appropriate deduction 
from the amount otherwise due the contractor.



Sec. 49.109-4  No-cost settlement.

    The TCO shall execute a no-cost settlement agreement (see 49.603-6 
or 49.603-7, as applicable) if (a) the contractor has not incurred costs 
for the terminated portion of the contract or (b) the contractor is 
willing to waive the costs incurred and (c) no amounts are due the 
Government under the contract.



Sec. 49.109-5  Partial settlements.

    The TCO should attempt to settle in one agreement all rights and 
liabilities

[[Page 993]]

of the parties under the contract except those arising from any 
continued portion of the contract. Generally, the TCO shall not attempt 
to make partial settlements covering particular items of the prime 
contractor's settlement proposal. However, when a TCO cannot promptly 
complete settlement under the terminated contract, a partial settlement 
may be entered into if (a) the issues on which agreement has been 
reached are clearly severable from other issues and (b) the partial 
settlement will not prejudice the Government's or contractor's interests 
in disposing of the unsettled part of the settlement proposal.



Sec. 49.109-6  Joint settlement of two or more settlement proposals.

    (a) With the consent of the contractor, the TCO or TCO's concerned 
may negotiate jointly two or more termination settlement proposals of 
the same contractor under different contracts, even though the contracts 
are with different contracting offices or agencies. In such cases, 
accounting work shall be consolidated to the greatest extent practical. 
The resulting settlement may be evidenced by one settlement agreement 
covering all contracts involved or by a separate agreement for each 
contract involved.
    (b) When the settlement agreement covers more than one contract, it 
shall (1) clearly identify the contracts involved, (2) assign an 
amendment modification number to each contract, (3) apportion the total 
amount of the settlement among the several contracts on some reasonable 
basis, (4) have attached or incorporated a schedule showing the 
apportionment, and (5) be distributed and attached to each contract 
involved in the same manner as other contract modifications.



Sec. 49.109-7  Settlement by determination.

    (a) General. If the contractor and TCO cannot agree on a termination 
settlement, or if a settlement proposal is not submitted within the 
period required by the termination clause, the TCO shall issue a 
determination of the amount due consistent with the termination clause, 
including any cost principles incorporated by reference. The TCO shall 
comply with 49.109-1 through 49.109-6 in making a settlement by 
determination and with 49.203 in making an adjustment for loss, if any. 
Copies of determinations shall receive the same distribution as other 
contract modifications.
    (b) Notice to contractor. Before issuing a determination of the 
amount due the contractor, the TCO shall give the contractor at least 15 
days notice by certified mail (return receipt requested) to submit 
written evidence, so as to reach the TCO on or before a stated date, 
substantiating the amount previously proposed.
    (c) Justification of settlement proposal. (1) The contractor has the 
burden of establishing, by proof satisfactory to the TCO, the amount 
proposed.
    (2) The contractor may submit vouchers, verified transcripts of 
books of account, affidavits, audit reports, and other documents as 
desired. The TCO may request the contractor to submit additional 
documents and data, and may request appropriate accountings, 
investigations, and audits.
    (3) The TCO may accept copies of documents and records without 
requiring original documents unless there is a question of authenticity.
    (4) The TCO may hold any conferences considered appropriate (i) to 
confer with the contractor, (ii) to obtain additional information from 
Government personnel or from independent experts, or (iii) to consult 
persons who have submitted affidavits or reports.
    (d) Determinations. After reviewing the information available, the 
TCO shall determine the amount due and shall transmit a copy of the 
determination to the contractor by certified mail (return receipt 
requested), or by any other method that provides evidence of receipt. 
The transmittal letter shall advise the contractor that the 
determination is a final decision from which the contractor may appeal 
under the Disputes clause, except as shown in paragraph (f) below. The 
determination shall specify the amount due the contractor and will be 
supported by detailed schedules conforming generally to the forms for 
settlement proposals prescribed in 49.602-1 and by additional 
information, schedules, and analyses as appropriate. The TCO shall 
explain each major item of disallowance. The

[[Page 994]]

TCO need not reconsider any other action relating to the terminated 
portion of the contract that was ratified or approved by the TCO or 
another contracting officer.
    (e) Preservation of evidence. The TCO shall retain all written 
evidence and other data relied upon in making a determination, except 
that copies of original books of account need not be made. The TCO shall 
return books of account, together with other original papers and 
documents, to the contractor within a reasonable time.
    (f) Appeals. The contractor may appeal, under the Disputes clause, 
any settlement by determination, except when the contractor has failed 
to submit the settlement proposal within the time provided in the 
contract and failed to request an extension of time. The pendency of an 
appeal shall not affect the authority of the TCO to settle the 
settlement proposal or any part by negotiation with the contractor at 
any time before the appeal is decided.
    (g) Decision on the contractor's appeal. The TCO shall give effect 
to a decision of the Claims Court or a board of contract appeals, when 
necessary, by an appropriate modification to the contract. When 
appropriate, the TCO should obtain a release from the contractor. TCO's 
are authorized to modify the formats of settlement agreements in 49.603 
to agree with this provision.

[48 FR 42447, Sept. 19, 1983, as amended at 52 FR 19805, May 27, 1987]



Sec. 49.110  Settlement negotiation memorandum.

    (a) The TCO shall, at the conclusion of negotiations, prepare a 
settlement negotiation memorandum describing the principal elements of 
the settlement for inclusion in the termination case file and for use by 
reviewing authorities. Pricing aspects of the settlement shall be 
documented in accordance with 15.406-3. The memorandum shall be 
distributed in accordance with 15.406-3.
    (b) If the settlement was negotiated on the basis of individual 
items, the TCO shall specify the factors considered for each item. If 
the settlement was negotiated on an overall lump-sum basis, the TCO need 
not evaluate each item or group of items individually, but shall support 
the total amount of the recommended settlement in reasonable detail. The 
memorandum shall include explanations of matters involving differences 
and doubtful questions settled by agreement, and the factors considered. 
The TCO should include any other matters that will assist reviewing 
authorities in understanding the basis for the settlement.

[48 FR 42447, Sept. 19, 1983, as amended at 56 FR 67135, Dec. 27, 1991; 
62 FR 51271, Sept. 30, 1997]



Sec. 49.111  Review of proposed settlements.

    Each agency shall establish procedures, when necessary, for the 
administrative review of proposed termination settlements. When one 
agency provides termination settlement services for another agency, the 
agency providing the services shall also perform the settlement review 
function.



Sec. 49.112  Payment.



Sec. 49.112-1  Partial payments.

    (a) General. If the contract authorizes partial payments on 
settlement proposals before settlement, a prime contractor may request 
them on the form prescribed in 49.602-4 at any time after submission of 
interim or final settlement proposals. The Government will process 
applications for partial payments promptly. A subcontractor shall submit 
its application through the prime contractor which shall attach its own 
invoice and recommendations to the subcontractor's application. Partial 
payments to a subcontractor shall be made only through the prime 
contractor and only after the prime contractor has submitted its interim 
or final settlement proposal. Except for undelivered acceptable finished 
products, partial payments shall not be made for profit or fee claimed 
under the terminated portion of the contract. In exercising discretion 
on the extent of partial payments to be made, the TCO shall consider the 
diligence of the contractor in settling with subcontractors and in 
preparing its own settlement proposal.
    (b) Amount of partial payment. Before approving any partial payment, 
the

[[Page 995]]

TCO shall obtain any desired accounting, engineering, or other 
specialized reviews of the data submitted in support of the contractor's 
settlement proposal. If the reviews and the TCO's examination of the 
data indicate that the requested partial payment is proper, reasonable 
payments may be authorized in the discretion of the TCO up to--
    (1) 100 percent of the contract price, adjusted for undelivered 
acceptable items completed before the termination date, or later 
completed with the approval of the TCO (see 49.205);
    (2) 100 percent of the amount of any subcontract settlement paid by 
the prime contractor if the settlement was approved or ratified by the 
TCO under 49.108-3(c) or was authorized under 49.108-4;
    (3) 90 percent of the direct cost of termination inventory, 
including costs of raw materials, purchased parts, supplies, and direct 
labor;
    (4) 90 percent of other allowable costs (including settlement 
expense and manufacturing and administrative indirect costs) allocable 
to the terminated portion of the contract and not included in 
subparagraphs (1), (2), or (3) above; and
    (5) 100 percent of partial payments made to subcontractors under 
this section.
    (c) Recognition of assignments. When an assignment of claims has 
been made under the contract, the Government shall not make partial 
payments to other than the assignee unless the parties to the assignment 
consent in writing (see 32.805(e)).
    (d) Security for partial payments. If any partial payment is made 
for completed end items or for costs of termination inventory, the TCO 
shall protect the Government's interest. This shall be done by obtaining 
title to the completed end items or termination inventory, or by the 
creation of a lien in favor of the Government, paramount to all other 
liens, on the completed end items or termination inventory, or by other 
appropriate means.
    (e) Deductions in computing amount of partial payments. The TCO 
shall deduct from the gross amount of any partial payment otherwise 
payable under 49.112-1(b)--
    (1) All unliquidated balances of progress and advance payments 
(including interest) made to the contractor, which are allocable to the 
terminated portion of the contract; and
    (2) The amounts of all credits arising from the purchase, retention, 
or sale of property, the costs of which are included in the application 
for payment.
    (f) Limitation on total amount. The total amount of all partial 
payments shall not exceed the amount that will, in the opinion of the 
TCO, become due to the contractor because of the termination.
    (g) Effect of overpayment. If the total of partial payments exceeds 
the amount finally determined due on the settlement proposal, the 
contractor shall repay the excess to the Government on demand, together 
with interest. The interest shall be computed at the rate established by 
the Secretary of the Treasury under 50 U.S.C. App. 1215(b)(2) from the 
date the excess payment was received by the contractor to the date of 
repayment. However, interest will not be charged for any (1) excess 
payment attributable to a reduction in the settlement proposal because 
of retention or other disposition of termination inventory, until 10 
days after the date of the retention or disposition, or a later date 
determined by the TCO, or (2) overpayment under cost-reimbursement 
research and development contracts without profit or fee if the 
overpayments are repaid to the Government within 30 days after demand.
    (h) Certification and approval of partial payments. (1) The 
contractor shall place the following certification on vouchers or 
invoices for partial payments:
    The payment covered by this voucher is a partial payment on the 
Contractor's settlement proposal under contract No. -------- made under 
part 49 of the Federal Acquisition Regulation.
    (2) The TCO shall approve the invoice or voucher by noting on it the 
following:
    Payment of $---------- is approved.



Sec. 49.112-2  Final payment.

    (a) Negotiated settlement. After execution of a settlement 
agreement, the contractor shall submit a voucher or invoice showing the 
amount agreed upon, less any portion previously paid.

[[Page 996]]

The TCO shall attach a copy of the settlement agreement to the voucher 
or invoice and forward the documents to the disbursing officer for 
payment.
    (b) Settlement by determination. If the settlement is by 
determination and--
    (1) There is no appeal within the allowed time, the contractor shall 
submit a voucher or invoice showing the amount determined due, less any 
portion previously paid; or
    (2) There is an appeal, the contractor shall submit a voucher or 
invoice showing the amount finally determined due on the appeal, less 
any portion previously paid. Pending determination of any appeal, the 
contractor may submit vouchers or invoices for charges that are not 
directly involved with the portion being appealed, without prejudice to 
the rights of either party on the appeal.
    (c) Construction contracts. In the case of construction contracts, 
before forwarding the final payment voucher, the contracting officer 
shall ascertain whether there are any outstanding labor violations. If 
so, the contracting officer shall determine the amount to be withheld 
from the final payment (see subpart 22.4).
    (d) Interest. The Government shall not pay interest on the amount 
due under a settlement agreement or a settlement by determination. The 
Government may, however, pay interest on a successful contractor appeal 
from a contracting officer's determination under the Disputes clause at 
52.233-1.



Sec. 49.113  Cost principles.

    The cost principles and procedures in the applicable subpart of part 
31 shall, subject to the general principles in 49.201, (a) be used in 
asserting, negotiating, or determining costs relevant to termination 
settlements under contracts with other than educational institutions, 
and (b) be a guide for the negotiation of settlements under contracts 
for experimental, developmental, or research work with educational 
institutions (but see 31.104).



Sec. 49.114  Unsettled contract changes.

    (a) Before settlement of a completely terminated contract, the TCO 
shall obtain from the contracting office a list of all related unsettled 
contract changes. The TCO shall settle, as part of final settlement, all 
unsettled contract changes after obtaining the recommendations of the 
contracting office concerning the changes.
    (b) When the contract has been partially terminated, any outstanding 
unsettled contract changes will usually be handled by the contracting 
officer. However, the contracting officer may delegate this function to 
the TCO.



Sec. 49.115  Settlement of terminated incentive contracts.

    (a) Fixed-price incentive contracts. The TCO shall settle terminated 
fixed-price incentive (FPI) contracts under the provisions of paragraph 
(j) of the clause at 52.216-16, Incentive Price Revision--Firm Target, 
and 52.249-2, Termination for Convenience of the Government (Fixed-
Price).
    (1) Partial termination. Under a partially terminated contract, the 
TCO shall negotiate a settlement as provided in the termination clause 
of the contract, and paragraph (j) of the clause at 52.216-16, Incentive 
Price Revision--Firm Target, or paragraph (1) of the clause at 52.216-
17, Incentive Price Revision--Successive Targets. The contracting 
officer shall apply the incentive price revision provisions to completed 
items accepted by the Government, including any for which the contractor 
may request reimbursement in the settlement proposal. The TCO shall 
reimburse the contractor at target price for completed articles included 
in the settlement proposal for which a final price has not been 
established. The TCO shall incorporate in the settlement agreement an 
appropriate reservation as to final price for these completed articles.
    (2) Complete termination. If any items were delivered and accepted 
by the Government, the contracting officer shall establish prices under 
the incentive provisions of the contract. On the terminated portion of 
the contract, the provisions of the termination clause (see 52.249-2, 
Termination for Convenience of the Government (Fixed-Price)) shall 
govern and the provisions of the incentive clause shall not apply. The 
TCO responsible for the termination settlement will ensure, on the basis 
of evidence considered proper (including

[[Page 997]]

coordination with the contracting officer), that no portion of the costs 
considered in the negotiations under the incentive provisions are 
included in the termination settlement.
    (b) Cost-plus-incentive-fee contracts. The TCO shall settle 
terminated cost-plus-incentive-fee contracts under the clause at 52.249-
6, Termination (Cost-Reimbursement).
    (1) Partial termination. Under a partial termination, the TCO shall 
limit the settlement to an adjustment of target fee as provided in 
paragraph (e) of the clause at 52.216-10, Incentive Fee. The settlement 
agreement shall include a reservation regarding any adjustment of target 
cost resulting from the partial termination. The contracting officer 
shall adjust the target cost, if required.
    (2) Complete termination. The parties shall negotiate the settlement 
under the provisions of subpart 49.3 and the clause at 52.249-6, 
Termination (Cost-Reimbursement). The fee shall be adjusted on the basis 
of the target fee, and the incentive provisions shall not be applied or 
considered.

Subpart 49.2_Additional Principles for Fixed-Price Contracts Terminated 
                             for Convenience



Sec. 49.201  General.

    (a) A settlement should compensate the contractor fairly for the 
work done and the preparations made for the terminated portions of the 
contract, including a reasonable allowance for profit. Fair compensation 
is a matter of judgment and cannot be measured exactly. In a given case, 
various methods may be equally appropriate for arriving at fair 
compensation. The use of business judgment, as distinguished from strict 
accounting principles, is the heart of a settlement.
    (b) The primary objective is to negotiate a settlement by agreement. 
The parties may agree upon a total amount to be paid the contractor 
without agreeing on or segregating the particular elements of costs or 
profit comprising this amount.
    (c) Cost and accounting data may provide guides, but are not rigid 
measures, for ascertaining fair compensation. In appropriate cases, 
costs may be estimated, differences compromised, and doubtful questions 
settled by agreement. Other types of data, criteria, or standards may 
furnish equally reliable guides to fair compensation. The amount of 
recordkeeping, reporting, and accounting related to the settlement of 
terminated contracts should be kept to a minimum compatible with the 
reasonable protection of the public interest.



Sec. 49.202  Profit.

    (a) The TCO shall allow profit on preparations made and work done by 
the contractor for the terminated portion of the contract but not on the 
settlement expenses. Anticipatory profits and consequential damages 
shall not be allowed (but see 49.108-5). Profit for the contractor's 
efforts in settling subcontractor proposals shall not be based on the 
dollar amount of the subcontract settlement agreements but the 
contractor's efforts will be considered in determining the overall rate 
of profit allowed the contractor. Profit shall not be allowed the 
contractor for material or services that, as of the effective date of 
termination, have not been delivered by a subcontractor, regardless of 
the percentage of completion. The TCO may use any reasonable method to 
arrive at a fair profit.
    (b) In negotiating or determining profit, factors to be considered 
include--
    (1) Extent and difficulty of the work done by the contractor as 
compared with the total work required by the contract (engineering 
estimates of the percentage of completion ordinarily should not be 
required, but if available should be considered);
    (2) Engineering work, production scheduling, planning, technical 
study and supervision, and other necessary services;
    (3) Efficiency of the contractor, with particular regard to--
    (i) Attainment of quantity and quality production;
    (ii) Reduction of costs;
    (iii) Economic use of materials, facilities, and manpower; and
    (iv) Disposition of termination inventory;

[[Page 998]]

    (4) Amount and source of capital and extent of risk assumed;
    (5) Inventive and developmental contributions, and cooperation with 
the Government and other contractors in supplying technical assistance;
    (6) Character of the business, including the source and nature of 
materials and the complexity of manufacturing techniques;
    (7) The rate of profit that the contractor would have earned had the 
contract been completed;
    (8) The rate of profit both parties contemplated at the time the 
contract was negotiated; and
    (9) Character and difficulty of subcontracting, including selection, 
placement, and management of subcontracts, and effort in negotiating 
settlements of terminated subcontracts.
    (c) When computing profit on the terminated portion of a 
construction contract, the contracting officer shall--
    (1) Comply with paragraphs (a) and (b) above;
    (2) Allow profit on the prime contractor's settlements with 
construction subcontractors for actual work in place at the job site; 
and
    (3) Exclude profit on the prime contractor's settlements with 
construction subcontractors for materials on hand and for preparations 
made to complete the work.



Sec. 49.203  Adjustment for loss.

    (a) In the negotiation or determination of any settlement, the TCO 
shall not allow profit if it appears that the contractor would have 
incurred a loss had the entire contract been completed. The TCO shall 
negotiate or determine the amount of loss and make an adjustment in the 
amount of settlement as specified in paragraph (b) or (c) below. In 
estimating the cost to complete, the TCO shall consider expected 
production efficiencies and other factors affecting the cost to 
complete.
    (b) If the settlement is on an inventory basis (see 49.206-2(a)), 
the contractor shall not be paid more than the total of the amounts in 
subparagraphs (1), (2), and (3) below, less all disposal credits and all 
unliquidated advance and progress payments previously made under the 
contract:
    (1) The amount negotiated or determined for settlement expenses.
    (2) The contract price, as adjusted, for acceptable completed end 
items (see 49.205).
    (3) The remainder of the settlement amount otherwise agreed upon or 
determined (including the allocable portion of initial costs (see 
31.205-42(c)), reduced by multiplying the remainder by the ratio of (i) 
the total contract price to (ii) the total cost incurred before 
termination plus the estimated cost to complete the entire contract.
    (c) If the settlement is on a total cost basis (see 49.206-2(b)), 
the contractor shall not be paid more than the total of the amounts in 
subparagraphs (1) and (2) below, less all disposal and other credits, 
all advance and progress payments, and all other amounts previously paid 
under the contract:
    (1) The amount negotiated or determined for settlement expenses.
    (2) The remainder of the total settlement amount otherwise agreed 
upon or determined (lines 7 and 14 of SF 1436, Settlement Proposal 
(Total Cost Basis)) reduced by multiplying the remainder by the ratio of 
(i) the total contract price to (ii) the remainder plus the estimated 
cost to complete the entire contract.



Sec. 49.204  Deductions.

    From the amount payable to the contractor under a settlement, the 
TCO shall deduct--
    (a) The agreed price for any part of the termination inventory 
purchased or retained by the contractor, and the proceeds from any 
materials sold that have not been paid or credited to the Government;
    (b) The fair value, as determined by the TCO, of any part of the 
termination inventory that, before transfer of title to the Government 
or to a buyer under part 45, is lost or so damaged as to become 
undeliverable (normal spoilage is excepted, as is inventory for which 
the Government has expressly assumed the risk of loss); and
    (c) Any other amounts as appropriate in the particular case.

[48 FR 42447, Sept. 19, 1983, as amended at 77 FR 12944, Mar. 2, 2012]

[[Page 999]]



Sec. 49.205  Completed end items.

    (a) Promptly after the effective date of termination, the TCO shall 
(1) have all undelivered completed end items inspected and accepted if 
they comply with the contract requirements, and (2) determine which 
accepted end items are to be delivered under the contract. The 
contractor shall invoice accepted and delivered end items at the 
contract price in the usual manner and shall not include them in the 
settlement proposal. When completed end items, though accepted, are not 
to be delivered under the contract, the contractor shall include them in 
the settlement proposal at the contract price, adjusted for any saving 
of freight or other charges, together with any credits for their 
purchase, retention, or sale.
    (b) Work in place accepted by the Government under a construction 
contract is not considered a completed item even though that work may 
have been paid for at unit prices specified in the contract.



Sec. 49.206  Settlement proposals.



Sec. 49.206-1  Submission of settlement proposals.

    (a) Subject to the provisions of the termination clause, the 
contractor should promptly submit to the TCO a settlement proposal for 
the amount claimed because of the termination. The final settlement 
proposal must be submitted within one year from the effective date of 
the termination, unless the period is extended by the TCO. Termination 
charges under a single prime contract involving two or more divisions or 
units of the prime contractor may be consolidated and included in a 
single settlement proposal.
    (b) The settlement proposal must cover all cost elements including 
settlements with subcontractors and any proposed profit. With the 
consent of the TCO, proposals may be filed in successive steps covering 
separate portions of the contractor's costs. Such interim proposals 
shall include all costs of a particular type, except as the TCO may 
authorize otherwise.
    (c) Settlement proposals must be on the forms prescribed in 49.602 
unless the forms are inadequate for a particular contract. Settlement 
proposals must be in reasonable detail supported by adequate accounting 
data. Actual, standard (appropriately adjusted), or average costs may be 
used in preparing settlement proposals if they are determined under 
generally recognized accounting principles consistently followed by the 
contractor. When actual, standard, or average costs are not reasonably 
available, estimated costs may be used if the method of arriving at the 
estimates is approved by the TCO. Contractors shall not be required to 
maintain unduly elaborate cost accounting systems merely because their 
contracts may subsequently be terminated.
    (d) The contractor may use the Settlement Proposal (Short Form), SF 
1438 (see 49.602-1(d) and 53.249), when the total proposal is less than 
$10,000, unless otherwise instructed by the TCO. Settlement proposals 
that would normally be included in a single settlement proposal; e.g., 
those based on a series of separate orders for the same item under one 
contract, should be consolidated whenever possible and not divided to 
bring them below $10,000.
    (e) The Schedule of Accounting Information, SF 1439, must be 
submitted for each termination under a contract for which a settlement 
proposal is submitted, except when the Standard Form 1438 is used. 
Although several interim proposals may be submitted, SF 1439 need be 
submitted only once unless, subsequent to filing the original form, 
major changes occur in the information submitted.



Sec. 49.206-2  Bases for settlement proposals.

    (a) Inventory basis. (1) Use of the inventory basis for settlement 
proposals is preferred. Under this basis, the contractor may propose 
only costs allocable to the terminated portion of the contract, and the 
settlement proposal must itemize separately--
    (i) Metals, raw materials, purchased parts, work in process, 
finished parts, components, dies, jigs, fixtures, and tooling, at 
purchase or manufacturing cost;
    (ii) Charges such as engineering costs, initial costs, and general 
administrative costs;
    (iii) Costs of settlements with subcontractors;

[[Page 1000]]

    (iv) Settlement expenses; and
    (v) Other proper charges.
    (2) An allowance for profit (49.202) or adjustment for loss 
(49.203(b)) must be made to complete the gross settlement proposal. All 
unliquidated advance and progress payments and all disposal and other 
credits known when the proposal is submitted must then be deducted.
    (3) This inventory basis is also appropriate for use under the 
following circumstances:
    (i) The partial termination of a construction or related 
professional services contract.
    (ii) The partial or complete termination of supply orders under any 
terminated construction contract.
    (iii) The complete termination of a unit-price (as distinguished 
from a lump-sum) professional services contract.
    (b) Total cost basis. (1) When use of the inventory basis is not 
practicable or will unduly delay settlement, the total-cost basis (SF-
1436) may be used if approved in advance by the TCO as in the following 
examples:
    (i) If production has not commenced and the accumulated costs 
represent planning and preproduction or get ready expenses.
    (ii) If, under the contractor's accounting system, unit costs for 
work in process and finished products cannot readily be established.
    (iii) If the contract does not specify unit prices.
    (iv) If the termination is complete and involves a letter contract.
    (2) When the total-cost basis is used under a complete termination, 
the contractor must itemize all costs incurred under the contract up to 
the effective date of termination. The costs of settlements with 
subcontractors and applicable settlement expenses must also be added. An 
allowance for profit (49.202) or adjustment for loss (49.203(c)) must be 
made. The contract price for all end items delivered or to be delivered 
and accepted must be deducted. All unliquidated advance and progress 
payments and disposal and other credits known when the proposal is 
submitted must also be deducted.
    (3) When the total-cost basis is used under a partial termination, 
the settlement proposal shall not be submitted until completion of the 
continued portion of the contract. The settlement proposal must be 
prepared as in subparagraph (2) above, except that all costs incurred to 
the date of completion of the continued portion of the contract must be 
included.
    (4) If a construction contract or a lump-sum professional services 
contract is completely terminated, the contractor shall--
    (i) Use the total cost basis of settlement;
    (ii) Omit Line 10 ``Deduct-Finished Product Invoiced or to be 
Invoiced'' from Section II of Standard Form-1436) Settlement Proposal 
(Total Cost Basis); and
    (iii) Reduce the gross amount of the settlement by the total of all 
progress and other payments.
    (c) Other basis. Settlement proposals may not be submitted on any 
basis other than paragraph (a) or (b) above without the prior approval 
of the chief of the contracting or contract administration office.



Sec. 49.206-3  Submission of inventory disposal schedules.

    Subject to the terms of the termination clause, and whenever 
termination inventory is involved, the contractor shall submit complete 
inventory disposal schedules to the TCO reflecting inventory that is 
allocable to the terminated portion of the contract. The inventory 
disposal schedules shall be submitted within 120 days from the effective 
date of termination unless otherwise extended by the TCO based on a 
written justification to support the extension. The inventory schedules 
shall be prepared on Standard Form 1428, Inventory Disposal Schedule.

[69 FR 17748, Apr. 5, 2004]



Sec. 49.207  Limitation on settlements.

    The total amount payable to the contractor for a settlement, before 
deducting disposal or other credits and exclusive of settlement costs, 
must not exceed the contract price less payments otherwise made or to be 
made under the contract.

[[Page 1001]]



Sec. 49.208  Equitable adjustment after partial termination.

    Under the termination clause, after partial termination, a 
contractor may request an equitable adjustment in the price or prices of 
the continued portion of a fixed-price contract. The TCO shall forward 
the proposal to the contracting officer except when negotiation 
authority is delegated to the TCO. The contractor shall submit the 
proposal in the format of Table 15-2 of 15.408.
    (a) When the contracting officer retains responsibility for 
negotiating the equitable adjustment and executing a supplemental 
agreement, the contracting officer shall ensure that no portion of an 
increase in price is included in a termination settlement made or in 
process.
    (b) The TCO shall also ensure that no portion of the costs included 
in the equitable adjustment are included in the termination settlement.

[48 FR 42447, Sept. 19, 1983, as amended at 60 FR 48218, Sept. 18, 1995; 
62 FR 51259, Sept. 30, 1997]

  Subpart 49.3_Additional Principles for Cost-Reimbursement Contracts 
                       Terminated for Convenience



Sec. 49.301  General.

    Termination clauses for cost-reimbursement contracts (see 49.503(a)) 
provide for the settlement of costs and fee, if any. The contract 
clauses governing costs shall determine what costs are allowable.



Sec. 49.302  Discontinuance of vouchers.

    (a) When the contract has been completely terminated, the contractor 
shall not use Standard Form 1034 (Public Voucher for Purchases and 
Services Other than Personal) after the last day of the sixth month 
following the month in which the termination is effective. The 
contractor may elect to stop using vouchers at any time during the 6-
month period. When the contractor has vouchered out all costs within the 
6-month period, a proposal for fee, if any, may be submitted on SF 1437 
(see 49.602-1) or by letter appropriately certified. The contractor must 
submit a substantiated proposal for fee to the TCO within 1 year from 
the effective date of termination, unless the period is extended by the 
TCO. When the use of vouchers is discontinued, the contractor shall 
submit all unvouchered costs and the proposed fee, if any, as specified 
in 49.303.
    (b) When the contract is partially terminated, 49.304 shall apply.



Sec. 49.303  Procedure after discontinuing vouchers.



Sec. 49.303-1  Submission of settlement proposal.

    The contractor shall submit a final settlement proposal covering 
unvouchered costs and any proposed fee to the TCO within 1 year from the 
effective date of termination, unless the period is extended by the TCO. 
The contractor shall use the form prescribed in 49.602-1, unless the TCO 
authorizes otherwise. The proposal shall not include costs that have 
been--
    (a) Finally disallowed by the contracting officer; or
    (b) Previously vouchered and formally questioned by the Government 
but not yet decided as to allowability.



Sec. 49.303-2  Submission of inventory disposal schedules.

    Subject to the terms of the termination clause, and whenever 
termination inventory is involved, the contractor shall submit complete 
inventory disposal schedules to the TCO reflecting inventory that is 
allocable to the terminated portion of the contract. The inventory 
disposal schedules shall be submitted within 120 days from the effective 
date of termination unless otherwise extended by the TCO based on a 
written justification to support the extension. The inventory disposal 
schedules shall be prepared on Standard Form 1428, Inventory Disposal 
Schedule.

[69 FR 17748, Apr. 5, 2004]



Sec. 49.303-3  Audit of settlement proposal.

    The TCO shall submit the settlement proposal to the appropriate 
audit agency for review (see 49.107). However, if the settlement 
proposal is limited to

[[Page 1002]]

an adjustment of fee, no referral to the audit agency is required.

[48 FR 42447, Sept. 19, 1983. Redesignated at 61 FR 39221, July 26, 
1996]



Sec. 49.303-4  Adjustment of indirect costs.

    (a) If the contract contains the clause at 52.216-7, Allowable Cost 
and Payment, and it appears that adjustment of indirect costs will 
unduly delay final settlement, the TCO, after obtaining information from 
the appropriate audit agency, may agree with the contractor to--
    (1) Negotiate the amount of indirect costs for the contract period 
for which final indirect cost rates have not been negotiated, or to use 
billing rates as final rates for this period if the billing rates appear 
reasonable; or
    (2) Reserve any indirect cost adjustment in the final settlement 
agreement, pending establishment of negotiated rates under subpart 42.7.
    (b) When an amount of indirect cost is negotiated under subparagraph 
(a)(1) above, the contractor shall eliminate the indirect cost and the 
related direct costs on which it was based from the total pool and base 
used to compute indirect costs for other contracts performed during the 
applicable accounting period.

[48 FR 42447, Sept. 19, 1983. Redesignated at 61 FR 39221, July 26, 
1996]



Sec. 49.303-5  Final settlement.

    (a) The TCO shall proceed with the settlement and execution of a 
settlement agreement upon receipt of the audit report, if applicable, 
and the contract audit closing statement covering vouchered costs.
    (b) The TCO shall adjust the fee as provided in 49.305.
    (c) The final settlement agreement may include all demands of the 
Government and proposals of the contractor under the terminated 
contract. However, no amount shall be allowed for any item of cost 
disallowed by the Government, nor for any other item of cost of the same 
nature.
    (d) If an overall settlement of costs is agreed upon, agreement on 
each element of cost is not necessary. If appropriate, differences may 
be compromised and doubtful questions settled by agreement. An overall 
settlement shall not include costs that are clearly not allowable under 
the terms of the contract.

[48 FR 42447, Sept. 19, 1983. Redesignated at 61 FR 39221, July 26, 
1996]



Sec. 49.304  Procedure for partial termination.



Sec. 49.304-1  General.

    (a) In a partial termination, the TCO shall limit the settlement to 
an adjustment of the fee, if any, and with the concurrence of the 
contracting office, to a reduction in the estimated cost. The TCO shall 
adjust the fee as provided in 49.304-2 and 49.305, unless--
    (1) The terminated portion is clearly severable from the balance of 
the contract; or
    (2) Performance of the contract is virtually complete, or 
performance of any continued portion is only on subsidiary items or 
spare parts, or is otherwise not substantial.
    (b) In the case of the exceptions in paragraph (a), the procedures 
in 49.302 and 49.303 apply.



Sec. 49.304-2  Submission of settlement proposal (fee only).

    The contractor shall limit the settlement proposal to a proposed 
reduction in the amount of fee. The final settlement proposal shall be 
submitted to the TCO within one year from the effective date of 
termination, unless the period is extended by the TCO. The proposal may 
be submitted in the form prescribed in 49.602-1 or by letter 
appropriately certified. The contractor shall substantiate the amount of 
fee claimed (see 49.305).



Sec. 49.304-3  Submission of vouchers.

    When a partial termination settlement is limited to adjustment of 
fee, the contractor shall continue to submit the SF 1034, Public Voucher 
for Purchases and Services Other than Personal, for costs reimbursable 
under the contract. The contractor shall not be reimbursed for costs of 
settlements with subcontractors unless required approvals or 
ratifications have been obtained (see 49.108).

[[Page 1003]]



Sec. 49.305  Adjustment of fee.



Sec. 49.305-1  General.

    (a) The TCO shall determine the adjusted fee to be paid, if any, in 
the manner provided by the contract. The determination is generally 
based on a percentage of completion of the contract or of the terminated 
portion. When this basis is used, factors such as the extent and 
difficulty of the work performed by the contractor (e.g., planning, 
scheduling, technical study, engineering work production and 
supervision, placing and supervising subcontracts, and work performed by 
the contractor in (1) stopping performance, (2) settling terminated 
subcontracts, and (3) disposing of termination inventory) shall be 
compared with the total work required by the contract or by the 
terminated portion. The contractor's adjusted fee shall not include an 
allowance for fee for subcontract effort included in subcontractors' 
settlement proposals.
    (b) The ratio of costs incurred to the total estimated cost of 
performing the contract or the terminated portion is only one factor in 
computing the percentage of completion. This percentage may be either 
greater or less than that indicated by the ratio of costs incurred, 
depending upon the evaluation by the TCO of other pertinent factors.



Sec. 49.305-2  Construction contracts.

    (a) The percentage of completion basis refers to the contractor's 
total effort and not solely to the actual construction work. Generally, 
the effort of a contractor under a cost-reimbursement construction or 
professional services contract can be segregated into factors such as 
(1) mobilization including organization, (2) use of finances, (3) 
contracting for and receipt of materials, (4) placement of subcontracts, 
(5) preparation of shop drawings, (6) work in place performed by own 
forces, (7) supervision of subcontractors' work (8) job administration, 
and (9) demobilization.
    (b) Each of the applicable factors in paragraph (a) above shall be 
assigned a weighted value depending on its importance and difficulty. 
The total weight value of all factors should be easily divisible (e.g., 
by 100) to determine percentages. The percentage of completion of each 
factor must be established based upon the specific facts of each 
contract. When totaled, the percentage of completion of each factor 
applied to the weighted value of each factor results in the overall 
percentage of contract completion. The percentage of completion is then 
applied to the total contract fee or to the fee applicable to the 
terminated portion of the contract to arrive at an equitable adjustment.

                  Subpart 49.4_Termination for Default



Sec. 49.401  General.

    (a) Termination for default is generally the exercise of the 
Government's contractual right to completely or partially terminate a 
contract because of the contractor's actual or anticipated failure to 
perform its contractual obligations.
    (b) If the contractor can establish, or it is otherwise determined 
that the contractor was not in default or that the failure to perform is 
excusable; i.e., arose out of causes beyond the control and without the 
fault or negligence of the contractor, the default clauses prescribed in 
49.503 and located at 52.249 provide that a termination for default will 
be considered to have been a termination for the convenience of the 
Government, and the rights and obligations of the parties governed 
accordingly.
    (c) The Government may, in appropriate cases, exercise termination 
or cancellation rights in addition to those in the contract clauses (see 
for example, paragraph (h) of the Default clause at 52.249-8).
    (d) For default terminations of orders under Federal Supply Schedule 
contracts, see subpart 8.4.
    (e) Notwithstanding the provisions of this 49.401, the contracting 
officer may, with the written consent of the contractor, reinstate the 
terminated contract by amending the notice of termination, after a 
written determination is made that the supplies or services are still 
required and reinstatement is advantageous to the Government.

[[Page 1004]]



Sec. 49.402  Termination of fixed-price contracts for default.



Sec. 49.402-1  The Government's right.

    Under contracts containing the Default clause at 52.249-8, the 
Government has the right, subject to the notice requirements of the 
clause, to terminate the contract completely or partially for default if 
the contractor fails to (a) make delivery of the supplies or perform the 
services within the time specified in the contract, (b) perform any 
other provision of the contract, or (c) make progress and that failure 
endangers performance of the contract.



Sec. 49.402-2  Effect of termination for default.

    (a) Under a termination for default, the Government is not liable 
for the contractor's costs on undelivered work and is entitled to the 
repayment of advance and progress payments, if any, applicable to that 
work. The Government may elect, under the Default clause, to require the 
contractor to transfer title and deliver to the Government completed 
supplies and manufacturing materials, as directed by the contracting 
officer.
    (b) The contracting officer shall not use the Default clause as 
authority to acquire any completed supplies or manufacturing materials 
unless it has been ascertained that the Government does not already have 
title under some other provision of the contract. The contracting 
officer shall acquire manufacturing materials under the Default clause 
for furnishing to another contractor only after considering the 
difficulties the other contractor may have in using the materials.
    (c) Subject to paragraph (d) below, the Government shall pay the 
contractor the contract price for any completed supplies, and the amount 
agreed upon by the contracting officer and the contractor for any 
manufacturing materials, acquired by the Government under the Default 
clause.
    (d) The Government must be protected from overpayment that might 
result from failure to provide for the Government's potential liability 
to laborers and material suppliers for lien rights outstanding against 
the completed supplies or materials after the Government has paid the 
contractor for them. To accomplish this, before paying for supplies or 
materials, the contracting officer shall take one or more of the 
following measures:
    (1) Ascertain whether the payment bonds, if any, furnished by the 
contractor are adequate to satisfy all lienors' claims or whether it is 
feasible to obtain similar bonds to cover outstanding liens.
    (2) Require the contractor to furnish appropriate statements from 
laborers and material suppliers disclaiming any lien rights they may 
have to the supplies and materials.
    (3) Obtain appropriate agreement by the Government, the contractor, 
and lienors ensuring release of the Government from any potential 
liability to the contractor or lienors.
    (4) Withhold from the amount due for the supplies or materials any 
amount the contracting officer determines necessary to protect the 
Government's interest, but only if the measures in subparagraphs (d)(1), 
(2), and (3) above cannot be accomplished or are considered inadequate.
    (5) Take other appropriate action considering the circumstances and 
the degree of the contractor's solvency.
    (e) The contractor is liable to the Government for any excess costs 
incurred in acquiring supplies and services similar to those terminated 
for default (see 49.402-6), and for any other damages, whether or not 
repurchase is effected (see 49.402-7).



Sec. 49.402-3  Procedure for default.

    (a) When a default termination is being considered, the Government 
shall decide which type of termination action to take (i.e., default, 
convenience, or no-cost cancellation) only after review by contracting 
and technical personnel, and by counsel, to ensure the propriety of the 
proposed action.
    (b) The administrative contracting officer shall not issue a show 
cause notice or cure notice without the prior approval of the 
contracting office, which should be obtained by the most expeditious 
means.
    (c) Subdivision (a)(1)(i) of the Default clause covers situations 
when the contractor has defaulted by failure to

[[Page 1005]]

make delivery of the supplies or to perform the services within the 
specified time. In these situations, no notice of failure or of the 
possibility of termination for default is required to be sent to the 
contractor before the actual notice of termination (but see paragraph 
(e) below). However, if the Government has taken any action that might 
be construed as a waiver of the contract delivery or performance date, 
the contracting officer shall send a notice to the contractor setting a 
new date for the contractor to make delivery or complete performance. 
The notice shall reserve the Government's rights under the Default 
clause.
    (d) Subdivisions (a)(1)(ii) and (a)(1)(iii) of the Default clause 
cover situations when the contractor fails to perform some of the other 
provisions of the contract (such as not furnishing a required 
performance bond) or so fails to make progress as to endanger 
performance of the contract. If the termination is predicated upon this 
type of failure, the contracting officer shall give the contractor 
written notice specifying the failure and providing a period of 10 days 
(or longer period as necessary) in which to cure the failure. When 
appropriate, this notice may be made a part of the notice described in 
subparagraph (e)(1) below. Upon expiration of the 10 days (or longer 
period), the contracting officer may issue a notice of termination for 
default unless it is determined that the failure to perform has been 
cured. A format for a cure notice is in 49.607.
    (e)(1) If termination for default appears appropriate, the 
contracting officer should, if practicable, notify the contractor in 
writing of the possibility of the termination. This notice shall call 
the contractor's attention to the contractual liabilities if the 
contract is terminated for default, and request the contractor to show 
cause why the contract should not be terminated for default. The notice 
may further state that failure of the contractor to present an 
explanation may be taken as an admission that no valid explanation 
exists. When appropriate, the notice may invite the contractor to 
discuss the matter at a conference. A format for a show cause notice is 
in 49.607.
    (2) When a termination for default appears imminent, the contracting 
officer shall provide a written notification to the surety. If the 
contractor is subsequently terminated for default, a copy of the notice 
of default shall be sent to the surety.
    (3) If requested by the surety, and agreed to by the contractor and 
any assignees, arrangements may be made to have future checks mailed to 
the contractor in care of the surety. In this case, the contractor must 
forward a written request to the designated disbursing officer 
specifically directing a change in address for mailing checks.
    (4) If the contractor is a small business firm, the contracting 
officer shall immediately provide a copy of any cure notice or show 
cause notice to the contracting office's small business specialist and 
the Small Business Administration Regional Office nearest the 
contractor. The contracting officer should, whenever practicable, 
consult with the small business specialist before proceeding with a 
default termination (see also 49.402-4).
    (f) The contracting officer shall consider the following factors in 
determining whether to terminate a contract for default:
    (1) The terms of the contract and applicable laws and regulations.
    (2) The specific failure of the contractor and the excuses for the 
failure.
    (3) The availability of the supplies or services from other sources.
    (4) The urgency of the need for the supplies or services and the 
period of time required to obtain them from other sources, as compared 
with the time delivery could be obtained from the delinquent contractor.
    (5) The degree of essentiality of the contractor in the Government 
acquisition program and the effect of a termination for default upon the 
contractor's capability as a supplier under other contracts.
    (6) The effect of a termination for default on the ability of the 
contractor to liquidate guaranteed loans, progress payments, or advance 
payments.
    (7) Any other pertinent facts and circumstances.
    (g) If, after compliance with the procedures in paragraphs (a) 
through (f) of

[[Page 1006]]

this 49.402-3, the contracting officer determines that a termination for 
default is proper, the contracting officer shall issue a notice of 
termination stating--
    (1) The contract number and date;
    (2) The acts or omissions constituting the default;
    (3) That the contractor's right to proceed further under the 
contract (or a specified portion of the contract) is terminated;
    (4) That the supplies or services terminated may be purchased 
against the contractor's account, and that the contractor will be held 
liable for any excess costs;
    (5) If the contracting officer has determined that the failure to 
perform is not excusable, that the notice of termination constitutes 
such decision, and that the contractor has the right to appeal such 
decision under the Disputes clause;
    (6) That the Government reserves all rights and remedies provided by 
law or under the contract, in addition to charging excess costs; and
    (7) That the notice constitutes a decision that the contractor is in 
default as specified and that the contractor has the right to appeal 
under the Disputes clause.
    (h) The contracting officer shall make the same distribution of the 
termination notice as was made of the contract. A copy shall also be 
furnished to the contractor's surety, if any, when the notice is 
furnished to the contractor. The surety should be requested to advise if 
it desires to arrange for completion of the work. In addition, the 
contracting officer shall notify the disbursing officer to withhold 
further payments under the terminated contract, pending further advice, 
which should be furnished at the earliest practicable time.
    (i) In the case of a construction contract, promptly after issuance 
of the termination notice, the contracting officer shall determine the 
manner in which the work is to be completed and whether the materials, 
appliances, and plant that are on the site will be needed.
    (j) If the contracting officer determines before issuing the 
termination notice that the failure to perform is excusable, the 
contract shall not be terminated for default. If termination is in the 
Government's interest, the contracting officer may terminate the 
contract for the convenience of the Government.
    (k) If the contracting officer has not been able to determine, 
before issuance of the notice of termination whether the contractor's 
failure to perform is excusable, the contracting officer shall make a 
written decision on that point as soon as practicable after issuance of 
the notice of termination. The decision shall be delivered promptly to 
the contractor with a notification that the contractor has the right to 
appeal as specified in the Disputes clause.

[48 FR 42447, Sept. 19, 1983, as amended at 54 FR 48990, Nov. 28, 1989]



Sec. 49.402-4  Procedure in lieu of termination for default.

    The following courses of action, among others, are available to the 
contracting officer in lieu of termination for default when in the 
Government's interest:
    (a) Permit the contractor, the surety, or the guarantor, to continue 
performance of the contract under a revised delivery schedule.
    (b) Permit the contractor to continue performance of the contract by 
means of a subcontract or other business arrangement with an acceptable 
third party, provided the rights of the Government are adequately 
preserved.
    (c) If the requirement for the supplies and services in the contract 
no longer exists, and the contractor is not liable to the Government for 
damages as provided in 49.402-7, execute a no-cost termination 
settlement agreement using the formats in 49.603-6 and 49.603-7 as a 
guide.



Sec. 49.402-5  Memorandum by the contracting officer.

    When a contract is terminated for default or a procedure authorized 
by 49.402-4 is followed, the contracting officer shall prepare a 
memorandum for the contract file explaining the reasons for the action 
taken.



Sec. 49.402-6  Repurchase against contractor's account.

    (a) When the supplies or services are still required after 
termination, the

[[Page 1007]]

contracting officer shall repurchase the same or similar supplies or 
services against the contractor's account as soon as practicable. The 
contracting officer shall repurchase at as reasonable a price as 
practicable, considering the quality and delivery requirements. The 
contracting officer may repurchase a quantity in excess of the 
undelivered quantity terminated for default when the excess quantity is 
needed, but excess cost may not be charged against the defaulting 
contractor for more than the undelivered quantity terminated for default 
(including variations in quantity permitted by the terminated contract). 
Generally, the contracting officer will make a decision whether or not 
to repurchase before issuing the termination notice.
    (b) If the repurchase is for a quantity not over the undelivered 
quantity terminated for default, the Default clause authorizes the 
contracting officer to use any terms and acquisition method deemed 
appropriate for the repurchase. However, the contracting officer shall 
obtain competition to the maximum extent practicable for the repurchase. 
The contracting officer shall cite the Default clause as the authority. 
If the repurchase is for a quantity over the undelivered quantity 
terminated for default, the contracting officer shall treat the entire 
quantity as a new acquisition. If the repurchase is for a quantity over 
the undelivered quantity terminated for default, the contracting officer 
shall treat the entire quantity as a new acquisition.
    (c) If repurchase is made at a price over the price of the supplies 
or services terminated, the contracting officer shall, after completion 
and final payment of the repurchase contract, make a written demand on 
the contractor for the total amount of the excess, giving consideration 
to any increases or decreases in other costs such as transportation, 
discounts, etc. If the contractor fails to make payment, the contracting 
officer shall follow the procedures in subpart 32.6 for collecting 
contract debts due the Government.

[48 FR 42447, Sept. 19, 1983, as amended at 50 FR 1745, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985]



Sec. 49.402-7  Other damages.

    (a) If the contracting officer terminates a contract for default or 
follows a course of action instead of termination for default (see 
49.402-4), the contracting officer promptly must assess and demand any 
liquidated damages to which the Government is entitled under the 
contract. Under the contract clause at 52.211-11, these damages are in 
addition to any excess repurchase costs.
    (b) If the Government has suffered any other ascertainable damages, 
including administrative costs, as a result of the contractor's default, 
the contracting officer must, on the basis of legal advice, take 
appropriate action as prescribed in subpart 32.6 to assert the 
Government's demand for the damages.

[48 FR 42447, Sept. 19, 1983, as amended at 56 FR 15154, Apr. 15, 1991; 
60 FR 48250, Sept. 18, 1995; 65 FR 46066, July 26, 2000]



Sec. 49.402-8  Reporting information.

    The contracting officer, in accordance with agency procedures, shall 
ensure that information relating to the termination for default notice 
and a subsequent withdrawal or a conversion to a termination for 
convenience is reported in accordance with 42.1503(h).

[75 FR 60260, Sept. 29, 2010, as amended at 78 FR 46792, Aug. 1, 2013]



Sec. 49.403  Termination of cost-reimbursement contracts for default.

    (a) The right to terminate a cost-reimbursement contract for default 
is provided for in the Termination for Default or for Convenience of the 
Government clause at 52.249-6. A 10-day notice to the contractor before 
termination for default is required in every case by the clause.
    (b) Settlement of a cost-reimbursement contract terminated for 
default is subject to the principles in subparts 49.1 and 49.3 the same 
as when a contract is terminated for convenience, except that--
    (1) The costs of preparing the contractor's settlement proposal are 
not allowable (see subparagraph (h)(3) of the clause); and

[[Page 1008]]

    (2) The contractor is reimbursed the allowable costs, and an 
appropriate reduction is made in the total fee, if any, (see 
subparagraph (h)(4) of the clause).
    (c) The contracting officer shall use the procedures in 49.402 to 
the extent appropriate in considering the termination for default of a 
cost-reimbursement contract. However, a cost-reimbursement contract does 
not contain any provision for recovery of excess repurchase costs after 
termination for default (but see paragraph (g) of the clause at 52.246-3 
with respect to failure of the contractor to replace or correct 
defective supplies).

[48 FR 42447, Sept. 19, 1983, as amended at 61 FR 39222, July 26, 1996]



Sec. 49.404  Surety-takeover agreements.

    (a) The procedures in this section apply primarily, but not solely, 
to fixed-price construction contracts terminated for default.
    (b) Since the surety is liable for damages resulting from the 
contractor's default, the surety has certain rights and interests in the 
completion of the contract work and application of any undisbursed 
funds. Therefore, the contracting officer must consider carefully the 
surety's proposals for completing the contract. The contracting officer 
must take action on the basis of the Government's interest, including 
the possible effect upon the Government's rights against the surety.
    (c) The contracting officer should permit surety offers to complete 
the contract, unless the contracting officer believes that the persons 
or firms proposed by the surety to complete the work are not competent 
and qualified or the proposal is not in the best interest of the 
Government.
    (d) There may be conflicting demands for the defaulting contractor's 
assets, including unpaid prior earnings (retained percentages and unpaid 
progress estimates). Therefore, the surety may include a ``takeover'' 
agreement in its proposal, fixing the surety's rights to payment from 
those funds. The contracting officer may (but not before the effective 
date of termination) enter into a written agreement with the surety. The 
contracting officer should consider using a tripartite agreement among 
the Government, the surety, and the defaulting contractor to resolve the 
defaulting contractor's residual rights, including assertions to unpaid 
prior earnings.
    (e) Any takeover agreement must require the surety to complete the 
contract and the Government to pay the surety's costs and expenses up to 
the balance of the contract price unpaid at the time of default, subject 
to the following conditions:
    (1) Any unpaid earnings of the defaulting contractor, including 
retained percentages and progress estimates for work accomplished before 
termination, must be subject to debts due the Government by the 
contractor, except to the extent that the unpaid earnings may be used to 
pay the completing surety its actual costs and expenses incurred in the 
completion of the work, but not including its payments and obligations 
under the payment bond given in connection with the contract.
    (2) The surety is bound by contract terms governing liquidated 
damages for delays in completion of the work, unless the delays are 
excusable under the contract.
    (3) If the contract proceeds have been assigned to a financing 
institution, the surety must not be paid from unpaid earnings, unless 
the assignee provides written consent.
    (4) The contracting officer must not pay the surety more than the 
amount it expended completing the work and discharging its liabilities 
under the defaulting contractor's payment bond. Payments to the surety 
to reimburse it for discharging its liabilities under the payment bond 
of the defaulting contractor must be only on authority of--
    (i) Mutual agreement among the Government, the defaulting 
contractor, and the surety;
    (ii) Determination of the Comptroller General as to payee and 
amount; or
    (iii) Order of a court of competent jurisdiction.

[65 FR 46067, July 26, 2000]



Sec. 49.405  Completion by another contractor.

    If the surety does not arrange for completion of the contract, the 
contracting officer normally will arrange for completion of the work by 
awarding a new contract based on the same plans

[[Page 1009]]

and specifications. The new contract may be the result of sealed bidding 
or any other appropriate contracting method or procedure. The 
contracting officer shall exercise reasonable diligence to obtain the 
lowest price available for completion.

[48 FR 42447, Sept. 19, 1983, as amended at 50 FR 1746, Jan. 11, 1985; 
50 FR 52429, Dec. 23, 1985]



Sec. 49.406  Liquidation of liability.

    The contract provides that the contractor and the surety are liable 
to the Government for resultant damages. The contracting officer shall 
use all retained percentages of progress payments previously made to the 
contractor and any progress payments due for work completed before the 
termination to liquidate the contractor's and the surety's liability to 
the Government. If the retained and unpaid amounts are insufficient, the 
contracting officer shall take steps to recover the additional sum from 
the contractor and the surety.

                Subpart 49.5_Contract Termination Clauses



Sec. 49.501  General.

    This subpart prescribes the principal contract termination clauses. 
This subpart does not apply to contracts that use the clause at 52.213-
4, Terms and Conditions--Simplified Acquisitions (Other Than Commercial 
Items). In appropriate cases, agencies may authorize the use of special 
purpose clauses, if consistent with this chapter.

[75 FR 82577, Dec. 30, 2010]



Sec. 49.502  Termination for convenience of the Government.

    (a) Fixed-price contracts that do not exceed the simplified 
acquisition threshold (short form)--(1) General use. The contracting 
officer shall insert the clause at 52.249-1, Termination for Convenience 
of the Government (Fixed-Price) (Short Form), in solicitations and 
contracts when a fixed-price contract is contemplated and the contract 
amount is not expected to exceed the simplified acquisition threshold, 
except (i) if use of the clause at 52.249-4, Termination for Convenience 
of the Government (Services) (Short Form) is appropriate, (ii) in 
contracts for research and development work with an educational or 
nonprofit institution on a no-profit basis, (iii) in contracts for 
architect-engineer services, or (iv) if one of the clauses prescribed or 
cited at 49.505(a) or (c), is appropriate.
    (2) Dismantling and demolition. If the contract is for dismantling, 
demolition, or removal of improvements, the contracting officer shall 
use the clause with its Alternate I.
    (b) Fixed-price contracts that exceed the simplified acquisition 
threshold--(1)(i) General use.  The contracting officer shall insert the 
clause at 52.249-2, Termination for Convenience of the Government 
(Fixed-Price), in solicitations and contracts when a fixed-price 
contract is contemplated and the contract amount is expected to exceed 
the simplified acquisition threshold, except in contracts for (i) 
dismantling and demolition, (ii) research and development work with an 
educational or nonprofit institution on a no-profit basis, or (iii) 
architect-engineer services; it shall not be used if the clause at 
52.249-4, Termination for Convenience of the Government (Services) 
(Short Form), is appropriate (see 49.502(c)), or one of the clauses 
prescribed or cited at 49.505(a), (b), or (e), is appropriate.
    (ii) Construction. If the contract is for construction, the 
contracting officer shall use the clause with its Alternate I.
    (iii) Partial payments. If the contract is with an agency of the 
U.S. Government or with State, local, or foreign governments or their 
agencies, and if the contracting officer determines that the requirement 
to pay interest on excess partial payments is inappropriate, the 
contracting officer shall use the clause with its Alternate II. In such 
contracts for construction, the contracting officer shall use the clause 
with its Alternate III.
    (2) Dismantling and demolition. The contracting officer shall insert 
the clause at 52.249-3, Termination for Convenience of the Government 
(Dismantling, Demolition, or Removal of Improvements) in solicitations 
and contracts for dismantling, demolition, or removal of improvements, 
when a fixed-price contract is contemplated and the contract amount is 
expected to

[[Page 1010]]

exceed the simplified acquisition threshold,. If the contract is with an 
agency of the U.S. Government or with State, local, or foreign 
governments or their agencies, and if the contracting officer determines 
that the requirement to pay interest on excess partial payments is 
inappropriate, the contracting officer shall use the clause with its 
Alternate I.
    (c) Service contracts (short form). The contracting officer shall 
insert the clause at 52.249-4, Termination for Convenience of the 
Government (Services) (Short Form), in solicitations and contracts for 
services, regardless of value, when a fixed-price contract is 
contemplated and the contracting officer determines that because of the 
kind of services required, the successful offeror will not incur 
substantial charges in preparation for and in carrying out the contract, 
and would, if terminated for the convenience of the Government, limit 
termination settlement charges to services rendered before the date of 
termination. Examples of services where this clause may be appropriate 
are contracts for rental of unreserved parking space, laundry and 
drycleaning, etc.
    (d) Research and development contracts. The contracting officer 
shall insert the clause at 52.249-5, Termination for the Convenience of 
the Government (Educational and Other Nonprofit Institutions), in 
solicitations and contracts when either a fixed-price or cost-
reimbursement contract is contemplated for research and development work 
with an educational or nonprofit institution on a no-profit or no-fee 
basis.
    (e) Subcontracts--(1) General use. The prime contractor may find the 
clause at 52.249-1, Termination for Convenience of the Government 
(Fixed-Price) (Short Form), or at 52.249-2, Termination for Convenience 
of the Government (Fixed-Price), as appropriate, suitable for use in 
fixed-price subcontracts, except as noted in subparagraph (2) below; 
provided, that the relationship between the contractor and subcontractor 
is clearly indicated. Inapplicable conditions (e.g., paragraph (d)) in 
52.249-2 should be deleted and the periods reduced for submitting the 
subcontractor's termination settlement proposal (e.g., 6 months), and 
for requesting an equitable price adjustment (e.g., 45 days).
    (2) Research and development. The prime contractor may find the 
clause at 52.249-5, Termination for the Convenience of the Government 
(Educational and Other Nonprofit Institutions), suitable for use in 
subcontracts placed with educational or nonprofit institutions on a no-
profit or no-fee basis; provided, that the relationship between the 
contractor and subcontractor is clearly indicated. Inapplicable 
conditions (e.g., paragraph (h)) should be deleted, the period for 
submitting the subcontractor's termination settlement proposal should be 
reduced (e.g., 6 months), the subcontract should be placed on a no-
profit or no-fee basis, and the subcontract should incorporate or be 
negotiated on the basis of the cost principles in part 31 of the Federal 
Acquisition Regulation.

[48 FR 42447, Sept. 19, 1983, as amended at 61 FR 39222, July 26, 1996; 
71 FR 57368, Sept. 28, 2006; 72 FR 27389, May 15, 2007]

    Editorial Note: At 72 FR 27389, May 15, 2007,Sec. 49.502 was 
amended by removing from paragraphs (a)(1)(iv) and (b)(1)(i)(C) 
``49.505(a), (b), or (e)'' and adding ``49.505(a) or (c)'' in its place. 
However, because of inaccurate amendatory language, this amendment could 
not be incorporated.



Sec. 49.503  Termination for convenience of the Government and default.

    (a) Cost-reimbursement contracts--(1) General use. Insert the clause 
at 52.249-6, Termination (Cost-Reimbursement), in solicitations and 
contracts when a cost-reimbursement contract is contemplated, except 
contracts for research and development with an educational or nonprofit 
institution on a no-fee basis.
    (2) Construction. If the contract is for construction, the 
contracting officer shall use the clause with its Alternate I.
    (3) Partial payments. If the contract is with an agency of the U.S. 
Government or with State, local, or foreign governments or their 
agencies, and if the contracting officer determines that the requirement 
to pay interest on excess partial payments is inappropriate, the 
contracting officer shall use the clause with its Alternate II. In such 
contracts

[[Page 1011]]

for construction, the contracting officer shall use the clause with its 
Alternate III.
    (4) Time-and-material and labor-hour contracts. If the contract is a 
time-and-material or labor-hour contract, the contracting officer shall 
use the clause with its Alternate IV. If the contract is with an agency 
of the U.S. Government or with State, local, or foreign governments or 
their agencies, and if the contracting officer determines that the 
requirement to pay interest on excess partial payments is inappropriate, 
the contracting officer shall use the clause with its Alternate V.
    (b) Insert the clause at 52.249-7, Termination (Fixed-Price 
Architect-Engineer), in solicitations and contracts for architect-
engineer services, when a fixed-price contract is contemplated.
    (c) Subcontracts. The prime contractor may find the clause at 
52.249-6, Termination (Cost-Reimbursement), suitable for use in cost-
reimbursement subcontracts; provided, that the relationship between the 
contractor and subcontractor is clearly indicated. Inapplicable 
conditions (e.g., paragraphs (e), (j) and (n)) should be deleted and the 
period for submitting the subcontractor's termination settlement 
proposal should be reduced (e.g., 6 months).

[48 FR 42447, Sept. 19, 1983, as amended at 61 FR 39222, July 26, 1996; 
64 FR 51845, Sept. 24, 1999]



Sec. 49.504  Termination of fixed-price contracts for default.

    (a)(1) Supplies and services. The contracting officer shall insert 
the clause at 52.249-8, Default (Fixed-Price Supply and Service), in 
solicitations and contracts when a fixed-price contract is contemplated 
and the contract amount is expected to exceed the simplified acquisition 
threshold. The contracting officer may use the clause when the contract 
amount is at or below the simplified acquisition threshold, if 
appropriate (e.g., if the acquisition involves items with a history of 
unsatisfactory quality).
    (2) Transportation. If the contract is for transportation or 
transportation-related services, the contracting officer shall use the 
clause with its Alternate I.
    (b) Research and development. The contracting officer shall insert 
the clause at 52.249-9, Default (Fixed-Price Research and Development), 
in solicitations and contracts for research and development when a 
fixed-price contract is contemplated and the contract amount is expected 
to exceed the simplified acquisition threshold, except those with 
educational or nonprofit institutions on a no-profit basis. The 
contracting officer may use the clause when the contract amount is at or 
below the simplified acquisition threshold, if appropriate (e.g., if the 
contracting officer believes that key personnel essential to the work 
may be devoted to other programs).
    (c)(1) Construction. The contracting officer shall insert the clause 
at 52.249-10, Default (Fixed-Price Construction), in solicitations and 
contracts for construction, when a fixed-price contract is contemplated 
and the contract amount is expected to exceed the simplified acquisition 
threshold. The contracting officer may use the clause when the contract 
amount is at or below the simplified acquisition threshold, if 
appropriate (e.g., if completion dates are essential).
    (2) Dismantling and demolition. If the contract is for dismantling, 
demolition, or removal of improvements, the contracting officer shall 
use the clause with its Alternate I.
    (3) National emergencies. If the contract is to be awarded during a 
period of national emergency, the contracting officer may use the clause 
(i) with its Alternate II when a fixed-price contract for construction 
is contemplated, or (ii) with its Alternate III when a contract for 
dismantling, demolition, or removal of improvements is contemplated.

[48 FR 42447, Sept. 19, 1983, as amended at 60 FR 34760, July 3, 1995]



Sec. 49.505  Other termination clauses.

    (a) Personal service contracts. The contracting officer shall insert 
the clause at 52.249-12, Termination (Personal Services), in 
solicitations and contracts for personal services (see Part 37).
    (b) Excusable delays. The contracting officer shall insert the 
clause at 52.249-14, Excusable Delays, in solicitations

[[Page 1012]]

and contracts for supplies, services, construction, and research and 
development on a fee basis, when a cost-reimbursement contract is 
contemplated. The contracting officer shall also insert the clause in 
time-and-material contracts, and labor-hour contracts.
    (c) Communication service contracts. This regulation does not 
prescribe a clause for the cancellation or termination of orders under 
communication service contracts with common carriers because of special 
agency requirements that apply to these services. An appropriate clause, 
however, shall be prescribed at agency level, within those agencies 
contracting for these services.

[48 FR 42447, Sept. 19, 1983, as amended at 72 FR 27389, May 15, 2007; 
75 FR 34291, June 16, 2010]

           Subpart 49.6_Contract Termination Forms and Formats



Sec. 49.601  Notice of termination for convenience.

    (See 49.402-3(g) for notice of termination for default.)



Sec. 49.601-1  Telegraphic notice.

    (a) Complete termination. The following telegraphic notice is 
suggested for use if a supply contract is being completely terminated 
for convenience. If appropriately modified, the notice may be used for 
other than supply contracts.

DATE--------------------
XYZ Corporation
New York, NY 12345
    Contract No. ------------------ is completely terminated under 
clause --------------, effective -------------- [insert ``immediately'' 
or ``on ----------------, 20----'', or ``as soon as you have delivered, 
including prior deliveries, the following items:'' (list)]. Immediately 
stop all work, terminate subcontracts, and place no further orders 
except to the extent [insert if applicable ``necessary to complete items 
not terminated or''] that you or a subcontractor wish to retain and 
continue for your own account any work-in-process or other materials. 
Telegraph similar instructions to all subcontractors and suppliers. 
Detailed instructions follow.
________________________________________________________________________

                           Contracting Officer

    (b) Partial termination. The following telegraphic notice is 
suggested for use if a supply contract is being partially terminated for 
convenience. If appropriately modified, the notice may be used for other 
than supply contracts.

DATE --------------------
XYZ Corporation
New York, NY 12345
    Contract No. -------------- is partially terminated under clause --
--------------, effective -------------- [insert ``immediately'' or ``on 
------------------, 20----'']. Reduce items to be delivered as follows: 
[insert instructions]. Immediately stop all work, terminate 
subcontracts, and place no further orders except as necessary to perform 
the portion not terminated or that you or a subcontractor wish to retain 
and continue for your account any work-in-process or other materials. 
Telegraph similar instructions to all subcontractors and suppliers. 
Detailed instructions follow.
________________________________________________________________________

                           Contracting Officer

[48 FR 42447, Sept. 19, 1983, as amended at 65 FR 36031, June 6, 2000]



Sec. 49.601-2  Letter notice.

    The following letter notice of termination is suggested for use if a 
contract for supplies is being terminated for convenience. With 
appropriate modifications, it may be used in terminating contracts for 
other than supplies and in terminating subcontracts. This notice shall 
be sent by certified mail, return receipt requested. If no prior 
telegraphic notice was issued, use the alternate notice that follows 
this notice.

               NOTICE OF TERMINATION TO PRIME CONTRACTORS

    [At the top of the notice, set out all special details relating to 
the particular termination; e.g., name and address of company, contract 
number of terminated contract, items, etc.]
    (a) Effective date of termination. This confirms the Government's 
telegram to you dated ----------------------, 20----, terminating ------
---------- [insert ``completely'' or ``in part''] Contract No. --------
------ (referred to as ``the contract'') for the Government's 
convenience under the clause entitled ------------------ [insert title 
of appropriate termination clause]. The termination is effective on the 
date and in the manner stated in the telegram.

[[Page 1013]]

    (b) Cessation of work and notification to immediate subcontractors. 
You shall take the following steps:
    (1) Stop all work, make no further shipments, and place no further 
orders relating to the contract, except for--
    (i) The continued portion of the contract, if any;
    (ii) Work-in-process or other materials that you may wish to retain 
for your own account; or
    (iii) Work-in-process that the Contracting Officer authorizes you to 
continue (A) for safety precautions, (B) to clear or avoid damage to 
equipment, (C) to avoid immediate complete spoilage of work-in-process 
having a definite commercial value, or (D) to prevent any other undue 
loss to the Government. (If you believe this authorization is necessary 
or advisable, immediately notify the Contracting Officer by telephone or 
personal conference and obtain instructions.)
    (2) Keep adequate records of your compliance with subparagraph (1) 
above showing the--
    (i) Date you received the Notice of Termination;
    (ii) Effective date of the termination; and
    (iii) Extent of completion of performance on the effective date.
    (3) Furnish notice of termination to each immediate subcontractor 
and supplier that will be affected by this termination. In the notice--
    (i) Specify your Government contract number;
    (ii) State whether the contract has been terminated completely or 
partially;
    (iii) Provide instructions to stop all work, make no further 
shipments, place no further orders, and terminate all subcontracts under 
the contract, subject to the exceptions in subparagraph (1) above;
    (iv) Provide instructions to submit any settlement proposal 
promptly; and
    (v) Request that similar notices and instructions be given to its 
immediate subcontractors.
    (4) Notify the Contracting Officer of all pending legal proceedings 
that are based on subcontracts or purchase orders under the contract, or 
in which a lien has been or may be placed against termination inventory 
to be reported to the Government. Also, promptly notify the Contracting 
Officer of any such proceedings that are filed after receipt of this 
Notice.
    (5) Take any other action required by the Contracting Officer or 
under the Termination clause in the contract.
    (c) Termination inventory. (1) As instructed by the Contracting 
Officer, transfer title and deliver to the Government all termination 
inventory of the following types or classes, including subcontractor 
termination inventory that you have the right to take: [Contracting 
Officer insert proper identification or ``None''].
    (2) To settle your proposal, it will be necessary to establish that 
all prime and subcontractor termination inventory has been properly 
accounted for. For detailed information, see part 45.
    (d) Settlements with subcontractors. You remain liable to your 
subcontractors and suppliers for proposals arising because of the 
termination of their subcontracts or orders. You are requested to settle 
these settlement proposals as promptly as possible. For purposes of 
reimbursement by the Government, settlements will be governed by the 
provisions of part 49.
    (e) Completed end items. (1) Notify the Contracting Officer of the 
number of items completed under the contract and still on hand and 
arrange for their delivery or other disposal (see 49.205).
    (2) Invoice acceptable completed end items under the contract in the 
usual way and do not include them in the settlement proposal.
    (f) Patents. If required by the contract, promptly forward the 
following to the Contracting Officer:
    (1) Disclosure of all inventions, discoveries, and patent 
applications made in the performance of the contract.
    (2) Instruments of license or assignment on all inventions, 
discoveries, and patent applications made in the performance of the 
contract.
    (g) Employees affected. (1) If this termination, together with other 
outstanding terminations, will necessitate a significant reduction in 
your work force, you are urged to--
    (i) Promptly inform the local State Employment Service of your 
reduction-in-force schedule in numbers and occupations, so that the 
Service can take timely action in assisting displaced workers;
    (ii) Give affected employees maximum practical advance notice of the 
employment reduction and inform them of the facilities and services 
available to them through the local State Employment Service offices;
    (iii) Advise affected employees to file applications with the State 
Employment Service to qualify for unemployment insurance, if necessary;
    (iv) Inform officials of local unions having agreements with you of 
the impending reduction-in-force; and
    (v) Inform the local Chamber of Commerce and other appropriate 
organizations which are prepared to offer practical assistance in 
finding employment for displaced workers of the impending reduction-in-
force.
    (2) If practicable, urge subcontractors to take similar actions to 
those described in subparagraph (1) above.
    (h) Administrative. The contract administration office named in the 
contract will identify the Contracting Officer who will be

[[Page 1014]]

in charge of the settlement of this termination and who will, upon 
request, provide the necessary settlement forms. Matters not covered by 
this notice should be brought to the attention of the undersigned.
    (i) Please acknowledge receipt of this notice as provided below.
________________________________________________________________________

                          (Contracting Officer)

________________________________________________________________________
________________________________________________________________________

                            (Name of Office)

________________________________________________________________________

                                (Address)

                        Acknowledgment of Notice

    The undersigned acknowledges receipt of a signed copy of this notice 
on ------------------, 20----. Two signed copies of this notice are 
returned.
________________________________________________________________________

                          (Name of Contractor)

By______________________________________________________________________

                                 (Name)

________________________________________________________________________

                                 (Title)

                             (End of notice)

    Alternate notice. If no prior telegraphic notice was issued, 
substitute the following paragraph (a) for paragraph (a) of the notice 
above:

    (a) Effective date of termination. You are notified that Contract 
No. -------------- (referred to as ``the contract'') is terminated ----
-------------- [insert ``completely'' or ``in part''] for the 
Government's convenience under the clause entitled ------------------ 
[insert title of appropriate termination clause]. The termination is 
effective ---------------- [insert either ``immediately upon receipt of 
this Notice'' or ``on ------------------, 20----,'' or ``as soon as you 
have delivered, including prior deliveries, the following items:'' 
(list)]. Reduce items to be delivered as follows: [insert instructions].

[48 FR 42447, Sept. 19, 1983, as amended at 65 FR 36031, June 6, 2000]



Sec. 49.602  Forms for settlement of terminated contracts.

    The standard forms listed below shall be used for settling 
terminated prime contracts. The forms at 49.602-1 and 49.602-2 may also 
be used for settling terminated subcontracts. Standard forms are 
illustrated in subpart 53.3.



Sec. 49.602-1  Termination settlement proposal forms.

    (a) Standard Form 1435, Settlement Proposal (Inventory Basis), shall 
be used to submit settlement proposals resulting from the termination of 
fixed-price contracts if the proposals are computed on an inventory 
basis (see 49.206-2(a)).
    (b) Standard Form 1436, Settlement Proposal (Total Cost Basis), 
shall be used to submit settlement proposals resulting from the 
termination of fixed-price contracts if the proposals are computed on a 
total cost basis (see 49.206-2(b)).
    (c) Standard Form 1437, Settlement Proposal for Cost-Reimbursement 
Type Contracts, shall be used to submit settlement proposals resulting 
from the termination of cost-reimbursement contracts (see 49.302).
    (d) Standard Form 1438, Settlement Proposal (Short Form), shall be 
used to submit settlement proposals resulting from the termination of 
fixed-price contracts if the total proposal is less than $10,000 (see 
49.206-1(d)).



Sec. 49.602-2  Inventory forms.

    Standard Form (SF) 1428, Inventory Disposal Schedule, and SF 1429, 
Inventory Disposal Schedule--Continuation Sheet, shall be used to 
support settlement proposals submitted on the forms specified in 49.602-
1(b) and (d).

[69 FR 17748, Apr. 5, 2004]



Sec. 49.602-3  Schedule of accounting information.

    Standard Form 1439, Schedule of Accounting Information, shall be 
filed in support of a settlement proposal unless the proposal is filed 
on Standard Form 1438, Settlement Proposal (Short Form) (see 49.206-
1(e)).

[[Page 1015]]



Sec. 49.602-4  Partial payments.

    Standard Form 1440, Application for Partial Payment, shall be used 
to apply for partial payments (see 49.112-1).



Sec. 49.602-5  Settlement agreement.

    Standard Form 30 (SF 30), Amendment of Solicitation/Modification of 
Contract, shall be used to execute a settlement agreement (see 49.109-
1).



Sec. 49.603  Formats for termination for convenience settlement 
          agreements.

    The formats to be used for termination for convenience settlement 
agreements should be substantially as shown in this section (see 
49.109). Termination contracting officers (TCO's) may, however, modify 
the contents of these agreements to conform with special termination 
clauses prescribed or authorized by their agencies (e.g., see 49.501 and 
49.505(c)).

[48 FR 42447, Sept. 19, 1983, as amended at 72 FR 27389, May 15, 2007]



Sec. 49.603-1  Fixed-price contracts--complete termination.

    [Insert the following in Block 14 of SF 30 for settlements of fixed-
price contracts completely terminated.]

    (a) This supplemental agreement settles the settlement proposal 
resulting from the Notice of Termination dated ------------------------.
    (b) The parties agree to the following:
    (1) The Contractor certifies that all contract termination inventory 
(including scrap) has been retained or acquired by the Contractor, sold 
to third parties, returned to suppliers, delivered to or stored for the 
Government, or otherwise properly accounted for, and that all proceeds 
and retention credits have been used in arriving at this agreement.
    (2) The Contractor certifies that each immediate subcontractor, 
whose settlement proposal is included in the proposal settled by this 
agreement, has furnished the Contractor a certificate stating (i) that 
all subcontract termination inventory (including scrap) has been 
retained or acquired by the subcontractor, sold to third parties, 
returned to suppliers, delivered to or stored for the Government, or 
otherwise properly accounted for, and that all proceeds and retention 
credits were used in arriving at the settlement of the subcontract, and 
(ii) that the subcontractor has received a similar certificate from each 
immediate subcontractor whose proposal was included in its proposal.
    (3) The Contractor certifies that all items of termination 
inventory, the costs of which were used in arriving at the amount of 
this settlement or the settlement of any subcontract settlement proposal 
included in this settlement, (i) are properly allocable to the 
terminated portion of the contract, (ii) do not exceed the reasonable 
quantitative requirements of the terminated portion of the contract, and 
(iii) do not include any items reasonably usable without loss to the 
Contractor on its other work. The Contractor further certifies that the 
Contracting Officer has been informed of any substantial change in the 
status of the items between the dates of the termination inventory 
schedules and the date of this agreement.
    (4) The Contractor transfers, conveys, and assigns to the Government 
all the right, title, and interest, if any, that the Contractor has 
received, or is entitled to receive, in and to subcontract termination 
inventory not otherwise properly accounted for.
    (5) The Contractor shall, within 10 days after receipt of the 
payment specified in this agreement, pay to each of its immediate 
subcontractors (or their respective assignees) the amounts to which they 
are entitled, after deducting any prior payments and, if the Contractor 
so elects, any amounts due and payable to the Contractor by those 
subcontractors.
    (6)(i) The Contractor has received $---------- for work and services 
performed, or items delivered, under the completed portion of the 
contract. The Government confirms the right of the Contractor, subject 
to paragraph (7) below, to retain this sum and agrees that it 
constitutes a portion of the total amount to which the Contractor is 
entitled in settlement of the contract.
    (ii) Further, the Government agrees to pay to the Contractor or its 
assignee, upon presentation of a proper invoice or voucher, the sum of 
$---------- [insert net amount of settlement], arrived at by deducting 
from the sum of $---------- [for proposals on an inventory basis insert 
gross amount of settlement; for proposals on a total cost basis, insert 
gross amount of settlement less amount shown in subdivision (6)(i) 
above], (A) the amount of $------------ for all unliquidated partial or 
progress payments previously made to the Contractor or its assignee and 
all unliquidated advance payments (with any interest) and (B) the amount 
of $------------ for all applicable property disposal credits [insert if 
appropriate, ``and (C) the amount of $------------ for all other amounts 
due the Government under this contract, except as provided in paragraph 
(7) below''].
    (iii) The net settlement of $-------------- in subdivision (ii) 
above, together with sums previously paid, constitutes payment in full 
and complete settlement of the amount due

[[Page 1016]]

the Contractor for the complete termination of the contract and of all 
other demands and liabilities of the Contractor and the Government under 
the contract except as provided in paragraph (7) below.
    (7) Regardless of any other provision of this agreement, the 
following rights and liabilities of the parties under the contract are 
reserved:
    [The following list of reserved or excepted rights and liabilities 
is intended to cover those that should most frequently be reserved and 
that should be scrutinized at the time a settlement agreement is 
negotiated (see 49.109-2). The suggested language of the excepted items 
on the list may be varied at the discretion of the contracting officer. 
If accuracy or completeness can be achieved by referencing the number of 
a contract clause or provision covering the matter in question, then 
follow that method of enumerating reserved rights and liabilities. Omit 
any of the following that are not applicable and add any additional 
exceptions or reservations required.]
    (i) All rights and liabilities, if any, of the parties, as to 
matters covered by any renegotiation authority.
    (ii) All rights of the Government to take the benefit of agreements 
or judgments affecting royalties paid or payable in connection with the 
performance of the contract.
    (iii) All rights and liabilities, if any, of the parties under those 
clauses inserted in the contract because of the requirements of Acts of 
Congress and Executive Orders, including, without limitation, any 
applicable clauses relating to: labor law, contingent fees, domestic 
articles, and employment of aliens.'' [If the contract contains clauses 
of this character inserted for reasons other than requirements of Acts 
of Congress or Executive Orders, the suggested language should be 
appropriately modified.]
    (iv) All rights and liabilities of the parties arising under the 
contract and relating to reproduction rights, patent infringements, 
inventions, or applications for patents, including rights to 
assignments, invention reports, licenses, covenants of indemnity against 
patent risks, and bonds for patent indemnity obligations, together with 
all rights and liabilities under the bonds.
    (v) All rights and liabilities of the parties, arising under the 
contract or otherwise, and concerning defects, guarantees, or warranties 
relating to any articles or component parts furnished to the Government 
by the Contractor under the contract or this agreement.
    (vi) All rights and liabilities of the parties under the contract 
relating to any contract termination inventory stored for the 
Government.
    (vii) All rights and liabilities of the parties under agreements 
relating to the future care and disposition by the Contractor of 
Government-owned property remaining in the Contractor's custody.
    (viii) All rights and liabilities of the parties relating to 
Government property furnished to the Contractor for the performance of 
this contract.
    (ix) All rights and liabilities of the parties under the contract 
relating to options (except options to continue or increase the work 
under the contract), covenants not to compete, and covenants of 
indemnity.
    (x) All rights and liabilities, if any, of the parties under those 
clauses of the contract relating to price reductions for defective 
certified cost or pricing data.

                           (End of agreement)

[48 FR 42447, Sept. 19, 1983, as amended at 60 FR 37773, July 21, 1995; 
60 FR 49723, Sept. 26, 1995; 75 FR 53150, Aug. 30, 2010]



Sec. 49.603-2  Fixed-price contracts--partial termination.

    [Insert the following in Block 14 of SF 30 for settlements of fixed-
price contracts partially terminated.]

    (a) This supplemental agreement settles the settlement proposal 
resulting from the Notice of Termination dated ------------------.
    (b) The parties agree to the following:
    (1) The terminated portion of the contract is as follows: [specify 
the terminated portion clearly as to (i) item numbers, (ii) 
descriptions, (iii) quantity terminated, (iv) unit price of items, (v) 
total price of terminated items, and (vi) any other explanation 
necessary to avoid uncertainty or misunderstanding].
    (2) The Contractor certifies that all contract termination inventory 
(including scrap) has been retained or acquired by the Contractor, sold 
to third parties, returned to suppliers, delivered to or stored for the 
Government, or otherwise properly accounted for, and that all proceeds 
and retention credits have been used in arriving at this agreement.
    (3) The Contractor certifies that each immediate subcontractor, 
whose settlement proposal is included in the proposal settled by this 
agreement, has furnished the Contractor a certificate stating (i) that 
all subcontract termination inventory (including scrap) has been 
retained or acquired by the subcontractor, sold to third parties, 
returned to suppliers, delivered to or stored for the Government, or 
otherwise properly accounted for, and that all proceeds and retention 
credits were used in arriving at the settlement of the subcontract, and 
(ii) that the subcontractor has received a similar certificate from each 
immediate subcontractor whose proposal was included in its proposal.

[[Page 1017]]

    (4) The Contractor certifies that all items of termination 
inventory, the costs of which were used in arriving at the amount of 
this settlement or the settlement of any subcontract settlement proposal 
included in this settlement, (i) are properly allocable to the 
terminated portion of the contract, (ii) do not exceed the reasonable 
quantitative requirements of the terminated portion of the contract, and 
(iii) do not include any items reasonably usable without loss to the 
Contractor on its other work. The Contractor further certifies that the 
Contracting Officer has been informed of any substantial change in the 
status of the items between the dates of the termination inventory 
schedules and the date of this agreement.
    (5) The Contractor transfers, conveys, and assigns to the Government 
all the right, title, and interest, if any, that the Contractor has 
received, or is entitled to receive, in and to subcontract termination 
inventory not otherwise properly accounted for.
    (6) The Contractor shall, within 10 days after receipt of the 
payment specified in this agreement, pay to each of its immediate 
subcontractors (or their respective assignees) the amounts to which they 
are entitled, after deducting any prior payments and, if the Contractor 
so elects, any amounts due and payable to the Contractor by those 
subcontractors.
    (7)(i) The Government agrees to pay to the Contractor or its 
assignee, upon presentation of a proper invoice or voucher, the sum of 
$------------ [insert net amount of settlement], arrived at by deducting 
from $------------ [insert gross amount of settlement], (A) the amount 
of $------------ for all unliquidated partial or progress payments 
previously made to the Contractor or its assignee and all unliquidated 
advance payments (with any interest) applicable to the terminated 
portion of the contract and (B) the amount of $------------ for all 
applicable property disposal credits.
    (ii) The net settlement of $------------ in subdivision (i) above, 
together with sums previously paid, constitutes payment in full and 
complete settlement of the amount due the Contractor for the terminated 
portion of the contract, except as provided in subparagraph (8) below.
    (iii) Upon payment of the net settlement of $------------, all 
obligations of the Contractor to perform further work or services or to 
make further deliveries under the terminated portion of the contract and 
all obligations of the Government to make further payments or carry out 
other undertakings concerning the terminated portion of the contract 
shall cease; provided, that nothing in this agreement shall impair or 
affect any covenants, terms, or conditions of the contract relating to 
the completed or continued portion of this contract.
    (8) Regardless of any other provision of this agreement, the 
following rights and liabilities of the parties under the contract are 
reserved:
    [The following list of reserved or excepted rights and liabilities 
is intended to cover those that should most frequently be reserved and 
that should be scrutinized at the time a settlement agreement is 
negotiated (see 49.109-2). The suggested language of the excepted items 
on the list may be varied at the discretion of the contracting officer. 
If accuracy or completeness can be achieved by referencing the number of 
a contract clause or provision covering the matter in question, then 
follow that method of enumerating reserved rights and liabilities. Omit 
any of the following that are not applicable and add any additional 
exceptions or reservations required.]
    (i) All rights and liabilities, if any, of the parties, as to 
matters covered by any renegotiation authority.
    (ii) All rights of the Government to take the benefit of agreements 
or judgments affecting royalties paid or payable in connection with the 
performance of the contract.
    (iii) All rights and liabilities, if any, of the parties under those 
clauses inserted in the contract because of the requirements of Acts of 
Congress and Executive Orders, including, without limitation, any 
applicable clauses relating to: labor law, contingent fees, domestic 
articles, and employment of aliens. [If the contract contains clauses of 
this character inserted for reasons other than requirements of Acts of 
Congress or Executive Orders, the suggested language should be 
appropriately modified.]
    (iv) All rights and liabilities of the parties arising under the 
contract and relating to reproduction rights, patent infringements, 
inventions, or applications for patents, including rights to 
assignments, invention reports, licenses, covenants of indemnity against 
patent risks, and bonds for patent indemnity obligations, together with 
all rights and liabilities under the bonds.
    (v) All rights and liabilities of the parties, arising under the 
contract or otherwise, and concerning defects, guarantees, or warranties 
relating to any articles or component parts furnished to the Government 
by the Contractor under the contract or this agreement.
    (vi) All rights and liabilities of the parties under the contract 
relating to any contract termination inventory stored for the 
Government.
    (vii) All rights and liabilities, if any, of the parties under those 
clauses of the contract relating to price reductions for defective 
certified cost or pricing data.

[[Page 1018]]

                           (End of agreement)

[48 FR 42447, Sept. 19, 1983, as amended at 60 FR 37773, July 21, 1995; 
60 FR 49723, Sept. 26, 1995; 75 FR 53150, Aug. 30, 2010]



Sec. 49.603-3  Cost-reimbursement contracts--complete termination, if 
          settlement includes cost.

    [Insert the following in Block 14 of SF 30 for settlement of cost-
reimbursement contracts that are completely terminated, if settlement 
includes costs.]

    (a) This supplemental agreement settles the settlement proposal 
resulting from the Notice of Termination dated ------------------.
    (b) The parties agree to the following:
    (1) The Contractor certifies that all contract termination inventory 
(including scrap) has been retained or acquired by the Contractor, sold 
to third parties, returned to suppliers, delivered to or stored for the 
Government, or otherwise properly accounted for, and that all proceeds 
and retention credits have been used in arriving at this agreement.
    (2) The Contractor certifies that each immediate subcontractor, 
whose settlement proposal is included in the proposal settled by this 
agreement, has furnished the Contractor a certificate stating (i) that 
all subcontract termination inventory (including scrap) has been 
retained or acquired by the subcontractor, sold to third parties, 
returned to suppliers, delivered to or stored for the Government, or 
otherwise properly accounted for, and that all proceeds and retention 
credits were used in arriving at the settlement of the subcontract, and 
(ii) that the subcontractor has received a similar certificate from each 
immediate subcontractor whose proposal was included in its proposal.
    (3) The Contractor certifies that all items of termination 
inventory, the costs of which were used in arriving at the amount of 
this settlement or the settlement of any subcontract settlement proposal 
included in this settlement, (i) are properly allocable to the 
terminated portion of the contract, (ii) do not exceed the reasonable 
quantitative requirements of the terminated portion of the contract, and 
(iii) do not include any items reasonably usable without loss to the 
Contractor on its other work. The Contractor further certifies that the 
Contracting Officer has been informed of any substantial change in the 
status of the items between the dates of the termination inventory 
schedules and the date of this agreement.
    (4) The Contractor transfers, conveys, and assigns to the Government 
all the right, title, and interest, if any, that the Contractor has 
received, or is entitled to receive, in and to subcontract termination 
inventory not otherwise properly accounted for.
    (5) The Contractor shall, within 10 days after receipt of the 
payment specified in this agreement, pay to each of its immediate 
subcontractors (or their respective assignees) the amounts to which they 
are entitled, after deducting any prior payments and, if the Contractor 
so elects, any amounts due and payable to the Contractor by those 
subcontractors.
    (6)(i) The Contractor has received $---------- for work and services 
performed, or articles delivered, under the contract before the 
effective date of termination. The Government confirms the right of the 
Contractor, subject to paragraph (7) below, to retain this sum and 
agrees that it constitutes a portion of the total amount to which the 
Contractor is entitled in complete and final settlement of the contract.
    (ii) Further, the Government agrees to pay to the Contractor or its 
assignee, upon presentation of a proper invoice or voucher, the sum of 
$---------- [insert net amount of settlement], arrived at by deducting 
from the sum of $---------- [insert gross amount of settlement less 
amount shown in subdivision (6)(i) above] (A) the amount of $---------- 
for all unliquidated partial or progress payments previously made to the 
Contractor or its assignee and all unliquidated advance payments (with 
any interest), (B) the amount of $-------- for all applicable property 
disposal credits [insert if appropriate, ``and (C) the amount of $------
---- for all other amounts due the Government under this contract, 
except as provided in paragraph (7) below.'']
    (iii) The net settlement of $---------- in subdivision (ii) above, 
together with sums previously paid, constitutes payment in full and 
complete settlement of the amount due the Contractor for the complete 
termination of the contract and of all other demands and liabilities of 
the Contractor and the Government under the contract, except as provided 
in paragraph (7) below.
    (7) Regardless of any other provision of this agreement, the 
following rights and liabilities of the parties under the contract are 
reserved:
    [The following list of reserved or excepted rights and liabilities 
is intended to cover those that should most frequently be reserved and 
that should be scrutinized at the time a settlement agreement is 
negotiated (see 49.109-2). The suggested language of the excepted items 
on the list may be varied at the discretion of the contracting officer. 
If accuracy or completeness can be achieved by referencing the number of 
a contract clause or provision covering the matter in question, then 
follow that method of enumerating reserved rights and liabilities. Omit 
any of the following that are not applicable and add any additional 
exceptions or reservations required.]

[[Page 1019]]

    (i) All rights and liabilities, if any, of the parties, as to 
matters covered by any renegotiation authority.
    (ii) All rights of the Government to take the benefit of agreements 
or judgments affecting royalties paid or payable in connection with the 
performance of the contract.
    (iii) All rights and liabilities, if any, of the parties under those 
clauses inserted in the contract because of the requirements of Acts of 
Congress and Executive Orders, including, without limitation, any 
applicable clauses relating to: labor law, contingent fees, domestic 
articles, and employment of aliens.'' [If the contract contains clauses 
of this character inserted for reasons other than requirements of Acts 
of Congress or Executive Orders, the suggested language should be 
appropriately modified.]
    (iv) All rights and liabilities of the parties arising under the 
contract and relating to reproduction rights, patent infringements, 
inventions, or applications for patents, including rights to 
assignments, invention reports, licenses, covenants of indemnity against 
patent risks, and bonds for patent indemnity obligations, together with 
all rights and liabilities under the bonds.
    (v) All rights and liabilities of the parties, arising under the 
contract or otherwise, and concerning defects, guarantees, or warranties 
relating to any articles or component parts furnished to the Government 
by the Contractor under the contract or this agreement.
    (vi) All rights and liabilities of the parties under the contract 
relating to any contract termination inventory stored for the 
Government.
    (vii) All rights and liabilities of the parties under agreements 
relating to the future care and disposition by the Contractor of 
Government-owned property remaining in the Contractor's custody.
    (viii) All rights and liabilities of the parties relating to 
Government property furnished to the Contractor for the performance of 
this contract.
    (ix) All rights and liabilities of the parties under the contract 
relating to options (except options to continue or increase the work 
under the contract), covenants not to compete, and covenants of 
indemnity.
    (x) Unresolved demands or assertions by the Contractor against the 
Government for costs under Government Accountability Office exceptions 
or other costs of the same nature that are excluded from the settlement 
without prejudice to the rights of either party, as follows: [Insert 
amount and describe charges not waived.]
    (xi) Claims by the Contractor against the Government, when the 
Contractor's rights of reimbursement are disputed, that are excluded 
without prejudice to the rights of either party are as follows: [Insert 
the amounts and describe the claims on which the Contracting Officer has 
made findings and has disallowed and on which the Contractor has taken, 
or intends to take, timely appeal.]
    (xii) Unresolved demands or assertions by the Contractor against the 
Government that are unknown in amount and involve costs alleged to be 
reimbursable under the contract are as follows: [Insert the estimated 
amounts and describe the charges.]
    (xiii) Unknown amounts alleged by the Contractor against the 
Government, based upon responsibility of the Contractor to third parties 
that involve costs reimbursable under the contract.
    (xiv) Debts due the Government by the Contractor that are based on 
refunds, rebates, credits, or other amounts not now known to the 
Government, with interest, now due or that may become due the Contractor 
from third parties, if the amounts arise out of transactions for which 
reimbursement has been made to the Contractor under the contract. The 
Contractor shall pay to the Government, within 30 days after receipt, 
any of these amounts that become due from any third party or any other 
source. Interest at the rate established by the Secretary of the 
Treasury under 50 U.S.C. (App.) 1215(b)(2) shall accrue and shall be 
paid to the Government on any amounts that remain unpaid after the 30-
day period.
    (xv) All rights and liabilities, if any, of the parties under those 
clauses of the contract relating to price reductions for defective 
certified cost or pricing data.

                           (End of agreement)

[48 FR 42447, Sept. 19, 1983, as amended at 60 FR 37773, July 21, 1995; 
60 FR 49723, Sept. 26, 1995; 71 FR 57380, Sept. 28, 2006; 75 FR 53150, 
Aug. 30, 2010]



Sec. 49.603-4  Cost-reimbursement contracts--complete termination, with 
          settlement limited to fee.

    [Insert the following in Block 14 of SF 30 for settlement of cost-
reimbursement contracts that are completely terminated, if settlement is 
limited to fee.]

    (a) This supplemental agreement settles the amount of fee due under 
the contract, terminated in its entirety by Notice of Termination dated 
----------.
    (b) The parties agree to the following:
    (1) The Contractor has received $---------- on account of its fee 
under the contract before the effective date of termination.
    (2) The Government agrees to pay to the Contractor or its assignee, 
upon presentation of a proper invoice or voucher, $---------- [insert 
net amount to be paid on account of fee].

[[Page 1020]]

This sum, with sums previously paid, constitutes payment in full and 
complete settlement of the amount due the Contractor on account of its 
fee under the contract.
    (3) The Contractor's allowable costs under the contract will be paid 
under the terms and conditions of the contract and parts 31 and 49 of 
the Federal Acquisition Regulation.
    [Insert subparagraph (3) only if there are costs to be vouchered out 
(see 49.302) or if there are costs to be covered later by a separate 
settlement agreement.]
    (4) Regardless of any other provision of this agreement, the 
following rights and liabilities of the parties under the contract are 
reserved:
    [The following list of reserved or excepted rights and liabilities 
is intended to cover those that should most frequently be reserved and 
that should be scrutinized at the time a settlement agreement is 
negotiated (see 49.109-2). The suggested language of the excepted items 
on the list may be varied at the discretion of the contracting officer. 
If accuracy or completeness can be achieved by referencing the number of 
a contract clause or provision covering the matter in question, then 
follow that method of enumerating reserved rights and liabilities. Omit 
any of the following that are not applicable and add any additional 
exceptions or reservations required.]
    (i) All rights and liabilities, if any, of the parties, as to 
matters covered by any renegotiation authority.
    (ii) All rights and liabilities, if any, of the parties under those 
clauses inserted in the contract because of the requirements of Acts of 
Congress and Executive Orders, including, without limitation, any 
applicable clauses relating to: labor law, contingent fees, domestic 
articles, and employment of aliens. [If the contract contains clauses of 
this character inserted for reasons other than requirements of Acts of 
Congress or Executive Orders, the suggested language should be 
appropriately modified.]
    (iii) All rights and liabilities of the parties arising under the 
contract and relating to reproduction rights, patent infringements, 
inventions, or applications for patents, including rights to 
assignments, invention reports, licenses, covenants of indemnity against 
patent risks, and bonds for patent indemnity obligations, together with 
all rights and liabilities under the bonds.
    (iv) All rights and liabilities of the parties, arising under the 
contract or otherwise, and concerning defects, guarantees, or warranties 
relating to any articles or component parts furnished to the Government 
by the Contractor under the contract or this agreement.
    (v) All rights and liabilities of the parties under agreements 
relating to the future care and disposition by the Contractor of 
Government-owned property remaining in the Contractor's custody.
    (vi) All rights and liabilities of the parties relating to 
Government property furnished to, or acquired by, the Contractor for the 
performance of the contract.
    (vii) All rights and liabilities of the parties under the contract 
relating to options (except options to continue or increase the work 
under the contract), covenants not to compete, and covenants of 
indemnity.
    (viii) All rights and liabilities, if any, of the parties under 
those clauses of the contract relating to price reductions for defective 
certified cost or pricing data.

                           (End of agreement)

[48 FR 42447, Sept. 19, 1983, as amended at 60 FR 37773, July 21, 1995; 
60 FR 49723, Sept. 26, 1995; 75 FR 53150, Aug. 30, 2010]



Sec. 49.603-5  Cost-reimbursement contracts--partial termination.

    [Insert the following in Block 14 of SF 30, Amendment of 
Solicitation/Modification of Contract, for settlement agreements for 
cost-reimbursement contracts as a result of partial termination.]

    (a) This supplemental agreement settles the termination settlement 
proposal resulting from the Notice of Termination dated --------------.
    (b) The parties agree as follows:
    (1) The contract is amended by deleting the terminated portion as 
follows: [specify the terminated portion clearly as to (i) item numbers, 
(ii) descriptions, (iii) quantity terminated, (iv) unit and total price 
of terminated items, and (v) any other explanation necessary to avoid 
uncertainty or misunderstanding].
    (2) The fee stated in the contract is decreased by $----------, from 
$---------- to $----------.
    [Insert, if appropriate, ``(3) The estimated cost of the contract is 
decreased by $----------, from $---------- to $--------.''.]
    (c) The Contractor's allowable costs and earned fee, if any, for the 
terminated portion of the contract will continue to be reimbursed on SF 
1034, Public Voucher for Purchase and Services Other Than Personal, 
under the applicable provisions of the contract and part 31 of the 
Federal Acquisition Regulation.

                           (End of agreement)



Sec. 49.603-6  No-cost settlement agreement--complete termination.

    [Insert the following in Block 14 of SF 30 if a no-cost settlement 
agreement, under a complete termination, is to be executed.]


[[Page 1021]]


    (a) This supplemental agreement ---------- [insert ``modifies the 
contract to reflect a no-cost settlement agreement with respect to the 
Notice of Termination dated ----------'' or, if not previously 
terminated, ``terminates the contract in its entirety''.]
    (b) The parties agree as follows:
    The Contractor unconditionally waives any charges against the 
Government because of the termination of the contract and, except as set 
forth below, releases it from all obligations under the contract or due 
to its termination. The Government agrees that all obligations under the 
contract are concluded, except as follows:
    [List reserved or excepted rights and liabilities. See 49.109-2 and 
49.603-1(b)(7).]

                           (End of agreement)



Sec. 49.603-7  No-cost settlement agreement--partial termination.

    [Insert the following in Block 14 of SF 30 if a no-cost settlement 
agreement, under a partial termination, is to be executed.]

    (a) This supplemental agreement modifies the contract to reflect a 
no-cost settlement agreement with respect to the Notice of Termination 
dated ----------.
    (b) The parties agree as follows:
    (1) The terminated portion of the contract is as follows: [Specify 
(i) item numbers, (ii) descriptions, (iii) quantity terminated, (iv) 
unit and total price of terminated items, and (v) any other explanation 
necessary to avoid uncertainty or misunderstanding.]
    (2) The Contractor unconditionally waives any charges against the 
Government arising under the terminated portion of the contract or by 
reason of its termination, including, without limitation, all 
obligations of the Government to make further payments or to carry out 
any further undertakings under the terminated portion of the contract. 
The Government acknowledges that the Contractor has no obligation to 
perform further work or services or to make further deliveries under the 
terminated portion of the contract. Nothing in this paragraph affects 
any other covenants, terms, or conditions of the contract. Under the 
terminated portion of the contract, the following rights and liabilities 
of the parties are reserved:
    [List reserved or excepted rights and liabilities. See 49.109-2 and 
49.603-1(b)(7).]

                           (End of agreement)



Sec. 49.603-8  Fixed-price contracts--settlements with subcontractors 
          only.

    [Insert the following in Block 14 of SF 30 for settlements of fixed-
price contracts covering only settlements with subcontractors.]

    (a) This agreement settles that portion of the settlement proposal 
of the Contractor that is based upon termination of the following 
subcontracts entered into in performing this contract:
    [Insert a list of the terminated subcontracts included in this 
settlement.]
    (b) The parties agree to the following:
    (1) The Contractor certifies that each immediate subcontractor, 
whose settlement proposal is included in the proposal settled by the 
agreement, has furnished the Contractor a certificate stating (i) that 
all subcontract termination inventory (including scrap) has been 
retained or acquired by the subcontractor, sold to third parties, 
returned to suppliers, delivered to or stored for the Government, or 
otherwise properly accounted for, and that all proceeds and retention 
credits were used in arriving at the settlement of the subcontract, and 
(ii) that the subcontractor has received a similar certificate from each 
immediate subcontractor whose proposal was included in its proposal.
    (2) The Contractor certifies that all items of termination 
inventory, the costs of which were used in arriving at the amount of 
this settlement or the settlement of any subcontract settlement proposal 
included in this settlement, (i) are properly allocable to the 
terminated portion of the contract, (ii) do not exceed the reasonable 
quantitative requirements of the terminated portion of the contract, and 
(iii) do not include any items reasonably usable without loss to the 
Contractor on its other work. The Contractor further certifies that the 
Contracting Officer has been informed of any substantial change in the 
status of the items between the dates of the termination inventory 
schedules and the date of this agreement.
    (3) The Contractor transfers, conveys, and assigns to the Government 
all the right, title, and interest, if any, that the Contractor has 
received or is entitled to receive, in and to subcontract termination 
inventory not otherwise properly accounted for.
    (4) The Contractor shall, within 10 days after receipt of the 
payment specified in this agreement, pay to each of its immediate 
subcontractors (or their respective assignees) the amounts to which they 
are entitled, after deducting any prior payments and, if the Contractor 
so elects, any amounts due and payable to the Contractor by those 
subcontractors.
    (5) The Government agrees to pay the Contractor or its assignee, 
upon presentation of a proper invoice or voucher, $---------- [insert 
net amount of settlement], which, together with the amount of $--------
-- previously paid the Contractor as partial, progress, or advance 
payments, constitutes

[[Page 1022]]

payment in full and complete settlement, except as provided in 
subparagraph (b)(6) below, of the amount due the Contractor for that 
portion of its settlement proposal that is based upon termination of the 
subcontracts listed above.
    (6) Regardless of any other provision of this agreement, the 
following rights and liabilities of the parties under the contract are 
reserved: [List reserved or excepted rights and liabilities. See 49.109-
2 and 49.603-1(b)(7).]

                           (End of agreement)



Sec. 49.603-9  Settlement of reservations.

    [Insert the following in Block 14 of SF 30 for settlement of 
reservations.]

    (a) Supplemental Agreement No. --------, dated --------, was 
executed to reflect the settlement of the termination of this contract. 
The supplemental agreement excepted from the settlement certain items 
described in the agreement including the items described in paragraph 
(b) below. This supplemental agreement settles those items listed in 
paragraph (b) below.
    (b) The parties agree to the following:
    (1) The Government agrees to pay the Contractor $------------ for 
the following reserved or excepted items:* [List items.]
    (2) The Contractor releases and forever discharges the Government 
from all liability and from all existing and future claims and demands 
that it may have under this contract, insofar as it pertains to the 
contract, for the items described in subparagraph (1) above.*

[*When payment is due the Government, reverse the words Government and 
Contractor in subparagraphs (b)(1) and (b)(2).]

                           (End of agreement)



Sec. 49.604  Release of excess funds under terminated contracts.

    The following format shall be used to recommend the release of 
excess funds under terminated contracts, except if the contracting 
office retains responsibility for settlement of the termination:

FROM: Termination Contracting Officer ------ [address]
TO: Contracting office -------- [address]
SUBJ: Terminated Contract No. ---- with ---- [Contractor]
Refs:
    (a) [Cite termination notice and effective date.]
    (b) [Cite prior letters releasing excess funds, if any.]
    1. Referenced termination notice, ------ [insert ``completely'' or 
``partially''] terminated contract ------.
    2. Based on the best information available, it is estimated that the 
gross settlement cost will be $------------. The amount available for 
release as excess to the contract is $------------. Any payments 
previously made to the Contractor for terminated items have been 
considered in arriving at the above amounts.
    [If prior letters recommending release of excess funds are cited, 
use the following as paragraph 2:
    ``The estimated settlement costs previously reported by reference 
(b) in the amount of $------------ are revised. On the best evidence now 
available, it is estimated that the settlement costs will be $----------
--. The additional amount available for release is $------------''.]
    3. The related appropriations and amounts involved are:

 
         Appropriations                 Allocated Amounts
 
                                 ..............................  .......
                                 ..............................  .......
 

    Copies to:
    Paying Office
    Accounting and Finance Office
    Other



Sec. 49.605  Request to settle subcontractor settlement proposals.

    Contractors requesting authority to settle subcontractor settlement 
proposals shall furnish applicable information from the list below and 
any additional information required by the contracting officer:
    (a) Name of contractor and address of principal office.
    (b) Name and location of divisions of the applicant's plant for 
which authorization is requested.
    (c) An explanation of the necessity and justification for the 
authorization requested.
    (d) A full description of the applicant's organization for handling 
terminations, including the names of the officials in charge of 
processing and settling proposals.
    (e) The number and dollar amount (estimated if necessary) of 
uncompleted contracts with Government agencies and the percentage 
applicable to each agency.
    (f) The number and dollar amount (estimated if necessary) of

[[Page 1023]]

uncompleted subcontracts under Government contracts and the percentage 
applicable to each agency.
    (g) The extent of the applicant's experience in termination matters, 
including the handling of proposals of subcontractors.
    (h) The approximate amount and general nature of terminations of the 
applicant currently in process.
    (i) A statement that no other application has been made for any 
division of the applicant's plant covered by the application or, if one 
has been made, a full statement of the facts.
    (j) The limit of authorization requested.



Sec. 49.606  Granting subcontract settlement authorization.

    Contracting officers shall use the following format when granting 
subcontract settlement authorization:

                         LETTER OF AUTHORIZATION

    (a) Your request of ------ (date) is approved, and you are 
authorized, subject to the limitations of subsection 49.108-4 and those 
stated below, to settle, without further approval of the Government, all 
subcontracts and purchase orders terminated by you as a result of a 
Government contract being terminated or modified (1) for the convenience 
of the Government or (2) under any other circumstances that may require 
the Government to bear the cost of their settlement.
    (b) This authorization does not extend to the disposition of 
Government-furnished material or articles completed but undelivered 
under the subcontract or purchase order, as these require screening and 
approval of disposal actions by the Government, except that allocable 
completed articles may be disposed of without Government approval or 
screening if the total amount (at subcontract price) when added to the 
amount of settlement (as computed below) does not exceed $-------------- 
[insert limit of authorization being granted].
    (c) This authorization is subject to the following conditions and 
requirements:
    (1) The amount of the subcontract termination settlement does not 
exceed $------------ [insert limit of authorization being granted], 
computed as follows:
    (i) Do not deduct advance or partial payments or credits for 
retention or other disposal of termination inventory allocated to the 
settlement proposal.
    (ii) Deduct amounts payable for completed articles or work at the 
contract price or for the settlement of termination proposals of 
subcontractors (except those settlements that have not been approved by 
the Government).
    (2) Any termination inventory involved has been disposed of under 
subsection 49.108-4, except that screening and Government approval of 
scrap and salvage determinations are not required.
    (3) The Contracting Officer may incorporate into each Notice of 
Termination specific instructions about the disposition of specific 
items of termination inventory, or the Contracting Officer may, at any 
time before final settlement, issue specific instructions. These 
instructions will not affect any disposal action taken by you or your 
subcontractors before their receipt.
    (4) The settlements made by you with your subcontractors and 
suppliers under this authorization, including sales, retention, or other 
dispositions of property involved in making these settlements, are 
reimbursable under part 49 and the Termination clause of the contract, 
and do not require approval of the Contracting Officer.
    (5) Any number of separate settlements of $------------ [insert 
limit of authorization granted] or less may be made with a single 
subcontractor. Settlement proposals that would normally be included in a 
single proposal; e.g., those based on a series of separate orders for 
the same item under one contract, should be consolidated whenever 
possible and shall not be divided to bring them within the 
authorization.
    (6) This authorization does not apply if a subcontractor or supplier 
is affiliated with you. For this purpose, you should consider a 
contractor to be affiliated with you if you are under common control or 
if there is any common interest between you by reason of stock 
ownership, or otherwise, that is sufficient to create a reasonable doubt 
that the bargaining between you is completely at arm's length.
    (7) A representative of this office will, from time to time, review 
the methods used in negotiating settlements with your subcontractors and 
will make a selective examination of the settlements made by you. If the 
review indicates that you are not adequately protecting the Government's 
interest, this delegation will be revoked.

                             (End of letter)



Sec. 49.607  Delinquency notices.

    The formats of the delinquency notices in this section may be used 
to satisfy the requirements of 49.402-3. All notices will be sent with 
proof of delivery requested. (See subpart 42.13 for stop-work orders.)
    (a) Cure notice. If a contract is to be terminated for default 
before the delivery date, a Cure Notice is required by

[[Page 1024]]

the Default clause. Before using this notice, it must be ascertained 
that an amount of time equal to or greater than the period of cure 
remains in the contract delivery schedule or any extension to it. If the 
time remaining in the contract delivery schedule is not sufficient to 
permit a realistic cure period of 10 days or more, the Cure Notice 
should not be issued. The Cure Notice may be in the following format:

                               CURE NOTICE

    You are notified that the Government considers your ------ [specify 
the contractor's failure or failures] a condition that is endangering 
performance of the contract. Therefore, unless this condition is cured 
within 10 days after receipt of this notice [or insert any longer time 
that the Contracting Officer may consider reasonably necessary], the 
Government may terminate for default under the terms and conditions of 
the ------ [insert clause title] clause of this contract.

                             (End of notice)

    (b) Show cause notice. If the time remaining in the contract 
delivery schedule is not sufficient to permit a realistic cure period of 
10 days or more, the following Show Cause Notice may be used. It should 
be sent immediately upon expiration of the delivery period.

                            SHOW CAUSE NOTICE

    Since you have failed to ------ [insert ``perform Contract No. ----
-- within the time required by its terms'', or ``cure the conditions 
endangering performance under Contract No. ------ as described to you in 
the Government's letter of -------- (date)''], the Government is 
considering terminating the contract under the provisions for default of 
this contract. Pending a final decision in this matter, it will be 
necessary to determine whether your failure to perform arose from causes 
beyond your control and without fault or negligence on your part. 
Accordingly, you are given the opportunity to present, in writing, any 
facts bearing on the question to -------- [insert the name and complete 
address of the contracting officer], within 10 days after receipt of 
this notice. Your failure to present any excuses within this time may be 
considered as an admission that none exist. Your attention is invited to 
the respective rights of the Contractor and the Government and the 
liabilities that may be invoked if a decision is made to terminate for 
default.
    Any assistance given to you on this contract or any acceptance by 
the Government of delinquent goods or services will be solely for the 
purpose of mitigating damages, and it is not the intention of the 
Government to condone any delinquency or to waive any rights the 
Government has under the contract.

                             (End of notice)

[48 FR 42447, Sept. 19, 1983, as amended at 60 FR 48250, Sept. 18, 1995]

      PART 50_EXTRAORDINARY CONTRACTUAL ACTIONS AND THE SAFETY ACT

Sec.

Sec. 50.000 Scope of part.

             Subpart 50.1_Extraordinary Contractual Actions


Sec. 50.100 Definitions.

Sec. 50.101 General.

Sec. 50.101-1 Authority.

Sec. 50.101-2 Policy.

Sec. 50.101-3 Records.

Sec. 50.102 Delegation of and limitations on exercise of authority.

Sec. 50.102-1 Delegation of authority.

Sec. 50.102-2 Contract adjustment boards.

Sec. 50.102-3 Limitations on exercise of authority.

Sec. 50.103 Contract adjustments.

Sec. 50.103-1 General.

Sec. 50.103-2 Types of contract adjustment.

Sec. 50.103-3 Contract adjustment.

Sec. 50.103-4 Facts and evidence.

Sec. 50.103-5 Processing cases.

Sec. 50.103-6 Disposition.

Sec. 50.103-7 Contract requirements.

Sec. 50.104 Residual powers.

Sec. 50.104-1 Standards for use.

Sec. 50.104-2 General.

Sec. 50.104-3 Special procedures for unusually hazardous or nuclear 
          risks.

Sec. 50.104-4 Contract clause.

Subpart 50.2_Support Anti-terrorism by Fostering Effective Technologies 
                               Act of 2002


Sec. 50.200 Scope of subpart.

Sec. 50.201 Definitions.

Sec. 50.202 Authorities.

Sec. 50.203 General.

Sec. 50.204 Policy.

Sec. 50.205 Procedures.

Sec. 50.205-1 SAFETY Act considerations.

Sec. 50.205-2 Pre-qualification designation notice.

Sec. 50.205-3 Authorization of offers contingent upon SAFETY Act 
          designation or certification before contract award.

Sec. 50.205-4 Authorization of awards made presuming SAFETY Act 
          designation or certification after contract award.

[[Page 1025]]


Sec. 50.206 Solicitation provisions and contract clause.

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 
2473(c).

    Source: 72 FR 63030, Nov. 7, 2007, unless otherwise noted.



Sec. 50.000  Scope of part.

    This part--
    (a)(1) Prescribes policies and procedures for entering into, 
amending, or modifying contracts in order to facilitate the national 
defense under the extraordinary emergency authority granted by Public 
Law 85-804 (50 U.S.C. 1431--1434) and Executive Order 10789, dated 
November 14, 1958. It does not cover advance payments (see Subpart 
32.4); and
    (2) Implements indemnification authority granted by Pub. L. 85-804 
and paragraph 1A of E.O. 10789 with respect to any matter that has been, 
or could be, designated by the Secretary of Homeland Security as a 
qualified anti-terrorism technology as defined in the Support Anti-
terrorism by Fostering Effective Technologies Act of 2002 (SAFETY Act); 
and
    (b) Implements SAFETY Act liability protections to promote 
development and use of anti-terrorism technologies.

             Subpart 50.1_Extraordinary Contractual Actions



Sec. 50.100  Definitions.

    As used in this part--
    Approving authority means an agency official or contract adjustment 
board authorized to approve actions under Pub. L. 85-804 and E.O. 10789.
    Secretarial level means a level at or above the level of a deputy 
assistant agency head, or a contract adjustment board.



Sec. 50.101  General.



Sec. 50.101-1  Authority.

    (a) Pub. L. 85-804 empowers the President to authorize agencies 
exercising functions in connection with the national defense to enter 
into, amend, and modify contracts, without regard to other provisions of 
law related to making, performing, amending, or modifying contracts, 
whenever the President considers that such action would facilitate the 
national defense.
    (b) E.O. 10789 authorizes the heads of the following agencies to 
exercise the authority conferred by Pub. L. 85-804 and to delegate it to 
other officials within the agency: the Government Printing Office; the 
Department of Homeland Security; the Tennessee Valley Authority; the 
National Aeronautics and Space Administration; the General Services 
Administration; the Defense, Army, Navy, Air Force, Treasury, Interior, 
Agriculture, Commerce, and Transportation Departments; the Department of 
Energy for functions transferred to that Department from other 
authorized agencies; and any other agency that may be authorized by the 
President.



Sec. 50.101-2  Policy.

    (a) The authority conferred by Pub. L. 85-804 may not--
    (1) Be used in a manner that encourages carelessness and laxity on 
the part of persons engaged in the defense effort; or
    (2) Be relied upon when other adequate legal authority exists within 
the agency.
    (b) Actions authorized under Pub. L. 85-804 shall be accomplished as 
expeditiously as practicable, consistent with the care, restraint, and 
exercise of sound judgment appropriate to the use of such extraordinary 
authority.
    (c) Certain kinds of relief previously available only under Pub. L. 
85-804; e.g., rescission or reformation for mutual mistake, are now 
available under the authority of the Contract Disputes Act of 1978. In 
accordance with paragraph (a)(2) of this subsection, Part 33 must be 
followed in preference to Subpart 50.1 for such relief. In case of doubt 
as to whether Part 33 applies, the contracting officer should seek legal 
advice.



Sec. 50.101-3  Records.

    Agencies shall maintain complete records of all actions taken under 
this Subpart 50.1. For each request for relief processed, these records 
shall include, as a minimum--
    (a) The contractor's request;

[[Page 1026]]

    (b) All relevant memorandums, correspondence, affidavits, and other 
pertinent documents;
    (c) The Memorandum of Decision (see 50.103-6 and 50.104-2); and
    (d) A copy of the contractual document implementing an approved 
request.



Sec. 50.102  Delegation of and limitations on exercise of authority.



Sec. 50.102-1  Delegation of authority.

    An agency head may delegate in writing authority under Pub. L. 85-
804 and E.O. 10789, subject to the following limitations:
    (a) Authority delegated shall be to a level high enough to ensure 
uniformity of action.
    (b) Authority to approve requests to obligate the Government in 
excess of $65,000 may not be delegated below the secretarial level.
    (c) Regardless of dollar amount, authority to approve any amendment 
without consideration that increases the contract price or unit price 
may not be delegated below the secretarial level, except in 
extraordinary cases or classes of cases when the agency head finds that 
special circumstances clearly justify such delegation.
    (d) Regardless of dollar amount, authority to indemnify against 
unusually hazardous or nuclear risks, including extension of such 
indemnification to subcontracts, shall be exercised only by the 
Secretary or Administrator of the agency concerned, the Public Printer, 
or the Chairman of the Board of Directors of the Tennessee Valley 
Authority (see 50.104-3).

[72 FR 63030, Nov. 7, 2007, as amended at 75 FR 53134, Aug. 30, 2010]



Sec. 50.102-2  Contract adjustment boards.

    An agency head may establish a contract adjustment board with 
authority to approve, authorize, and direct appropriate action under 
this Subpart 50.1 and to make all appropriate determinations and 
findings. The decisions of the board shall not be subject to appeal; 
however, the board may reconsider and modify, correct, or reverse its 
previous decisions. The board shall determine its own procedures and 
have authority to take all action necessary or appropriate to conduct 
its functions.



Sec. 50.102-3  Limitations on exercise of authority.

    (a) Pub. L. 85-804 is not authority for--
    (1) Using a cost-plus-a-percentage-of-cost system of contracting;
    (2) Making any contract that violates existing law limiting profit 
or fees;
    (3) Providing for other than full and open competition for award of 
contracts for supplies or services; or
    (4) Waiving any bid bond, payment bond, performance bond, or other 
bond required by law.
    (b) No contract, amendment, or modification shall be made under Pub. 
L. 85-804's authority--
    (1) Unless the approving authority finds that the action will 
facilitate the national defense;
    (2) Unless other legal authority within the agency concerned is 
deemed to be lacking or inadequate;
    (3) Except within the limits of the amounts appropriated and the 
statutory contract authorization (however, indemnification agreements 
authorized by an agency head (50.104-3) are not limited to amounts 
appropriated or to contract authorization); and
    (4) That will obligate the Government for any amount over $31.5 
million, unless the Senate and House Committees on Armed Services are 
notified in writing of the proposed obligation and 60 days of continuous 
session of Congress have passed since the transmittal of such 
notification. However, this paragraph (b)(4) does not apply to 
indemnification agreements authorized under 50.104-3.
    (c) No contract shall be amended or modified unless the contractor 
submits a request before all obligations (including final payment) under 
the contract have been discharged. No amendment or modification shall 
increase the contract price to an amount higher than the lowest rejected 
bid of any responsible bidder, if the contract was negotiated under 10 
U.S.C. 2304(a)(15) or 41 U.S.C. 252(c)(14), or FAR 14.404-1(f).
    (d) No informal commitment shall be formalized unless--
    (1) The contractor submits a written request for payment within 6 
months

[[Page 1027]]

after furnishing, or arranging to furnish, supplies or services in 
reliance upon the commitment; and
    (2) The approving authority finds that, at the time the commitment 
was made, it was impracticable to use normal contracting procedures.
    (e) The exercise of authority by officials below the secretarial 
level is subject to the following additional limitations:
    (1) The action shall not--
    (i) Release a contractor from performance of an obligation over 
$65,000;
    (ii) Result in an increase in cost to the Government over $65,000;
    (iii) Deal with, or directly affect, any matter that has been 
submitted to the Government Accountability Office; or
    (iv) Involve disposal of Government surplus property.
    (2) Mistakes shall not be corrected by an action obligating the 
Government for over $1,000, unless the contracting officer receives 
notice of the mistake before final payment.
    (3) The correction of a contract because of a mistake in its making 
shall not increase the original contract price to an amount higher than 
the next lowest responsive offer of a responsible offeror.
    (f) No executive department or agency shall exercise the 
indemnification authority granted under paragraph 1A of E.O. 10789 with 
respect to any supply or service that has been, or could be, designated 
by the Secretary of Homeland Security as a qualified anti-terrorism 
technology unless--
    (1) For the Department of Defense, the Secretary of Defense has 
determined that the exercise of authority under E.O. 10789 is necessary 
for the timely and effective conduct of the United States military or 
intelligence activities, after consideration of the authority provided 
under the SAFETY Act (Subtitle G of title VIII of the Homeland Security 
Act of 2002, 6 U.S.C. 441-444); or
    (2) For other departments and agencies that have authority under 
E.O. 10789--
    (i) The Secretary of Homeland Security has advised whether the use 
of the authority under the SAFETY Act would be appropriate; and
    (ii) The Director of the Office of Management and Budget has 
approved the exercise of authority under the Executive order.

[72 FR 63030, Nov. 7, 2007, as amended at 75 FR 53134, Aug. 30, 2010]



Sec. 50.103  Contract adjustments.

    This section prescribes standards and procedures for processing 
contractors' requests for contract adjustment under Pub. L. 85-804 and 
E.O. 10789.



Sec. 50.103-1  General.

    The fact that losses occur under a contract is not sufficient basis 
for exercising the authority conferred by Pub. L. 85-804. Whether 
appropriate action will facilitate the national defense is a judgment to 
be made on the basis of all of the facts of the case. Although it is 
impossible to predict or enumerate all the types of cases in which 
action may be appropriate, examples are included in 50.103-2. Even if 
all of the factors in any of the examples are present, other 
considerations may warrant denying a contractor's request for contract 
adjustment. The examples are not intended to exclude other cases in 
which the approving authority determines that the circumstances warrant 
action.



Sec. 50.103-2  Types of contract adjustment.

    (a) Amendments without consideration. (1) When an actual or 
threatened loss under a defense contract, however caused, will impair 
the productive ability of a contractor whose continued performance on 
any defense contract or whose continued operation as a source of supply 
is found to be essential to the national defense, the contract may be 
amended without consideration, but only to the extent necessary to avoid 
such impairment to the contractor's productive ability.
    (2) When a contractor suffers a loss (not merely a decrease in 
anticipated profits) under a defense contract because of Government 
action, the character of the action will generally determine whether any 
adjustment in the contract will be made, and its extent. When the 
Government directs its action primarily at the contractor and acts in 
its capacity as the other contracting party, the contract may be 
adjusted in the interest of fairness. Thus,

[[Page 1028]]

when Government action, while not creating any liability on the 
Government's part, increases performance cost and results in a loss to 
the contractor, fairness may make some adjustment appropriate.
    (b) Correcting mistakes. (1) A contract may be amended or modified 
to correct or mitigate the effect of a mistake. The following are 
examples of mistakes that may make such action appropriate:
    (i) A mistake or ambiguity consisting of the failure to express, or 
express clearly, in a written contract, the agreement as both parties 
understood it.
    (ii) A contractor's mistake so obvious that it was or should have 
been apparent to the contracting officer.
    (iii) A mutual mistake as to a material fact.
    (2) Amending contracts to correct mistakes with the least possible 
delay normally will facilitate the national defense by expediting the 
contracting program and assuring contractors that mistakes will be 
corrected expeditiously and fairly.
    (c) Formalizing informal commitments. Under certain circumstances, 
informal commitments may be formalized to permit payment to persons who 
have taken action without a formal contract; for example, when a person, 
responding to an agency official's written or oral instructions and 
relying in good faith upon the official's apparent authority to issue 
them, has furnished or arranged to furnish supplies or services to the 
agency, or to a defense contractor or subcontractor, without formal 
contractual coverage. Formalizing commitments under such circumstances 
normally will facilitate the national defense by assuring such persons 
that they will be treated fairly and paid expeditiously.



Sec. 50.103-3  Contract adjustment.

    (a) Contractor requests. A contractor seeking a contract adjustment 
shall submit a request in duplicate to the contracting officer or an 
authorized representative. The request, normally a letter, shall state 
as a minimum--
    (1) The precise adjustment requested;
    (2) The essential facts, summarized chronologically in narrative 
form;
    (3) The contractor's conclusions based on these facts, showing, in 
terms of the considerations set forth in 50.103-1 and 50.103-2, when the 
contractor considers itself entitled to the adjustment; and
    (4) Whether or not--
    (i) All obligations under the contracts involved have been 
discharged;
    (ii) Final payment under the contracts involved has been made;
    (iii) Any proceeds from the request will be subject to assignment or 
other transfer, and to whom; and
    (iv) The contractor has sought the same, or a similar or related, 
adjustment from the Government Accountability Office or any other part 
of the Government, or anticipates doing so.
    (b) Contractor certification. A contractor seeking a contract 
adjustment that exceeds the simplified acquisition threshold shall, at 
the time the request is submitted, submit a certification by a person 
authorized to certify the request on behalf of the contractor that--
    (1) The request is made in good faith; and
    (2) The supporting data are accurate and complete to the best of 
that person's knowledge and belief.



Sec. 50.103-4  Facts and evidence.

    (a) General. When it is appropriate, the contracting officer or 
other agency official shall request the contractor to support any 
request made under 50.103-3(a) with any of the following information:
    (1) A brief description of the contracts involved, the dates of 
execution and amendments, the items being acquired, the price or prices, 
the delivery schedules, and any special contract provisions relevant to 
the request.
    (2) A history of performance indicating when work under the 
contracts or commitments began, the progress made to date, an exact 
statement of the contractor's remaining obligations, and the 
contractor's expectations regarding completion.
    (3) A statement of payments received, due, and yet to be received or 
to become due, including advance and progress payments; amounts withheld 
by the Government; and information as to any obligations of the 
Government

[[Page 1029]]

yet to be performed under the contracts.
    (4) A detailed analysis of the request's monetary elements, 
including precisely how the actual or estimated dollar amount was 
determined and the effect of approval or denial on the contractor's 
profits before Federal income taxes.
    (5) A statement of the contractor's understanding of why the 
request's subject matter cannot now, and could not at the time it arose, 
be disposed of under the contract terms.
    (6) The best supporting evidence available to the contractor, 
including contemporaneous memorandums, correspondence, and affidavits.
    (7) Relevant financial statements, cost analyses, or other such 
data, preferably certified by a certified public accountant, as 
necessary to support the request's monetary elements.
    (8) A list of persons connected with the contracts who have factual 
knowledge of the subject matter, including, when possible, their names, 
offices or titles, addresses, and telephone numbers.
    (9) A statement and evidence of steps taken to reduce losses and 
claims to a minimum.
    (10) Any other relevant statements or evidence that may be required.
    (b) Amendments without consideration--essentiality a factor. When a 
request involves possible amendment without consideration, and 
essentiality to the national defense is a factor (50.103-2(a)(1)), the 
contractor may be asked to furnish, in addition to the facts and 
evidence listed in paragraph (a) of this subsection, any of the 
following information:
    (1) A statement and evidence of the contractor's original breakdown 
of estimated costs, including contingency allowances, and profit.
    (2) A statement and evidence of the contractor's present estimate of 
total costs under the contracts involved if it is enabled to complete 
them, broken down between costs accrued to date and completion costs, 
and between costs paid and those owed.
    (3) A statement and evidence of the contractor's estimate of the 
final price of the contracts, taking into account all known or 
contemplated escalation, changes, extras, and the like.
    (4) A statement of any claims known or contemplated by the 
contractor against the Government involving the contracts, other than 
those stated in response to paragraph (b)(3) of this subsection.
    (5) An estimate of the contractor's total profit or loss under the 
contracts if it is enabled to complete them at the estimated final 
contract price, broken down between profit or loss to date and 
completion profit or loss.
    (6) An estimate of the contractor's total profit or loss from other 
Government business and all other sources, from the date of the first 
contract involved to the estimated completion date of the last contract 
involved.
    (7) A statement of the amount of any tax refunds to date, and an 
estimate of those anticipated, for the period from the date of the first 
contract involved to the estimated completion date of the last contract 
involved.
    (8) A detailed statement of efforts the contractor has made to 
obtain funds from commercial sources to enable contract completion.
    (9) A statement of the minimum amount the contractor needs as an 
amendment without consideration to enable contract completion, and the 
detailed basis for that amount.
    (10) A estimate of the time required to complete each contract if 
the request is granted.
    (11) A statement of the factors causing the loss under the contracts 
involved.
    (12) A statement of the course of events anticipated if the request 
is denied.
    (13) Balance sheets, preferably certified by a certified public 
accountant, (i) for the contractor's fiscal year immediately preceding 
the date of the first contract, (ii) for each subsequent fiscal year, 
(iii) as of the request date, and (iv) projected as of the completion 
date of all the contracts involved (assuming the contractor is enabled 
to complete them at the estimated final prices), together with income 
statements for annual periods subsequent to the date of the first 
balance sheet. Balance sheets and income statements should be both 
consolidated and broken

[[Page 1030]]

down by affiliates. They should show all transactions between the 
contractor and its affiliates, stockholders, and partners, including 
loans to the contractor guaranteed by any stockholder or partner.
    (14) A list of all salaries, bonuses, and other compensation paid or 
furnished to the principal officers or partners, and of all dividends 
and other withdrawals, and of all payments to stockholders in any form 
since the date of the first contract involved.
    (c) Amendments without consideration--essentiality not a factor. 
When a request involves possible amendment without consideration because 
of Government action, and essentiality to the national defense is not a 
factor (50.103-2(a)(2)), the contractor may be asked to furnish, in 
addition to the facts and evidence listed in paragraph (a) of this 
subsection, any of the following information:
    (1) A clear statement of the precise Government action that the 
contractor considers to have caused a loss under the contract, with 
evidence to support each essential fact.
    (2) A statement and evidence of the contractor's original breakdown 
of estimated costs, including contingency allowances, and profit.
    (3) The estimated total loss under the contract, with detailed 
supporting analysis.
    (4) The estimated loss resulting specifically from the Government 
action, with detailed supporting analysis.
    (d) Correcting mistakes. When a request involves possible correction 
of a mistake (50.103-2(b)), the contractor may be asked to furnish, in 
addition to the facts and evidence listed in paragraph (a) of this 
subsection, any of the following information:
    (1) A statement and evidence of the precise error made, ambiguity 
existing, or misunderstanding arising, showing what it consists of, how 
it occurred, and the intention of the parties.
    (2) A statement explaining when the mistake was discovered, when the 
contracting officer was given notice of it, and whether this notice was 
given before completion of work under, or the effective termination date 
of, the contract.
    (3) An estimate of profit or loss under the contract, with detailed 
supporting analysis.
    (4) An estimate of the increase in cost to the Government resulting 
from the adjustment requested, with detailed supporting analysis.
    (e) Formalizing informal commitments. When a request involves 
possible formalizing of an informal commitment (50.103-2(c)), the 
contractor may be asked to furnish, in addition to the facts and 
evidence listed in paragraph (a) of this subsection, any of the 
following information:
    (1) Copies of any written instructions or assurances (or a sworn 
statement of any oral instructions or assurances) given the contractor, 
and identification of the Government official who gave them.
    (2) A statement as to when the contractor furnished or arranged to 
furnish the supplies or services involved, and to whom.
    (3) Evidence that the contractor relied upon the instructions or 
assurances, with a full description of the circumstances that led to 
this reliance.
    (4) Evidence that, when performing the work, the contractor expected 
to be compensated directly for it by the Government and did not 
anticipate recovering the costs in some other way.
    (5) A cost breakdown supporting the amount claimed as fair 
compensation for the work performed.
    (6) A statement and evidence of the impracticability of providing, 
in an appropriate contractual instrument, for the work performed.



Sec. 50.103-5  Processing cases.

    (a) In response to a contractor request made in accordance with 
50.103-3(a), the contracting officer or an authorized representative 
shall make a thorough investigation to establish the facts necessary to 
decide a given case. Facts and evidence, including signed statements of 
material facts within the knowledge of individuals when documentary 
evidence is lacking, and audits if considered necessary to establish 
financial or cost facts, shall be obtained from contractor and 
Government personnel.
    (b) When a case involves matters of interest to more than one 
Government

[[Page 1031]]

agency, the interested agencies should maintain liaison with each other 
to determine whether joint action should be taken.
    (c) When additional funds are required from another agency, the 
contracting agency may not approve adjustment requests before receiving 
advice that the funds will be available. The request for this advice 
shall give the contractor's name, the contract number, the amount of 
proposed relief, a brief description of the contract, and the accounting 
classification or fund citation. If the other agency makes additional 
funds available, the agency considering the adjustment request shall be 
solely responsible for any action taken on the request.
    (d) When essentiality to the national defense is an issue (50.103-
2(a)(1)), agencies considering requests for amendment without 
consideration involving another agency shall obtain advice on the issue 
from the other agency before making the final decision. When this advice 
is received, the agency considering the request for amendment without 
consideration shall be responsible for taking whatever action is 
appropriate.



Sec. 50.103-6  Disposition.

    When approving or denying a contractor's request made in accordance 
with 50.103-3(a), the approving authority shall sign and date a 
Memorandum of Decision containing--
    (a) The contractor's name and address, the contract identification, 
and the nature of the request;
    (b) A concise description of the supplies or services involved;
    (c) The decision reached and the actual cost or estimated potential 
cost involved, if any;
    (d) A statement of the circumstances justifying the decision;
    (e) Identification of any of the foregoing information classified 
``Confidential'' or higher (instead of being included in the memorandum, 
such information may be set forth in a separate classified document 
referenced in the memorandum); and
    (f) If some adjustment is approved, a statement in substantially the 
following form: ``I find that the action authorized herein will 
facilitate the national defense.'' The case files supporting this 
statement will show the derivation and rationale for the dollar amount 
of the award. When the dollar amount exceeds the amounts supported by 
audit or other independent reviews, the approving authority will further 
document the rationale for deviating from the recommendation.



Sec. 50.103-7  Contract requirements.

    (a) Pub. L. 85-804 and E.O. 10789 require that every contract 
entered into, amended, or modified under this Subpart 50.1 shall 
contain--
    (1) A citation of Pub. L. 85-804 and E.O. 10789;
    (2) A brief statement of the circumstances justifying the action; 
and
    (3) A recital of the finding that the action will facilitate the 
national defense.
    (b) The authority in 50.101-1(a) shall not be used to omit from 
contracts, when otherwise required, the clauses at 52.203-5, Covenant 
Against Contingent Fees; 52.215-2, Audit and Records--Negotiation; 
52.222-4, Contract Work Hours and Safety Standards Act--Overtime 
Compensation; 52.222-6, Davis-Bacon Act; 52.222-10, Compliance With 
Copeland Act Requirements; 52.222-20, Walsh-Healey Public Contracts Act; 
52.222-26, Equal Opportunity; and 52.232-23, Assignment of Claims.



Sec. 50.104  Residual powers.

    This section prescribes standards and procedures for exercising 
residual powers under Pub. L. 85-804. The term ``residual powers'' 
includes all authority under Pub. L. 85-804 except--
    (a) That covered by section 50.103; and
    (b) The authority to make advance payments (see Subpart 32.4).



Sec. 50.104-1  Standards for use.

    Subject to the limitations in 50.102-3, residual powers may be used 
in accordance with the policies in 50.101-2 when necessary and 
appropriate, all circumstances considered. In authorizing the inclusion 
of the clause at 52.250-1, Indemnification Under Public Law 85-804, in a 
contract or subcontract, an agency head may require the indemnified 
contractor to provide and maintain financial protection of the type

[[Page 1032]]

and amount determined appropriate. In deciding whether to approve use of 
the indemnification clause, and in determining the type and amount of 
financial protection the indemnified contractor is to provide and 
maintain, an agency head shall consider such factors as self-insurance, 
other proof of financial responsibility, workers' compensation 
insurance, and the availability, cost, and terms of private insurance. 
The approval and determination shall be final.



Sec. 50.104-2  General.

    (a) When approving or denying a proposal for the exercise of 
residual powers, the approving authority shall sign and date a 
Memorandum of Decision containing substantially the same information 
called for by 50.103-6.
    (b) Every contract entered into, amended, or modified under residual 
powers shall comply with the requirements of 50.103-7.



Sec. 50.104-3  Special procedures for unusually hazardous or nuclear 
          risks.

    (a) Indemnification requests. (1) Contractor requests for the 
indemnification clause to cover unusually hazardous or nuclear risks 
should be submitted to the contracting officer and shall include the 
following information:
    (i) Identification of the contract for which the indemnification 
clause is requested.
    (ii) Identification and definition of the unusually hazardous or 
nuclear risks for which indemnification is requested, with a statement 
indicating how the contractor would be exposed to them.
    (iii) A statement, executed by a corporate official with binding 
contractual authority, of all insurance coverage applicable to the risks 
to be defined in the contract as unusually hazardous or nuclear, 
including--
    (A) Names of insurance companies, policy numbers, and expiration 
dates;
    (B) A description of the types of insurance provided (including the 
extent to which the contractor is self-insured or intends to self-
insure), with emphasis on identifying the risks insured against and the 
coverage extended to persons or property, or both;
    (C) Dollar limits per occurrence and annually, and any other 
limitation, for relevant segments of the total insurance coverage;
    (D) Deductibles, if any, applicable to losses under the policies;
    (E) Any exclusions from coverage under such policies for unusually 
hazardous or nuclear risks; and
    (F) Applicable workers' compensation insurance coverage.
    (iv) The controlling or limiting factors for determining the amount 
of financial protection the contractor is to provide and maintain, with 
information regarding the availability, cost, and terms of additional 
insurance or other forms of financial protection.
    (v) Whether the contractor's insurance program has been approved or 
accepted by any Government agency; and whether the contractor has an 
indemnification agreement covering similar risks under any other 
Government program, and, if so, a brief description of any limitations.
    (vi) If the contractor is a division or subsidiary of a parent 
corporation--
    (A) A statement of any insurance coverage of the parent corporation 
that bears on the risks for which the contractor seeks indemnification; 
and
    (B) A description of the precise legal relationship between parent 
and subsidiary or division.
    (2) If the dollar value of the contractor's insurance coverage 
varies by 10 percent or more from that stated in an indemnification 
request submitted in accordance with paragraph (a)(1) of this 
subsection, or if other significant changes in insurance coverage occur 
after submission and before approval, the contractor shall immediately 
submit to the contracting officer a brief description of the changes.
    (b) Action on indemnification requests. (1) The contracting officer, 
with assistance from legal counsel and cognizant program office 
personnel, shall review the indemnification request and ascertain 
whether it contains all required information. If the contracting 
officer, after considering the facts and evidence, denies the request, 
the contracting officer shall notify the contractor promptly of the 
denial and of the reasons for it. If recommending approval, the 
contracting officer shall

[[Page 1033]]

forward the request (as modified, if necessary, by negotiation) through 
channels to the appropriate official specified in 50.102-1(d). The 
contracting officer's submission shall include all information submitted 
by the contractor and--
    (i) All pertinent information regarding the proposed contract or 
program, including the period of performance, locations, and facilities 
involved;
    (ii) A definition of the unusually hazardous or nuclear risks 
involved in the proposed contract or program, with a statement that the 
parties have agreed to it;
    (iii) A statement by responsible authority that the indemnification 
action would facilitate the national defense;
    (iv) A statement that the contract will involve unusually hazardous 
or nuclear risks that could impose liability upon the contractor in 
excess of financial protection reasonably available;
    (v) A statement that the contractor is complying with applicable 
Government safety requirements;
    (vi) A statement of whether the indemnification should be extended 
to subcontractors; and
    (vii) A description of any significant changes in the contractor's 
insurance coverage (see 50.104-3(a)(2)) occurring since submission of 
the indemnification request.
    (2) Approval of a request to include the indemnification clause in a 
contract shall be by a Memorandum of Decision executed by the 
appropriate official specified in 50.102-1(d).
    (3) When use of the indemnification clause is approved under 
paragraph (b)(2) of this subsection, the definition of unusually 
hazardous or nuclear risks (see paragraph (b)(1)(ii) of this subsection) 
shall be incorporated into the contract, along with the clause.
    (4) When approval is--
    (i) Authorized in the Memorandum of Decision; and
    (ii) Justified by the circumstances, the contracting officer may 
approve the contractor's written request to provide for indemnification 
of subcontractors, using the same procedures as those required for 
contractors.



Sec. 50.104-4  Contract clause.

    The contracting officer shall insert the clause at 52.250-1, 
Indemnification Under Public Law 85-804, in contracts whenever the 
approving official determines that the contractor shall be indemnified 
against unusually hazardous or nuclear risks (also see 50.104-3(b)(3)). 
In cost-reimbursement contracts, the contracting officer shall use the 
clause with its Alternate I.

Subpart 50.2_Support Anti-terrorism by Fostering Effective Technologies 
                               Act of 2002



Sec. 50.200  Scope of subpart.

    This subpart implements the Support Anti-terrorism by Fostering 
Effective Technologies Act of 2002 (SAFETY Act) liability protections to 
promote development and use of anti-terrorism technologies.



Sec. 50.201  Definitions.

    Act of terrorism means any act determined to have met the following 
requirements or such other requirements as defined and specified by the 
Secretary of Homeland Security:
    (1) Is unlawful.
    (2) Causes harm, including financial harm, to a person, property, or 
entity, in the United States, or in the case of a domestic United States 
air carrier or a United States-flag vessel (or a vessel based 
principally in the United States on which United States income tax is 
paid and whose insurance coverage is subject to regulation in the United 
States), in or outside the United States.
    (3) Uses or attempts to use instrumentalities, weapons or other 
methods designed or intended to cause mass destruction, injury or other 
loss to citizens or institutions of the United States.
    Block certification means SAFETY Act certification of a technology 
class that the Department of Homeland Security (DHS) has determined to 
be an approved class of approved products for homeland security.
    Block designation means SAFETY Act designation of a technology class 
that

[[Page 1034]]

the DHS has determined to be a Qualified Anti-Terrorism Technology 
(QATT).
    Pre-qualification designation notice means a notice in a procurement 
solicitation or other publication by the Government stating that the 
technology to be procured either affirmatively or presumptively 
satisfies the technical criteria necessary to be deemed a qualified 
anti-terrorism technology. A pre-qualification designation notice 
authorizes offeror(s) to submit streamlined SAFETY Act applications for 
SAFETY Act designation and receive expedited processing of those 
applications.
    Qualified Anti-Terrorism Technology (QATT) means any technology 
designed, developed, modified, procured, or sold for the purpose of 
preventing, detecting, identifying, or deterring acts of terrorism or 
limiting the harm such acts might otherwise cause, for which a SAFETY 
Act designation has been issued. For purposes of defining a QATT, 
technology means any product, equipment, service (including support 
services), device, or technology (including information technology) or 
any combination of the foregoing. Design services, consulting services, 
engineering services, software development services, software 
integration services, threat assessments, vulnerability studies, and 
other analyses relevant to homeland security may be deemed a technology.
    SAFETY Act certification means a determination by DHS pursuant to 6 
U.S.C. 442(d), as further delineated in 6 CFR 25.8 and 25.9, that a QATT 
for which a SAFETY Act designation has been issued is an approved 
product for homeland security, i.e., it will perform as intended, 
conforms to the seller's specifications, and is safe for use as 
intended.
    SAFETY Act designation means a determination by DHS pursuant to 6 
U.S.C. 441(b) and 6 U.S.C. 443(a), as further delineated in 6 CFR 25.4, 
that a particular Anti-Terrorism Technology constitutes a QATT under the 
SAFETY Act.

[72 FR 63030, Nov. 7, 2007, as amended at 74 FR 2738, Jan. 15, 2009]



Sec. 50.202  Authorities.

    The following authorities apply:
    (a) Support Anti-terrorism by Fostering Effective Technologies Act 
of 2002 (SAFETY Act), 6 U.S.C. 441-444.
    (b) Executive Order 13286 of February 28, 2003, Amendment of 
Executive Orders, and Other Actions, in Connection With the Transfer of 
Certain Functions to the Secretary of Homeland Security.
    (c) Executive Order 10789 of November 14, 1958, Contracting 
Authority of Government Agencies in Connection with National Defense 
Functions.
    (d) 6 CFR Part 25.



Sec. 50.203  General.

    (a) As part of the Homeland Security Act of 2002, Pub. L. 107-296, 
Congress enacted the SAFETY Act to--
    (1) Encourage the development and use of anti-terrorism technologies 
that will enhance the protection of the nation; and
    (2) Provide risk management and litigation management protections 
for sellers of QATTs and others in the supply and distribution chain.
    (b) The SAFETY Act's liability protections are complementary to the 
Terrorism Risk Insurance Act of 2002.
    (c) Questions concerning the SAFETY Act may be directed to DHS 
Office of SAFETY Act Implementation (OSAI). Additional information about 
the SAFETY Act may be found at http://www.SAFETYAct.gov. Included on 
this website are block designations and block certifications granted by 
DHS.

[72 FR 63030, Nov. 7, 2007, as amended at 74 FR 2738, Jan. 15, 2009]



Sec. 50.204  Policy.

    (a) Agencies should--
    (1) Determine whether the technology to be procured is appropriate 
for SAFETY Act protections and, if appropriate, formally relay this 
determination to DHS for purposes of supporting contractor 
application(s) for SAFETY Act protections in relation to criteria 
(b)(viii) of 6 CFR 25.4, Designation of Qualified Anti-Terrorism 
Technologies;
    (2) Encourage offerors to seek SAFETY Act protections for their 
offered technologies, even in advance of the issuance of a solicitation; 
and

[[Page 1035]]

    (3) Not mandate SAFETY Act protections for acquisitions because 
applying for SAFETY Act protections for a particular technology is the 
choice of the offeror.
    (b) Agencies shall not solicit offers contingent upon SAFETY Act 
designation or certification occurring before contract award unless 
authorized in accordance with 50.205-3.
    (c) Agencies shall not solicit offers or award contracts presuming 
DHS will issue a SAFETY Act designation or certification after contract 
award unless authorized in accordance with 50.205-4.
    (d) The DHS determination to extend SAFETY Act protections for a 
particular technology is not a determination that the technology meets, 
or fails to meet, the requirements of a solicitation.

[72 FR 63030, Nov. 7, 2007, as amended at 74 FR 2738, Jan. 15, 2009]



Sec. 50.205  Procedures.



Sec. 50.205-1  SAFETY Act Considerations.

    (a) SAFETY Act applicability. Requiring activities should review 
requirements to identify potential technologies that prevent, detect, 
identify, or deter acts of terrorism or limit the harm such acts might 
cause, and may be appropriate for SAFETY Act protections. In 
questionable cases, the agency shall consult with DHS. For acquisitions 
involving such technologies, the requiring activity should ascertain 
through discussions with DHS whether a block designation or block 
certification exists for the technology being acquired.
    (1) If one does exist, the requiring activity should request that 
the contracting officer notify offerors.
    (2) If one does not exist, see 50.205-2, Pre-qualification 
designation notice.
    (b) Early consideration of the SAFETY Act. Acquisition officials 
shall consider SAFETY Act issues as early in the acquisition cycle as 
possible (see 7.105(b)(20)(v)). Normally, this would be at the point 
where the required capabilities or performance characteristics are 
addressed. This is important because the processing times for issuing 
determinations on all types of SAFETY Act applications vary depending on 
many factors, including the influx of applications to DHS and the 
technical complexity of individual applications.
    (c) Industry outreach. When applicable, acquisition officials should 
include SAFETY Act considerations in all industry outreach efforts 
including, but not limited to, requests for information, draft requests 
for proposal, and industry conferences.
    (d) Reciprocal waiver of claims. For purposes of 6 CFR 25.5(e), the 
Government is not a customer from which a contractor must request a 
reciprocal waiver of claims.

[72 FR 63030, Nov. 7, 2007, as amended at 74 FR 2738, Jan. 15, 2009; 76 
FR 14547, Mar. 16, 2011]



Sec. 50.205-2  Pre-qualification designation notice.

    (a) Requiring activity responsibilities. (1) If the requiring 
activity determines that the technology to be acquired may qualify for 
SAFETY Act protection, the requiring activity is responsible for 
requesting a pre-qualification designation notice from DHS. Such a 
request for a pre-qualification designation notice should be made once 
the requiring activity has determined that the technology specifications 
or statement of work are established and are unlikely to undergo 
substantive modification. DHS will then determine whether the technology 
identified in the request either affirmatively or presumptively 
satisfies the technical criteria for SAFETY Act designation. An 
affirmative determination means the technology described in the pre-
qualification designation notice satisfies the technical criteria for 
SAFETY Act designation as a QATT. A presumptive determination means that 
the technology is a good candidate for SAFETY Act designation as a QATT. 
In either case, the notice will authorize offerors to--
    (i) Submit a streamlined application for SAFETY Act designation; and
    (ii) Receive expedited review of their application for SAFETY Act 
designation.
    (2) The requiring activity shall make requests using the procurement 
pre-qualification request form available at http://www.SAFETYAct.gov. 
The website includes instructions for completing and submitting the 
form.

[[Page 1036]]

    (3) The requiring activity shall provide a copy of the request, as 
well as a copy of the resulting pre-qualification designation notice or 
DHS denial, to the contracting officer.
    (b) Contracting officer responsibilities. Upon receipt of the 
documentation specified in paragraph (a)(3) of this subsection, the 
contracting officer shall--
    (1) Include in any pre-solicitation notice (Subpart 5.2) that a pre-
qualification designation notice has been--
    (i) Requested and is under review by DHS;
    (ii) Denied by DHS; or
    (iii) Issued and a copy will be included with the solicitation; and
    (2) Incorporate the pre-qualification designation notice into the 
solicitation.

[72 FR 63030, Nov. 7, 2007, as amended at 74 FR 2738, Jan. 15, 2009]



Sec. 50.205-3  Authorization of offers contingent upon SAFETY Act 
          designation or certification before contract award.

    (a) Contracting officers may authorize such contingent offers, only 
if--
    (1) DHS has issued--
    (i) For offers contingent upon SAFETY Act designation, a pre-
qualification designation notice or a block designation; or
    (ii) For offers contingent upon SAFETY Act certification, a block 
certification;
    (2) To the contracting officer's knowledge, the Government has not 
provided advance notice so that potential offerors could have obtained 
SAFETY Act designations/ certifications for their offered technologies 
before release of any solicitation; and
    (3) Market research shows that there will be insufficient 
competition without SAFETY Act protections or the subject technology 
would be sold to the Government only with SAFETY Act protections.
    (b) Contracting officers shall not authorize offers contingent upon 
obtaining a SAFETY Act certification (as opposed to a SAFETY Act 
designation), unless a block certification applies to the class of 
technology to be acquired under the solicitation.

[72 FR 63030, Nov. 7, 2007, as amended at 74 FR 2738, Jan. 15, 2009]



Sec. 50.205-4  Authorization of awards made presuming SAFETY Act 
          designation or certification after contract award.

    (a) When necessary to award a contract prior to DHS issuing SAFETY 
Act protections, contracting officers may award contracts presuming that 
DHS will issue a SAFETY Act designation/certification to the contractor 
after contract award only if--
    (1) The criteria of 50.205-3(a) are met;
    (2) The chief of the contracting office (or other official 
designated in agency procedures) approves the action; and
    (3) The contracting officer advises DHS of the timelines for 
potential award and consults DHS as to when DHS could reasonably 
complete evaluations of offerors' applications for SAFETY Act 
designations or certifications.
    (b) Contracting officers shall not authorize offers presuming that 
SAFETY Act certification will be obtained (as opposed to a SAFETY Act 
designation), unless a block certification applies to the class of 
technology to be acquired under the solicitation.

[72 FR 63030, Nov. 7, 2007, as amended at 74 FR 2738, Jan. 15, 2009]



Sec. 50.206  Solicitation provisions and contract clause.

    (a) Insert the provision at 52.250-2, SAFETY Act Coverage Not 
Applicable, in solicitations if--
    (1) The agency consulted with DHS on a questionable case of SAFETY 
Act applicability to an acquisition in accordance with 50.205-1(a), and 
after the consultation, the agency has determined that SAFETY Act 
protection is not applicable for the acquisition; or
    (2) DHS has denied approval of a pre-qualification designation 
notice.
    (b)(1) Insert the provision at 52.250-3, SAFETY Act Block 
Designation/Certification, in a solicitation when DHS has issued a block 
designation/certification for the solicited technologies.
    (2) Use the provision at 52.250-3 with its Alternate I when 
contingent offers are authorized in accordance with 50.205-3.
    (3) Use the provision at 52.250-3 with its Alternate II when offers 
presuming SAFETY Act designation or certification are authorized in 
accordance

[[Page 1037]]

with 50.205-4. If this alternate is used, the contracting officer may 
increase the number of days within which offerors must submit their 
SAFETY Act designation or certification application.
    (c)(1) Insert the provision at 52.250-4, SAFETY Act Pre-
qualification Designation Notice, in a solicitation for which DHS has 
issued a pre-qualification designation notice.
    (2) Use the provision at 52.250-4 with its Alternate I when 
contingent offers are authorized in accordance with 50.205-3.
    (3) Use the provision at 52.250-4 with its Alternate II when offers 
presuming SAFETY Act designation or certification are authorized in 
accordance with 50.205-4. If this alternate is used, the contracting 
officer may increase the number of days within which offerors must 
submit their SAFETY Act designation or certification application.
    (d) Insert the clause at 52.250-5, SAFETY Act--Equitable 
Adjustment--
    (1) In the solicitation, if the provision at 52.250-3 or 52.250-4 is 
used with its Alternate II; and
    (2) In any resultant contract, if DHS has not issued SAFETY Act 
designation or certification to the successful offeror before contract 
award.

[72 FR 63030, Nov. 7, 2007, as amended at 74 FR 2738, Jan. 15, 2009]

            PART 51_USE OF GOVERNMENT SOURCES BY CONTRACTORS

Sec.

Sec. 51.000 Scope of part.

        Subpart 51.1_Contractor Use of Government Supply Sources


Sec. 51.100 Scope of subpart.

Sec. 51.101 Policy.

Sec. 51.102 Authorization to use Government supply sources.

Sec. 51.103 Ordering from Government supply sources.

Sec. 51.104 Furnishing assistance to contractors.

Sec. 51.105 Payment for shipments.

Sec. 51.106 Title.

Sec. 51.107 Contract clause.

   Subpart 51.2_Contractor Use of Interagency Fleet Management System 
                                 (IFMS)


Sec. 51.200 Scope of subpart.

Sec. 51.201 Policy.

Sec. 51.202 Authorization.

Sec. 51.203 Means of obtaining service.

Sec. 51.204 Use of interagency fleet management system (IFMS) vehicles 
          and related services.

Sec. 51.205 Contract clause.

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 
2473(c).

    Source: 48 FR 42476, Sept. 19, 1983, unless otherwise noted.



Sec. 51.000  Scope of part.

    This part prescribes policies and procedures for the use by 
contractors of Government supply sources and interagency motor pool 
vehicles and related services.

        Subpart 51.1_Contractor Use of Government Supply Sources



Sec. 51.100  Scope of subpart.

    This subpart prescribes policies and procedures for the use of 
Government supply sources (see 51.102(c)) by contractors. In this 
subpart, the terms contractors and contracts include subcontractors and 
subcontracts.



Sec. 51.101  Policy.

    (a) If it is in the Government's interest, and if supplies or 
services required in the performance of a Government contract are 
available from Government supply sources, contracting officers may 
authorize contractors to use these sources in performing--
    (1) Government cost-reimbursement contracts;
    (2) Other types of negotiated contracts when the agency determines 
that a substantial dollar portion of the contractor's contracts are of a 
Government cost-reimbursement nature; or
    (3) A contract under the Javits-Wagner-O'Day Act (41 U.S.C. 46, et 
seq.) if:
    (i) The nonprofit agency requesting use of the supplies and services 
is providing a commodity or service to the Federal Government, and

[[Page 1038]]

    (ii) The supplies or services received are directly used in making 
or providing a commodity or service, approved by the Committee for 
Purchase From People Who Are Blind or Severely Disabled, to the Federal 
Government (See Subpart 8.7).
    (b) Contractors with fixed-price Government contracts that require 
protection of security classified information may acquire security 
equipment through GSA sources (see 41 CFR 101-26.507).
    (c) Contracting officers shall authorize contractors purchasing 
supply items for Government use that are available from the Committee 
for Purchase from People Who Are Blind or Severely Disabled (see subpart 
8.7) to purchase such items from the Defense Logistics Agency (DLA), the 
General Services Administration (GSA), and the Department of Veterans 
Affairs (VA) if they are available from these agencies through their 
distribution facilities. Mandatory supplies that are not available from 
DLA/GSA/VA shall be ordered through the appropriate central nonprofit 
agency (see 52.208-9(c)).

[48 FR 42476, Sept. 19, 1983, as amended at 60 FR 42657, Aug. 16, 1995; 
61 FR 2631, Jan. 26, 1996; 67 FR 6121, Feb. 8, 2002]



Sec. 51.102  Authorization to use Government supply sources.

    (a) Before issuing an authorization to a contractor to use 
Government supply sources in accordance with 51.101 (a) or (b), the 
contracting officer shall place in the contract file a written finding 
supporting issuance of the authorization. A written finding is not 
required when authorizing use of the Government supply sources in 
accordance with 51.101(c). Except for findings under 51.101(a)(3), the 
determination shall be based on, but not limited to, consideration of 
the following factors:
    (1) The administrative cost of placing orders with Government supply 
sources and the program impact of delay factors, if any.
    (2) The lower cost of items available through Government supply 
sources.
    (3) Suitability of items available through Government supply 
sources.
    (4) Delivery factors such as cost and time.
    (5) Recommendations of the contractor.
    (b) Authorizations to subcontractors shall be issued through, and 
with the approval of, the contractor.
    (c) Upon deciding to authorize a contractor to use Government supply 
sources, the contracting officer shall request, in writing, as 
applicable--
    (1) A FEDSTRIP activity address code, through the agency's central 
contact point for matters involving activity address codes, from the 
General Services Administration (GSA), FXS, Washington, DC 20406;
    (2) A MILSTRIP activity address code from the appropriate Department 
of Defense (DOD) service point listed in Section 1 of the Introduction 
to the DOD Activity Address Directory;
    (3) Approval for the contractor to use Department of Veterans 
Affairs (VA) supply sources from the Deputy Assistant Secretary for 
Acquisition and Materiel Management (Code 90), Office of Acquisition and 
Materiel Management, Department of Veterans Affairs, 810 Vermont Avenue, 
NW., Washington, DC 20420;
    (4) Approval for the contractor to acquire helium from the 
Department of the Interior, Bureau of Land Management, Helium Field 
Operations, 801 S. Fillmore Street, Amarillo, TX 79101-3545 or
    (5) Approval from the appropriate agency for the contractor to use a 
Government supply source other than those identified in (1) through (4) 
above.
    (d) Each request made under paragraph (c) above shall contain--
    (1) The complete address(es) to which the contractor's mail, 
freight, and billing documents are to be directed;
    (2) A copy of the contracting officer's letter of authorization to 
the contractor;
    (3) The prime contract number(s); and
    (4) The effective date and duration of each contract.
    (e) In each authorization to the contractor, the contracting 
officer--
    (1) Shall cite the contract number(s) involved;
    (2) Shall, when practicable, limit the period of the authorization;

[[Page 1039]]

    (3) Shall specify, as appropriate, that--
    (i) When requisitioning from GSA or DOD, the contractor shall use 
FEDSTRIP or MILSTRIP, as appropriate, and include the activity address 
code assigned by GSA or DOD;
    (ii) When requisitioning from the VA, the contractor should use 
FEDSTRIP or MILSTRIP, as appropriate, Optional Form 347, Order for 
Supplies or Services (see 53.302-347), or an agency-approved form; and
    (iii) When placing orders for helium with the Bureau of Land 
Management, the contractor shall reference the Federal contract number 
on the purchase order;
    (4) May include any other limitations or conditions deemed 
necessary. For example, the contracting officer may--
    (i) Authorize purchases from Government supply sources of any 
overhead supplies, but no production supplies;
    (ii) Limit any authorization requirement to use Government sources 
to a specific dollar amount, thereby leaving the contractor free to make 
smaller purchases from other sources if so desired;
    (iii) Restrict the authorization to certain facilities or to 
specific contracts; or
    (iv) Provide specifically if vesting of title is to differ from 
other property acquired or otherwise furnished by the contractor for use 
under the contract; and
    (5) Shall instruct the contractor to comply with the applicable 
policies and procedures prescribed in this subpart.
    (f) After issuing the authorization, the authorizing agency shall be 
responsible for--
    (1) Ensuring that contractors comply with the terms of their 
authorizations and that supplies and services obtained from Government 
supply sources are properly accounted for and properly used;
    (2) Any indebtedness incurred for supplies or services and not 
satisfied by the contractor; and
    (3) Submitting, in writing, to the appropriate Government sources, 
address changes of the contractor and deletions when contracts are 
completed or terminated.

[48 FR 42476, Sept. 19, 1983, as amended at 54 FR 29282, July 11, 1989; 
60 FR 42657, Aug. 16, 1995; 61 FR 2631, Jan. 26, 1996; 62 FR 40237, July 
25, 1997; 69 FR 76358, Dec. 20, 2004]]



Sec. 51.103  Ordering from Government supply sources.

    (a) Contractors placing orders under Federal Supply Schedules shall 
follow the terms of the applicable schedule and authorization and 
include with each order--
    (1) A copy of the authorization (unless a copy was previously 
furnished to the Federal Supply Schedule contractor); and
    (2) The following statement:
    This order is placed under written authorization from --------------
-------- dated------------. In the event of any inconsistency between 
the terms and conditions of this order and those of your Federal Supply 
Schedule contract, the latter will govern.
    (b) Contractors placing orders for Government stock shall--
    (1) Comply with the requirements of the contracting officer's 
authorization, using FEDSTRIP or MILSTRIP procedures, as appropriate;
    (2) Use only the Government activity address code obtained by the 
contracting officer in accordance with 51.102(e) along with the 
contractor's assigned access code, when ordering from GSA Customer 
Supply Centers.
    (3) Order only those items required in the performance of their 
contracts.

[48 FR 42476, Sept. 19, 1983, as amended at 54 FR 29282, July 11, 1989; 
55 FR 52797, Dec. 21, 1990; 56 FR 55372, Oct. 25, 1991; 61 FR 41471, 
Aug. 8, 1996; 62 FR 44819, Aug. 22, 1997; 67 FR 43516, June 27, 2002]



Sec. 51.104  Furnishing assistance to contractors.

    After receiving an activity address code, the contracting officer 
will notify the appropriate GSA regional office or military activity, 
which will contact the contractor and--
    (a) Provide initial copies of ordering information and instructions; 
and
    (b) When necessary, assist the contractor in preparing and 
submitting, as appropriate--

[[Page 1040]]

    (1) The initial FEDSTRIP or MILSTRIP requisitions, the Optional Form 
347, or the agency-approved forms;
    (2) A completed GSA Form 457, FSS Publications Mailing List 
Application, so that the contractor will automatically receive current 
copies of required publications; or
    (3) A completed GSA Form 3525, Application for Customer Supply 
Center Services and (Address Change).

[48 FR 42476, Sept. 19, 1983, as amended at 54 FR 29282, July 11, 1989]



Sec. 51.105  Payment for shipments.

    GSA, DOD, and VA will not forward bills to contractors for supplies 
ordered from Government stock until after the supplies have been 
shipped. Receipt of billing is sufficient evidence to establish 
contractor liability and to provide a basis for payment. Contracting 
officers should direct their contractors to make payment promptly upon 
receipt of billings.



Sec. 51.106  Title.

    (a) Title to all property acquired by the contractor under the 
contracting officer's authorization shall vest in the parties as 
provided in the contract, unless specifically provided for otherwise.
    (b) If contracts are with educational institutions and the 
Government Property clause at 52.245-1, Alternate II, is used, title to 
property having a unit acquisition cost of less than $5,000 shall vest 
in the contractor as provided in the clause. Agencies may provide higher 
thresholds, if appropriate.

[48 FR 42476, Sept. 19, 1983, as amended at 57 FR 60590, Dec. 21, 1992; 
72 FR 27389, May 15, 2007; 77 FR 12944, Mar. 2, 2012]



Sec. 51.107  Contract clause.

    The contracting officer shall insert the clause at 52.251-1, 
Government Supply Sources, in solicitations and contracts when the 
contracting officer authorizes the contractor to acquire supplies or 
services from a Government supply source.

[48 FR 42476, Sept. 19, 1983, as amended at 72 FR 27389, May 15, 2007]

   Subpart 51.2_Contractor Use of Interagency Fleet Management System 
                                 (IFMS)



Sec. 51.200  Scope of subpart.

    This subpart prescribes policies and procedures for the use by 
contractors of interagency fleet management system (IFMS) vehicles and 
related services. In this subpart, the terms contractors and contracts 
include subcontractors and subcontracts (see 45.102).

[48 FR 42476, Sept. 19, 1983, as amended at 54 FR 29282, July 11, 1989; 
55 FR 52797, Dec. 21, 1990; 72 FR 27389, May 15, 2007]



Sec. 51.201  Policy.

    (a) If it is in the Government's interest, the contracting officer 
may authorize cost-reimbursement contractors to obtain, for official 
purposes only, interagency fleet management system (IFMS) vehicles and 
related services, including (1) fuel and lubricants, (2) vehicle 
inspection, maintenance, and repair, (3) vehicle storage, and (4) 
commercially rented vehicles for short-term use.
    (b) Complete rebuilding of major components of contractor-owned or -
leased equipment requires the approval of the contracting officer in 
each instance.
    (c) Government contractors shall not be authorized to obtain 
interagency fleet management system (IFMS) vehicles and related services 
for use in performance of any contract other than a cost-reimbursement 
contract, except as otherwise specifically approved by the Administrator 
of the General Services Administration at the request of the agency 
involved.

[48 FR 42476, Sept. 19, 1983, as amended at 54 FR 29282, July 11, 1989]



Sec. 51.202  Authorization.

    (a) The contracting officer may authorize a cost-reimbursement 
contractor to obtain interagency fleet management system (IFMS) vehicles 
and related services, if the contracting officer has--
    (1) Determined that the authorization will accomplish the agency's 
contractual objectives and effect demonstrable economies;

[[Page 1041]]

    (2) Received evidence that the contractor has obtained motor vehicle 
liability insurance covering bodily injury and property damage, with 
limits of liability as required or approved by the agency, protecting 
the contractor and the Government against third-party claims arising 
from the ownership, maintenance, or use of an interagency fleet 
management system (IFMS) vehicle;
    (3) Arranged for periodic checks to ensure that authorized 
contractors are using vehicles and related services exclusively under 
cost-reimbursement contracts;
    (4) Ensured that contractors shall establish and enforce suitable 
penalties for their employees who use or authorize the use of Government 
vehicles for other than performance of Government contracts (see 41 CFR 
101-38.301-1);
    (5) Received a written statement that the contractor will assume, 
without the right of reimbursement from the Government, the cost or 
expense of any use of interagency fleet management system (IFMS) 
vehicles and services not related to the performance of the contract; 
and
    (6) Considered any recommendations of the contractor.
    (b) The authorization shall--
    (1) Be in writing;
    (2) Cite the contract number;
    (3) Specify any limitations on the authority, including its 
duration, and any other pertinent information; and
    (4) Instruct the contractor to comply with the applicable policies 
and procedures provided in this subpart.
    (c) Authorizations to subcontractors shall be issued through, and 
with the approval of, the contractor.
    (d) Contracting officers authorizing contractor use of interagency 
fleet management system (IFMS) vehicles and related services subject 
their agencies to the responsibilities and liabilities provided in 41 
CFR 101-39.4 regarding accidents and claims.

[48 FR 42476, Sept. 19, 1983, as amended at 54 FR 29282, July 11, 1989]



Sec. 51.203  Means of obtaining service.

    (a) Authorized contractors shall submit requests for interagency 
fleet management system (IFMS) vehicles and related services in writing 
to the appropriate GSA regional Federal Supply Service Bureau, 
Attention: Regional fleet manager, except that requests for more than 
five vehicles shall be submitted to General Services Administration, 
FBF, Washington, DC 20406, and not to the regions. Each request shall 
include the following:
    (1) Two copies of the agency authorization to obtain vehicles and 
related services from GSA.
    (2) The number of vehicles and related services required and period 
of use.
    (3) A list of the contractor's employees who are authorized to 
request vehicles and related services.
    (4) A listing of the make, model, and serial numbers of contractor-
owned or -leased equipment authorized to be serviced.
    (5) Billing instructions and address.
    (b) Contractors requesting unusual quantities of vehicles should do 
so as far in advance as possible to facilitate availability.

[48 FR 42476, Sept. 19, 1983, as amended at 54 FR 29282, 29283, July 11, 
1989]



Sec. 51.204  Use of interagency fleet management system (IFMS) vehicles 
          and related services.

    Contractors authorized to use interagency fleet management system 
(IFMS) vehicles and related services shall comply with the requirements 
of 41 CFR 101-39 and 41 CFR 101-38.301-1 and the operator's packet 
furnished with each vehicle. See 41 CFR 101-6.4 for additional guidance 
for home-to-work use of Government vehicles.

[55 FR 52797, Dec. 21, 1990]



Sec. 51.205  Contract clause.

    The contracting officer shall insert the clause at 52.251-2, 
Interagency Fleet Management System (IFMS) Vehicles and Related 
Services, in solicitations and contracts when a cost-reimbursement 
contract is contemplated and the contracting officer may authorize the 
contractor to use interagency fleet management system (IFMS) vehicles 
and related services.

[48 FR 42476, Sept. 19, 1983, as amended at 54 FR 29282, July 11, 1989]

[[Page 1043]]



                              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 1045]]



                    Table of CFR Titles and Chapters




                     (Revised as of October 1, 2013)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
       III  Administrative Conference of the United States (Parts 
                300--399)
        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 2--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)
        IV  Department of Agriculture (Parts 400--499)
        VI  Department of State (Parts 600--699)
       VII  Agency for International Development (Parts 700--799)
      VIII  Department of Veterans Affairs (Parts 800--899)
        IX  Department of Energy (Parts 900--999)
        XI  Department of Defense (Parts 1100--1199)
       XII  Department of Transportation (Parts 1200--1299)
      XIII  Department of Commerce (Parts 1300--1399)
       XIV  Department of the Interior (Parts 1400--1499)
        XV  Environmental Protection Agency (Parts 1500--1599)
     XVIII  National Aeronautics and Space Administration (Parts 
                1800--1899)
        XX  United States Nuclear Regulatory Commission (Parts 
                2000--2099)
      XXII  Corporation for National and Community Service (Parts 
                2200--2299)
     XXIII  Social Security Administration (Parts 2300--2399)
      XXIV  Housing and Urban Development (Parts 2400--2499)
       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)

[[Page 1046]]

       XXX  Department of Homeland Security (Parts 3000--3099)
      XXXI  Institute of Museum and Library Services (Parts 3100--
                3199)
     XXXII  National Endowment for the Arts (Parts 3200--3299)
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)
     XXXIV  Department of Education (Parts 3400--3499)
      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
    XXXVII  Peace Corps (Parts 3700--3799)
     LVIII  Election Assistance Commission (Parts 5800--5899)

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--199)
        II  Recovery Accountability and Transparency Board (Parts 
                200--299)

                   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)

[[Page 1047]]

    XXXIII  Overseas Private Investment Corporation (Parts 4300--
                4399)
     XXXIV  Securities and Exchange Commission (Parts 4400--4499)
      XXXV  Office of Personnel Management (Parts 4500--4599)
    XXXVII  Federal Election Commission (Parts 4700--4799)
        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)
      XLIX  Federal Labor Relations Authority (Parts 5900--5999)
         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)
     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)
    LXVIII  Commission on Civil Rights (Parts 7800--7899)
      LXIX  Tennessee Valley Authority (Parts 7900--7999)
       LXX  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 8000--8099)
      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)
      LXXX  Federal Housing Finance Agency (Parts 9000--9099)
    LXXXII  Special Inspector General for Iraq Reconstruction 
                (Parts 9200--9299)

[[Page 1048]]

   LXXXIII  Special Inspector General for Afghanistan 
                Reconstruction (Parts 9300--9399)
    LXXXIV  Bureau of Consumer Financial Protection (Parts 9400--
                9499)
    LXXXVI  National Credit Union Administration (9600--9699)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Parts 
                9700--9799)
     XCVII  Council of the Inspectors General on Integrity and 
                Efficiency (Parts 9800--9899)

                      Title 6--Domestic Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 1--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)
        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)

[[Page 1049]]

       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)
       XXV  Office of Advocacy and Outreach, Department of 
                Agriculture (Parts 2500--2599)
      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  National Institute of Food and 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)
   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)

[[Page 1050]]

        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 1300--
                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)
        II  Election Assistance Commission (Parts 9400--9499)

                      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)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
         X  Bureau of Consumer Financial Protection (Parts 1000--
                1099)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XII  Federal Housing Finance Agency (Parts 1200--1299)
      XIII  Financial Stability Oversight Council (Parts 1300--
                1399)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
       XVI  Office of Financial Research (Parts 1600--1699)
      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)

[[Page 1051]]

               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 (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board (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--1199)
         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)
      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)

[[Page 1052]]

                    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  U.S. 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  U.S. Immigration and Customs Enforcement, Department 
                of Homeland Security (Parts 400--599)

                     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  Office of Workers' Compensation Programs, 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 Service, Department of 
                Labor (Parts 1000--1099)

[[Page 1053]]

                       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  Millennium 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)

                          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)

[[Page 1054]]

        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)
        XV  Emergency Mortgage Insurance and Loan Programs, 
                Department of Housing and Urban Development (Parts 
                2700--2799)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
      XXIV  Board of Directors of the HOPE for Homeowners Program 
                (Parts 4000--4099)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           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)

[[Page 1055]]

        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--End)

           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)
        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)

[[Page 1056]]

      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  Bureau of Safety and Environmental Enforcement, 
                Department of the Interior (Parts 200--299)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
         V  Bureau of Ocean Energy Management, Department of the 
                Interior (Parts 500--599)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)
       XII  Office of Natural Resources Revenue, Department of the 
                Interior (Parts 1200--1299)

                 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)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)
         X  Financial Crimes Enforcement Network, Department of 
                the Treasury (Parts 1000--1099)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)

[[Page 1057]]

         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)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvement, 
                Department of Education (799--799)[Reserved]
            Subtitle C--Regulations Relating to Education
        XI  National Institute for Literacy (Parts 1100--1199)
       XII  National Council on Disability (Parts 1200--1299)

[[Page 1058]]

                          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)
        VI  [Reserved]
       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  U.S. Copyright Office, Library of Congress (Parts 
                200--299)
       III  Copyright Royalty Board, Library of Congress (Parts 
                300--399)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--199)
        II  Armed Forces Retirement Home (Parts 200--299)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Regulatory Commission (Parts 3000--3099)

                  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)

[[Page 1059]]

       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 A--Federal Procurement Regulations System 
                [Note]
            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)
   62--100  [Reserved]
            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)
  103--104  [Reserved]
       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)
  129--200  [Reserved]
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System [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)

                        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--599)

[[Page 1060]]

         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 400--999)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10099)

             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)
       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)

[[Page 1061]]

       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)
        IV  National Telecommunications and Information 
                Administration, Department of Commerce, and 
                National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 400--499)

           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  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  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)
        14  Department of the Interior (Parts 1400--1499)

[[Page 1062]]

        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)
        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)[Reserved]
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  Civilian Board of Contract Appeals, General Services 
                Administration (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)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)

[[Page 1063]]

         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 (Parts 1400--
                1499)[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 1065]]





           Alphabetical List of Agencies Appearing in the CFR




                     (Revised as of October 1, 2013)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Administrative Conference of the United States    1, III
Advisory Council on Historic Preservation         36, VIII
Advocacy and Outreach, Office of                  7, XXV
Afghanistan Reconstruction, Special Inspector     22, LXXXIII
     General for
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              2, VII; 22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            2, IV; 5, LXXIII
  Advocacy and Outreach, Office of                7, XXV
  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
  Economic Research Service                       7, XXXVII
  Energy Policy and New Uses, 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
  National Institute of Food and Agriculture      7, XXXIV
  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, L
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV, L
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII, L
  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

[[Page 1066]]

Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX
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
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
Bureau of Ocean Energy Management, Regulation,    30, II
     and Enforcement
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chemical Safety and Hazardous Investigation       40, VI
     Board
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                       5, LXVIII; 45, VII
Civil Rights, Office for                          34, I
Council of the Inspectors General on Integrity    5, XCVIII
     and Efficiency
Court Services and Offender Supervision Agency    5, LXX
     for the District of Columbia
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               2, XIII; 44, IV; 50, VI
  Census Bureau                                   15, I
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  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
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III, IV
       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 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 Financial Protection Bureau              5, LXXXIV; 12, X
Consumer Product Safety Commission                5, LXXI; 16, 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    5, LXX; 28, VIII
     for the District of Columbia
Customs and Border Protection                     19, I

[[Page 1067]]

Defense Contract Audit Agency                     32, I
Defense Department                                2, XI; 5, XXVI; 32, 
                                                  Subtitle A; 40, VII
  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, 2
  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          5, LXX; 28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          2, XXXIV; 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
Election Assistance Commission                    2, LVIII; 11, II
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                             2, IX; 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                2, Subtitle A; 5, III, 
                                                  LXXVII; 14, VI; 48, 99

[[Page 1068]]

  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  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                       5, XXXVII; 11, I
Federal Emergency Management Agency               44, I
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 Agency                    5, LXXX; 12, XII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority                 5, XIV, XLIX; 22, XIV
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
Financial Crimes Enforcement Network              31, X
Financial Research Office                         12, XVI
Financial Stability Oversight Council             12, XIII
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
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

[[Page 1069]]

Forest Service                                    36, II
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  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,
  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
  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
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  2, XXX; 6, I; 8, I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection                   19, I
  Federal Emergency Management Agency             44, I
  Human Resources Management and Labor Relations  5, XCVII
       Systems
  Immigration and Customs Enforcement Bureau      19, IV
  Transportation Security Administration          49, XII
HOPE for Homeowners Program, Board of Directors   24, XXIV
     of
Housing and Urban Development, Department of      2, XXIV; 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 Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V

[[Page 1070]]

Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
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, XV
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department                               2, XIV
  American Indians, Office of the Special         25, VII
       Trustee
  Bureau of Ocean Energy Management, Regulation,  30, II
       and Enforcement
  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
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Natural Resource Revenue, Office of             30, XII
  Ocean Energy Management, Bureau of              30, V
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            2, XIV; 43, Subtitle A
  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 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
Investment Security, Office of                    31, VIII
Iraq Reconstruction, Special Inspector General    5, LXXXVII
     for
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, XXVIII; 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
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V

[[Page 1071]]

  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
  Occupational Safety and Health Administration   29, XVII
  Office of Workers' Compensation Programs        20, VII
  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 Royalty Board                         37, III
  U.S. Copyright Office                           37, II
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
Millennium Challenge Corporation                  22, XIII
Mine Safety and Health Administration             30, I
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
Museum and Library Services, Institute of         2, XXXI
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   2, XXII; 45, XII, XXV
National Archives and Records Administration      2, XXVI; 5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
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              5, LXXXVI; 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; 47, VI; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Food and Agriculture        7, XXXIV
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
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

[[Page 1072]]

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, IV
     Administration
National Transportation Safety Board              49, VIII
Natural Resources Conservation Service            7, VI
Natural Resource Revenue, Office of               30, XII
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                     2, XX; 5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Ocean Energy Management, Bureau of                30, V
Offices of Independent Counsel                    28, VI
Office of Workers' Compensation Programs          20, VII
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                                       2, XXXVII; 22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Human Resources Management and Labor Relations  5, XCVII
       Systems, Department of Homeland Security
  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
Private 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
Recovery Accountability and Transparency Board    4, II
Refugee Resettlement, Office of                   45, IV
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII, L
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV, L
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII, L

[[Page 1073]]

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                5, XXXIV; 17, II
Selective Service System                          32, XVI
Small Business Administration                     2, XXVII; 13, I
Smithsonian Institution                           36, V
Social Security Administration                    2, XXIII; 20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State Department                                  2, VI; 22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
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
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                     2, XII; 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; 47, IV; 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                   19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Claims Collection Standards             31, IX
  Federal Law Enforcement Training Center         31, VII
  Financial Crimes Enforcement Network            31, X
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  Investment Security, 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
[[Page 1074]]

U.S. Copyright Office                             37, II
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 1075]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations (CFR) that 
were made by documents published in the Federal Register since January 
1, 2008 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, parts and 
subparts as well as sections for revisions.
For changes to this volume of the CFR prior to this listing, consult the 
annual edition of the monthly List of CFR Sections Affected (LSA). The 
LSA is available at www.fdsys.gov. For changes to this volume of the CFR 
prior to 2001, see the ``List of CFR Sections Affected, 1949-1963, 1964-
1972, 1973-1985, and 1986-2000'' published in 11 separate volumes. The 
``List of CFR Sections Affected 1986-2000'' is available at 
www.fdsys.gov.

                                  2008

48 CFR
                                                                   73 FR
                                                                    Page
Chapter 1
Chapter Federal Acquisition Circular 2005-24.......................10942
    Federal Acquisition Circular 2005-25...........................21772
    Federal Acquisition Circular 2005-26...........................33636
    Federal Acquisition Circular 2005-27...........................53990
    Federal Acquisition Circular 2005-28...........................67064
    Federal Acquisition Circular 2005-29...........................67650
    Small entity compliance guide.....10968, 21801, 33640, 54016, 67093, 
                                                                   67705
1.106 Amended; OMB numbers; interim.........................21776, 21781
1.603-1 Amended....................................................21800
2.101 (b)(2) amended..........................10956, 21784, 67090, 67703
    (b)(2) amended; interim........................................21776
    (b)(2) amended; eff. 10-17-08...........................53992, 53993
    (b)(6) corrected...............................................72242
3.1001 Revised.....................................................67090
3.1003 Heading and (a) revised; (b) redesignated as (c); (b) added
                                                                   67090
3.1004 Introductory text removed; (b)(1) introductory text revised
                                                                   67090
4.203 (a), (b) and (e)(1)(i) amended; interim......................33638
4.402 (b)(2) amended; interim......................................21781
4.403 (c)(1) amended; interim......................................21781
4.600--4.607 (Subpart 4.6) Revised; interim........................21776
4.602 (a)(2) amended; eff. 10-17-08................................53994
4.606 (c)(3) amended; eff. 10-17-08................................53994
4.805 (b)(9) amended; interim......................................21778
4.1201 (c) amended; interim........................................33638
4.1202 (t) amended.................................................21789
    (e) revised....................................................21798
    (y), (z) and (aa) redesignated as (z), (aa) and (bb); new (y) 
added; interim.....................................................33638
5.203 (a) introductory text amended................................10961
5.205 (a) amended..................................................10961
5.207 (a)(4) and (e) removed; (a)(5) through (19), (f) and (g) 
        redesignated as new (a)(4) through (18), (e) and (f); new 
        (a)(9), (c)(13), (14), (15), (d) and new (f) revised.......10961
    Regulation at 72 FR 63086 confirmed; eff. 10-17-08.............53996
6.207 Regulation at 72 FR 63086 confirmed; eff. 10-17-08...........53996
6.302-1 (d)(2) revised.............................................10962
6.302-5 Regulation at 71 FR 44547 confirmed; eff. 10-17-08.........53996

[[Page 1076]]

6.502 (b)(1) introductory text, (2) introductory text, (3) and (4) 
        revised; (b)(2)(v) and (vi) amended; (b)(2)(vii) added; 
        eff. 10-17-08...................................................
6.601--6.603 (Subpart 6.6) Regulations at 71 FR 44547 and 72 FR 
        63086 confirmed; eff. 10-17-08.............................53996
7.104 (a) revised..................................................10956
7.105 (b)(13)(i) revised; (b)(19)(vi) amended; (b)(19)(vii) 
        redesignated as (b)(19)(viii); new (b)(19)(vii) added......10957
8.602 (c) introductory text and (1) revised; eff. 10-17-08.........53994
8.603 introductory text revised; (a)(2) and (b)(1) amended; eff. 
        10-17-08...................................................53994
8.605 (e) amended; eff. 10-17-08...................................53994
8.700 Revised; eff. 10-17-08.......................................53994
8.701 Amended; eff. 10-17-08.......................................53995
8.702 (a) and (c) amended; eff. 10-17-07...........................53995
8.703 Amended; eff. 10-17-08.......................................53995
8.704 (a) introductory text, (1)(ii), (2)(i) and (c) amended; eff. 
        10-17-08...................................................53995
8.705-1 Amended; eff. 10-17-08.....................................53995
8.705-2 Amended; eff. 10-17-08.....................................53995
8.705-3 (a) and (c) amended; eff. 10-17-08.........................53995
8.705-4 (a), (b) and (c) amended; eff. 10-17-08....................53995
8.706 Amended; eff. 10-17-08.......................................53995
8.707 Amended; eff. 10-17-08.......................................53995
8.708 Amended; eff. 10-17-08.......................................53995
8.710 Amended; eff. 10-17-08.......................................53995
8.711 Amended; eff. 10-17-08.......................................53995
8.712 Amended; eff. 10-17-08.......................................53995
8.713 (a) and (b) amended; eff. 10-17-08...........................53995
8.715 Amended; eff. 10-17-08.......................................53995
8.716 Introductory text amended; eff. 10-17-08.....................53995
9.104-1 (d) revised................................................67091
9.104-5 Added......................................................21798
9.104-6 Added......................................................21798
9.105-1 (c)(3) revised.............................................21798
9.107 Heading and (a) revised; (b) and (d) amended; eff. 10-17-08 
                                                                   53995
9.406-2 (a)(3) amended; (b)(1)(v) added............................21798
    (b)(1) introductory text revised; (b)(1)(vi) added.............67091
9.407-2 (a)(3) and (6) amended; (a)(7) redesignated as (a)(8); new 
        (a)(7) added...............................................21798
    (a)(8) redesignated as (a)(9); new (a)(8) added................67091
9.408 Removed......................................................21798
9.409 Heading revised; (a) and (b) designation removed.............21798
10.002 (d)(2) amended..............................................10962
11.600 Revised.....................................................21784
11.601 Revised.....................................................21784
11.602 Revised.....................................................21784
11.603 Revised.....................................................21784
11.604 (a) amended.................................................21785
12.215 Revised; eff. 10-17-08......................................54001
12.301 (d) revised.................................................10957
    (b)(2) amended; interim........................................21778
    (e)(3) revised.................................................21789
    Regulations at 71 FR 44548 and 72 FR 63086 confirmed; eff. 10-
17-08..............................................................53996
12.503 Heading revised; (a)(7) added...............................54007
12.504 (a)(13) added...............................................54008
12.603 (c)(2)(xv) removed; (c)(2)(xvi) and (xvii) redesignated as 
        new (c)(2)(xv) and (xvi)...................................10962
13.006 (g) amended.................................................21790
13.401 (b) revised; eff. 10-17-08..................................54001
13.500 (d) amended.................................................54008
15.102 (b) amended; interim........................................33638
15.404-1 (a)(7) amended............................................54016
16.503 (b) revised; interim........................................54010
16.504 (a)(4)(v) amended; (c)(1)(ii)(D) added; interim.............54010
16.505 (a)(9) revised; (b)(1)(ii) amended; (b)(1)(iii), (4) and 
        (5) redesignated as (b)(1)(iv), (5) and (6); new 
        (b)(1)(iii) and (4) added; interim.........................54010
18.107 Revised; eff. 10-17-08......................................53995
18.109 Revised.....................................................21785
18.203 Regulation at 72 FR 63086 confirmed; eff. 10-17-08..........53996
19.201 (d) introductory text and (1) revised; eff. 10-17-08........53993
19.701 Amended; interim............................................21781
19.702 (d) amended; eff. 10-17-08..................................53993
19.704 (a)(10)(iii), (iv), (d) introductory text and (2) revised; 
        (a)(10)(v), (vi), (d)(3) and (4) added; (d)(1) amended; 
        interim....................................................21781
19.705-2 (e) added; interim........................................21781

[[Page 1077]]

19.705-6 (h) added; interim........................................21781
19.705-7 (d) amended; interim......................................21781
22.102-1 (g) and (h) amended; (i) added............................67703
22.1503 (b)(3) and (4) amended; interim............................10963
    Regulation at 72 FR 46358 confirmed............................10965
22.1800--22.1803 (Subpart 22.18) Added.............................67703
23.000 (d) amended.................................................21790
23.401 (a)(2) revised..............................................21790
23.405 (a)(1) amended..............................................21790
23.406 (c) and (d) revised; (e) added..............................21790
    Regulation at 72 FR 46360 confirmed............................54011
23.906 Regulation at 72 FR 46360 confirmed.........................54011
25.000 Revised.....................................................10957
25.002 Table amended...............................................10957
25.003 Regulation at 72 FR 46358 confirmed.........................10965
25.202 (c) amended.................................................10963
25.301--25.301-4 (Subpart 25.3) Added..............................10957
25.402 (b) table revised; interim..................................10963
    Regulation at 72 FR 46358 confirmed............................10965
    (b) table corrected; CFR correction............................16747
25.408 (a)(2) revised..............................................10962
25.700--25.702-4 (Subpart 25.7) Revised; interim...................33638
25.1101 (b)(2)(iii) corrected.......................................3409
    (b)(1)(i)(A), (iii), (2)(iii), (c)(1) and (d) amended; interim
                                                                   10963
25.1102 (a), (c), (3) and (d)(3) amended; interim..................10963
25.1103 (d) added; interim.........................................33639
26.200--26.205 (Subpart 26.2) Regulation at 72 FR 63087 confirmed; 
        eff. 10-17-08..............................................53996
26.200 Regulation at 71 FR 44548 confirmed; eff. 10-17-08..........53996
26.202 Regulation at 71 FR 44548 confirmed; eff. 10-17-08..........53996
26.202-2 Revised; eff. 10-17-08....................................53996
26.203 Regulation at 71 FR 44548 confirmed; eff. 10-17-08..........53996
30.001 Amended.....................................................10967
30.201-4 (b)(1) amended; interim; eff. 10-17-08....................54012
    (c) revised; eff. 10-17-08.....................................54013
30.601 (b) amended; (c) added......................................10967
30.602 (d) revised.................................................10967
30.604 (b) introductory text, (f) introductory text and (i)(1) 
        amended; (g) introductory text and (h)(4) revised..........10967
30.605 (c)(2) introductory text and (h)(5) amended; (f) 
        introductory text revised; (h)(6) redesignated as (h)(7); 
        new (h)(6) added...........................................10967
32.008 Revised; eff. 10-17-08......................................54002
32.600--32.611 (Subpart 32.6) Revised; eff. 10-17-08...............54002
33.208 (b) amended; eff. 10-17-08..................................54005
33.211 (a) revised.................................................21800
    (a)(4)(vi) amended; eff. 10-17-08..............................54005
36.608 Amended; eff. 10-17-08......................................54005
37.116 Regulation at 72 FR 46362 confirmed.........................54015
37.116-1 Regulation at 72 FR 46362 confirmed.......................54015
    Amended........................................................54016
37.116-2 Regulation at 72 FR 46362 confirmed.......................54015
39.101 (d) revised.................................................10968
42.302 (a)(17) revised; eff. 10-17-08..............................54005
42.1501 Amended....................................................67091
44.202-2 (a)(4)(ii) removed; eff. 10-17-08.........................53995
51.107 Correctly amended; CFR correction...........................55450

                                  2009

48 CFR
                                                                   74 FR
                                                                    Page
Chapter 1
Chapter Federal Acquisition Circular 2005-30........................2710
    Federal Acquisition Circular 2005-31...........................11820
    Federal Acquisition Circular 2005-32...........................14622
    Federal Acquisition Circular 2005-33...........................28426
    Federal Acquisition Circular 2005-34...........................31556
    Federal Acquisition Circular 2005-35...........................34206
    Federal Acquisition Circular 2005-36...........................40458
    Federal Acquisition Circular 2005-37...........................52846

[[Page 1078]]

    Federal Acquisition Circular 2005-38...........................65598
    Small entity compliance guide......2746, 11833, 14651, 28434, 31565, 
                                              34207, 40468, 52861, 65615
1.106 Regulation at 73 FR 21776 confirmed...........................2713
    Amended........................................................11825
    Table amended; interim.........................................14626
1.602-3 Regulation at 72 FR 63029 confirmed.........................2737
2.101 Regulation at 73 FR 67703 eff. date delayed to 1-19-09........1937
    (b)(2) amended; interim........................................52848
    (b)(2) amended....................................2721, 31560, 65600
    Regulation at 73 FR 21776 confirmed.............................2713
    Regulation at 74 FR 1937 applicability date delayed to 5-21-09
                                                                    5621
    Regulation at 74 FR 5621 applicability date delayed to 6-30-09
                                                                   17793
    Regulation at 74 FR 17793 applicability date delayed to 9-8-09
                                                                   26981
2.102-1 Regulation at 74 FR 5621 applicability date delayed to 6-
        30-09......................................................17793
    Regulation at 74 FR 17793 applicability date delayed to 9-8-09
                                                                   26981
3.503-2 Revised..............................................2721, 11832
3.900 Revised; interim.............................................14634
3.902 Removed; interim.............................................14634
3.907 Added; interim...............................................14634
3.907-1 Added; interim.............................................14634
3.907-2 Added; interim.............................................14634
3.907-3 Added; interim.............................................14634
3.907-4 Added; interim.............................................14634
3.907-5 Added; interim.............................................14634
3.907-6 Added; interim.............................................14634
3.907-7 Added; interim.............................................14634
4.203 Regulation at 73 FR 33638 confirmed..........................40465
4.600--4.607 (Subpart 4.6) Regulation at 73 FR 21776 confirmed......2713
4.601 Amended.......................................................2713
4.602 Regulation at 72 FR 36854 confirmed..........................11825
4.605 (c) added; interim...........................................14638
4.805 Regulation at 73 FR 21778 confirmed...........................2713
4.1103 (a)(3) revised..............................................65604
4.1104 Redesignated as 4.1105; new 4.1104 added....................52849
4.1105 Redesignated from 4.1104....................................52849
4.1200--4.1202 (Subpart 4.12) Regulation at 72 FR 36854 confirmed 
                                                                   11825
4.1200 Regulation at 72 FR 36854 confirmed.........................11825
4.1201 (c) amended..................................................2729
    Regulation at 72 FR 36854 confirmed; (b)(2) amended............11825
    Regulation at 73 FR 33638 confirmed............................40465
4.1202 Introductory text revised; (r) through (bb) redesignated as 
        (s) through (cc); new (r) added.............................2729
    (f) through (cc) redesignated as (g) through (dd); new (f) 
added; interim.....................................................31563
    Regulation at 73 FR 33638 confirmed............................40465
4.1500--4.1502 (Subpart 4.15) Added; interim.......................14644
5.102 (a)(4) and (5) introductory text revised; (a)(5)(iii) 
        removed; (a)(5)(iv) redesignated as new (a)(5)(iii)........40460
    (a)(5)(ii) amended.............................................52860
5.207 (c)(13)(iii) revised; interim................................14626
    (c)(18)(M).....................................................40460
5.301 (d) added; interim............................................2732
5.406 Added; interim................................................2732
5.701--5.705 (Subpart 5.7) Added; interim..........................14638
5.705 (b) table amended............................................22810
6.302-2 (d) added..................................................52851
    (d) revised....................................................65615
6.305 Revised; interim..............................................2732
7.103 (v) added; interim...........................................52849
7.105 Regulation at 72 FR 63029 confirmed...........................2737
    (b)(15) amended................................................40460
    (b)(4)(iii) added..............................................65607
8.402 (g) added....................................................65604
8.404 (a) amended; (e) added; interim..............................14638
8.405-7 Revised....................................................65604
8.406-7 Added......................................................31560
8.703 Amended......................................................65615
9.104-1 (g) revised; interim.......................................31563
9.105-1 (c) introductory text amended; (c)(7) removed..............31560
9.108 Added; interim...............................................31563

[[Page 1079]]

9.108-1 Added; interim.............................................31563
9.108-2 Added; interim.............................................31563
9.108-3 Added; interim.............................................31563
9.108-4 Added; interim.............................................31563
9.108-5 Added; interim.............................................31563
9.402 (c) revised; (d) redesignated as (e); new (d) added..........31565
10.000 Amended; interim............................................52849
10.001 (a)(2)(v) revised; interim..................................52849
11.002 (g) redesignated as (h); new (g) added......................65607
11.101 Regulation at 72 FR 73216 confirmed..........................2741
12.103 Added........................................................2721
12.202 (e) added...................................................65607
12.301 Regulation at 73 FR 21778 confirmed..........................2713
    (b)(4) amended..................................................2721
    (b)(4) revised; interim........................................14648
12.500--12.505 (Subpart 12.5) Heading revised.......................2721
12.500 Revised......................................................2721
12.502 (c) added....................................................2721
12.503 Regulations at 71 FR 20302 and 72 FR 46341 confirmed.........2744
    (a)(8) added; interim..........................................14650
    Regulation at 74 FR 14650 confirmed............................52852
12.504 (a)(7) revised; interim.....................................14648
12.505 Added........................................................2721
13.003 (e) revised.................................................65604
13.006 (d) revised; interim........................................14648
13.105 (d) added; interim..........................................14639
13.106-2 (b)(3)(ii) revised........................................31560
13.201 (d) amended; interim........................................52849
    (h) added......................................................65604
13.301 (a) amended; (c)(3) revised.................................65604
14.201-7 (a) revised; interim......................................14648
15.101-2 (b)(1) amended.............................................2746
15.102 (b) amended..................................................2729
    Regulation at 73 FR 33638 confirmed............................40465
15.209 (b)(1) introductory text revised; (b)(2) added; interim.....14648
15.305 (a)(5) amended..............................................65615
15.403-1 (c)(3)(ii)(B) and (C) revised; interim....................11827
    (c)(3)(ii) and (iii) redesignated as (c)(3)(iii) and (iv); new 
(c)(3)(ii) added; interim..........................................52853
15.403-3 (c)(3) added; interim.....................................52853
15.408 (n) added; interim..........................................52855
16.001 Added; interim..............................................52858
16.305 Amended; interim............................................52858
16.401 (d) revised; (e), (f) and (f) added; interim................52858
16.402-1 (b) amended; interim......................................52859
16.404 Revised; interim............................................52859
16.405-2 Revised; interim..........................................52859
16.505 (a)(1) revised; (a)(10) added; interim......................14639
    (a)(11) added..................................................65604
17.207 Regulation at 72 FR 36854 confirmed.........................11825
    (c)(3) and (4) amended; (c)(5) added...........................31560
17.603 (c) removed.................................................34207
18.001 (c) revised.................................................52860
18.102 Revised; interim............................................52849
18.121 Regulation at 72 FR 63029 confirmed..........................2737
18.126 Regulation at 72 FR 63030 confirmed..........................2737
18.203 Heading revised.............................................52860
18.204 (a) revised.................................................52860
19.202-5 Regulation at 72 FR 36854 confirmed; (c) introductory 
        text revised; (c)(1) and (2) amended.......................11825
19.301 Regulation at 72 FR 36855 confirmed.........................11825
19.301-1 Regulation at 72 FR 36855 confirmed.......................11825
19.301-2 Regulation at 72 FR 36855 confirmed; heading and (d) 
        revised; (b) introductory text amended.....................11825
19.301-3 Regulation at 72 FR 36855 confirmed; heading revised; (b) 
        amended....................................................11825
19.302 Regulation at 72 FR 36855 confirmed.........................11825
19.308 Regulation at 72 FR 36855 confirmed.........................11825
19.804-6 Regulation at 72 FR 36855 confirmed.......................11825
22.101-1 (b)(1) redesignated as (b); (b)(2) removed................34207
22.102-1 Regulation at 73 FR 67703 eff. date delayed to 1-19-09.....1937
    Regulation at 74 FR 1937 applicability date delayed to 5-21-09
                                                                    5621
22.404-5 (c)(3) amended............................................11828
22.1003-4 (c)(3)(ii), (d)(2)(vi) and (3)(i) amended; (d)(2)(i), 
        (3)(iii) and (4)(ii) revised................................2729
22.1003-5 (k) amended...............................................2729
22.1003-6 (b)(2) amended............................................2729
22.1006 (a) and (e) revised.........................................2729
    (c)(1) and (2) amended.........................................40461

[[Page 1080]]

22.1503 Regulation at 73 FR 10963 confirmed.........................2746
    (b)(4) amended; interim........................................40462
22.1600--22.1605 (Subpart 22.16) Removed...........................65600
22.1700--22.1705 (Subpart 22.17) Regulation at 71 FR 20302 
        confirmed...................................................2744
22.1700 Regulation at 72 FR 46341 confirmed.........................2744
22.1701 Regulation at 72 FR 46341 confirmed.........................2744
22.1702 Regulation at 72 FR 46341 confirmed; amended................2744
22.1703 Regulation at 72 FR 46341 confirmed; introductory text 
        revised; (a)(2) amended.....................................2744
22.1704 Regulation at 72 FR 46341 confirmed; (b) amended............2744
22.1705 Regulation at 72 FR 46341 confirmed.........................2744
22.1800--22.1803 (Subpart 22.18) Regulation at 73 FR 67703 eff. 
        date delayed to 1-19-09.....................................1937
    Regulation at 74 FR 1937 applicability date delayed to 5-21-09
                                                                    5621
    Regulation at 74 FR 5621 applicability date delayed to 6-30-09
                                                                   17793
    Regulation at 74 FR 17793 applicability date delayed to 9-8-09
                                                                   26981
23.406 (c) introductory text revised; (d) amended...................2721
23.701 Regulation at 72 FR 73217 confirmed..........................2741
23.702 Regulation at 72 FR 73217 confirmed..........................2741
23.705 Regulation at 72 FR 73217 confirmed..........................2741
23.706 Regulation at 72 FR 73217 confirmed..........................2741
24.203 (b) amended; interim.........................................2733
25.001 (c)(1) revised; (c)(4) added; interim.......................14626
25.002 Table amended; interim......................................14626
25.003 Amended...............................................2721, 11828
    Amended; interim........................................28428, 40462
25.100 Revised......................................................2722
25.101 (a)(2) revised...............................................2722
25.200 Revised......................................................2722
    (c) added......................................................22810
25.202 Regulation at 73 FR 10963 confirmed..........................2746
25.400 (a)(2)(iii) through (vii) revised; (a)(2)(viii) and (ix) 
        added; interim.............................................28428
25.401 (b) table amended; interim..................................28428
25.402 Regulation at 73 FR 10963 confirmed..........................2746
    (b) table amended; interim.....................................28428
25.600--25.607 (Subpart 25.6) Added; interim.......................14626
25.700--25.702-4 (Subpart 25.7) Regulation at 73 FR 33638 
        confirmed..................................................40465
25.702-1 Amended...................................................40465
25.1101 Regulation at 73 FR 10963 confirmed.........................2746
25.1102 Regulation at 73 FR 10963 confirmed.........................2746
    Introductory text and (e) added; (c)(1) revised; interim.......14628
    (c)(3) amended; (e)(2)(i) and (ii) revised.....................22810
25.1103 Regulation at 73 FR 33639 confirmed........................40465
26.205 Redesignated as 26.206; new 26.205 added; interim...........52849
26.206 Redesignated from 26.205; interim...........................52849
26.400--26.404 (Subpart 26.4) Added; interim.......................11831
    Regulation at 74 FR 11831 confirmed............................65608
28.203-3 (a)(1) revised; (d) amended...............................40467
28.308 Regulation at 72 FR 63030 confirmed..........................2737
30.201-4 Regulation at 73 FR 54012 confirmed.......................40468
31.001 Amended.....................................................65612
31.203 (i) added; interim..........................................52855
31.205-1 (e)(3) revised; (f)(8) added; interim.....................11831
    Regulation at 74 FR 11831 confirmed............................65608
31.205-6 (o)(2)(iii) revised.......................................65612
31.205-46 (b) revised; (c)(2) introductory text amended............65614
32.001 Amended.....................................................28431
32.401 Regulation at 72 FR 63030 confirmed..........................2737
32.402 Regulation at 72 FR 63030 confirmed..........................2737
32.405 Regulation at 72 FR 63030 confirmed..........................2737
32.501-3 (a)(1) revised; (a)(3) amended............................28431

[[Page 1081]]

32.503-1 Removed...................................................28431
32.503-6 (a)(3), (f) and (g)(1)(i) revised.........................28431
32.503-9 (a)(7) amended............................................40468
32.1108 (b) revised................................................65604
32.1110 (d) amended................................................65605
33.205 Regulation at 72 FR 63030 confirmed..........................2737
36.201 Revised.....................................................31560
36.202 (d) removed.................................................34207
36.602-3 (a) amended...............................................31560
36.603 (d)(4) revised; (d)(5) amended..............................31560
36.604 Revised.....................................................31560
36.701 (d) removed.................................................31560
36.702 (c) removed.................................................31560
39.101 Regulation at 72 FR 73217 confirmed..........................2741
    (e) added......................................................65607
42.1502 Revised....................................................31560
42.1503 (a), (c), (d) and (e) revised..............................31561
43.000 Regulation at 72 FR 63030 confirmed..........................2737
43.102 (b) amended.................................................28431
47.103-1(c) amended 11832...............................................
50 Regulation at 72 FR 63030 confirmed..............................2737
50.201 Amended......................................................2738
50.203 (c) amended..................................................2738
50.204 (a)(1) revised; (b) amended..................................2738
50.205-1 (a) introductory text and (1) revised; (b) amended.........2738
50.205-2 (a)(1) amended.............................................2738
50.205-3 (b) revised................................................2738
50.205-4 (b) revised................................................2738
50.206 (b)(3) and (c)(3) amended....................................2738

                                  2010

48 CFR
                                                                   75 FR
                                                                    Page
Chapter 1
Chapter Federal Acquisition Circular 2005-39.......................13412
    Federal Acquisition Circular 2005-40...........................14058
    Federal Acquisition Circular 2005-41...........................19168
    Federal Acquisition Circular 2005-42...........................34256
    Federal Acquisition Circular 2005-43...........................38674
    Federal Acquisition Circular 2005-44...........................39414
    Federal Acquisition Circular 2005-45...........................53128
    Federal Acquisition Circular 2005-46...........................60248
    Federal Acquisition Circular 2005-47...........................77722
    Federal Acquisition Circular 2005-48...........................82566
    Small entity compliance guide.....13425, 14067, 19179, 34291, 38691, 
                                       39420, 53169, 60268, 77745, 82581
1.106 Introductory text table amended; interim..............60250, 77725
    Table amended (OMB numbers)....................................82567
1.109 (d) amended..................................................53131
2.101 (b)(2) amended; interim........................77725, 77734, 77738
    Amended........................................................14065
    (b)(2) amended...............19177, 38679, 53131, 53141, 53165,77729
    Regulation at 74 FR 52848 confirmed............................38684
3.104-1 Amended....................................................77745
3.502-2 (i) introductory text amended..............................53131
3.804 Amended......................................................53131
3.808 (a) and (b) amended..........................................53132
3.900 Regulation at 74 FR 14634 confirmed..........................34259
3.902 Regulation at 74 FR 14634 confirmed..........................34259
3.907 Regulation at 74 FR 14634 confirmed..........................34259
3.907-1 Regulation at 74 FR 14634 confirmed; amended...............34259
3.907-2 Regulation at 74 FR 14634 confirmed........................34259
3.907-3 Regulation at 74 FR 14634 confirmed; (c) revised...........34259
3.907-4 Regulation at 74 FR 14634 confirmed........................34259
3.907-5 Regulation at 74 FR 14634 confirmed........................34259
3.907-6 Regulation at 74 FR 14634 confirmed........................34259
3.907-7 Regulation at 74 FR 14634 confirmed........................34259
4.402 Regulation at 73 FR 21781 confirmed..........................34264
4.403 Regulation at 73 FR 21781 confirmed..........................34264
4.601 Amended; interim.............................................77735
4.603 (b) revised..................................................82567
4.605 Regulation at 74 FR 14638 confirmed..........................34272

[[Page 1082]]

4.606 (c)(5) added.................................................34264
    (a)(2) removed; (a)(3) and (4) redesignated as new (a)(2) and 
(3)................................................................82567
4.704 (b) amended..................................................53142
4.705-3 (h) added..................................................38679
4.803 (a)(17) and (b)(4) revised...................................53142
4.1104 Regulation at 74 FR 52849 confirmed.........................38684
4.1105 Regulation at 74 FR 52849 confirmed.........................38684
4.1202 (bb), (cc) and (dd) redesignated as (cc), (dd) and (ee); 
        new (bb) added; interim....................................60256
    (k) and (l) removed; (m) through (ee) redesignated as new (k) 
through (cc).......................................................82567
4.1301 (d) added...................................................82576
4.1400--4.1403 (Subpart 4.14) Revised; interim.....................39419
4.1502 Revised; interim............................................38686
5.101 (a)(2) introductory text amended.............................53132
5.205 (d)(2) amended...............................................53132
5.206 (a)(1) and (2) amended.......................................53132
5.207 (c)(13)(iii) amended.........................................53165
5.301 Regulation at 74 FR 2732 confirmed...........................34276
5.303 (a) introductory text amended................................53132
5.406 Regulation at 74 FR 2732 confirmed...........................34276
5.601 (a), (b)(1) and (2) amended..................................77745
5.701--5.705 (Subpart 5.7) Regulation at 74 FR 14638 confirmed.....34272
5.704 Heading, (a)(2), (b) and (c) revised.........................34272
5.705 Heading, (a), (b) introductory text and (c) revised..........34273
6.304 (a)(1), (2), (3) introductory text and (4) amended...........53132
6.305 Regulation at 74 FR 2732 confirmed; revised..................34276
7.103 (v) redesignated as (w); new (v) added.......................19177
    Regulation at 74 FR 52849 confirmed............................38684
7.104 (d)(2)(i)(A), (B) and (C) amended............................53132
7.105 (b)(1) amended...............................................77745
7.107 (b)(1) and (2) amended.......................................53132
8.404 Regulation at 74 FR 14638 confirmed..........................34272
    (b) revised; interim...........................................77735
8.405-6 (h)(1), (2), (3) introductory text and (4) amended.........53132
8.406-4 (e) added; eff. 10-29-10...................................60260
9.101 Heading revised; amended.....................................14065
9.104-3 (d)(1) revised.............................................14065
9.104-6 Redesignated as 9.104-7; new 9.104-6 added.................14065
9.104-7 Redesignated from 9.104-6 and revised......................14065
9.105-1 (c) introductory text revised; (c)(1) removed; (c)(2) 
        through (6) redesignated as new (c)(1) through (5).........14066
9.105-2 (a)(2) and (b) revised.....................................14066
9.106-3 Amended; interim...........................................77735
9.404 (c)(3) amended...............................................14066
9.405-2 (b) introductory text revised; interim.....................77740
9.406-3 (f) added..................................................14066
9.407-3 (e) added..................................................14066
10.000 Regulation at 74 FR 52849 confirmed.........................38684
10.001 (a)(2)(iv) amended; (a)(2)(v) redesignated as (a)(2)(vi); 
        new (a)(2)(v) and (d) added; new (a)(2)(vi) revised; 
        interim....................................................34278
    Regulation at 74 FR 52849 confirmed............................38684
10.002 (b)(1) introductory text revised; interim...................34278
    (b)(2)(iv) amended.............................................77745
12.102 (f)(2) introductory text and (g)(1)(ii) amended.............53132
    (f)(2)(ii) amended.............................................53142
12.203 Amended.....................................................53132
12.301 (d)(3) and (4) added........................................14066
    Regulation at 74 FR 14648 confirmed; (b)(4)(ii) revised........34281
12.303 (b)(1) amended..............................................82567
12.403 (c)(4) added; eff. 10-29-10.................................60260
12.503 (a)(6) removed; interim.....................................39419
12.504 Regulation at 74 FR 14648 confirmed.........................34281
    (a)(7) amended.................................................53142
12.603 (c)(2)(iv) amended..........................................82567
13.000 Amended.....................................................53132
13.003 (b)(1), (c)(1)(ii) and (g)(1) amended.......................53132
13.005 (a)(5) amended..............................................53132
13.006 Regulation at 74 FR 14648 confirmed.........................34281
13.105 Regulation at 74 FR 14639 confirmed.........................34272
13.201 Regulation at 74 FR 52849 confirmed.........................38684

[[Page 1083]]

    (g)(1)(ii) amended.............................................53132
13.303-5 (b)(1) and (2) amended....................................53132
13.500 Amended.....................................................13414
    (a) and (e) introductory text amended..........................53132
13.501 (a)(1)(i) and (ii) amended; (a)(1)(iii) and (iv) added......34276
    (a)(2)(i) through (iv) amended.................................53132
14.201-7 Regulation at 74 FR 14648 confirmed; (a)(2) revised.......34281
    (a)(1)(ii) amended; (b)(1) and (c)(1) revised..................53142
14.202-4 (a)(3) amended............................................13425
15.204-5 (b)(5) revised............................................53142
15.209 Regulation at 74 FR 14648 confirmed; (b)(2) revised.........34281
15.304 (c)(4) amended..............................................53133
15.402 Introductory text and (a) revised...........................53142
15.403 Heading revised.............................................53143
15.403-1 (c)(3)(iii)(B) and (C) revised............................13414
    (c)(3)(iv) amended.............................................53133
15.403-1 Heading, (a), (b) introductory text, (c) introductory 
        text heading, (3)(i), (iii)(B), (C) and (4) introductory 
        text revised; (c)(3)(iii)(A) and (iv) amended..............53143
15.403-2 Revised...................................................53143
15.403-3 Revised...................................................53143
15.403-4 (a)(1) introductory text and (iii) introductory text 
        amended....................................................53133
    Heading, (a), (b) and (c) revised..............................53144
15.403-5 Revised...................................................53145
15.404-1 (a)(2), (3), (6), (b)(1), (2)(i), (c)(2)(i) introductory 
        text, (d)(3), (e)(1) and (f)(2) amended; (a)(4), (b) 
        heading, (2)(ii), (vii), (c)(1) and (2)(v) revised; (e)(3) 
        added......................................................53145
15.404-2 Heading, (a)(2)(iii) introductory text and (F) revised; 
        (a)(1), (2) introductory text and (c)(1) introductory text 
        amended....................................................53146
15.404-3 (c)(1)(i) amended.........................................53133
    (a), (b)(3), (c) introductory text and (2) revised; (c)(1) 
introductory text, (ii), (3), (4) and (5) amended..................53146
15.404-4 (c)(3) amended............................................38679
15.406-2 (a) introductory text and (e) revised.....................53146
15.406-3 (a)(5) and (6) revised; (a)(7) amended....................53146
15.407-1 Heading, (b)(1) and (3)(iv) revised; (a), (b)(2), 
        (3)(ii), (4), (5)(ii), (7)(iii), (e), (f) introductory 
        text and (2) amended.......................................53146
    (d) revised; eff. 10-29-10.....................................60260
15.407-2 (c)(1) and (2) introductory text amended..................53133
    (c)(1) amended.................................................53147
15.407-3 (a) revised...............................................53147
15.408 Table 15-2 amended..........................................53133
    (b) through (e), (g), (k), (l) introductory text, (1), (4) and 
(m) revised; (j) and Table 15-2 amended............................53147
    Regulation at 74 FR 52855 confirmed; (n)(2)(i)(B)(2)(iii) and 
(iv) amended; (n)(2)(i)(B)(2)(v) and (vi) added....................77745
15.509 Amended.....................................................13416
16.001 Regulation at 74 FR 52858 confirmed; eff. 10-29-10..........60263
16.202-2 (b) amended...............................................53148
16.203-2 (b) revised...............................................53148
16.206-2 Introductory text amended.................................53133
16.206-3 (a) amended...............................................53133
16.207-3 (d) amended...............................................53133
16.305 Regulation at 74 FR 52858 confirmed; eff. 10-29-10..........60263
16.401 Regulation at 74 FR 52858 confirmed; (e)(2), (3)(iv) Table 
        16-1 and (v) amended; eff. 10-29-10........................60263
16.402-1 Regulation at 74 FR 52859 confirmed; eff. 10-29-10........60263
16.404 Regulation at 74 FR 52859 confirmed; eff. 10-29-10..........60263
16.405-2 Regulation at 74 FR 52859 confirmed; eff. 10-29-10........60263
16.501-1 Amended...................................................13421
16.501-2 (a) amended...............................................13421
16.503 Regulation at 73 FR 54010 confirmed; (a) introductory text 
        amended....................................................13421
    (b)(2) and (d)(1) amended......................................53133
16.504 Regulation at 73 FR 54010 confirmed; (c)(1)(ii)(D)(3) 
        revised....................................................13421
    (c)(1)(ii)(D)(1) introductory text, (3) introductory text and 
(2)(i) introductory text amended...................................53133
16.505 Regulation at 73 FR 54010 confirmed.........................13421

[[Page 1084]]

    Regulation at 74 FR 14639 confirmed............................34272
16.506 (f) and (g) amended.........................................53133
16.603-2 (c) amended...............................................53148
16.603-4 (b)(3) amended............................................53149
17.108 (a) and (b) amended.........................................53133
17.500--17.504 (Subpart 17.5) Revised; interim.....................77735
17.603 (c) added...................................................19177
18.102 Regulation at 74 FR 52849 confirmed.........................38684
18.113 Heading revised; interim....................................77737
19.000 (a)(6) revised..............................................77729
19.101 Amended.....................................................77729
19.102 (f)(8) added................................................77729
19.301-1 (d) amended; interim......................................77738
19.304 (c) introductory text amended...............................82567
19.306 (a) through (k) redesignated as (b) through (l); new (a) 
        added; new (b), (e) and (f) revised; new (g) through (l) 
        redesignated as (h) through (m); new (g) added; new (d) 
        and (i) through (m) amended................................77729
19.502-2 (a) and (b) amended.......................................53133
    (a) amended; (d) removed.......................................82567
19.508 (e) amended.................................................53133
19.701 Regulation at 73 FR 21781 confirmed; (a)(10)(iii)(A) and 
        (B) added; (a)(10)(v) and (vi) revised.....................34264
19.702 (a)(1) and (2) amended......................................53133
19.703 (d)(1)(i) and (ii) revised..................................77730
    (a)(1) and (2) amended; (b) revised; interim...................77738
19.704 Regulation at 73 FR 21781 confirmed.........................34264
    (a)(9) amended.................................................53133
19.705-2 Regulation at 73 FR 21781 confirmed.......................34264
19.705-4 Introductory text and (a) introductory text amended; 
        (d)(3) revised.............................................53149
19.705-6 Regulation at 73 FR 21781 confirmed; (h) amended..........34264
19.705-7 Regulation at 73 FR 21781 confirmed.......................34264
19.708 (b)(1) revised; (b)(2) amended..............................34264
    (b)(1) amended.................................................53133
19.800 (e) amended.................................................77730
19.803 (c) amended.................................................77730
19.804-2 (b)(1) revised; (b)(2) redesignated as (b)(3); new (b)(2) 
        added; eff. 10-29-10.......................................60264
19.804-3 (a) amended...............................................77730
19.805-1 (a)(2) amended............................................53133
    (d) amended....................................................77730
19.806 (a) amended.................................................53149
19.807 (b) amended.................................................53149
19.1001--19.1008 (Subpart 19.10) Removed...........................82568
19.1202-2 (a) amended..............................................53133
19.1301 (a) revised................................................77730
19.1303 Heading, (b), (c) and (d) revised; (a) amended; (e) added 
                                                                   77730
19.1305 (a) and (c) amended; (e) revised...........................77730
19.1306 (a) introductory text, (1), (2) introductory text and (3) 
        revised....................................................38688
    (a)(2)(i) and (ii) amended.....................................53133
    (a) introductory text and (2)(ii) revised......................77731
19.1307 (a)(1) removed; (a)(2) and (3) redesignated as new (a)(1) 
        and (2); new (a)(1) amended; (e) added.....................77731
19.1308 Redesignated as 19.1309; new 19.1308 added.................77731
19.1309 Redesignated from 19.1308 and revised......................77731
19.1406 (a) introductory text, (1) and (2) introductory text 
        revised; (a)(3) and (4) redesignated as (a)(4) and (5); 
        new (a)(3) added...........................................38688
    (a)(2)(i) and (ii) amended.....................................53133
22.101-1 (b) revised...............................................19177
22.305 (a) amended.................................................53133
22.501--22.505 (Subpart 22.5) Added................................19178
22.602 Amended.....................................................53133
22.603 (b) amended.................................................53133
22.605 (a)(1), (2), (3) and (5) amended............................53133
22.1006 (a)(2)(i)(C), (e)(2)(i) and (4)(i) amended.................82568
22.1103 Amended....................................................53133
22.1300--22.1310 (Subpart 22.13) Heading revised; interim..........60251
22.1300 Revised; interim...........................................60251
22.1301 Revised; interim...........................................60251
22.1302 Revised; interim...........................................60251
22.1303 (b) amended; interim.......................................60251
22.1304 Introductory text and (a) revised; interim.................60251

[[Page 1085]]

22.1305 (a) introductory text revised; interim.....................60251
22.1306 Revised; interim...........................................60251
22.1307 Amended; interim...........................................60251
22.1308 Revised; interim...........................................60251
22.1309 Introductory text and (a) revised..........................60252
22.1310 (a) and (b) revised; interim...............................60252
22.1402 (a) amended................................................53133
22.1408 (a) introductory text amended..............................53133
22.1503 Regulation at 74 FR 40462 confirmed........................34282
    (b)(3) and (4) amended; interim................................38690
22.1600--22.1605 (Subpart 22.16) Added; interim....................77725
23.000 Introductory text revised; (e) amended; (f) added; interim 
                                                                   60265
23.406 (d) amended.................................................53134
23.1101--23.1105 (Subpart 23.11) Added; interim....................60265
24.203 Regulation at 74 FR 2733 confirmed..........................34276
25.001 (c)(4) amended..............................................53165
25.003 Regulation at 74 FR 28428 confirmed.........................13422
    Regulation at 74 FR 40462 confirmed............................34282
    Amended........................................................53165
25.104 (a) amended.................................................34283
25.202 (c) amended; interim........................................38690
    (a) introductory text revised; (a)(4) added; interim...........60267
25.400 Regulation at 74 FR 28428 confirmed.........................13422
25.401 Regulation at 74 FR 28428 confirmed.........................13422
25.402 Regulation at 74 FR 28428 confirmed.........................13422
    (b) table revised; interim.....................................38690
25.504-2 Example 1. revised; interim...............................38690
25.600 Revised.....................................................53165
25.601 Amended.....................................................53165
25.602 Revised.....................................................53165
25.602-1 Revised...................................................53165
25.602-2 Revised...................................................53165
25.603 (c) amended; interim........................................38691
    Revised........................................................53166
25.604 (c)(1) revised; (c)(2) amended..............................53166
25.605 (a)(1) and (2) revised; (b), (c) and (d) redesignated as 
        (c), (d) and (e); new (b) added; new (c) amended...........53166
25.607 (c)(4) revised..............................................53167
25.700 Revised; interim............................................60256
25.701 Heading revised; interim....................................60256
25.703 Added; interim..............................................60256
25.703-1 Added; interim............................................60256
25.703-2 Added; interim............................................60256
25.703-3 Added; interim............................................60256
25.1101 (b)(1)(i)(A), (iii), (2)(iii), (c)(1) and (d) amended; 
        interim....................................................38691
25.1102 (a) introductory text, (c) introductory text and (3) 
        amended; (d)(3) revised; interim...........................38691
    (e)(2) redesignated as (e)(3); new (e)(2) added; new (e)(3) 
revised............................................................53167
25.1103 (e) added; interim.........................................60257
26.205 Regulation at 74 FR 52849 confirmed.........................38684
26.206 Regulation at 74 FR 52849 confirmed.........................38684
27.202-5 (a)(1)(i) amended.........................................53149
28.102-1 (a) and (b)(1) amended....................................53134
28.102-2 (b) heading and (c) heading amended.......................53134
28.102-3 (a) and (b) amended.......................................53134
30.201-4 (c) revised; (d)(1) amended; interim......................34284
30.201-5 (c)(6) amended............................................53149
31.203 Regulation at 74 FR 52855 confirmed.........................77745
31.205-6 (q)(2)(i) removed; (q)(2)(ii) through (vi) redesignated 
        as new (q)(2)(i) through (v); new (q)(2)(i) revised; 
        interim....................................................32486
    (o)(6) removed.................................................34291
    (j)(3)(i)(B), (ii) and (o)(5) amended..........................53149
31.205-16 (c) amended..............................................34291
31.205-19 (e)(2)(iv)(C) amended....................................38679
32.404 (a)(7)(i) amended...........................................53134
32.503-16 (a) amended..............................................38680
32.601 (b)(2) amended..............................................53149
32.607-2 (g)(3) amended............................................53149
32.1010 (a) amended................................................38680
33.102 (a) amended.................................................77731
33.207 (d) amended.................................................53149
35.017-3 (b) amended; interim......................................77737

[[Page 1086]]

36.214 (b) introductory text revised; (b)(1) amended...............53149
36.501 (b) amended.................................................53134
41.206 Revised; interim............................................77737
42.302 (a)(30)(iii) and (v) revised................................38680
42.705-1 (b)(5)(iii)(A) through (D) amended........................53149
42.709 (b) amended.................................................53134
42.709-6 Amended...................................................53134
42.1304 (d) revised................................................53149
42.1501 Amended; interim...........................................39419
42.1502 (e) amended................................................53134
    (i) added; eff. 10-29-10.......................................60260
42.1503 (e) amended................................................14066
    (a) revised; (f) added.........................................60260
42.1701 (b) and (c) amended........................................53149
44.202-2 (a)(8) revised............................................53149
44.303 (a) through (i) redesignated as (b) through (j); new (a) 
        added; interim.............................................34278
    (c) revised....................................................53150
44.305-3 (a)(1) amended............................................53150
44.400 Revised; interim............................................34279
44.402 (b) and (d) redesignated as (c) and (d); new (b) added; 
        interim....................................................34279
44.403 Revised; interim............................................34279
45.101 Amended.....................................................38680
45.102 (d) revised.................................................38680
45.104 (a) introductory text revised...............................38680
    (a)(4) amended.................................................53150
45.105 (b) and (d) amended; (b)(1) revised.........................38680
45.201 (d) amended.................................................38680
45.402 (a) revised.................................................38680
45.502 Revised.....................................................38680
45.602-3 (b)(3) amended............................................38681
45.604-3 Revised...................................................38681
45.606-1 (b) revised; (c) added....................................38681
49.002 (a) revised.................................................82577
49.402-8 Added; eff. 10-29-10......................................60260
49.501 Revised.....................................................82577
49.505 (a) revised; (b) amended....................................34291
49.603-1 (b)(7)(x) amended.........................................53150
49.603-2 (b)(8)(vii) amended.......................................53150
49.603-3 (b)(7)(xv) amended........................................53150
49.603-4 (b)(4)(viii) amended......................................53150
50.102-1 (b) amended...............................................53134
50.102-3 (b)(4), (e)(1)(i) and (ii) amended........................53134

                                  2011

48 CFR
                                                                   76 FR
                                                                    Page
Chapter 1
Chapter Federal Acquisition Circular 2005-49........................4188
    Federal Acquisition Circular 2005-50...........................14542
    Federal Acquisition Circular 2005-51...........................18304
    Federal Acquisition Circular 2005-52...........................31394
    Federal Acquisition Circular 2005-53...........................39232
    Federal Acquisition Circular 2005-54...........................68014
    Small entity compliance guide......4191, 14572, 18324, 31424, 39243, 
                                                                   68044
1.106 Introductory text table amended; interim......................4190
    Table amended (OMB numbers); interim.............31397, 68024, 68044
    Regulation at 75 FR 60250 confirmed............................39234
    Regulation at 75 FR 77725 confirmed............................68017
1.602-2 (d) added; interim.........................................14545
1.603 Heading revised; interim.....................................14545
1.604 Added; interim...............................................14545
2.101 (b)(2) amended; interim........................14545, 18308, 31397
    Regulation at 75 FR 77725 confirmed............................68017
    Regulation at 75 FR 77738 confirmed............................68027
3.1100--3.1106 (Subpart 3.11) Added................................68024
4.001 Added........................................................39235
4.302 Revised; interim.............................................31397
4.602 (a)(2) amended; (a)(3) redesignated as (a)(4); new (a)(3) 
        added; interim.............................................31397
4.604 (c) amended..................................................68044
4.605 (a) revised..................................................39235
4.803 (a)(6) revised; (a)(42) added; interim.......................18308
4.804-5 (a)(2) revised.............................................31408
4.1202 (u) removed; (v) through (cc) redesignated as new (u) 
        through (bb); interim......................................31397
    (f) removed; (e) redesignated as new (f); new (e) added........31413
    Regulation at 75 FR 60256 confirmed............................68028
    (y) revised; interim...........................................68030
4.1600--4.1602 (Subpart 4.16) Added................................39235

[[Page 1087]]

5.207 (c)(11) through (18) redesignated as (c)(12) through (19); 
        new (c)(11) added; interim.................................31398
5.301 Revised; interim.............................................14551
5.406 Revised; interim.............................................14552
5.705 Introductory text amended; interim...........................14552
6.204 (b) amended; interim.........................................14561
6.207 Redesignated as 6.208; new 6.207 added; interim..............18308
6.208 Redesignated from 6.207; interim.............................18308
6.302-5 (b)(4) and (c)(2) revised; interim.........................14561
6.303-1 (b), (c) and (d) redesignated as (c), (d) and (e); new (b) 
        added; interim.............................................14561
6.303-2 (a) and (b) redesignated as (b) and (c); new (a) and (d) 
        added; new (b) introductory text revised; interim..........14562
6.304 (a)(1) amended; interim......................................14562
7.102 (a)(3) added; interim........................................14546
7.103 (d) through (w) redesignated as (e) and (g) through (y); new 
        (d) and (f) added; new (e) and (j) revised; interim........14546
    (p) revised; interim...........................................31398
7.104 (e) added; interim...........................................14546
7.105 (b)(3) through (21) redesignated as (b)(4) through (22); new 
        (b)(3) and (5)(iv) added; introductory text, new (b)(5)(i) 
        and new (ii)(A) amended; interim...........................14546
    (b)(17) amended; interim.......................................31398
8.402 (d) revised; interim.........................................14552
8.404 (a) amended; (e) redesignated as (g); new (e) and (f) added; 
        new (g) revised; interim...................................14552
8.405 Amended; interim.............................................14552
8.405-1 (a) amended; (e) redesignated as (g); new (e) and (f) 
        added; (c), (d) and new (g) revised; interim...............14552
8.405-2 (a), (b), (d), (e)(6) and (7)(ii) amended; (c)(2) heading, 
        (ii), (iii) and (3) revised; (e)(8) added; interim.........14553
8.405-3 Revised; interim...........................................14553
8.405-4 Revised; interim...........................................14555
8.405-5 (a) revised; (b) and (c) redesignated as (c) and (d); new 
        (b) added; interim.........................................68034
8.405-6 Revised; interim...........................................14555
8.406-1 Revised; interim...........................................14557
8.501 Amended......................................................68044
9.104-1 (g) amended................................................31413
9.104-7 (c) revised; interim........................................4190
9.108-1 Revised....................................................31413
9.108-2 Revised....................................................31413
9.108-3 Revised....................................................31413
9.108-4 Revised....................................................31413
9.108-5 Revised....................................................31413
9.405-2 Regulation at 75 FR 77740 confirmed; (b) introductory text 
        amended....................................................39238
10.001 (d) revised.................................................14565
10.003 Added.......................................................14565
11.002 (d)(1) and (2) introductory text revised; interim...........31398
11.303 Revised; interim............................................31398
12.102 (c) revised; interim........................................31398
12.207 (b)(1)(i)(C) revised; interim...............................68034
12.301 (d)(4) revised; interim......................................4190
12.503 (a)(9) added................................................68025
13.003 (b)(1) amended; (b)(2) revised; interim.....................14567
    b)(2) revised; interim.........................................18308
13.102 (a) introductory text amended; (a)(3) revised; interim......18308
13.201 (f) revised; interim........................................31398
14.502 (b)(7) redesignated as (b)(8); new (b)(7) added; interim....18308
15.403-1 Regulation at 74 FR 52853 confirmed.......................14569
15.403-3 Regulation at 74 FR 52853 confirmed.......................14569
15.408 Regulation at 74 FR 52855 confirmed.........................14569
15.503 (a)(2)(i)(C) and (D) amended; (a)(2)(i)(E) added; 
        (a)(2)(ii)(C) revised; interim.............................18309
15.607 (b)(2) amended; interim.....................................14562
16.103 (d)(1) and (2) revised; interim.............................14546
16.104 (e) through (k) redesignated as (f) through (l); new (e) 
        added; new (f) and (g) amended; new (i) revised; interim 
                                                                   14547
16.301-2 Revised; interim..........................................14547
16.301-3 (a) revised; interim......................................14547
16.505 (a)(1), (b)(2) and (5) revised; (b)(1)(ii) amended; 
        (b)(1)(iii) and (iv) redesignated as (b)(1)(iv) and (v); 
        new (b)(1)(iii) added; interim.............................14557
    (a)(9)(ii) revised; interim....................................39240

[[Page 1088]]

    (b) introductory text, (2)(ii) introductory text and (D)(5) 
revised; (b)(2)(i)(F) added; interim...............................68034
16.506 (h) added...................................................14565
18.105 Amended; interim............................................14559
18.117 Redesignated as 18.118; new 18.117 added; interim...........18309
18.118 Redesignated as 18.119; redesignated from 18.117; interim 
                                                                   18309
18.119 Redesignated as 18.120; redesignated from 18.118; interim 
                                                                   18309
18.120 Redesignated as 18.121; redesignated from 18.119; interim 
                                                                   18309
18.121 Redesignated as 18.122; redesignated from 18.120; interim 
                                                                   18309
18.122 Redesignated as 18.123; redesignated from 18.121; interim 
                                                                   18309
18.123 Redesignated as 18.124; redesignated from 18.122; interim 
                                                                   18309
18.124 Redesignated as 18.125; redesignated from 18.123; interim 
                                                                   18309
18.125 Redesignated as 18.126; redesignated from 18.124; interim 
                                                                   18309
18.126 Redesignated as 18.127; redesignated from 18.125; interim 
                                                                   18309
18.127 Redesignated from 18.126; interim...........................18309
18.203 (a) amended; interim........................................18309
18.204 (b) amended.................................................14572
19.000 (a)(3) revised; interim.....................................18309
19.201 (b) amended.................................................14572
    (d)(10) revised; interim.......................................18309
19.202 Amended; interim.....................................14567, 18309
19.202-5 (a) revised; interim......................................18309
19.202-6 (a)(4) and (5) amended; (a)(6) added; interim.............18309
19.203 Added; interim..............................................14567
    (a) revised; (b) and (c) amended; interim......................18309
19.301-1 (d) amended; interim......................................18309
    Regulation at 75 FR 77738 confirmed............................68027
19.308 Redesignated as 19.309; new 19.308 added; interim...........18309
19.309 Redesignated from 19.308; interim...........................18309
19.402 (c)(1)(i) and (ii) revised; interim.........................18310
19.501 (c) and (d) removed; (e) through (i) redesignated as new 
        (c) through (g); new (c) revised; interim..................14567
    (c) amended; interim...........................................18311
19.502-2 (a) and (b) amended; interim..............................14568
    (b) correctly revised; interim.................................26221
19.502-4 Redesignated as as 19.502-5; new 19.502-4 added; interim 
                                                                   68035
19.502-5 Redesignated as 19.502-6; new 19.502-5 redesignated from 
        19.502-4; interim..........................................68035
19.502-6 Redesignated from 19.502-5; interim.......................68035
19.508 (c), (d) and (e) revised; (f) added; interim................68035
19.703 Regulation at 75 FR 77738 confirmed.........................68027
19.800 (e) revised; interim........................................14568
19.804-2 (a)(12) removed; (a)(13) through (16) redesignated as new 
        (a)(12) through (15) introductory text; interim............14568
    (a)(9) revised; interim........................................18311
19.808-1 (a) and (b) redesignated as (b) and (c); new (a) added; 
        interim....................................................14562
19.811-3 (e) revised; interim......................................68035
19.1202-2 (b)(1) revised; interim..................................18311
19.1304 (b) and (c) revised; interim...............................68035
19.1305 (a) revised; (c) removed; (d) and (e) redesignated as new 
        (c) and (d); new (c) amended; interim......................14568
19.1306 (a) introductory text revised; interim.....................14568
19.1308 (b) amended; interim.......................................68035
19.1309 (a) introductory text revised; interim.....................68035
19.1404 (b) and (c) revised; interim...............................68035
19.1405 (a) revised; (c) amended; interim..........................14568
19.1406 (a) introductory text revised; interim.....................14568
19.1407 Revised; interim...........................................68035
19.1500--19.1506 (Subpart 19.15) Added; interim....................18311
19.1504 (c) and (d) revised; interim...............................68036

[[Page 1089]]

19.1506 (a) and (b) revised; interim...............................68036
22.1300--22.1310 (Subpart 22.13) Regulation at 75 FR 60251 
        confirmed..................................................39234
22.1300 Regulation at 75 FR 60251 confirmed........................39234
22.1301 Regulation at 75 FR 60251 confirmed; amended...............39234
22.1302 Regulation at 75 FR 60251 confirmed........................39234
22.1303 Regulation at 75 FR 60251 confirmed........................39234
22.1304 Regulation at 75 FR 60251 confirmed........................39234
22.1305 Regulation at 75 FR 60251 confirmed........................39234
22.1306 Regulation at 75 FR 60251 confirmed........................39234
22.1307 Regulation at 75 FR 60251 confirmed........................39234
22.1308 Regulation at 75 FR 60251 confirmed........................39234
22.1309 Regulation at 75 FR 60252 confirmed........................39234
22.1310 Regulation at 75 FR 60252 confirmed........................39234
22.1503 Regulation at 75 FR 38690 confirmed........................14570
22.1600--22.1605 (Subpart 22.16) Regulation at 75 FR 77725 
        confirmed..................................................68017
23.000 Revised; interim............................................31398
    Regulation at 75 FR 60265 confirmed............................39241
23.001 Revised; interim............................................31399
23.002 Added; interim..............................................31399
23.101--23.105 (Subpart 23.1) Added; interim.......................31399
23.201 Revised; interim............................................31399
23.202 Revised; interim............................................31400
23.205 (a) revised; interim........................................31400
23.402 (c) and (d) revised; (e) added; interim.....................31400
23.403 Revised; interim............................................31400
23.702 (d), (e) and (f) removed; (g), (h) and (i) redesignated as 
        new (d), (e) and (f); new (g) added; interim...............31400
23.704 Removed; new 23.704 redesignated from 23.705; interim.......31400
23.705 Redesignated as 23.704; new 23.705 redesignated from 
        23.706; (b)(1) amended; interim............................31400
23.706 Redesignated as 23.705; interim.............................31400
23.801 Revised; interim............................................31400
23.803 (b)(1) and (2) revised; interim.............................31400
23.900--23.903 (Subpart 23.9) Revised; interim.....................31400
23.1001 (c) revised; (d) added; interim............................31401
23.1003 Amended; interim...........................................31401
23.1004 Revised; interim...........................................31401
23.1101--23.1105 (Subpart 23.11) Regulation at 75 FR 60265 
        confirmed..................................................39241
23.1105 Revised....................................................39241
25.003 Amended.....................................................68039
25.202 Regulation at 75 FR 38690 confirmed.........................14570
    Regulation at 75 FR 60267 confirmed............................31415
25.402 Regulation at 75 FR 38690 confirmed.........................14570
25.504-2 Regulation at 75 FR 38690 confirmed.......................14570
25.603 Regulation at 75 FR 38691 confirmed.........................14570
25.700 Regulation at 75 FR 60256 confirmed.........................68028
25.701 Regulation at 75 FR 60256 confirmed.........................68028
25.702-4 (b) revised; (c) and (d) added............................68038
25.703 Regulation at 75 FR 60256 confirmed.........................68028
25.703-1 Regulation at 75 FR 60256 confirmed.......................68028
    Heading revised; introductory text added; amended; interim.....68030
25.703-2 Regulation at 75 FR 60256 confirmed.......................68028
    (a)(1) and (b)(1) revised; (d) removed; interim................68030
25.703-3 Regulation at 75 FR 60256 confirmed.......................68028
    Revised; interim...............................................68031
25.703-4 Added; interim............................................68031
25.1101 Regulation at 75 FR 38691 confirmed........................14570
25.1102 Regulation at 75 FR 38691 confirmed........................14570
25.1103 Regulation at 75 FR 60257 confirmed; (e) revised...........68028
    (e) revised; interim...........................................68031
26.202-1 Introductory text amended; interim........................18312
30.201-4 Regulation at 75 FR 34284 confirmed.......................14571

[[Page 1090]]

31.205-6 Regulation at 75 FR 34286 confirmed.......................14572
31.205-21 Revised..................................................68043
32.1007 (a) amended; interim.......................................14547
33.102 (a) amended; interim........................................18312
36.001 Added; interim..............................................31401
36.104 Revised; interim............................................31401
36.501 (b) amended; interim........................................18313
37.102 (i) added; interim..........................................31401
38.101 (e) amended; interim.................................14559, 68036
39.101 (b)(1) revised; interim.....................................31401
42.302 (a) introductory text amended; (a)(12) through (26) 
        redesignated as (a)(13) through (27); new (a)(12) added; 
        interim....................................................14547
    (a)(71) added..................................................31416
42.501 (b) revised; interim........................................18313
42.705-1 (b)(1) and (2) revised....................................31408
42.705-2 (b)(2) introductory text and (i) revised; (b)(2)(ii), 
        (iii) and (iv) redesignated as (b)(2)(iii), (iv) and (v); 
        new (b)(2)(ii) added.......................................31408
42.708 (a) revised.................................................31408
44.400 Revised.....................................................14565
44.402 (b) removed; (c) and (d) redesignated as new (b) and (c)....14565
44.403 Revised.....................................................14565
50.205-1 (b) amended; interim......................................14547

                                  2012

48 CFR
                                                                   77 FR
                                                                    Page
Chapter 1
Federal Acquisition Circular 2005-55.................................182
    Federal Acquisition Circular 2005-56...........................12912
    Federal Acquisition Circular 2005-57...........................13952
    Federal Acquisition Circular 2005-58...........................23364
    Federal Acquisition Circular 2005-59...........................27546
    Federal Acquisition Circular 2005-60...........................44046
    Federal Acquisition Circular 2005-61...........................56738
    Federal Acquisition Circular 2005-62...........................69714
    Federal Acquisition Circular 2005-63...........................73516
    Federal Acquisition Circular 2005-64...........................75766
    Small entity compliance guide.......205, 12947, 13956, 23371, 27551, 
                                       44066, 56744, 69726, 73520, 75780
1 Technical correction..............................................1640
    Authority citation revised.......................44057, 44065, 69716
1.105-2 (c)(3)(i) and (ii) revised.................................44065
1.106 Regulation at 76 FR 4190 confirmed.............................187
    Table amended (OMB numbers)........12916, 23367, 44058, 69716, 75775
1.201-1 (c) revised................................................23370
1.602-2 Regulation at 76 FR 14545 confirmed; (d) introductory 
        text, (1), (2) and (3) revised; (d)(6) amended.............12926
1.603 Regulation at 76 FR 14545 confirmed..........................12926
1.604 Regulation at 76 FR 14545 confirmed..........................12926
2 Authority citation revised.......................................44057
2.101 Regulation at 75 FR 77734 confirmed............................185
    (b)(2) amended.....................................187, 23367, 44058
    (b) amended....................................................75775
    Regulation at 76 FR 18308 confirmed; (b)(2) amended............12916
    Regulation at 76 FR 14545 confirmed............................12926
4 Authority citation revised..................44057, 69716, 69721, 73518
4.601 Regulation at 75 FR 77735 confirmed............................185
4.603 (c) amended.............................................204, 69721
    Revised........................................................69716
4.604 (b) revised..................................................69717
4.605 (c) redesignated as (d); new (c) added; (b) and new (d) 
        revised....................................................69717
4.606 (b) introductory text and (d) revised; (b)(4), (5), (6), (8) 
        and (9) removed; (b)(7) redesignated as new (b)(4); (c)(6) 
        through (11) added.........................................69717
4.607 Heading revised; (a) removed; (b) redesignated as new (a); 
        new (b) and (c) added......................................69717
4.803 Regulation at 76 FR 18308 confirmed; (a)(42) introductory 
        text amended...............................................12916
4.905 (a) amended..................................................69718
4.1100 Introductory text amended.....................................188

[[Page 1091]]

4.1102 (a)(3)(i) and (b) amended; (a)(3)(ii), (4), (5) and (6) 
        redesignated as (a)(3)(iii), (5), (6) and (7); new 
        (a)(3)(ii) and (4) added; (a)(1), new (6) and (c)(1)(ii) 
        revised....................................................69718
4.1103 (a)(2)(1) amended.............................................188
    (a)(2)(ii) removed; (a)(2)(iii) redesignated as new 
(a)(2)(ii); (a)(3) and (b)(2) amended; (b)(3) added................69718
4.1104 Amended.......................................................188
4.1105 Revised.....................................................69718
4.1201 (a) amended...................................................188
4.1202 (v) revised; interim........................................13954
    Regulation at 76 FR 68030 confirmed............................23369
    Introductory text revised......................................69718
    (y) revised; interim...........................................73518
4.1202 Regulation at 77 FR 13954 confirmed.........................56740
4.1400--4.1403 (Subpart 4.14) Regulation at 75 FR 39419 confirmed 
                                                                   44057
4.1401 Revised.....................................................44058
4.1402 (b) revised; (d) amended....................................44058
    (b) amended....................................................69718
4.1403 Revised.....................................................44058
5.202 Regulation at 71 FR 57359 confirmed............................192
    (a)(6) amended...................................................193
5.301 Regulation at 76 FR 14551 confirmed..........................12929
5.406 Regulation at 76 FR 14552 confirmed..........................12929
5.705 Regulation at 76 FR 14552 confirmed..........................12929
6 Technical correction.............................................35624
    Authority citation revised.....................................56741
6.204 Regulation at 76 FR 14561 confirmed..........................23370
6.207 Regulation at 76 FR 18308 confirmed..........................12916
6.208 Regulation at 76 FR 18308 confirmed..........................12916
6.302-1 Regulation at 71 FR 57359 confirmed..........................192
    (c) amended......................................................193
6.302-3 (b)(1)(iv) removed; (b)(1)(v), (vi) and (vii) redesignated 
        as new (b)(1)(iv), (v) and (vi); eff. 10-15-12.............56741
6.302-5 Regulation at 76 FR 14561 confirmed........................23370
6.303-1 Regulation at 76 FR 14561 confirmed........................23370
6.303-2 Regulation at 76 FR 14562 confirmed........................23370
6.304 Regulation at 76 FR 14562 confirmed..........................23370
7 Authority citation revised.......................................56743
7.102 Regulation at 76 FR 14546 confirmed..........................12926
7.103 (y) amended....................................................188
    Regulation at 76 FR 14546 confirmed............................12926
7.104 Regulation at 76 FR 14546 confirmed; (e) amended.............12926
7.105 Regulation at 76 FR 14546 confirmed..........................12926
7.403 (b) revised..................................................56743
8.402 Regulation at 71 FR 57359 confirmed............................192
    (c)(1) and (e) amended...........................................204
    Regulation at 76 FR 14552 confirmed............................12929
8.404 Regulation at 75 FR 77735 confirmed............................185
    (h) added........................................................196
    Regulation at 76 FR 14552 confirmed............................12929
8.405 Regulation at 76 FR 14552 confirmed..........................12929
8.405-1 Regulation at 71 FR 57359 confirmed..........................192
    (e) revised......................................................193
    Regulation at 76 FR 14552 confirmed............................12929
8.405-2 (e) redesignated as (f); new (e) added.......................197
    Regulation at 76 FR 14553 confirmed............................12929
8.405-3 (b)(2)(ii) and (c)(3) revised................................196
    Regulation at 76 FR 14553 confirmed; (a)(7)(v) and (c)(3) 
amended; (e)(3) removed............................................12929
8.405-4 Regulation at 76 FR 14555 confirmed........................12929
8.405-5 (c) amended..................................................204
    Regulation at 76 FR 68034 comment period extended...............1889
8.405-6 Regulation at 71 FR 57359 confirmed..........................192
    (b)(2)(ii) amended; (b)(2)(iii), (3)(i)(C) and (4) added.........193
    Regulation at 76 FR 14555 confirmed............................12929
8.406-1 Regulation at 71 FR 57360 confirmed..........................192
    Regulation at 76 FR 14557 confirmed............................12929

[[Page 1092]]

8.703 Amended........................................................204
9 Technical correction..............................................1640
9.104-7 Regulation at 76 FR 4190 confirmed; (c) added................201
9.105-2 (b)(2)(ii) revised; (b)(2)(iii) and (iv) added...............201
9.106-3 Regulation at 75 FR 77735 confirmed..........................185
9.108-2 (a) amended; (b)(4) added; interim.........................27548
9.108-3 (a) amended; interim.......................................27548
9.108-5 Introductory text amended; interim.........................27548
9.404 (d) amended....................................................188
9.406-3 (f)(3) added.................................................201
9.407-3 (e)(3) added.................................................201
11.105 (c) added.....................................................193
11.302 (c)(2) revised..............................................23367
12 Technical correction.............................................1640
12.207 (b)(2)(ii) amended; (b)(4) added..............................197
    Regulation at 76 FR 68034 comment period extended...............1889
12.301 Regulation at 76 FR 4190 confirmed............................201
    (d)(4) removed...................................................202
12.503 Regulation at 75 FR 39419 confirmed.........................44057
13 Authority citation revised......................................69716
13.003 Regulation at 76 FR 18308 confirmed.........................12916
    Regulation at 76 FR 14567 confirmed; (b) revised...............12932
13.102 (a) amended...................................................188
    Regulation at 76 FR 18308 confirmed............................12916
13.105 Regulation at 71 FR 57360 confirmed...........................192
13.106-1 Regulation at 71 FR 57360 confirmed.........................192
    (b) revised......................................................193
13.201 (d) amended.................................................69718
13.501 Regulation at 71 FR 57360 confirmed...........................192
    (a)(2) introductory text revised.................................193
14.502 Regulation at 76 FR 18308 confirmed.........................12916
15 Technical correction............................................35624
    Authority citation revised.....................................56743
15.402 (a)(2) amended................................................204
15.403-1 (c)(1)(ii)(B) revised.......................................204
15.404-1 (a)(7) amended............................................56744
15.503 Regulation at 76 FR 18309 confirmed.........................12916
15.607 Regulation at 76 FR 14562 confirmed.........................23370
16 Authority citation revised........................44061, 44063, 44065
16.103 Regulation at 76 FR 14546 confirmed.........................12926
    (d)(1) introductory text amended...............................12927
16.104 Regulation at 76 FR 14547 confirmed.........................12926
16.201 Revised.......................................................197
16.301-2 Regulation at 76 FR 14547 confirmed.......................12926
    (b) amended....................................................12927
16.301-3 Regulation at 76 FR 14547 confirmed.......................12926
    (a)(3) amended; (a)(4) revised.................................12927
    (a)(4) amended.................................................44066
16.307 (a)(1) revised; (a)(3), (4) and (5) added...................44061
16.505 (a)(1) revised; (a)(4) through (10) redesignated as (a)(5) 
        through (11); new (a)(4) added...............................194
    Regulation at 76 FR 68034 comment period extended...............1889
    (a)(4) through (11) correctly redesignated as (a)(5) through 
(12)................................................................3636
    (a)(10)(i) introductory text amended; (a)(10)(ii) revised......44063
16.505 Regulation at 76 FR 14557 confirmed.........................12929
16.600 Added.........................................................197
17 Authority citation revised......................................69721
17.500 (a) amended; interim........................................69722
17.500 (a) amended; (b) revised; (c) added...........................185
17.500--17.504 (Subpart 17.5) Regulation at 75 FR 77735 confirmed 
                                                                     185
17.502-1 (a)(2) introductory text revised; (a)(2)(ii)(A) amended; 
        (c) added....................................................186
    (b)(1)(i) revised; interim.....................................69722
17.502-2 (a) and (c) revised; (d) removed; (e) redesignated as new 
        (d); new (d)(4) revised......................................186
17.503 (b)(4) amended................................................186
17.700--17.703 (Subpart 17.7) Added; interim.......................69722
18.102 Revised.......................................................188
18.105 Amended.......................................................194
    Regulation at 76 FR 14559 confirmed............................12929

[[Page 1093]]

18.113 Regulation at 75 FR 77737 confirmed...........................185
18.117 Regulation at 76 FR 18309 confirmed; amended................12916
18.118 Regulation at 76 FR 18309 confirmed.........................12916
18.119 Regulation at 76 FR 18309 confirmed.........................12916
18.120 Regulation at 76 FR 18309 confirmed.........................12916
18.121 Regulation at 76 FR 18309 confirmed.........................12916
18.122 Regulation at 76 FR 18309 confirmed.........................12916
18.123 Regulation at 76 FR 18309 confirmed.........................12916
18.124 Regulation at 76 FR 18309 confirmed.........................12916
18.125 Regulation at 76 FR 18309 confirmed.........................12916
18.126 Regulation at 76 FR 18309 confirmed.........................12916
18.127 Regulation at 76 FR 18309 confirmed.........................12916
18.203 Regulation at 76 FR 18309 confirmed.........................12916
19 Technical correction............................................35624
    Authority citation revised..............................56742, 69716
19.000 Regulation at 76 FR 18309 confirmed.........................12916
19.001 Amended; eff. 10-15-12......................................56742
19.102 (f)(4) amended................................................204
    (a) revised; (b)(1) amended; (g) removed; eff. 10-15-12........56742
19.201 Regulation at 76 FR 18309 confirmed; (d)(10) revised........12916
19.202 Regulation at 76 FR 18309 confirmed.........................12916
    Regulation at 76 FR 14567 confirmed............................12932
19.202-5 Regulation at 76 FR 18309 confirmed.......................12916
19.202-6 Regulation at 76 FR 18309 confirmed.......................12916
19.203 Regulation at 76 FR 18309 confirmed.........................12916
    Regulation at 76 FR 14567 confirmed; (b) and (c) revised; (d) 
redesignated as (e); new (d) added.................................12932
19.301-1 Regulation at 76 FR 18309 confirmed.......................12916
19.303 (a) amended; eff. 10-15-12..................................56742
19.308 Regulation at 76 FR 18309 confirmed; (h)(2)(i) and (3)(iv) 
        amended....................................................12916
19.309 Regulation at 76 FR 18309 confirmed.........................12916
19.402 (a)(2) amended................................................204
19.402 Regulation at 76 FR 18310 confirmed.........................12916
19.501 Regulation at 76 FR 18311 confirmed; (c) amended............12916
    Regulation at 76 FR 14567 confirmed............................12932
19.502-2 Regulation at 76 FR 14568 confirmed.......................12932
19.502-4 Regulation at 76 FR 68035 comment period extended..........1889
19.502-5 Regulation at 76 FR 68035 comment period extended..........1889
19.502-6 Regulation at 76 FR 68035 comment period extended..........1889
19.508 Regulation at 76 FR 68035 comment period extended............1889
19.708 (b)(1)(iii) revised.........................................69718
19.800 Regulation at 76 FR 14568 confirmed; (e) revised............12932
19.804-2 Regulation at 76 FR 18311 confirmed.......................12916
    Regulation at 76 FR 14568 confirmed............................12932
19.808-1 Regulation at 76 FR 14562 confirmed.......................23370
19.811-3 Regulation at 76 FR 68035 comment period extended..........1889
19.812 (a) amended.................................................12949
19.1202-2 Regulation at 76 FR 18311 confirmed......................12916
19.1304 Regulation at 76 FR 68035 comment period extended...........1889
19.1305 Regulation at 76 FR 14568 confirmed; (a) revised...........12932
19.1306 Regulation at 76 FR 14568 confirmed; (a) introductory text 
        revised....................................................12932
19.1308 Regulation at 76 FR 68035 comment period extended...........1889
19.1309 Regulation at 76 FR 68035 comment period extended...........1889
19.1404 Regulation at 76 FR 68035 comment period extended...........1889
19.1405 Regulation at 76 FR 14568 confirmed; (a) revised...........12932
19.1406 Regulation at 76 FR 14568 confirmed........................12932
    (a) introductory text revised..................................12933
19.1407 Regulation at 76 FR 68035 comment period extended...........1889

[[Page 1094]]

19.1500-19.1506 (Subpart 19.15) Regulation at 76 FR 18311 
        confirmed..................................................12916
19.1500 (b) revised; (c) added.....................................12917
19.1503 Revised....................................................12917
19.1504 Regulation at 76 FR 68036 comment period extended...........1889
19.1505 (a), (c)(1), (d) and (f) revised...........................12917
19.1506 Regulation at 76 FR 68036 comment period extended...........1889
22 Authority citation revised......................................44065
22.001 Amended.....................................................75775
22.404-1 (a)(2) amended..............................................204
22.1001 Amended....................................................75776
22.1103 Revised....................................................75776
22.1200--22.1207 (Subpart 22.12) Added.............................75776
22.1304 (a) amended..................................................204
22.1306 (b) amended..................................................204
22.1503 (b)(3) and (4) amended.....................................12934
    (b)(4) amended.................................................12936
22.1801 Amended....................................................44066
22.1802 (c) amended................................................44066
23.205 (c)(1) amended................................................204
23.401 (a)(2) amended................................................204
    (b)(1) amended.................................................23367
23.404 (b)(2) introductory text revised; (e)(1) amended............23367
23.405 (a)(2) amended; (a)(3) added................................23367
23.406 (b) amended.................................................23367
25 Authority citation revised...............................69724, 73518
25.003 Amended.....................................................12936
    Amended; interim.................................13954, 27549, 69724
    Regulation at 77 FR 13954 confirmed............................56740
25.202 (c) amended.................................................12934
25.400 (a)(2)(i), (ii), (viii), and (ix) amended; (a)(2)(x) added; 
        interim....................................................13954
    (a)(2)(ix) and (x) amended; (a)(2)(xi) added; interim..........27549
    (a)(2)(x) and (xi) revised; (a)(2)(xii) added; interim.........69724
    Regulation at 77 FR 13954 confirmed............................56740
25.401 (b) table amended; interim....................13954, 27550, 69724
    Regulation at 77 FR 13954 confirmed............................56740
25.402 (b) table revised...........................................12934
25.402 (b) table amended; interim..................................69724
    (b) table revised; interim..............................13954, 27550
    Regulation at 77 FR 13954 confirmed............................56740
25.407 Revised.....................................................12936
25.603 (c)(1) amended..............................................12934
25.700 (c) and (d) revised; interim................................73518
25.703 Heading revised; interim....................................73518
25.703-1 Regulation at 76 FR 68030 confirmed; introductory text 
        revised....................................................23368
25.703-2 Regulation at 76 FR 68030 confirmed.......................23368
    Revised; interim...............................................73519
25.703-3 (a) amended.................................................188
    Heading, (a) and (c) revised; interim..........................73519
    Regulation at 76 FR 68031 confirmed............................23368
25.703-4 Regulation at 76 FR 68031 confirmed.......................23368
    Revised; interim...............................................73519
25.1101 (b)(1)(i)(A), (iii), (2)(iii), (c)(1) and (d) amended......12934
    (b)(1)(iv) and (2)(iv) added; interim..........................13954
    Regulation at 77 FR 13954 confirmed............................56740
25.1102 (a) introductory text, (c) introductory text, (c)(3) and 
        (d)(3) amended.............................................12934
25.1103 Regulation at 76 FR 68031 confirmed........................23368
    (e) revised; interim...........................................73520
26.202-1 Regulation at 76 FR 18312 confirmed.......................12916
26.205 (a) and (b) amended...........................................188
28.203-3 (a)(1) amended..............................................204
29 Authority citation revised......................................44064
29.401-4 (c)(1) amended............................................44064
30.201-4 (b)(1) amended............................................27551
31.205-11 (h) introductory text revised..............................203
31.205-19 (e)(2)(iv) introductory text, (A) and (C) revised........12941
31.205-36 (a) revised................................................203
32 Authority citation revised...............................44061, 69716
32.111 (a)(7) revised..............................................44061
32.503-16 (a) amended..............................................12941
32.1007 Regulation at 76 FR 14547 confirmed........................12926
32.1010 (a) amended................................................12941
32.1110 (a)(1) introductory text and (2)(i) amended................69718
33 Authority citation revised......................................56743

[[Page 1095]]

33.001 Added.......................................................56743
33.101 Amended.....................................................56743
33.102 Regulation at 76 FR 18312 confirmed.........................12916
    (a) amended....................................................56743
33.105 Added.......................................................56743
35.017-3 Regulation at 75 FR 77737 confirmed.........................185
    (b) revised......................................................186
36.501 Regulation at 76 FR 18313 confirmed.........................12916
36.600 Amended.......................................................194
38.101 Regulation at 76 FR 68036 comment period extended............1889
    Regulation at 76 FR 14559 confirmed............................12929
41.26 Regulation at 75 FR 77737 confirmed............................185
42 Technical correction.............................................1640
42.203 Amended................................................204, 12949
42.302 Regulation at 76 FR 14547 confirmed.........................12926
42.501 Regulation at 76 FR 18313 confirmed.........................12916
42.1501 Regulation at 75 FR 39419 confirmed........................44057
42.1503 (f)(1) introductory text amended; (f)(3) added...............202
45.000 Revised.....................................................12941
45.101 Amended.....................................................12942
45.102 (e) added...................................................12942
45.104 (a) introductory text and (b) revised; (d) and (e) added....12942
45.105 (b) introductory text amended; (b)(1) and (d) revised.......12942
45.107 (a)(1)(i) revised; (b) and (d) amended......................12942
45.201 (a)(1), (4) and (d) amended; (c)(4) revised.................12942
45,202 (a) revised.................................................12943
45.602-1 (b)(2), (3), (4) and (c)(1)(i) amended; (c) introductory 
        text, (1) introductory text and (iv) revised...............12943
45.602-2 Revised...................................................12943
45.603 Revised.....................................................12943
45.604 Heading revised.............................................12943
45.604-1 Revised...................................................12943
45.604-2 Removed...................................................12943
    Redesignated from 45.604-3 and revised.........................12944
45.604-3 Redesignated as 45.604-2; new 45.604-3 redesignated from 
        45.604-4...................................................12944
45.604-4 Redesignated as 45.604-3; new 45.604-4 added..............12944
45.605 Revised.....................................................12944
45.606 Removed; new 45.606 redesignated from 45.606-1 and revised 
                                                                   12944
45.606-1 Redesignated as 45.606....................................12944
45.606-2 Removed...................................................12944
45.606-3 Removed...................................................12944
49.204 (b) amended.................................................12944
50.205-1 Regulation at 76 FR 14547 confirmed.......................12926
51.106 (b) amended.................................................12944

                                  2013

  (Regulations published from January 1, 2013, through October 1, 2013)

48 CFR
                                                                   78 FR
                                                                    Page
Chapter 1
Chapter Small entity compliance guide.........6192, 13769, 37698, 38537, 
                                                            46796, 60174
    Federal Acquisition Circular 2005-65............................6184
    Federal Acquisition Circular 2005-66; interim..................13764
    Federal Acquisition Circular 2005-67; interim..................37668
    Federal Acquisition Circular 2005-68; interim..................38534
    Technical correction............................................2893
    Federal Acquisition Circular 2005-69...........................46780
    Federal Acquisition Circular 2005-70; interim..................60168
1.106 Table amended (OMB numbers)............................6191, 37672
1.602-2 (b) and (c) amended; (d) revised...........................37676
2 Technical correction..............................................2893
2.000 (b) amended...................................................6191
2.101 (b)(2) amended; interim......................................13766
    (b)(2) amended..........................................37677, 46795
    Regulation at 78 FR 13766 confirmed............................46782
3 Authority citation revised; interim..............................60171
3.900 Revised; interim.............................................60171
3.908 Added; interim...............................................60171
3.908-1 Added; interim.............................................60171
3.908-2 Added; interim.............................................60171
3.908-3 Added; interim.............................................60171
3.908-4 Added; interim.............................................60171
3.908-5 Added; interim.............................................60171

[[Page 1096]]

3.908-6 Added; interim.............................................60171
3.908-7 Added; interim.............................................60171
3.908-8 Added; interim.............................................60171
3.908-9 Added; interim.............................................60171
4.203 (e)(1) introductory text amended.............................37677
4.605 (b) revised..................................................37677
4.607 (b) amended..................................................37677
4.905 (a) amended..................................................37678
4.1100--4.1105 (Subpart 4.11) Heading revised......................37678
4.1100 Introductory text amended...................................37678
4.1102 (a) introductory text, (2), (6), (b), (c)(1)(i), (ii), (2) 
        and (3) amended............................................37678
4.1103 (a)(1), (b) introductory text, (1), (3) and (c) amended.....37678
4.1105 (a)(1), (2) and (b) amended.................................37678
4.1200 Introductory text amended...................................37678
4.1201 (a) revised; (b)(1), (2) and (c) amended....................37678
4.1202 Introductory text amended...................................37678
5 Authority citation revised.......................................13768
5.601 (a), (b)(1) and (2) amended..................................13768
    (b)(2) correctly amended; CFR correction.......................41331
7 Authority citation revised.......................................13768
7.104 (e) revised..................................................37676
7.105 (b)(1) amended...............................................13769
8 Authority citation revised.......................................13767
8.402 (g) amended..................................................37678
8.404 (h)(3)(iv) revised...........................................13767
8.406-4 (e) amended................................................46787
8.406-7 Revised....................................................46787
8.703 Amended......................................................37698
8.714 (b) revised..................................................37698
9 Authority citation revised.......................................37678
9.105-1 (c) introductory text amended..............................37678
9.108-2 Regulation at 77 FR 27548 confirmed.........................6187
9.108-3 Regulation at 77 FR 27548 confirmed.........................6187
9.108-5 Regulation at 77 FR 27548 confirmed.........................6187
9.207 (a)(9) revised...............................................37678
9.404 Revised......................................................37678
9.405 (b), (d)(1) and (4) amended..................................37679
9.405-2 (b) introductory text, (2) and (3) amended.................37679
10 Authority citation revised......................................13768
10.002 (b)(2)(iv) amended..........................................13769
12 Authority citation revised......................................13767
    Authority citation revised; interim............................37688
12.102 (e)(4) revised; interim.....................................37688
12.207 (b)(1)(ii)(C) revised.......................................13767
12.216 Added; interim..............................................37688
12.301 (e)(4) amended..............................................37679
12.302 (b)(5) and (6) revised; (b)(7) added; interim...............37688
12.403 (c)(4) amended..............................................46787
13 Authority citation revised; interim.............................37688
13.102 (a) amended.................................................37679
13.201 (h) amended.................................................37679
    (d) amended; interim...........................................37688
13.202 Redesignated as 13.203; interim.............................37688
13.203 Redesignated from 13.202; interim...........................37688
13.500 (d) amended.................................................13768
15 Authority citation revised......................................37692
15.404 (c)(2)(vi) correctly reinstated; CFR correction.............41331
15.404-1 (b)(2)(i) amended.........................................37692
15.407-1 (d) introductory text amended.............................46787
16 Authority citation revised......................................13767
16 Regulation at 77 FR 44063 confirmed..............................6188
16.504 (a)(4)(v) amended...........................................13767
16.505 Regulation at 77 FR 44063 confirmed..........................6188
    (b)(1)(iv)(E) amended; (b)(4), (5) and (6) redesignated as 
(b)(6), (7) and (8); new (b)(4) and new (5) added..................13767
    (a)(12) amended................................................37679
    (a)(10)(ii) revised............................................46792
16.601(c)(2)(i) amended; (d) introductory text and (2) revised; 
        (e) redesignated as (f); new (e) added.....................13767
17.207 (c)(5) revised..............................................37679
    (c)(4) and (5) amended; (c)(6) and (7) added...................46787
17.703 (a) and (b) introductory text amended; (b)(2) revised.......37685
18 Authority citation revised......................................37679
18.102 Revised.....................................................37679
19.308 (h)(2)(i) and (3)(iv) amended...............................37679

[[Page 1097]]

19.703 (d)(1) introductory text amended............................37679
19.1503 (b)(1) and (2) amended.....................................37679
19.1505 (b)(1) and (c)(1) amended; (b)(2), (c)(2) and (g)(3) 
        removed; (b)(3) and (c)(3) redesignated as new (b)(2) and 
        new (c)(2); interim........................................37694
22 Technical correction.............................................2893
22.1025 Amended....................................................37679
22.1801 Amended....................................................46795
25 Regulation at 77 FR 69724 confirmed.............................37696
25.001 (c) introductory text and (3) amended.......................37694
25.003 Regulation at 77 FR 27549 confirmed..........................6189
    Regulation at 77 FR 69724 confirmed............................37696
    Amended........................................................46793
25.004 Removed.....................................................37695
25.302 Added.......................................................37672
25.302-1 Added.....................................................37672
25.302-2 Added.....................................................37672
25.302-3 Added.....................................................37672
25.302-4 Added.....................................................37672
25.302-5 Added.....................................................37672
25.302-6 Added.....................................................37672
25.400 Regulation at 77 FR 27549 confirmed..........................6189
    Regulation at 77 FR 69724 confirmed............................37696
25.401 Regulation at 77 FR 27550 confirmed; (b) table amended.......6189
    Regulation at 77 FR 69724 confirmed............................37696
25.402 Regulation at 77 FR 27550 confirmed..........................6189
    Regulation at 77 FR 69724 confirmed............................37696
25.700 (c) amended.................................................46783
25.703-3 (a) amended........................................37679, 46783
26 Authority citation revised......................................37679
26.205 (b) amended.................................................37679
28 Authority citation revised......................................37679
28.203-7 (c) and (d) amended.......................................37679
31.205-6 (o)(2)(iii)(A)(2)(i) amended...............................6191
    (o)(2)(iii)(A) revised.........................................37697
    (p) revised....................................................38536
31.205-41 (b)(8) added..............................................6191
31.205-47 (b) introductory text and (2) revised; interim...........60174
32 Authority citation revised......................................37688
32.703-2 (a) and (b)(2) amended; interim...........................37688
32.705 Redesignated as 32.706; new 32.705 added; interim...........37688
32.705-1 Redesignated as 32.706-1; interim.........................37688
32.705-2 Redesignated as 32.706-2; interim.........................37688
32.706 Redesignated from 32.705; interim...........................37688
32.706-1 Redesignated from 32.705-1; interim.......................37688
32.706-2 Redesignated from 32.705-2; interim.......................37688
32.706-3 Added; interim............................................37689
32.805 (d)(4) amended..............................................37679
32.905 (b)(1)(ix)(B) amended.......................................37679
32.1108 (b)(2)(i), (iii) and (iv) amended; (b)(2)(ii) revised......37679
32.1110 (a)(1) introductory text, (d), (e)(1), (2) and (g) 
        amended; (a)(2)(i) revised.................................37680
42 Authority citation revised......................................46788
42.1500 Revised....................................................46788
42.1501 Revised....................................................46788
42.1502 (a) through (d) and (i) revised............................46788
42.1503 Revised....................................................46788
43 Authority citation revised; interim.............................37688
43.201 (b) amended; interim........................................37689
44 Authority citation revised......................................37680
44.202-2 (a)(13) amended...........................................37680
44.303 (d) revised.................................................37680
49 Authority citation revised......................................46792
49.402-8 Amended...................................................46792


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