[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


________________________

Chapters 3 to 6

                         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 3--Health and Human Services                       3
          Chapter 4--Department of Agriculture                     139
          Chapter 5--General Services Administration               209
          Chapter 6--Department of State                           351
  Finding Aids:
      Table of CFR Titles and Chapters........................     437
      Alphabetical List of Agencies Appearing in the CFR......     457
      List of CFR Sections Affected...........................     467

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

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

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

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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 
revision date (in this case, October 1, 2013), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

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

OMB CONTROL NUMBERS

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

[[Page vi]]

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

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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Affected'' is published at the end of each CFR volume. For changes to 
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

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
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 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
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CFR INDEXES AND TABULAR GUIDES

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and Finding Aids. This volume contains the Parallel Table of Authorities 
and Rules. A list of CFR titles, chapters, subchapters, and parts and an 
alphabetical list of agencies publishing in the CFR are also included in 
this volume.

[[Page vii]]

    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

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in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
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the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-741-6000 
or write to the Director, Office of the Federal Register, National 
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    Charles A. Barth,
    Director,
    Office of the Federal Register.
    October 1, 2013.







[[Page ix]]



                               THIS TITLE

    Title 48--Federal Acquisition Regulations System is composed of 
seven volumes. The chapters in these volumes are arranged as follows: 
Chapter 1 (parts 1 to 51), chapter 1 (parts 52 to 99), chapter 2 (parts 
201 to 299), chapters 3 to 6, chapters 7 to 14, chapters 15 to 28 and 
chapter 29 to end. The contents of these volumes represent all current 
regulations codified under this title of the CFR as of October 1, 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, Cheryl E. Sirofchuck was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Michael L. White, assisted by Ann Worley.

[[Page 1]]



            TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM




                  (This book contains chapters 3 to 6)

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

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

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

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

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

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                  CHAPTER 3--HEALTH AND HUMAN SERVICES




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

                          SUBCHAPTER A--GENERAL
Part                                                                Page
301             HHS Acquisition Regulation System...........           5
302             Definitions of words and terms..............          17
303             Improper business practices and personal 
                    conflicts of interest...................          21
304             Administrative matters......................          22
           SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
305             Publicizing contract actions................          31
306             Competition requirements....................          32
307             Acquisition planning........................          35
308             Required sources of supplies and services...          42
309             Contractor qualifications...................          43
310             Market research.............................          45
311             Describing agency needs.....................          46
312             Acquisition of commercial items.............          48
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
313             Simplified acquisition procedures...........          49
314             Sealed bidding..............................          50
315             Contracting by negotiation..................          51
316             Types of contracts..........................          69
317             Special contracting methods.................          71
                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
319             Small business programs.....................          76
322             Application of labor laws to Government 
                    acquisitions............................          78
323             Environment, energy and water efficiency, 
                    renewable energy technologies, 
                    occupational safety, and drug-free 
                    workplace...............................          78
324             Protection of privacy and freedom of 
                    information.............................          79
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
327             Patents, data, and copyrights...............          82
328             Bonds and insurance.........................          82

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330             Cost accounting standards...................          82
331             Contract cost principles and procedures.....          82
332             Contract financing..........................          83
333             Protests, disputes, and appeals.............          84
             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
334             Major system acquisition....................          89
335             Research and development contracting........          91
337             Service contracting--general................          92
339             Acquisition of information technology.......          93
                    SUBCHAPTER G--CONTRACT MANAGEMENT
342             Contract administration.....................          98
                     SUBCHAPTER H--CLAUSES AND FORMS
352             Solicitation provisions and contract clauses         103
353             Forms.......................................         129
                       SUBCHAPTERS I-L [RESERVED]
                   SUBCHAPTER M--HHS SUPPLEMENTATIONS
370             Special programs affecting acquisition......         131

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                          SUBCHAPTER A_GENERAL

               PART 301_HHS ACQUISITION REGULATION SYSTEM

             Subpart 301.1_Purpose, Authority, and Issuance

Sec.

Sec. 301.101 Purpose.

Sec. 301.103 Authority.

Sec. 301.106 Office of Management and Budget approval under the 
          Paperwork Reduction Act.

                      Subpart 301.2_Administration


Sec. 301.270 Executive Committee for Acquisition.

                  Subpart 301.4_Deviations From the FAR


Sec. 301.403 Individual deviations.

Sec. 301.404 Class deviations.

Sec. 301.470 Procedure.

      Subpart 301.6_Career Development, Contracting Authority, and 
                            Responsibilities


Sec. 301.602 Contracting Officers.

Sec. 301.602-3 Ratification of unauthorized commitments.

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

Sec. 301.603-1 General.

Sec. 301.603-2 Selection and appointment.

Sec. 301.603-3 Interim appointments.

Sec. 301.603-4 Termination of appointments.

Sec. 301.603-70 Delegation of Contracting Officer responsibilities.

Sec. 301.603-71 Waivers to warrant standards.

Sec. 301.603-72 FAC-C and HHS SAC certification requirements.

Sec. 301.603-73 Additional HHS training requirements.

Sec. 301.603-74 Requirement for retention of FAC-C and HHS SAC 
          certification.

Sec. 301.604 Training and certification of Contracting Officers' 
          Technical Representatives.

Sec. 301.604-70 General.

Sec. 301.604-71 HCA authorities and responsibilities.

Sec. 301.604-72 Requirements for certification maintenance.

Sec. 301.604-73 Certification policy exception.

Sec. 301.604-74 Additional COTR training requirements.

Sec. 301.605 Contracting Officer designation of Contracting Officer 
          Technical Representative.

Sec. 301.606 Training requirements for Project Officers.

Sec. 301.606-70 General.

Sec. 301.606-71 Project Officer training.

Sec. 301.606-72 Delegation of authority to HCAs.

Sec. 301.606-73 Requirements for continuous learning maintenance.

Sec. 301.606-74 Training policy exception.

Sec. 301.606-75 Additional Project Officer training requirements.

Sec. 301.607 Certification of Program and Project Managers.

Sec. 301.607-70 General.

Sec. 301.607-71 FAC-P/PM levels and requirements.

Sec. 301.607-72 Applicability.

Sec. 301.607-73 Certification waivers.

Sec. 301.607-74 Certification transfers.

Sec. 301.607-75 Maintenance of FAC-P/PM certification.

Sec. 301.607-76 FAC-P/PM application process.

Sec. 301.607-77 Governance.

Sec. 301.607-78 Contracting Officer designation of a Program/Project 
          Manager as the Contracting Officer's Technical Representative.

Sec. 301.608 Training requirements for purchase cardholders, Approving 
          Officials, and Agency/Organization Program Coordinators.

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

    Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.

             Subpart 301.1_Purpose, Authority, and Issuance



Sec. 301.101  Purpose.

    (a) The Department of Health and Human Services (HHS) Acquisition 
Regulation (HHSAR) establishes uniform HHS acquisition policies and 
procedures that conform to the Federal Acquisition Regulations (FAR) 
System.
    (b) The HHSAR implements FAR policies and procedures and provides 
additional policies and procedures that supplement the FAR.
    (c) The HHSAR contains HHS policies and procedures that govern the 
acquisition process or otherwise control acquisition relationships 
between HHS' contracting activities and contractors.

[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21509, Apr. 26, 2010]



Sec. 301.103  Authority.

    (b) The Assistant Secretary for Financial Resources (ASFR) 
prescribes the HHSAR under the authority of 5

[[Page 6]]

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



Sec. 301.106  Office of Management and Budget approval under the 
          Paperwork Reduction Act.

    (a) The Paperwork Reduction Act of 1980 (44 U.S.C 3501 et seq.) 
imposes a requirement on Federal agencies to obtain approval from the 
Office of Management and Budget (OMB) before collecting the same 
information from 10 or more members of the public.
    (b) The following OMB control numbers apply to the information 
collection and recordkeeping requirements contained in this chapter:

------------------------------------------------------------------------
                                                             OMB control
                     HHSAR segment No.                           No.
------------------------------------------------------------------------
315.4......................................................    0990-0139
342.7101...................................................    0990-0131
352.233-70.................................................    0990-0133
352.270-1..................................................    0990-0129
352.270-2..................................................    0990-0129
352.270-3..................................................    0990-0129
352.270-5..................................................    0990-0130
352.270-8..................................................    0990-0128
352.270-9..................................................    0990-0128
370.1......................................................    0990-0129
370.2......................................................    0990-0129
------------------------------------------------------------------------

    (c) The Contracting Officer shall insert the clause in 352.201-70, 
Paperwork Reduction Act, in solicitations, contracts, and orders that 
include a requirement to collect the same information from 10 or more 
persons.

                      Subpart 301.2_Administration



Sec. 301.270  Executive Committee for Acquisition.

    (a) The Associate Deputy Assistant Secretary for Acquisition 
(Associate DAS for Acquisition) has established the Executive Committee 
for Acquisition (ECA) to facilitate the planning, development, and 
implementation of HHS acquisition policies and procedures and to share 
successful acquisition practices.
    (b) The ECA consists of members and alternates from the following 
organizations:
    (1) ASFR/Office of Grants and Acquisition Policy and Accountability
    (OGAPA)/Division of Acquisition (DA).
    (2) Agency for Healthcare Research and Quality (AHRQ).
    (3) Assistant Secretary for Preparedness and Response/Office of 
Acquisitions Management, Contracts and Grants (ASPR/OAMCG).
    (4) Centers for Disease Control and Prevention (CDC).
    (5) Centers for Medicare and Medicaid Services (CMS).
    (6) Food and Drug Administration (FDA).
    (7) Health Resources and Services Administration (HRSA).
    (8) Indian Health Service (IHS).
    (9) National Institutes of Health (NIH).
    (10) Program Support Center (PSC).
    (11) Substance Abuse and Mental Health Services Administration 
(SAMHSA).
    (c) The Associate DAS for Acquisition is the Chair of the ECA. The 
Chair will call all meetings and direct all ECA activities.

[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21509, Apr. 26, 2010]

                  Subpart 301.4_Deviations From the FAR



Sec. 301.403  Individual deviations.

    Contracting activities shall prepare requests for individual 
deviations to either the FAR or HHSAR in accordance with 301.470.



Sec. 301.404  Class deviations.

    Contracting activities shall prepare requests for class deviations 
to either the FAR or HHSAR in accordance with 301.470.



Sec. 301.470  Procedure.

    (a) Contracting activities shall prepare deviation requests in 
memorandum form and forward them through the Head of the Contracting 
Activity (HCA) to the Associate DAS for Acquisition. The Associate DAS 
for

[[Page 7]]

Acquisition (non-delegable) is the official authorized to approve all 
deviation requests. Contracting activities may request a deviation 
telephonically or by e-mail in an exigent situation, but shall confirm 
the request by memorandum as soon as possible.
    (b) A deviation request shall clearly set forth the--
    (1) Nature of the deviation, including what contract(s)/
contractor(s) is involved;
    (2) Identification of the FAR or HHSAR citation from which the 
deviation is needed;
    (3) Circumstances under which the deviation will be used;
    (4) Intended effect of the deviation;
    (5) Period of applicability;
    (6) Rationale for the deviation (Note: The Contracting Officer shall 
include a copy of pertinent background papers, such as a contractor's 
request, as part of the deviation request.); and
    (7) Suggested wording for the deviation, if applicable.

      Subpart 301.6_Career Development, Contracting Authority, and 
                            Responsibilities



Sec. 301.602  Contracting Officers.



Sec. 301.602-3  Ratification of unauthorized commitments.

    (b) Policy.
    (1) The Government is not bound by agreements with, or contractual 
commitments made to, prospective contractors by individuals who do not 
have delegated contracting authority. However, an authorized official 
may later ratify and execute otherwise proper contracts that were made 
by individuals without contracting authority or by Contracting Officers 
in excess of their delegated authority. The ratification shall be in the 
form of a written document that clearly states that ratification of a 
previously unauthorized act is intended.
    (2) The HCA is the official authorized to ratify an unauthorized 
commitment--but see paragraph (b)(3) of this section.
    (3) The HCA may redelegate ratification authority for actions up to 
$100,000 to the Chief of the Contracting Office (CCO). No other 
redelegations are authorized.
    (c) Limitations.
    (5) The concurrence of legal counsel concerning an unauthorized 
commitment is optional. If a contracting activity determines that a 
legal review is necessary, the HCA or CCO shall coordinate the request 
for ratification with the Office of General Counsel (OGC), General Law 
Division (GLD).
    (e) Procedures.
    (1) The individual who is responsible for the unauthorized 
commitment shall provide the reviewing Contracting Officer all records 
and documents concerning the commitment and a complete written statement 
of facts, including a description of the requirement; the estimated or 
agreed upon price; the funds citation; an explanation of why the 
contracting office was not used and why the proposed contractor was 
selected; a list of other sources considered; and a statement as to 
whether the contractor has commenced work or an item has been delivered.
    (2) The Contracting Officer shall review the submitted material and, 
if the Contracting Officer determines that the ratification request has 
merit, prepare it for ratification. The Contracting Officer shall 
forward the ratification document and related materials to the HCA or 
CCO, as appropriate, with any comments or information which the 
approving official should consider in evaluating the ratification 
request.
    (3) If the HCA or CCO approves the ratification request, the 
Contracting Officer shall issue a purchase order or contract, as 
appropriate, upon return of the approved ratification document and file.



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



Sec. 301.603-1  General.

    (a) The HCA (non-delegable) shall select, appoint, and terminate the 
appointment of Contracting Officers--i.e., those individuals who are 
authorized to obligate the Government to the expenditure of funds for 
contracts and orders with dollar values that exceed (or

[[Page 8]]

are expected to exceed) the micro-purchase threshold. The procedures for 
selecting and appointing Contracting Officers apply to HHS employees. 
HCAs may not issue HHS Contracting Officer warrants to contractor 
personnel. OPDIVs shall follow local procedures in the event that the 
signature of another authorized official, in addition to that of the 
HCA, is required to appoint or terminate the appointment of Contracting 
Officers.
    (b) The HCA shall use Standard Form (SF) 1402, ``Certificate of 
Appointment,'' (also known as a warrant) to appoint personnel, whether 
in the General Schedule (GS) 1102 series or other series, as Contracting 
Officers. The SF 1402 shall indicate the Contracting Officer's warrant 
level--i.e., maximum dollar signature authority (e.g., $1 million or 
``unlimited'') and any other limitations or restrictions. The HCA shall 
make changes to a Contracting Officer appointment (other than a 
termination of an appointment as provided in 301.603-4) by issuing a 
revised SF 1402. FAR 1.603-1 prescribes the requirements for preparing 
and maintaining Contracting Officer warrants.
    (c) Before an HCA may appoint an individual as a Contracting 
Officer, the individual must be certified in accordance with either the 
Federal Acquisition Certification in Contracting (FAC-C) program or the 
HHS Simplified Acquisition Certification (SAC) program, as appropriate, 
at the level required for the warrant authority requested. See 301.603-
72 and the HHS Contracting Workforce Training and Certification 
Handbook.
    (d) The dollar amount of an individual transaction determines 
whether a Contracting Officer has the authority to sign it in accordance 
with the delegated authority specified on the SF 1402. For new or 
follow-on awards, the dollar amount of an individual transaction is the 
amount obligated at the time of contract or order award plus any 
potential option amounts or future funding amounts established by the 
transaction. However, under an existing contract or order, when an 
option is subsequently exercised or a contact or order is otherwise 
modified to add funding, the dollar amount of the modification 
(individual transaction) determines whether a Contracting Officer has 
the necessary delegated authority to sign it.
    (e) For individuals that will exercise acquisition authorities 
(other than solely purchase card authorities) at or below the micro-
purchase threshold, the HCA may--
    (1) Use a document other than the SF 1402, such as a memorandum, 
that indicates a maximum dollar signature authority for individual 
transactions; and
    (2) Determine training requirements for individuals who will 
exercise acquisition authorities at dollar levels below the micro-
purchase threshold level.



Sec. 301.603-2  Selection and appointment.

    Contracting activities shall provide nominations for appointment of 
Contracting Officers through appropriate acquisition channels to the HCA 
for review. The HCA shall appoint an individual as a Contracting Officer 
only when a valid organizational need is demonstrated and after 
considering such factors as volume of actions, complexity of work, and 
structure of the requesting organization. The HCA shall also ensure that 
a Contracting Officer candidate meets the FAC-C or HHS SAC certification 
requirements, as appropriate. Consistent with FAR 1.603-2, the HCA shall 
determine the documentation required when the requested appointment and 
authority will not exceed the micro-purchase threshold.



Sec. 301.603-3  Interim appointments.

    If it is essential to appoint an individual as a Contracting Officer 
who does not yet fully meet the FAC-C or HHS SAC certification 
requirements for the signature authority sought, the HCA (non-delegable) 
may make an interim appointment for up to 2 years. If an extension of 
time has been granted, but the individual does not complete the 
certification requirements by the extended date, the HCA's approval for 
the interim appointment will automatically terminate on that date.



Sec. 301.603-4  Termination of appointments.

    The HCA shall terminate or revoke Contracting Officer appointments 
in accordance with FAR 1.603-4.

[[Page 9]]



Sec. 301.603-70  Delegation of Contracting Officer responsibilities.

    (a) Contracting Officers may re-delegate their acquisition 
responsibilities that do not involve the obligation or deobligation of 
funds, but involve the expenditure of previously obligated funds (such 
as approval of contractor scientific meeting travel and subcontract 
consent) to acquisition staff (for example, those in the GS-1100 series) 
by means of a written memorandum that clearly delineates the delegation 
and its limits. See 301.604 for responsibilities that Contracting 
Officers may delegate to technical personnel.
    (b) Contracting Officers may designate individuals as ordering or 
approving officials to make purchases or place/approve orders under 
blanket purchase agreements (BPAs), indefinite-delivery, indefinite 
quantity (IDIQ) contracts, or other pre-established mechanisms. Ordering 
officials are not Contracting Officers.



Sec. 301.603-71  Waivers to warrant standards.

    There may be an unusual circumstance that requires issuance of a 
warrant to an individual who does not fully meet the FAC-C or HHS SAC 
certification program requirements. Contracting activities shall provide 
any request for a waiver of the FAC-C program requirements and policies 
in writing to the Senior Procurement Executive (SPE), through the HCA, 
for review and approval. The SPE (non-delegable) will either approve or 
disapprove in writing the request for waiver. The HCA (non-delegable) 
may approve or disapprove a waiver of the HHS SAC program requirements.



Sec. 301.603-72  FAC-C and HHS SAC certification requirements.

    (a) The FAC-C certification program is available to all acquisition 
staff who are/will be involved as Contracting Officers or Contract 
Specialists in acquisitions exceeding the simplified acquisition 
threshold. Personnel who, as part of prior certification programs, have 
completed some or all of the required training or have attained 
certification thereunder are not required to re-take training courses, 
but shall follow FAC-C training requirements when considering additional 
or required core training, if needed. See 301.603-74 for information 
regarding retention of certification, including the requirement to earn 
continuous learning points (CLPs). FAC-C certification also does not 
apply to--
    (1) The SPE;
    (2) Senior level officials responsible for delegating acquisition 
authority;
    (3) Personnel who are not in the GS-1102 series whose warrants are 
used to acquire emergency goods and services; or
    (4) Personnel who are not in the GS-1102 series whose warrants are 
so limited as to be outside the scope of this program, as determined by 
the Chief Acquisition Officer (CAO). (Note: The HHS CAO has determined 
that individuals with warrants which are limited to simplified 
acquisitions are deemed to be outside the scope of the FAC-C program.)
    (b) HHS does not require personnel with Contracting Officer warrants 
issued prior to January 1, 2007 to be FAC-C certified unless they are 
seeking a change in authority on or after that date. Individuals 
applying for a new Contracting Officer warrant or an increase in warrant 
authority on or after January 1, 2007, regardless of GS series, must be 
FAC-C certified at the level appropriate for the warrant authority 
sought. To obtain an unlimited warrant, FAC-C Level III certification is 
required. (Note: New Contracting Officer warrants are defined in the 
Office of Federal Procurement Policy's (OFPP's) FAC-C memorandum, dated 
January 20, 2006, as warrants issued to employees for the first time at 
a department or agency.)
    (c) The FAC-C certification is based on three sets of requirements: 
Education, training, and experience, and the requirements are 
cumulative--i.e., an individual must meet the requirements of each 
previous certification level before attaining a higher level 
certification. The FAC-C certification requirements, including 
additional HHS-specific training requirements for certain types of 
acquisitions, are specified in the HHS Contracting Workforce Training 
and Certification Handbook.

[[Page 10]]

    (d) HHS SAC certification is based on three sets of requirements: 
Training, experience, and satisfactory performance rating. Personnel who 
are involved in the award of simplified acquisitions must meet the 
appropriate HHS SAC certification requirements. (Note: While personnel 
who are FAC-C certified are not required to obtain HHS SAC certification 
in order to award simplified acquisitions, they should obtain 
appropriate training before doing so.) The HHS SAC certification 
requirements, including additional HHS-specific training requirements 
for certain types of acquisitions, are specified in the HHS Contracting 
Workforce Training and Certification Handbook.



Sec. 301.603-73  Additional HHS training requirements.

    HHS acquisition personnel are required to complete, as applicable, 
the additional training requirements specified below. These courses may 
be used as electives for the purpose of satisfying FAC-C requirements or 
as continuous learning for maintenance of FAC-C or SAC certifications.
    (a) Earned value management training. Effective January 1, 2010, all 
personnel in the GS-1102 series who are responsible for, or may become 
responsible for, the award or administration of any contract to which 
earned value management (EVM) is applied pursuant to 334.201(a) or (b) 
must successfully complete an EVM training course before they commence 
administration of the contract or are authorized to award the contract. 
After completion of the initial course, a refresher course is required 
every 2 years. This course is in addition to the training requirements 
for FAC-C certification at the specified levels. Determination of course 
suitability shall be made by the Operating Division (OPDIV) HCA, in 
conjunction with HHS' Office of the Chief Information Officer (OCIO) or 
Office of Facilities Management and Policy (OFMP), as appropriate. To be 
eligible, the basic and refresher courses must each be 8 hours or more 
in length.
    (b) Performance based acquisition training. Effective January 1, 
2010, all GS-1102s, who award or administer service contracts, are 
required to complete a Performance-Based Acquisition (PBA) course prior 
to assuming such responsibilities. Refresher training in PBA is required 
every 4 years. To be eligible, a course must be 8 hours or more in 
length. Determination of course suitability shall be made by the HCA.
    (c) Federal appropriations law training. Effective January 1, 2010, 
all GS-1102s and GS-1105s are required to complete both HHS University's 
classroom-based and on-line Federal appropriations law course, by 
January 1, 2011 (for current employees) and within 1 year of entering on 
duty (for new employees). Employees are required to take the HHS 
University on-line course as refresher training every year. 
Determination of course equivalency shall be made by the HCA.
    (d) Green purchasing training. Effective January 1, 2010, all GS-
1102s and GS-1105s are required to complete green purchasing training by 
January 1, 2011 (for current employees) and within 1 year of entering on 
duty (for new employees). Refresher training is required every 2 years. 
To be eligible, a course must be 4 hours or more in length. 
Determination of course suitability shall be made by the HCA.
    (e) Section 508 training. When the HHS Office on Disability (OD) so 
requires, all GS-1102s, GS-1105s and GS-1106s who award or administer 
acquisitions that involve electronic information technology (EIT) 
products or services (subject to Section 508 of the Rehabilitation Act 
of 1973 and pertinent HHSAR provisions), must complete all applicable OD 
sponsored training. For information on frequency, timing, and duration 
of the training requirement, personnel shall consult with the HHS OD.
    (f) Training policy exceptions--(1) EVM training. In the event that 
there is an urgent requirement for a Contracting Officer/Contract 
Specialist to award or administer a project to which EVM will be 
applied, and the individual has not yet met the EVM training 
requirement, the HCA (non-delegable) may authorize the individual to 
perform the position duties, provided that the individual meets the 
training requirement within 9 months from the date of assignment to the 
contract. If the individual does not complete the training requirement 
within 9 months, the

[[Page 11]]

HCA's approval for the individual's assignment to the contract will 
automatically terminate on that date. The Contract Specialist is not 
required to take the class as long as the Contract Specialist is working 
under the direction of a Contracting Officer who has taken an EVM 
course.
    (2) Other additional HHS training. The HCA (non-delegable) may grant 
a time extension of up to 9 months to an individual to complete the PBA, 
Federal appropriations law, green purchasing, and Section 508 training 
requirements, including completion of refresher training. If the 
individual does not complete the training requirement within the 
extension period, the HCA's approval will automatically terminate on 
that date.

[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21509, Apr. 26, 2010]



Sec. 301.603-74  Requirement for retention of FAC-C and HHS SAC 
          certification.

    To maintain FAC-C certification, all warranted Contracting Officers, 
regardless of series, as well as Contract Specialists, must earn 80 CLPs 
every 2 years. To maintain HHS SAC certification, all individuals with 
delegated Contracting Officer authority, including those in the GS-1102, 
GS-1105, GS-1106, and non-1100 series, must earn a minimum of 40 hours 
(CLPs) every 2 years after completing all mandatory training 
requirements. FAC-C and HHS SAC certification will expire if the CLPs 
are not earned every 2 years (from the date of initial certification or 
re-certification) and, if applicable, may result in a loss of warrant 
authority. (Note: The certification programs' continuous learning 
requirement applies to all applicable personnel, including those who 
were certified under prior certification programs.)



Sec. 301.604  Training and certification of Contracting Officers' 
          Technical Representatives.



Sec. 301.604-70  General.

    In accordance with the Federal Acquisition Certification for 
Contracting Officers' Technical Representatives (FAC-COTR) program, HHS 
has established a training program for certification and designation of 
personnel as COTRs--see HHS' Federal Acquisition Certification for 
Contracting Officers' Technical Representatives Program Handbook (COTR 
Handbook), dated January 2009, for information on the methods for 
earning FAC-COTR certification. See also 302.101(c) for further 
information regarding the definition of a COTR and when designation of a 
COTR is appropriate. All references to COTRs also apply to their 
alternates.

[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21509, Apr. 26, 2010]



Sec. 301.604-71  HCA authorities and responsibilities.

    (a) HCAs are authorized to determine (1) equivalencies for the Basic 
Contracting Officer's Technical Representative Course; (2) course 
prerequisites; and (3) approve completion of CLP continuous learning 
activities, education, and training for maintenance of COTR 
certification. This authority does not apply to EVM training--see 
301.603-73. Course equivalencies must meet the Federal Acquisition 
Institute's (FAI's) required COTR competencies. HCAs may re-delegate the 
authorities in (1) and (2) to OPDIV Acquisition Career Managers (ACMs) 
or other comparable officials.
    (b) In addition to the authorities specified in 301.604-71(a), HCAs 
or their designees (except where the authority is shown as non-
delegable) are responsible for--
    (1) Reviewing a candidate's qualifications to be a COTR;
    (2) Granting, suspending, denying, and revoking COTR certifications 
and their continuance;
    (3) Authorizing (non-delegable) an individual to perform COTR duties 
on an interim basis for up to 90 days--see 301.604-73; and
    (4) Determining (non-delegable) on a case-by-case basis whether to 
postpone (for up to 90 days) withdrawal of any interim COTR delegation 
for failure of a candidate to qualify for certification--see 301.604-73.



Sec. 301.604-72  Requirements for certification maintenance.

    Maintaining HHS FAC-COTR certification requires at least 40 relevant 
CLPs every 2 years. See Appendix A of

[[Page 12]]

OFPP's FAC-COTR memorandum, dated November 26, 2007, and HHS' COTR 
Handbook for information on CLPs.

[75 FR 21509, Apr. 26, 2010]



Sec. 301.604-73  Certification policy exception.

    (a) In the event that an individual who is not currently certified 
under HHS' FAC-COTR program is urgently required to serve as a COTR, the 
head of the sponsoring program office (Program Manager) or designee 
(e.g., the immediate supervisor) may request, and the HCA (non-
delegable) may authorize, the individual to perform the designated 
duties on an interim basis for up to 6 months, provided that--
    (1) The individual agrees to become certified during that period and 
provides evidence of training course registration; and
    (2) Prior to assignment to the contract, the individual meets with 
the cognizant Contracting Officer to discuss the role and specific 
responsibilities of a COTR and the interrelationships, as applicable, 
among the Project Officer, Contracting Officer, Program/Project Manager, 
and COTR functions.
    (b) If an extension has been granted, but the individual does not 
complete the training by the extended date, the HCA's approval for the 
individual's assignment to the contract will automatically terminate on 
that date.



Sec. 301.604-74  Additional COTR training requirements.

    (a) See HHS' COTR Handbook for information on additional COTR 
training requirements.
    (b) Training policy exceptions--(1) EVM training. In the event that 
there is an urgent requirement for a COTR to administer a contract to 
which EVM will be applied, and the individual has not yet met the EVM 
training requirement, the HCA (non-delegable) may authorize the 
individual to perform the position duties, provided that the individual 
meets the training requirement within 9 months from the date of 
assignment to the contract. If the individual does not complete the 
training requirement within 9 months, the HCA's approval for the 
individual's assignment to the contract will automatically terminate on 
that date. In addition, during any extension period, the COTR must work 
under the direction of a COTR, or Program/Project Manager who has taken 
an EVM course.
    (2) Other additional HHS training. The HCA (non-delegable) may grant 
a time extension of up to 9 months to a COTR to complete the PBA, 
Federal appropriations law, and green purchasing training requirements, 
including completion of refresher training. If the individual does not 
complete the training requirement within the extension period, the HCA's 
approval will automatically terminate on that date.

[75 FR 21509, Apr. 26, 2010]



Sec. 301.605  Contracting Officer designation of Contracting Officer 
          Technical Representative.

    The Contracting Officer shall ensure that a COTR candidate is 
currently certified under HHS' FAC-COTR program before delegating 
authority to that individual to act as a COTR. Even if an individual is 
FAC-COTR-certified, a candidate becomes a COTR only when a Contracting 
Officer provides in writing the authorities the individual may exercise 
for a specified contract or order. Authority for such designations rests 
solely with the Contracting Officer. The Contracting Officer shall 
retain in the contract or order file the individual's active FAC-COTR 
certificate. In the event that the HCA has granted an exception--see 
301.604-73, the Contracting Officer shall include the HCA's approval in 
the file.



Sec. 301.606  Training requirements for Project Officers.



Sec. 301.606-70  General.

    HHS has established a program for training personnel for 
certification and designation as Project Officers. See 302.101(g) for 
further information regarding the definition of a Project Officer and 
when designation of a Project Officer is appropriate. All references to 
Project Officers also apply to their alternates. Program Managers or 
their designees are authorized to designate individuals to serve as 
Project Officers. (Note: If an individual will also serve as the COTR 
for a proposed project, the

[[Page 13]]

individual shall comply with the training certification requirements for 
COTRs--see 301.604.)



Sec. 301.606-71  Project Officer training.

    Before an individual may perform the duties of a Project Officer, 
including development of an Acquisition Plan (AP) or other acquisition 
request documentation--see 307.71, for a proposed project, the Program 
Manager or designee shall designate an individual as a Project Officer 
in writing by means of a memorandum to the Project Officer candidate 
with a copy to the cognizant Contracting Officer. A Project Officer must 
successfully complete HHS University's Basic Contracting Officer's 
Technical Representative Course or equivalent and any OPDIV-specific 
course prerequisites. The Project Officer must provide a course 
completion certificate to the Contracting Officer with any AP or other 
acquisition request documentation submitted. See HHS' COTR Handbook for 
additional information on the basic training requirement for Project 
Officers and guidance on the training requirement for technical proposal 
evaluators in 315.305(a)(3)(ii).

[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21509, Apr. 26, 2010]



Sec. 301.606-72  Delegation of authority to HCAs.

    HCAs are authorized to determine equivalencies for the Basic 
Contracting Officer's Technical Representative Course and any OPDIV-
specific course prerequisites. This authority may be re-delegated to 
OPDIV acquisition ACMs or other comparable officials.



Sec. 301.606-73  Requirements for continuous learning maintenance.

    Designated Project Officers require at least 40 relevant CLPs every 
2 years. See HHS' COTR Handbook for information on CLPs.

[75 FR 21510, Apr. 26, 2010]



Sec. 301.606-74  Training policy exception.

    (a) In the event that an individual who has not successfully 
completed the required training course is urgently required to serve as 
a Project Officer, the Program Manager or designee may authorize the 
individual to perform the designated duties on an interim basis for up 
to 6 months, provided that--
    (1) The individual agrees to take the Basic Contracting Officer's 
Technical Representative course during that period and provides evidence 
of course registration; and
    (2) The individual meets, prior to assignment to the project, with 
the cognizant Contracting Officer to discuss the specific role and 
responsibilities of a Project Officer and the interrelationships, as 
applicable, among the Project Officer, Contracting Officer, Program/
Project Manager, and COTR functions.
    (b) If an extension of time has been granted, but the individual 
fails to complete the training by the extended date, the Program 
Manager's or designee's approval for the individual's assignment to the 
project will automatically terminate on that date.

[74 FR 62398, Nov. 27, 2009. Redesignated at 75 FR 21509, Apr. 26, 2010]



Sec. 301.606-75  Additional Project Officer training requirements.

    (a) See HHS' COTR Handbook for information on additional training 
requirements.
    (b) Training policy exceptions--(1) EVM training. In the event that 
there is an urgent requirement to assign a Project Officer to a contract 
project to which EVM will be applied, and the individual has not yet met 
the EVM training requirement, the HCA (non-delegable) may authorize the 
individual to perform the position duties, provided that the individual 
meets the training requirement within 3 months from the date of 
submission of the AP or other acquisition request documentation to the 
contracting office. If the individual does not complete the training 
requirement within the extension period, the HCA's approval for the 
individual's assignment to the project will automatically terminate on 
that date. In addition, during any extension period, the Project Officer 
must work under the direction of a Project Officer, COTR, or Program/
Project Manager who has taken an EVM course.
    (2) Other additional HHS training. The HCA (non-delegable) may grant 
a time extension of up to 9 months to a Project Officer to complete the 
PBA,

[[Page 14]]

Federal appropriations law, and green purchasing training requirements, 
including completion of refresher training. If the individual does not 
complete the training requirement within the extension period, the HCA's 
approval will automatically terminate on that date.

[75 FR 21510, Apr. 26, 2010]



Sec. 301.607  Certification of Program and Project Managers.



Sec. 301.607-70  General.

    In accordance with the Federal Acquisition Certification--Program 
and Project Managers (FAC-P/PM) program, HHS has established a 
certification program for Program or Project Managers. See HHS' Federal 
Acquisition Certification--Program and Project Managers Handbook (P/PM 
Handbook) for information on the methods for earning FAC-P/PM 
certification.



Sec. 301.607-71  FAC-P/PM levels and requirements.

    (a)(1) The FAC-P/PM certification program specifies three different 
levels of certification, depending on the core competency, training, and 
experience required to manage different types of acquisitions--
    (i) Entry/Apprentice--Level I;
    (ii) Mid-level/Journeyman--Level II; and
    (iii) Senior/Expert--Level III.
    (2) Each FAC-P/PM certification level is independent of the others--
i.e., applicants for the Senior/Expert level need not have been 
certified at the Mid-level/Journeyman or Entry/Apprentice levels. 
General and specific core competencies, training, and required 
experience vary by certification level. (Note: Individuals certified 
under the FAC-P/PM program meet the general competency and experience 
standards for P/PM certification. However, IT Program and Project 
Managers should attain/demonstrate IT-specific P/PM requirements. See 
Appendix C, Federal Acquisition Certification--Program and Project 
Managers--Information Technology Technical Competencies, in the P/PM 
Handbook for additional information.
    (b)(1) Competencies. An applicant can satisfy the competency 
requirements through:
    (i) Successful completion of training;
    (ii) Completion of comparable education or certification programs;
    (iii) Demonstration of knowledge, skills, and abilities; or
    (iv) Any combination of these three.
    (2) The FAI describes the following three sets of general core 
competencies on its Web site:
    (3) General Business Competencies: Includes decision-making, 
interpersonal skills, oral communication, team-building, and writing.
    (4) Technical Competencies: Includes contracting, financial 
management, quality assurance, and risk management.
    (5) Essential Competencies and Proficiencies: Includes management 
processes, systems engineering, test and evaluation, contracting, and 
business.
    (6) Specific core competencies also apply to the three certification 
levels. See Chapter 2, Federal Acquisition Certification--Program and 
Project Managers--Requirements and Performance Accountability, in the P/
PM Handbook for additional information.
    (c) Training. (1) Suggested training includes coursework, varying 
from 16-24 hours in duration, in:
    (i) Acquisition;
    (ii) Project management;
    (iii) leadership and interpersonal skills;
    (iv) Government-specific training; and
    (v) Earned value management and cost estimating.
    (2) The depth of the training for each course required may vary by 
certification level.
    (d) Experience. Experience requirements vary by certification level. 
For example, for certification at the Entry/Apprentice--Level I, at 
least 1 year of project management experience within the last 5 years is 
required. The Mid-level/Journeyman--Level II requires at least 2 years 
of program or project management experience within the last 5 years. The 
Senior/Expert--Level III requires at least 4 years of program and 
project management experience on Federal projects within the last 5 
years.

[[Page 15]]

    (e) Additional OPDIV guidance. OPDIVs may issue supplemental 
guidance and requirements for selection and assignment of Program and 
Project Managers and require additional skills and competencies to meet 
organizational or mission needs. However, OPDIVs may not reduce the 
requirements specified in the P/PM Handbook.



Sec. 301.607-72  Applicability.

    (a) The FAC-P/PM certification prerequisites and continuous learning 
requirements apply to all HHS employees who seek to obtain a FAC-P/PM 
certification. Although obtaining a FAC-P/PM certification qualifies 
employees to serve as a Program or Project Manager, it does not ensure 
their selection or designation as such. (Note: Contractors and their 
employees are not eligible to be certified or to serve as Program or 
Project Managers.)
    (b) Mandatory certification is limited to major and non-major IT and 
construction capital investment acquisitions. Consistent with OFPP 
guidance, HHS requires FAC-P/PM Level III certification for Program and 
Project Managers responsible for major IT and construction capital 
investments--i.e., those requiring preparation of an OMB Exhibit 300, 
HHS Form 300, or equivalent. An individual must obtain FAC-P/PM Level 
III certification within 1 year from the date of being assigned to such 
a major capital investment. Also, HHS requires that an individual obtain 
FAC-P/PM Level II or I certification for non-major IT and construction--
i.e., tactical or supporting, capital investments, respectively, within 
2 years from the date of being assigned to such a non-major capital 
investment. See Appendix A, Federal Acquisition Certification--Program 
and Project Managers--HHS Projects and Programs with Associated 
Certification Levels, in the P/PM Handbook for additional information 
regarding major and non-major IT and construction capital investments. 
FAC-P/PM certification for other types of investments [e.g., advanced 
research and development (R & D)] is encouraged, but is not mandatory.



Sec. 301.607-73  Certification waivers.

    (a) Waivers to certification requirements may be approved in certain 
situations. Waivers for additional time to complete certification 
requirements are not necessary for the first year following an 
assignment to a major IT or construction capital investment and for 2 
years following an assignment to a non-major capital investment. For 
waivers beyond those periods (for up to 1 additional year), the HHS 
Chief Information Officer (CIO) (for IT programs and projects) and the 
Deputy Assistant Secretary for Facilities Management and Policy (DASFMP) 
(for construction programs and projects) are delegated authority to 
approve waiver requests. The HHS CAO is the only individual authorized 
to approve waiver requests for additional time beyond the initial 1-year 
waiver period.
    (b) Approval of a waiver request does not relieve an individual from 
meeting the certification requirements. Also, unlike FAC-P/PM 
certifications, waivers issued by other Federal departments and agencies 
do not transfer to HHS, since a waiver is agency-specific.



Sec. 301.607-74  Certification transfers.

    (a) HHS recognizes and accepts FAC-P/PM certifications issued by 
other Federal departments and agencies. In addition, HHS complies with 
FAI determinations as to which certifications by organizations outside 
the Federal government are eligible for full or partial consideration 
under FAC-P/PM. See FAI's Web site, and Chapter 3, Federal Acquisition 
Certification--Program and Project Managers--Application and 
Certification Procedures, in the P/PM Handbook for additional 
information.
    (b) A certification transfer should not be initiated when an 
individual, who holds a current FAC-P/PM certification from another 
Federal department or agency, becomes an HHS employee. Instead, the 
individual must apply for recertification (which will result in issuance 
of an HHS certification) at the time the candidate's immediate 
supervisor performs the bi-annual assessment to determine whether the 
individual has met the HHS FAC-P/PM CLP requirements.

[[Page 16]]



Sec. 301.607-75  Maintenance of FAC-P/PM certification.

    (a) FAC-P/PM certification lasts for 2 years. To maintain FAC-P/PM 
certification, HHS Program and Project Managers are required to earn 80 
CLPs of skills currency every 2 years, starting from the date of their 
initial certification or recertification, and document completion of all 
training. If the required CLPs are not earned within each 2-year period, 
a FAC-P/PM certification will lapse. Lapsed certifications may be 
reinstated when 80 CLPs have been accumulated.
    (b) Continuous learning activities related to FAC-P/PM include, but 
are not limited to--
    (1) Training activities, such as teaching, self-directed study, and 
mentoring;
    (2) Courses completed to achieve certification at the next higher 
level;
    (3) Professional activities, such as attending/speaking/presenting 
at professional seminars/symposia/conferences, publishing papers, and 
attending workshops;
    (4) Educational activities, such as formal training and formal 
academic programs; and
    (5) Experience, such as developmental or rotational assignments.
    See Appendix F, Federal Acquisition Certification--Program and 
Project Managers--Guidance on Meeting Requirements for Continuous 
Learning Points, in the P/PM Handbook for additional information.



Sec. 301.607-76  FAC-P/PM application process.

    The P/PM Handbook contains application procedures and forms to be 
completed for basic certification; certification transfer; certification 
through fulfillment; recertification; and certification waiver. 
Applicants for HHS FAC-P/PM certification actions shall comply with the 
requirements and procedures specified in the P/PM Handbook and refer any 
questions to their OPDIV ACM for resolution.



Sec. 301.607-77  Governance.

    The Departmental ACM, in ASFR/OGAPA/DA, serves as the Departmental 
FAC-P/PM Program Manager and is responsible for administering the 
program. To support the overall management of the FAC-P/PM certification 
program at the OPDIV level, Executive Officers and their HCAs may either 
use their existing ACM or designate an additional ACM, whose 
professional background includes program and project management. See 
Appendix B, Federal Acquisition Certification--Program and Project 
Managers--Roles and Responsibilities, in the P/PM Handbook for 
additional information.

[74 FR 62398, Nov. 27, 2009. Redesignated at 75 FR 21510, Apr. 26, 2010]



Sec. 301.607-78  Contracting Officer designation of a Program/Project 
          Manager as the Contracting Officer's Technical Representative.

    Personnel who are FAC-P/PM certified, at any level, meet the 
requirements for FAC-COTR certification and are, therefore, not required 
to obtain FAC-COTR certification to serve as a COTR for an HHS 
acquisition. However, for those individuals serving as a Program or 
Project Manager under a FAC-P/PM certification waiver--see 301.607-73, 
the Contracting Officer shall ensure that the individual meets the 
requirements of HHS' FAC-COTR program before delegating authority to 
that individual to act as a COTR. See 301.605 for additional information 
regarding the Contracting Officer's designation of a COTR.

[74 FR 62398, Nov. 27, 2009. Redesignated at 75 FR 21510, Apr. 26, 2010]



Sec. 301.608  Training requirements for purchase cardholders, Approving 
          Officials, and Agency/Organization Program Coordinators.

    Training requirements for purchase cardholders, Approving Officials, 
and Agency/Organization Program Coordinators are listed in the following 
table:

         HHS Purchase Card Training Program, by Authority Level
------------------------------------------------------------------------
                                                      Required training
        Authority \a\          Program participant           \b\
------------------------------------------------------------------------
Up to $3,000................  Prospective/newly     Basic purchase card
                               appointed purchase    training (HHS
                               cardholders and       University course
                               Approving Officials.  or an OPDIV
                                                     equivalent course).
                              Purchase card         Yearly refresher
                               holders and           purchase card
                               Approving Officials.  training.

[[Page 17]]

 
$3,001 to $25,000...........  Prospective/newly     
                               appointed purchase    Basic purchase card
                               cardholders and       training (HHS
                               Approving Officials.  University course
                                                     or an equivalent).
                                                    
                                                     Basic simplified
                                                     acquisition
                                                     procedures (e.g.,
                                                     DAU's CON 237).
                                                    
                                                     Advanced simplified
                                                     acquisition
                                                     procedures or
                                                     Appropriations law.
                              Purchase card         Yearly refresher
                               holders and           purchase card
                               Approving Officials.  training.
$25,001 to $100,000.........  Prospective/newly     
                               appointed purchase    Basic purchase card
                               cardholders and       training (HHS
                               Approving Officials.  University course
                                                     or an OPDIV
                                                     equivalent course).
                                                    
                                                     Basic simplified
                                                     acquisition
                                                     procedures (e.g.,
                                                     DAU's CON 237).
                                                    
                                                     Advanced simplified
                                                     acquisition
                                                     procedures or
                                                     Appropriations law.
                                                    
                                                     CON 100 (Shaping
                                                     Smart Business
                                                     Arrangements).
                                                    
                                                     CON 110 (Mission
                                                     Support Planning).
                              Purchase cardholders  Yearly refresher
                               and Approving         purchase card
                               Officials.            training.
Not applicable..............  Prospective/newly     
                               appointed Agency/     Basic purchase card
                               Organization          training (HHS
                               Program               University course
                               Coordinators.         or an OPDIV
                                                     equivalent course).
                                                    
                                                     Basic simplified
                                                     acquisition
                                                     procedures or DAU's
                                                     CON 237.
                                                    
                                                     Advanced simplified
                                                     acquisition
                                                     procedures or
                                                     appropriations law.
                                                    
                                                     CON 100 (Shaping
                                                     Smart Business
                                                     Arrangements).
                                                    
                                                     CON 110 (Mission
                                                     Support Planning).
                              Agency/Organization   Yearly refresher
                               Program               purchase card
                               Coordinators.         training
                                                     (attendance at
                                                     GSA's annual
                                                     training conference
                                                     satisfies refresher
                                                     training).
------------------------------------------------------------------------
\a\ Cardholders and Approving Officials with authorized increases in
  delegation of procurement authority (DPA) have up to 3 months to
  complete the training requirements for the new DPA.
\b\ CON 237, CON 100, and CON 110 are available at the DAU Web site at
  http://www.dau.mil/registrar/enroll.asp. CON 100 is also offered
  through HHS University (see Web site at: http://learning.hhs.gov).

                 PART 302_DEFINITIONS OF WORDS AND TERMS

                        Subpart 302.1_Definitions

Sec.

Sec. 302.101 Definitions.

                    Subpart 302.2_Definitions Clause


Sec. 302.201 Contract clause.

         Subpart 302.70_Common HHSAR Acronyms and Abbreviations


Sec. 302.7000 Common HHSAR acronyms and abbreviations.

            Subpart 302.71_HHS Standard Templates and Formats


Sec. 302.7100 HHS standard templates and formats

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

    Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.

                        Subpart 302.1_Definitions



Sec. 302.101  Definitions.

    (a) Agency head or head of the Agency, unless otherwise stated, 
means the head of the OPDIV for: AHRQ; CDC; CMS; FDA; HRSA; IHS; NIH; 
SAMHSA; and ASFR for the Office of the Secretary (OS), including PSC. 
The Assistant Secretary for Preparedness and Response (ASPR) is the head 
of the agency for BARDA contracting functions.
    (b) Chief of the Contracting Office is typically a mid-level 
management official, usually an office director, division director, or 
branch chief, who manages and monitors the daily contract operations of 
an OPDIV or major component of an OPDIV. The CCO is subordinate to the 
HCA, except where the same individual is the HCA and CCO.
    (c) Contracting Officer's Technical Representative is a Federal 
employee whom a Contracting Officer has designated in writing to act as 
the Contracting Officer's representative in monitoring and administering 
specified aspects of contractor performance after award of a

[[Page 18]]

contract or order that exceeds the simplified acquisition threshold. 
(Note: In accordance with local procedures, OPDIVs may designate COTRs 
for contracts or orders estimated to be less than the simplified 
acquisition threshold.) These activities may include verifying that:
    (1) The contractor's performance meets the standards set forth in 
the contract;
    (2) The contractor meets the contract/order's technical requirements 
by the specified delivery date(s) or within the period of performance; 
and
    (3) The contractor performs within the fixed price or cost ceiling 
stated in the contract or order. COTRs must meet the training and 
certification requirements specified in 301.604.
    (d) Head of the contracting activity is an official who has overall 
responsibility for managing a contracting activity--i.e., the 
organization within an OPDIV or other HHS organization which has been 
delegated broad authority regarding the conduct of acquisition 
functions.
    (1) The HHS HCAs are as follows:

AHRQ: Director, Division of Contracts Management.
ASPR: Director, Office of Acquisitions Management, Contracts and Grants.
CDC: Director, Procurement and Grants Office.
CMS: Director, Office of Acquisition and Grants Management.
FDA: Director, Office of Acquisitions and Grant Services.
HRSA: Director, Office of Acquisition Management and Policy.
IHS: Director, Division of Acquisition Policy.
NIH: Director, Office of Acquisition and Logistics Management.
PSC: Director, Strategic Acquisition Service.
SAMHSA: Director, Division of Contracts Management.

    (2) Each HCA shall conduct an effective and efficient acquisition 
program; establish adequate controls to ensure compliance with 
applicable laws, regulations, procedures, and the dictates of good 
management practices; and conduct periodic reviews to evaluate and 
determine the extent of adherence to prescribed policies and regulations 
and the need for guidance and training.
    (3) HCAs may redelegate their authorities to the extent that 
redelegation is not prohibited by the terms of their respective 
delegations of authority, by law, by the FAR, by the HHSAR, or by other 
regulations. To ensure proper control of redelegated acquisition 
authorities, HCAs shall maintain a file containing successive 
delegations of HCA authority through the Contracting Officer level.
    (e) Program Manager is a federal employee whom an OPDIV official or 
designee one level above the head of the sponsoring program office has 
designated in writing to act as a Program Manager for a group of related 
major or non-major IT or construction capital investments--see HHS' P/PM 
Handbook. See also Appendix D, Relationship between Program Management 
and Project Management, of OFFP memorandum entitled ``The Federal 
Acquisition Certification for Program and Project Managers,'' dated 
April 25, 2007. Program Managers must meet the FAC-P/PM certification 
requirements in 301.607. A Program Manager may also be delegated 
authority to act as the COTR for a major or non-major IT or construction 
capital investment--see 301.604.
    (f) Project Manager is a federal employee whom a head of the 
sponsoring program office (Program Manager) or designee has designated 
in writing to act as a Project Manager for a major or non-major IT or 
construction capital investment--see HHS' P/PM Handbook. See also 
Appendix D, Relationship between Program Management and Project 
Management, of OFFP memorandum entitled ``The Federal Acquisition 
Certification for Program and Project Managers,'' dated April 25, 2007. 
Project Managers must meet the FAC-P/PM certification requirements in 
301.607. A Project Manager may also be delegated authority to act as the 
COTR for a major or non-major IT or construction capital investment--see 
301.604.
    (g) Project Officer is a Federal employee whom a head of the 
sponsoring program office (Program Manager) or designee has designated 
in writing to act as a Project Officer and provide guidance, 
information, and assistance to the Contracting Officer for all technical 
aspects of a proposed project before award of a contract or order that 
is

[[Page 19]]

estimated to exceed the simplified acquisition threshold. (Note: In 
accordance with local procedures, OPDIVs may designate Project Officers 
for contracts or orders estimated to be less than the simplified 
acquisition threshold.) Project Officers must meet the training 
requirements in 301.606. Project Officers are often delegated authority 
to also act as the COTR on a contract or order--see 301.604.

[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21510, Apr. 26, 2010]

                    Subpart 302.2_Definitions Clause



Sec. 302.201  Contract clause.

    The Contracting Officer shall insert the clause in FAR 52.202-1, 
Definitions, in solicitations and contracts, except as cited below. This 
is an authorized FAR deviation.
    (a) In accordance with FAR 52.202-1(a)(1), the Contracting Officer 
shall insert paragraph (a) in 352.202-1 in place of paragraph (a) of the 
FAR clause.
    (b) In accordance with FAR 52.202-1(a)(1), the Contracting Officer 
shall insert paragraph (b), or its alternate in 352.202-1, to the end of 
the FAR clause. The Contracting Officer shall insert paragraph (b) when 
a fixed-priced contract is contemplated and the alternate to paragraph 
(b) when a cost-reimbursement contract is contemplated.

         Subpart 302.70_Common HHSAR Acronyms and Abbreviations



Sec. 302.7000  Common HHSAR acronyms and abbreviations.

    (a) The HHSAR cites numerous acquisition-related and organizational 
acronyms and abbreviations. Each of these is established where first 
cited in the text, following the use of the unabbreviated term, and are 
used in subsequent subparts of that part or any other part of the HHSAR.
    (b) The table below cites, for reference purposes, the most commonly 
used acronyms and abbreviations--i.e., those that have applicability to 
multiple parts of the HHSAR, and where they are first cited. They are 
listed alphabetically. The HHSAR also contains other acronyms and 
abbreviations, which because they are cited only in one HHSAR part, 
subpart, section, or in reference to a particular topic, are not listed 
in the table. An example is DCIS (Departmental Contracts Information 
System) cited in subpart 304.602.

----------------------------------------------------------------------------------------------------------------
          Acronym/abbreviation                          Term                   Where first cited in the HHSAR
----------------------------------------------------------------------------------------------------------------
A & E...................................  Architect and engineer            304.803-70(b).
                                           (contracts).
AHRQ....................................  Agency for Healthcare Research    301.270(b).
                                           and Quality.
AP......................................  Acquisition Plan................  301.606-71.
ASFR....................................  Assistant Secretary for           301.103(b).
                                           Financial Resources (in OS).
ASPR/OAMCG..............................  Assistant Secretary for           301.270(b).
                                           Preparedness and Response,
                                           Office of Acquisitions
                                           Management, Contracts and
                                           Grants.
Associate DAS for Acquisition...........  Associate Deputy Assistant        301.270(a).
                                           Secretary for Acquisition (in
                                           OS/ASFR/OGAPA/DA).
BPA or BPAs.............................  Blanket Purchase Agreement(s)...  301.603-70(b).
CA......................................  Competition Advocate............  306.202(a).
CAO.....................................  Chief Acquisition Officer (for    301.603-72(a)(4).
                                           HHS).
CCO.....................................  Chief of the Contracting Office.  301.602-3(b)(3).
CDC.....................................  Centers for Disease Control and   301.270(b).
                                           Prevention.
CFR.....................................  Code of Federal Regulations.....  301.103(c).
CIO.....................................  Chief Information Officer (for    301.607-73(a).
                                           HHS).
CMS.....................................  Centers for Medicare and          301.270(b).
                                           Medicaid Services.
COTR....................................  Contracting Officer's Technical   301.604-70.
                                           Representative.
D&F.....................................  Determination and Findings......  306.202(b)(1).
DA......................................  Division of Acquisition (in       301.270(b).
                                           ASFR) in OS.
DASFMP..................................  Deputy Assistant Secretary for    301.607-73(a).
                                           Facilities Management and
                                           Policy.
DAS/GAPA................................  Deputy Assistant Secretary for    309.403.
                                           Grants and Acquisition Policy
                                           and Accountability.
EIT.....................................  Electronic information            301.603-73(e).
                                           technology.
EVM.....................................  Earned value management.........  301.603-73(a).
FAR.....................................  Federal Acquisition Regulation..  301.101(a).
FDA.....................................  Food and Drug Administration....  301.270(b).
FedBizOpps..............................  Federal Business Opportunities..  305.205(a).
FSS.....................................  Federal Supply Schedule.........  304.803-70(b).
GLD.....................................  General Law Division (typically   301.602-3(c)(5).
                                           referred to with ``OGC'').
GSA.....................................  General Services Administration.  304.803-70(b).

[[Page 20]]

 
GWAC....................................  Government-wide acquisition       304.803-70(b).
                                           contract.
HCA.....................................  Head of the Contracting Activity  301.470(a).
HHS.....................................  (Department of) Health and Human  301.101(a).
                                           Services.
HHSAR...................................  Health and Human Services         301.101(a).
                                           Acquisition Regulation.
HRSA....................................  Health Resources and Services     301.270(b).
                                           Administration.
HUBZone.................................  Historically Underutilized        305.205(a)(2).
                                           Business Zone.
IDIQ....................................  indefinite-delivery, indefinite-  301.603-70(b).
                                           quantity (contract type).
IHS.....................................  Indian Health Service...........  301.270(b).
IT......................................  information technology..........  301.604-74(a).
JOFOC...................................  Justification for Other than      306.303-1(b)(1).
                                           Full and Open Competition.
NIH.....................................  National Institutes of Health...  301.270(b).
OCIO....................................  Office of the Chief Information   301.603-73(a).
                                           Officer (for HHS).
OFMP....................................  Office of Facilities Management   301.603-73(a).
                                           and Policy (for HHS).
OGAPA...................................  Office of Grants and Acquisition  301.270(b).
                                           Policy and Accountability.
OGC.....................................  Office of the General Counsel...  301.602-3(c)(5).
OIG.....................................  Office of the Inspector General.  303.104-7(a)(2)(i).
OMB.....................................  Office of Management and Budget.  301.106.
OPDIV...................................  Operating Division..............  301.603-73(a).
OS......................................  Office of the Secretary.........  302.101(a).
OSDBU...................................  Office of Small and               307.104(a)(4).
                                           Disadvantaged Business
                                           Utilization (in OS).
Pub. L..................................  Public Law......................  304.604.
PWS.....................................  performance work statement        304.1300(c).
                                           (typically cited with SOW).
PSC.....................................  Program Support Center (in OS)..  301.270(b).
R&D.....................................  research and development........  301.607-72(b).
RFI.....................................  Request for Information.........  305.205(a).
SAMHSA..................................  Substance Abuse and Mental        301.270(b).
                                           Health Services Administration.
SBS.....................................  Small Business Specialist (in     307.104(a)(4).
                                           OSDBU).
SF......................................  Standard Form...................  301.603-1(b).
SOW.....................................  statement of work [inclusive of   304.1300(c).
                                           specification(s)] and typically
                                           cited with PWS.
SPE.....................................  Senior Procurement Executive--    301.603-71.
                                           i.e., Associate DAS for
                                           Acquisition.
STAFFDIV................................  Staff Division (in OS)..........  311.7001(b).
----------------------------------------------------------------------------------------------------------------


[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21510, Apr. 26, 2010]

            Subpart 302.71_HHS Standard Templates and Formats



Sec. 302.7100  HHS standard templates and formats.

    HHS has developed standard templates and formats for preparation of 
various acquisition documents, reports, and plans. The templates and 
formats, which contain instructions for their completion, may be 
accessed on the ASFR/OGAPA/DA Internet Web site. A complete listing of 
the standard templates and formats and where they are referenced in the 
text are cited in the table below:

------------------------------------------------------------------------
       Title of template/format                  HHSAR reference
------------------------------------------------------------------------
Acquisition Plan......................  307.7103.
Acquisition Plan Waiver Request.......  307.7101(b)(2).
Acquisition Strategy..................  307.104-70.
Annual Acquisition Plan...............  307.104(a)(5).
Competition Advocate Report...........  306.502(b).
Contract File Checklists..............  304.803-70.
FedBizOpps R & D Sources Sought Notice  305.205(a)(3).
FedBizOpps Request for Information....  315.201(e)(4).
FedBizOpps Small Business Sources       319.202-2(a)(3).
 Sought Notice.
FedBizOpps Sources Sought Notice......  310.001(a)(3)(iv).
Justification for Other than Full and   306.303-1(b)(1).
 Open Competition.
Limited Source Justification..........  308.405-6(g)(1)(i).
Request for Information...............  315.201(e)(4).
------------------------------------------------------------------------


[[Page 21]]

 PART 303_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

                        Subpart 303.1_Safeguards

Sec.

Sec. 303.101 Standards of conduct.

Sec. 303.101-3 Agency regulations.

Sec. 303.1047-7 Violations or possible violations of the Procurement 
          Integrity Act.

Sec. 303.1003 Requirements.

       Subpart 303.2_Contractor Gratuities to Government Personnel


Sec. 303.203 Reporting suspected violations of the Gratuities clause.

         Subpart 303.3_Reports of Suspected Antitrust Violations


Sec. 303.303 Reporting suspected antitrust violations.

                      Subpart 303.4_Contingent Fees


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

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


Sec. 303.602 Exceptions.

             Subpart 303.7_Voiding and Rescinding Contracts


Sec. 303.704 Policy.

 Subpart 303.8_Limitation on the Payment of Funds To Influence Federal 
                              Transactions


Sec. 303.808-70 Solicitation provision and contract clause.

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

    Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.

                        Subpart 303.1_Safeguards



Sec. 303.101  Standards of conduct.



Sec. 303.101-3  Agency regulations.

    (a)(3) The HHS Standards of Conduct are prescribed in 45 CFR part 
73.



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

    (a)(1) The Contracting Officer shall submit to the HCA for review 
and approval the determination (along with supporting documentation) 
that a reported violation or possible violation of the statutory 
prohibitions has no impact on the pending award or selection of a 
contractor for award.
    (2) The Contracting Officer shall refer the determination that a 
reported violation or possible violation of the statutory prohibitions 
has an impact on the pending award or selection of a contractor, along 
with all related information available, to the HCA, if the HCA is in the 
Senior Executive Service (SES), or to another SES official designated by 
the OPDIV. That individual shall--
    (i) Refer the matter immediately to the Associate DAS for 
Acquisition for review, who may consult with OGC-GLD and the Office of 
the Inspector General (OIG), as appropriate; and
    (ii) Determine the necessary action in accordance with FAR 3.104-
7(c) and (d). The HCA shall obtain the approval or concurrence of the 
Associate DAS for Acquisition before proceeding with an action.
    (b) The HCA (non-delegable) shall act with respect to actions taken 
under the FAR clause 52.203-10, Price or Fee Adjustment for Illegal or 
Improper Authority.



Sec. 303.1003  Requirements.

    (b) The Contracting Officer, when notified of a possible contractor 
violation of Federal criminal law, in accordance with FAR 3.1003(b), 
shall--
    (1) Notify the OIG at http://www.oig.hhs.gov/fraud/hotline;
    (2) Notify the HCA; and
    (3) Cooperate with any investigation by the OIG; and in coordination 
with the HCA, OIG, OGC and the affected program office, pursue 
appropriate remedies.
    (c)(2) The Contracting Officer shall specify the title of HHS' 
hotline poster (``Report Fraud'') and the Web site where the poster can 
be obtained (http://oig.hhs.gov/fraud/hotline/OIG--Hotline--Poster.pdf) 
in subparagraph (b)(3) of the clause at FAR 52.203-14.

[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21510, Apr. 26, 2010]

[[Page 22]]

       Subpart 303.2_Contractor Gratuities to Government Personnel



Sec. 303.203  Reporting suspected violations of the Gratuities clause.

    HHS personnel shall report suspected violations of the Gratuities 
clause to the Contracting Officer, who will in turn report the matter to 
the OGC Ethics Division for disposition. The OGC Ethics Division shall 
identify, and notify the Contracting Officer of, the form and content of 
the required report.

         Subpart 303.3_Reports of Suspected Antitrust Violations



Sec. 303.303  Reporting suspected antitrust violations.

    (h) The HCA shall provide a copy of the draft OPDIV report of 
suspected antitrust violations to the SPE. If the SPE concurs with the 
draft report, the SPE will provide it to the OGC-GLD for its review. If 
the OGD-GLD concurs with the draft report, the SPE will provide the 
signed OGC-approved report to the Attorney General.

                      Subpart 303.4_Contingent Fees



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

    (a) HHS personnel shall promptly report suspected misrepresentations 
or violations of the Covenant Against Contingent Fees clause to the 
Contracting Officer.
    (b)(4) The HCA shall provide a copy of the draft OPDIV report of 
suspected covenant against contingency fees misrepresentations or 
violations to the SPE. If the SPE concurs with the draft report, the SPE 
will provide it to the OGC-GLD for its review. If the OGD-GLD concurs 
with the draft report, the SPE will provide the signed OGC-approved 
report to the Attorney General.

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



Sec. 303.602  Exceptions.

    The HCA (non-delegable) is the official authorized to approve an 
exception to the policy stated in FAR 3.601.

             Subpart 303.7_Voiding and Rescinding Contracts



Sec. 303.704  Policy.

    (a) For purposes of implementing FAR subpart 3.7, the HCA (non-
delegable) shall exercise the authorities granted to the ``agency head 
or designee.''

 Subpart 303.8_Limitation on the Payment of Funds To Influence Federal 
                              Transactions



Sec. 303.808-70  Solicitation provision and contract clause.

    The Contracting Officer shall insert the clause in 352.203-70, Anti-
lobbying, in solicitations and contracts that exceed the simplified 
acquisition threshold.

                     PART 304_ADMINISTRATIVE MATTERS

                   Subpart 304.6_Contracting Reporting

Sec.

Sec. 304.602 General.

Sec. 304.604 Responsibilities.

                 Subpart 304.8_Government Contract Files


Sec. 304.803-70 Contract/order file organization and use of checklists.

Sec. 304.804-70 Contract closeout audits.

              Subpart 304.13_Personal Identity Verification


Sec. 304.1300 Policy.

  Subpart 304.70_Acquisition Instrument Identification Numbering System


Sec. 304.7000 Scope of subpart.

Sec. 304.7001 Numbering acquisitions.

[[Page 23]]

     Subpart 304.71_Review and Approval of Proposed Contract Awards


Sec. 304.7100 Policy.

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

    Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.

                    Subpart 304.6_Contract Reporting



Sec. 304.602  General.

    HHS' Departmental Contracts Information System (DCIS) captures and 
stores HHS' Individual Contract Award Reports (ICARs) and forwards 
copies of them to the Federal Procurement Data System--Next Generation 
(FPDS-NG). All HHS contracting activities shall use the DCIS, in 
accordance with the most current version of the ``User Manual for the 
Enhanced Departmental Contracts Information System,'' (DCIS Users' 
Manual) available at http://dcis.hhs.gov. For the purposes of this 
policy, reporting shall include inputting and submitting report data 
through DCIS into FPDS-NG.



Sec. 304.604  Responsibilities.

    In order for HHS to meet its reporting requirements and ensure 
compliance with the Federal Funding Accountability and Transparency Act 
(Transparency Act), Public Law (Pub. L.) 109-282, HHS acquisition 
officials and staff must report their contract information accurately 
and timely. Ensuring accuracy and timeliness also requires effective and 
efficient data verification and validation at the time of and following 
reporting.
    Following are descriptions of the organizational roles and 
responsibilities associated with contract reporting, including data 
input, oversight, and quality control; training of acquisition staff on 
reporting responsibilities; and operating, managing, and maintaining 
DCIS.
    (a) ASFR/OGAPA/DA. The ASFR/OGAPA/DA shall do the following:
    (1) Oversee and provide policy guidance for OPDIV contract reporting 
by--
    (i) Establishing and implementing an effective HHS-wide ICAR data 
verification and validation program; and
    (ii) Identifying cross-cutting trends through periodic testing of 
selected ICAR data, including Transparency Act data fields.
    (2) Ensure that DCIS is properly managed and maintained, including--
    (i) Verifying that data included therein meets FPDS-NG and 
Transparency Act accuracy and timeliness standards;
    (ii) Updating the DCIS Users' Manual periodically; and
    (iii) Prescribing standard HHS-wide DCIS training.
    (3) Certify annually that HHS ICAR information is complete and 
accurate.
    (b) HCA. Each HCA (non-delegable) shall--
    (1) Ensure that all reportable ICAR information is collected, 
submitted, and received within the time frames and under the 
circumstances specified in FAR Subpart 4.6.

    Note: Each CCO shall prepare and submit accurate ICAR data in 
accordance with HCA guidance.;

    (2) Provide continuing oversight, including implementing an OPDIV-
level data verification and validation program, to ensure ICAR data 
quality and timeliness;
    (3) Establish a continuous training program for acquisition staff to 
ensure the quality and timeliness of ICAR data; and
    (4) Certify annually to HHS' SPE that OPDIV ICAR information is 
complete and accurate.
    (c) Contracting Officer. As part of a normal file review, required 
under 304.7101, the Contracting Officer shall--
    (1) Ensure that all reportable contracts and orders, including BPA 
orders and modifications thereto, are reported;
    (2) Review and approve proposed ICAR data for completeness and 
accuracy prior to signing contracts/orders and modifications; and
    (3) Correct all DCIS data discrepancies before signing the 
associated contract, order, or modification.
    (d) OPDIV DCIS coordinator/focal point. The OPDIV DCIS coordinator/
focal point shall--
    (1) Identify data errors and ensure their timely correction as part 
of the DCIS quality control process;

[[Page 24]]

    (2) Conduct remedial staff training, as appropriate, to improve data 
accuracy and timeliness; and
    (3) Represent the OPDIV as a member of the DCIS Configuration 
Committee.
    (e) DCIS Configuration Committee. The DCIS Configuration Committee 
is composed of the HHS DCIS manager, other ASFR/OGAPA/DA acquisition 
management staff, as required; and each OPDIV's DCIS coordinator/focal 
point. The Committee shall ensure that the DCIS is properly maintained 
and shall evaluate and recommend changes to DCIS to improve its 
functionality, features, and quality control, as appropriate.

                 Subpart 304.8_Government Contract Files



Sec. 304.803-70  Contract/order file organization and use of checklists.

    (a) To provide a consistent approach to the organization and content 
of HHS contract and order files, OPDIVs shall use the folder filing 
system and accompanying file checklists specified in 304.803-70(b), in 
accordance with the guidance therein and the instructions specified as 
``Contract and Order File Folders, Checklists, and Instructions. The 
checklists are available on the ASFR/OGAPA/DA Internet.
    (b) The checklist requirements apply to files for (i) negotiated, 
sealed-bid, and Architect-Engineer (A & E) acquisitions; (ii) orders 
awarded and BPAs established under General Services Administration (GSA) 
Federal Supply Schedule (FSS) contracts; (iii) orders placed under all 
types of indefinite-delivery contracts, including task orders under 
Government-wide Acquisition Contracts (GWACs); and (iv) modifications 
under the types of acquisitions specified in (i), (ii), and (iii). 
Simplified acquisitions, including those for commercial items, are 
exempt from these checklist requirements. However, HHS contracting 
activities shall adhere to the simplified acquisition file documentation 
and retention requirements of FAR 13.106-3(b). For commercial item 
acquisitions using the negotiated or sealed bid methods, HHS contracting 
activities shall use the applicable checklist.
    (1) A complete contract or order file may consist of the following 
folders that are titled as indicated below for the specified acquisition 
methods:

----------------------------------------------------------------------------------------------------------------
       Acquisition method            Folder title        Folder title        Folder title        Folder title
----------------------------------------------------------------------------------------------------------------
Negotiated......................  Presolicitation to  Unsuccessful        Administration and  Reports and
                                   Award.              Proposals.          Closeout.           Deliverables.
Sealed-bid......................  Presolicitation to  Unsuccessful Bids.  Administration and  N/A.
                                   Award.                                  Closeout.
A & E...........................  Preannouncement to  Unsuccessful        Administration and  Reports and
                                   Award.              Qualifications      Closeout.           Deliverables.
                                                       Statements.
Task orders.....................  Presolicitation to  Unsuccessful        Administration and  Reports and
                                   Award.              Proposals.          Closeout.           Deliverables.
GSA FSS.........................  Presolicitation to  Unsuccessful        Administration and  N/A.
                                   Award.              Quotations/Oral     Closeout.
                                                       Presentations.
----------------------------------------------------------------------------------------------------------------

    (2) Although the use of the checklists is mandatory, each OPDIV 
contracting office is permitted to make certain checklist changes or 
additions as specified in ``Use and modification of checklists'' under 
``File checklists and tab dividers'' in the instructions.
    (3) OPDIVs using or planning to use electronic filing capabilities 
shall adhere to the folder and tab nomenclature requirements identified 
herein to the maximum extent practicable.



Sec. 304.804-70  Contract closeout audits.

    (a) Contracting Officers shall rely, to the maximum extent possible, 
on single audits to close physically completed cost-reimbursement 
contracts with colleges and universities, hospitals, non-profit 
organizations, and State and local governments. In addition, where 
appropriate, a sample of these contracts or an individual contract may 
be selected for audit, in accordance with paragraph (b) of this section.

[[Page 25]]

    (b) Contracting Officers shall request contract closeout audits on 
physically completed, cost-reimbursement, contracts with for-profit 
organizations in accordance with the following:
    (1) The OIG and the Associate DAS for Acquisition, in conjunction 
with the OPDIV's cost advisory/audit focal point, determine which 
contracts or contractors will be audited, which audit agency will 
perform the audit, and the type and scope of closeout audit to be 
performed. These decisions are based on the needs of the customer, risk 
analysis, return on investment, and the availability of audit resources. 
When an audit is warranted prior to closing a contract, the Contracting 
Officer shall submit the audit request to the OIG's Office of Audit 
Services, through the OPDIV's cost advisory/audit focal point.
    (2) Except where a Contracting Officer suspects misrepresentation or 
fraud, the Contracting Officer shall not request contract closeout field 
audits, if the cost of performance is likely to exceed the potential 
cost recovery. Contracting Officers may close contracts that are not 
selected for a field audit on the basis of a desk review, subject to any 
later on-site audit findings. In those situations, the release executed 
by the contractor shall contain the following statement: ``The 
Contractor agrees, pursuant to the clause in this contract entitled 
``Allowable Cost'' or ``Allowable Cost and Fixed Fee,'' as appropriate, 
that it will refund to the Government the amount of any sustained audit 
exceptions resulting from any audit made after final payment.''

              Subpart 304.13_Personal Identity Verification



Sec. 304.1300  Policy.

    (a) Definitions. The following definitions apply to this subpart:
    (1) Access: ``Physical'' entry to and/or exit from a facility/area 
of a facility (such as a building or room in a building) or ``logical'' 
entry into an information system, such as a researcher up-loading data/
information through a secure Web site or a contractor accessing an HHS-
controlled information system from its own facility. It does not include 
access to a public Web site, whether by an HHS contractor or member of 
the public, because such Web sites do not require permission to access. 
In the case of sensitive data/information that exists in hard copy, 
``access'' means providing a contractor the right to view or use 
written/typed data or information for the purpose described in a 
contract.
    (2) Long-term: Greater than 6 months in duration.
    (3) Routine: On a regular, non-intermittent basis, which is at least 
once per week during the contract or order period of performance.
    (4) Sensitive data/information: As defined by the Computer Security 
Act of 1987, any data/information, ``the loss, misuse, or unauthorized 
access to or modification of which, could adversely affect the national 
interest or the conduct of Federal programs, or the privacy to which 
individuals are entitled under section 552a of the Title 5 of U.S.C. 
(the Privacy Act), but which has not been specifically authorized under 
criteria established by an Executive order or an act of Congress to be 
kept secret in the interest of national defense or foreign policy.'' 
Examples include individuals' social security numbers; other personal 
identification information, such as individuals' health, medical, or 
psychological information; proprietary research data; and confidential 
legal data.
    (5) Short-term: Six (6) months or less in duration.
    (b) Homeland Security Presidential Directive (HSPD-12), entitled, 
``Policy for a Common Identification Standard for Federal Employees and 
Contractors,'' was issued on August 27, 2004, to enhance security and 
reduce identity fraud related to contractor physical access to 
Federally-controlled facilities and/or logical access to Federally-
controlled information systems.
    (1) The HSPD-12 requirements related to routine, long-term physical 
access to HHS-controlled facilities and logical access to HHS-controlled 
information systems, including contractor personnel background checks/
investigations (termed herein as ``more stringent'' access procedures), 
apply to all solicitations and new contracts or orders for services, 
including services

[[Page 26]]

incidental to supply contracts/orders, regardless of dollar amount, 
where the contractor will require such access (FAR 4.1303). In addition, 
HHS has determined that, when a contractor has routine, long-term access 
to sensitive data/information, whether it exists in an HHS-controlled 
information system or in hard copy, that data/information must also be 
protected and controlled in accordance with HSPD-12's more stringent 
access procedures--see 304.1300(e).
    (2) When a contractor's access to HHS-controlled facilities, 
information systems, and/or sensitive data/information is of routine but 
short-term duration, an OPDIV shall use the applicable guidance cited in 
OMB memorandum M-05-24 related to ``short-term'' access to determine 
appropriate protections and limit/control contractor access--see 
304.1300(f)]. However, if the Project Officer determines greater access 
controls are necessary, an OPDIV may protect and control facilities, 
information systems, and/or sensitive data information in accordance 
with HSPD-12's more stringent access procedures.
    (3) When a contractor's access to HHS-controlled facilities, 
information systems, and/or sensitive data/information is not routine, 
regardless of duration, HHS has determined that OPDIVs shall use the 
applicable guidance cited in OMB memorandum M-05-24 related to 
``occasional visitors'' to determine appropriate protections and limit/
control contractor access--see 304.1300(g).
    (4) Summary table of contractor access circumstances and HSPD-12 
requirements.

------------------------------------------------------------------------
                                                       HSPD-12 security
                                    HSPD-12 access    notice required in
         Type of access               procedures         solicitation/
                                       required        contract SOW/PWS?
                                                       [see 304.1300(e)]
------------------------------------------------------------------------
Routine, long-term, physical      More stringent      YES.
 access to HHS-controlled          access procedures
 facilities.                       apply.
Routine, long-term logical        More stringent      YES.
 access to an HHS-controlled       access procedures
 information system that does      apply.
 not contain sensitive HHS data/
 information.
Routine, long-term access to      More stringent      YES.
 sensitive HHS data/information,   access procedures
 whether it exists in an HHS-      apply.
 controlled information system
 (logical access) or in hard
 copy.
Routine, short-term access to     If greater access   YES.
 HHS-controlled facilities,        controls are
 information systems, and/or       deemed necessary,
 sensitive HHS data/information.   more stringent
                                   access procedures
                                   apply.
If greater access controls are    NO, but contractor
 not deemed necessary,             staff must be
 applicable guidance cited in      provided with the
 OMB memorandum M-05-24 related    OPDIV
 to ``short-term'' access to       documentation on
 determine appropriate             the rules of
 protections and limit/control     behavior and
 contractor access.                consequences for
                                   violation [see
                                   304.1300(f)].
Non-routine access, regardless    Applicable          NO, but contractor
 of duration, to HHS-controlled    guidance cited in   staff must be
 facilities, information           OMB memorandum M-   provided with the
 systems, and/or sensitive HHS     05-24 related to    OPDIV
 data/information.                 ``occasional        ``occasional
                                   visitors'' to       visitor'' policy
                                   determine           and procedures
                                   appropriate         [see
                                   protections and     304.1300(g)].
                                   limit/control
                                   contractor access.
------------------------------------------------------------------------

    (c) As part of the acquisition planning process, the Project Officer 
shall determine whether, based on the nature of the requirement, 
contractor personnel may require access to HHS-controlled facilities 
and/or information systems, including sensitive data/information, in 
order to perform the contract/order Statement of Work (SOW)/Performance 
Work Statement (PWS). If contractor access is required, the Project 
Officer must assess, based on information available at that point in the 
process, the type, frequency, and duration of such access. Following 
that determination, the Project Officer shall consult with OPDIV and/or 
local building and IT security officials/staff, and officials/staff 
involved with personnel security, including the designated personnel 
security representative, to determine appropriate security requirements 
and, as necessary, adjust project requirements to minimize security and 
access issues. The Project Officer shall comply with HSPD-12 and the

[[Page 27]]

following implementing guidance in making these judgments and 
determinations:
    (1) OMB memorandum M-05-24, Implementation of Homeland Security 
Presidential Directive (HSPD) 12--Policy for a Common Identification 
Standard for Federal Employees and Contractors, dated August 5, 2005.
    (2) National Institutes of Standards and Technology Federal 
Information Processing Standard Publication (FIPS PUB) 201), dated 
February 25, 2005, which can be accessed at: http://csrc.nist.gov/
publications/.
    (3) FAR (FAR 4.13 and 52.204-9).
    (4) Any HHS and OPDIV implementation thereof.
    (d) If, as part of the acquisition planning process, the Project 
Officer determines that contractor access will not be required, the 
Project Officer should so state in the AP (or other acquisition request 
document)--see 307.7101. If an AP does not address access issues or 
indicates contractor access is not required, and it appears an 
acquisition may involve access requirements, the Contracting Officer 
shall request that the Project Officer address or reconsider the initial 
access determination. The Project Officer's determination shall be 
final.
    (e) If HSPD-12's more stringent access procedures are expected to 
apply, because access will be routine and of long-term duration, or is 
routine and of short-term duration, but greater access controls are 
deemed necessary, the Project Officer shall include the following ``HHS-
Controlled Facilities and Information Systems Security'' notice in a 
separate, clearly designated ``Security'' section of the SOW/PWS. (Note: 
The Contracting Officer is responsible for tailoring the language in the 
solicitation and contract/order in accordance with the instructions 
provided below.)

    ``XXX Security.

       HHS-Controlled Facilities and Information Systems Security

    (a) To perform the work specified herein, Contractor personnel are 
expected to have routine (1) physical access to an HHS-controlled 
facility; (2) logical access to an HHS-controlled information system; 
(3) access to sensitive HHS data or information, whether in an HHS-
controlled information system or in hard copy; or (4) any combination of 
circumstances (1) through (3). (b) To gain routine physical access to an 
HHS facility, logical access to an HHS-controlled information system, 
and/or access to sensitive data or information, the Contractor and its 
employees shall comply with Homeland Security Presidential Directive 
(HSPD)-12, Policy for a Common Identification Standard for Federal 
Employees and Contractors; Office of Management and Budget memorandum 
(M-05-24); and Federal Information Processing Standards Publication 
(FIPS PUB) Number 201; and with the personal identity verification and 
investigation procedures contained in the following documents:
    (1) HHS Information Security Program Policy.
    (2) HHS Office of Security and Drug Testing, Personnel Security/
Suitability Handbook, dated February 1, 2005.
    (3) HHS HSPD-12 Policy Document, v. 2.0.
    (4) Note: Based upon information provided by the Project Officer, 
the Contracting Officer shall insert references to OPDIV and/or local 
procedural guideline(s), if any; indicate if they are readily accessible 
to the public; and, if so, specify where they may be found. If they are 
not readily accessible, the Contracting Officer shall attach a copy to 
the solicitation and contract and reference the guideline(s) here.
    (c) This contract/order will entail the following position 
sensitivity level(s): --------------------.

    Note: At the time of solicitation, based upon information provided 
by the Project Officer, the Contracting Officer shall specify all known 
levels. If the position sensitivity levels are not known at that time, 
the Contracting Officer shall insert the words ``To Be Determined at the 
Time of Award.'' However, the Contracting Officer must include the 
definitive position sensitivity levels in the awarded contract/order.

    (d) The personnel investigation procedures for Contractor personnel 
require that the Contractor prepare and submit background check/
investigation forms based on the type of investigation required. The 
minimum Government investigation for a non-sensitive position is a 
National Agency Check and Inquiries (NACI) with fingerprinting. More 
restricted positions--i.e., those above non-sensitive, require more 
extensive documentation and investigation.

    Note: The Contracting Officer shall include the following sentence 
in each solicitation as the concluding sentence in paragraph (d)): ``As 
part of its proposal, and if the anticipated position sensitivity levels 
are specified in paragraph (c) above, the Offeror shall notify the 
Contracting Officer of (1) its proposed personnel who will be subject to 
a background check/investigation and (2) whether any of its proposed 
personnel who

[[Page 28]]

will work under the contract have previously been the subject of 
national agency checks or background investigations.''

    (The Contracting Officer shall include the following sentence in 
each contract/order as the concluding sentence in paragraph (d) in lieu 
of the solicitation language: ``The Contractor shall notify the 
Contracting Officer in advance when any new personnel, who are subject 
to a background check/investigation, will work under the contract and if 
they have previously been the subject of national agency checks or 
background investigations.'')
    (e) Investigations are expensive and may delay performance, 
regardless of the outcome of the investigation. Delays associated with 
rejections and consequent re-investigations may not be excusable in 
accordance with the FAR clause, Excusable Delays--see FAR 52.249-14.

    Note: The Contracting Officer shall include the following sentence 
in each solicitation as the concluding sentence in paragraph (e): 
``Accordingly, if position sensitivity levels are specified in paragraph 
(c), the Offeror shall ensure that the employees it proposes for work 
under this contract have a reasonable chance for approval.'' The 
Contracting Officer shall include the following sentence in each 
contract/order as the concluding sentence in paragraph (e) in lieu of 
the solicitation language: ``Accordingly, the Contractor shall ensure 
that any additional employees whose names it submits for work under this 
contract have a reasonable chance for approval.''

    (f) Typically, the Government investigates personnel at no cost to 
the Contractor. However, multiple investigations for the same position 
may, at the Contracting Officer's discretion, justify reduction(s) in 
the contract price of no more than the cost of the additional 
investigation(s).
    (g) The Contractor shall include language similar to this ``HHS-
Controlled Facilities and Information Systems Security'' language in all 
subcontracts that require subcontractor personnel to have the same 
frequency and duration of (1) physical access to an HHS-controlled 
facility; (2) logical access to an HHS-controlled information system; 
(3) access to sensitive HHS data/information, whether in an HHS-
controlled information system or in hard copy; or (4) any combination of 
circumstances (1) through (3).
    (h) The Contractor shall direct inquiries, including requests for 
forms and assistance, to the Contracting Officer or designee.
    (i) Within 7 calendar days after the Government's final acceptance 
of the work under this contract, or upon termination of the contract, 
the Contractor shall return all identification badges to the Contracting 
Officer or designee.''

    (f) When a contractor's access to HHS-controlled facilities, 
information systems, and/or sensitive data/information is of routine, 
but short-term duration, and greater access controls are not deemed 
necessary, the Contracting Officer and Project Officer shall use the 
applicable guidance cited in OMB memorandum M-05-24, dated August 5, 
2005, specifically Attachment A, ``HSPD-12 Implementation Guidance for 
Federal Departments and Agencies,'' to ensure that--
    (1) Adequate OPDIV access controls are applied, and a contractor is 
granted only limited/controlled access to facilities, systems, and/or 
sensitive data/information, consistent with the requirements of the 
acquisition;
    (2) Contractor staff are provided with clear OPDIV documentation on 
the rules of behavior and consequences of their violation before being 
granted access to facilities, systems, and/or sensitive data/
information;
    (3) Contractor security violations are documented and reported to 
the appropriate OPDIV authority within 24 hours of their occurrence; and
    (4) Identity credentials issued to contractor staff are visually and 
electronically distinguishable from credentials issued to individuals to 
whom the more stringent HSPD-12 access procedures apply.

    Note to paragraph (f): However, as indicated in 304.1300(e), if the 
Project Officer determines greater access controls are necessary, an 
OPDIV may protect and control facilities, information systems, and/or 
sensitive data information in accordance with HSPD-12's more stringent 
access procedures.

    (g) When a contractor's access to HHS-controlled facilities, 
information systems, and/or sensitive data/information is not routine, 
regardless of duration, the Contracting Officer and Project Officer 
shall use the applicable guidance cited in OMB memorandum M-05-24, dated 
August 5, 2005, specifically Attachment A, ``HSPD-12 Implementation 
Guidance for Federal Departments and Agencies,'' related to ``occasional 
visitors'' to determine appropriate protections and limit/control 
contractor access to ensure that--
    (1) Adequate OPDIV access controls are applied, and the contractor 
is granted only limited/controlled access

[[Page 29]]

to facilities, systems, and/or sensitive data/information, consistent 
with the requirements of the acquisition; and
    (2) OPDIV visitor policies, including contractor personnel identity 
badging requirements, are enforced and are provided to the contractor.

  Subpart 304.70_Acquisition Instrument Identification Numbering System



Sec. 304.7000  Scope of subpart.

    This subpart prescribes policy and procedures for assigning 
identification numbers to contracts and related instruments, including 
solicitation documents, purchase orders, and delivery orders. The HCA 
(non-delegable) shall establish a numbering system within an OPDIV.



Sec. 304.7001  Numbering acquisitions.

    (a) Acquisitions which require numbering. Contracting activities 
shall number the following acquisitions and related instruments in 
accordance with the system prescribed in paragraphs (b), (c) and (d) of 
this section:
    (1) Contracts, including letter contracts, that exceed the micro-
purchase threshold or the acquisition of personal property or 
nonpersonal services. (Note: The Contracting Officer shall also assign 
the letter contract number to the superseding definitized contract.)
    (2) Basic ordering agreements (BOAs) and BPAs.
    (3) Requests for proposals and invitations for bids.
    (4) Requests for quotations.
    (b) Numbering system for contracts. The Contracting Officer shall 
assign a number consisting of the following to all contracts which 
require numbering (paragraph (a)(1) of this section):
    (1) The three-digit identification code (HHS) of the Department.
    (2) A one-digit alphabetic identification code of the servicing 
agency.

AHRQ: A
ASPR/OAMCG: O
CDC: D
CMS: M
FDA: F
HRSA: H
IHS: I
NIH: N
PSC: P
SAMHSA: S

    (3) The three-digit numeric identification code assigned by ASFR/
OGAPA/DA to the contracting office within the servicing agency.
    (4) A four-digit fiscal year designation (e.g., 2009, 2010).
    (5) A five-digit alphanumeric tracking number, the content of which 
is determined by the contracting office within the servicing agency.
    (6) A one-digit code describing the type of contract action. For 
example, the National Cancer Institute, NIH, may number its first 
contract for fiscal year 2009 as HHSN261200900001C. (Note: When more 
than one code may apply in a specific situation, or for additional 
codes, refer to the DCIS Users' Manual or consult with the cognizant 
DCIS coordinator/focal point for guidance on which code governs.):

A Commercial Item Acquisitions (including purchases using simplified 
acquisition procedures in accordance with the FAR subpart 13.5 Test 
program)
C New Definitive Contract
P Purchases using simplified acquisition procedures (other than 
commercial items)
I IDC
O BOA
B BPA
F Facilities Contract
U Contracts placed with or through other Government departments, GSA 
contracts, or against mandatory source contracts such as AbilityOne and 
Federal Prison Industries (UNICOR)
L Lease Agreement
W Government-wide Acquisition Contract (GWAC)
E Letter Contract
G Federal Supply Schedule
M Micro-purchase
Q Multi-agency contract

    (c) Numbering system for orders. The Contracting Officer shall 
assign order numbers (e.g., task order numbers) to orders issued under 
contracts. The order number shall be up to a seventeen-digit number 
consisting of the following:
    (1) The three-digit identification code (HHS) of the Department.
    (2) A one-digit numeric identification code of the servicing agency:

AHRQ: A
ASPR/OAMCG: O
CDC: D
CMS: M
FDA: F

[[Page 30]]

HRSA: H
IHS: I
NIH: N
PSC: P
SAMHSA: S

    (3) The three-digit numeric identification code assigned by ASFR/
OGAPA/DA to the contracting office within the servicing agency.
    (4) An alphanumeric tracking number, up to ten characters, the 
content of which is determined by the contracting office within the 
servicing agency.
    (d) Numbering system for solicitations. The HCA is responsible for 
developing a numbering system for solicitations listed in paragraphs 
(a)(3) and (a)(4) of this section.
    (e) Assignment of identification codes. ASFR/OGAPA/DA shall assign 
each contracting office a three-digit identification code. HCAs shall 
request from ASFR/OGAPA/DA the assignment of codes for newly established 
contracting offices. A listing of the contracting office identification 
codes currently in use is contained in the DCIS Users' Manual, available 
at http://dcis.hhs.gov.

[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21510, Apr. 26, 2010]

     Subpart 304.71_Review and Approval of Proposed Contract Actions



Sec. 304.7100  Policy.

    (a) The HCA (non-delegable) shall establish review and approval 
procedures for proposed contract actions to ensure that--
    (1) Contractual documents are in conformance with law, established 
policies and procedures, and sound business practices;
    (2) Contract awards properly reflect the mutual understanding of the 
parties; and
    (3) The Contracting Officer is informed of deficiencies and items of 
questionable acceptability, and takes corrective action.
    (b) The HCA shall designate acquisition officials to serve as 
reviewers. Each HCA shall establish the criteria for determining which 
contracts to review.
    (c) Officials assigned responsibility for review and approval of 
contract actions shall possess qualifications in the field of 
acquisition commensurate with the level of review performed. However, if 
an official is to serve as the Contracting Officer and sign the 
contractual document, an appropriate official at least one level above 
the Contracting Officer shall perform the review and approval function.
    (d) The Contracting Officer shall review all contractual documents, 
regardless of dollar value, prior to award to ensure the requirements of 
paragraph (a) of this section are met.

[[Page 31]]

            SUBCHAPTER B_COMPETITION AND ACQUISITION PLANNING

                  PART 305_PUBLICIZING CONTRACT ACTIONS

           Subpart 305.2_Synopsis of Proposed Contract Actions

Sec.

Sec. 305.202 Exceptions.

Sec. 305.205 Special situations.

                Subpart 305.3_Synopses of Contract Awards


Sec. 305.303 Announcement of contract awards.

                    Subpart 305.5_Paid Advertisements


Sec. 305.502 Authority.

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

    Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.

           Subpart 305.2_Synopsis of Proposed Contract Actions



Sec. 305.202  Exceptions.

    (b) When the Contracting Officer deems an advance notice is not 
appropriate or reasonable, the Contracting Officer shall prepare a 
memorandum citing all pertinent facts and details and send it through 
appropriate acquisition channels, including the HCA, to Associate DAS 
for Acquisition requesting an exception to synopsizing. The Associate 
DAS for Acquisition shall review the request and decide whether an 
exception is appropriate and reasonable. If it is, the Associate DAS for 
Acquisition shall take the necessary coordinating actions required by 
FAR 5.202(b). ASFR/OGAPA/DA shall promptly notify the contracting office 
of the Associate DAS for Acquisition's determination on the request.



Sec. 305.205  Special situations.

    (a) An OPDIV may issue an advance notice, entitled ``Research and 
Development Sources Sought,'' in Federal Business Opportunities 
(FedBizOpps), in accordance with the requirements of FAR 5.205(a). The 
primary purpose of an R & D Sources Sought notice is to identify all 
potential sources, regardless of organizational type and size 
classification, and determine their capabilities to fulfill a potential 
Government requirement. The notice is not intended to solicit technical, 
scientific, or business information for project planning purposes 
regarding existing or possible solutions. In the latter instance, a 
Request for Information (RFI) may be used--see FAR 15.201(e) and 
315.201(e).
    (1) When using an R & D Sources Sought notice, an OPDIV shall not 
request that potential sources provide more than the minimum information 
necessary--see FAR 10.001(b), to determine whether they have the 
apparent capability to perform a requirement and, therefore, whether 
they should be included in any future competition. The notice and the 
information received shall not be used to determine how well respondents 
can perform a requirement, which can only be evaluated in response to a 
solicitation. Accordingly, the notice shall not be used to--
    (i) Obtain capability statements that are evaluated and determined 
acceptable or unacceptable;
    (ii) Require cost/price proposals or detailed technical solutions;
    (iii) Identify a prospective sole source; or
    (iv) Exclude small business concerns.
    (2) While not the primary intent of an R & D Sources Sought notice, 
in addition to seeking information regarding all potential qualified R & 
D sources, the notice may request that respondents provide information 
regarding their organizational size classification. For example, the 
notice may ask respondents to identify whether they are small 
businesses; Historically Underutilized Business (HUB) Zone small 
businesses; service-disabled, veteran-owned small businesses; 8(a) small 
businesses; veteran-owned small businesses; woman-owned small 
businesses; or small disadvantaged businesses in order to determine the 
appropriate acquisition method, including whether a set-aside is 
possible. However, such a

[[Page 32]]

notice shall not be used solely to determine the size classification of 
respondents for a proposed R & D acquisition. In such instances, a 
``Small Business Sources Sought'' notice may be used (see 319.202-2), in 
lieu of the procedures in this section.
    (3) OPDIVs shall follow the standard HHS instructions for completing 
an R & D Sources Sought notice. The template for the notice is available 
on the ASFR/OGAPA/DA Internet Web site. The Contracting Officer shall 
post the notice in FedBizOpps by selecting and completing a Sources 
Sought notice, accessible on the FedBizOpps ``Notices'' page at: http://
www.fedbizopps.gov. Additional information may be included in the notice 
in accordance with OPDIV procedures. The Contracting Officer shall 
document, in the form of a memorandum to the file, the results of the 
review by technical personnel of information submitted in response to 
the notice, including whether each respondent appears to be capable of 
performing the requirement. The Contracting Officer shall attach a copy 
of the analysis provided by the technical personnel to the memorandum.
    (4) In instances where a sufficient number of sources has not been 
identified to compete for a non-R & D project, an OPDIV may use the 
procedures specified in 310.001, including the issuance of a ``Sources 
Sought'' notice, as appropriate, in lieu of the procedures in this 
section.

                Subpart 305.3_Synopses of Contract Awards



Sec. 305.303  Announcement of contract awards.

    (a) Public announcement. The Contracting Officer shall report awards 
over $3.5 million, not otherwise exempt under FAR 5.303, to the Office 
of the Assistant Secretary for Legislation (OASL) (Congressional 
Liaison). The Contracting Officer shall e-mail a copy of the contract or 
award document face page to [email protected] prior to the day of award 
or in sufficient time to allow OASL to make an announcement by 5 p.m. 
Washington, DC time on the day of award.

[75 FR 21510, Apr. 26, 2010]

                    Subpart 305.5_Paid Advertisements



Sec. 305.502  Authority.

    The Contracting Officer may advertise or place notices in newspapers 
and periodicals to announce that the contracting office is seeking 
proposals, quotations, or bids, as appropriate.

                    PART 306_COMPETITION REQUIREMENTS

   Subpart 306.2_Full and Open Competition After Exclusion of Sources

Sec.

Sec. 306.202 Establishing or maintaining alternative sources.

           Subpart 306.3_Other Than Full and Open Competition


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

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

Sec. 306.302-7 Public interest.

Sec. 306.303 Justifications.

Sec. 306.303-1 Requirements.

Sec. 306.304 Approval of the justification.

                   Subpart 306.5_Competition Advocates


Sec. 306.501 Requirement.

Sec. 306.502 Duties and responsibilities.

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

    Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.

   Subpart 306.2_Full and Open Competition After Exclusion of Sources



Sec. 306.202  Establishing or maintaining alternative sources.

    (a) The reference to the agency head in FAR 6.202 (a) shall mean the 
appropriate Competition Advocate (CA) cited in 306.501.
    (b)(1) The Contracting Officer shall prepare the required 
determination and

[[Page 33]]

findings (D & F) based on the data provided by program personnel. The 
appropriate CA (non-delegable) shall sign the D & F.

           Subpart 306.3_Other Than Full and Open Competition



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



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

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



Sec. 306.302-7  Public interest.

    (a) Authority.
    (2) Agency head, in this instance, means the Secretary.
    (c) Limitations. The Contracting Officer shall prepare a written 
request for approval and provide it through appropriate acquisition 
channels, including the HCA and Associate DAS for Acquisition, to the 
Secretary. The request shall include a D & F for the Secretary's 
signature that contains all pertinent information to support the 
justification for exercising the exemption to competition and a letter 
for the Secretary's signature notifying Congress of the determination to 
award a contract under the authority of 41 U.S.C. 253(c)(7).



Sec. 306.303  Justifications.



Sec. 306.303-1  Requirements.

    (b) The responsible Program Office must provide a written 
justification whenever it requests that goods or services be acquired 
without obtaining full and open competition. The justification must be 
submitted with the AP or other acquisition request document--see Subpart 
307.71. The Project Officer has responsibility for preparing the 
justification with assistance, as necessary, from the Contracting 
Officer.
    (1) Justifications for acquisitions at or below the simplified 
acquisition threshold may be in the form of a paragraph or paragraphs 
contained in the requisition or other acquisition request document. 
Justifications for acquisitions in excess of the simplified acquisition 
threshold shall be in the form of a separate, self-contained document, 
prepared in accordance with FAR 6.303 and 306.303, and titled 
``Justification for Other Than Full and Open Competition'' (JOFOC). HHS 
requires use of a standard format for a JOFOC. The template for the 
justification is available on the ASFR/OGAPA/DA Internet Web site. 
Additional information may be included in the JOFOC template in 
accordance with OPDIV procedures.
    (2) Regardless of the dollar amount of the acquisition, 
justifications shall--
    (i) Fully describe what is to be acquired;
    (ii) Provide a specific explanation of why it is not feasible to 
obtain full and open competition;
    (iii) Be supported by verifiable facts, rather than untested or 
unsubstantiated opinions or conclusions; and
    (iv) Be written in a manner to permit an individual without 
technical knowledge of the requirement to understand the supporting 
rationale.
    (3) Preliminary arrangements with, or verbal or written commitments 
to, a proposed sole-source contractor shall be avoided given the 
statutory requirement to obtain full and open competition to the maximum 
extent practicable.

[[Page 34]]

    (4) Justifications for orders to be placed under FSS contracts that 
limit consideration of contractors shall comply with FAR 8.405-6 and 
308.405-6.



Sec. 306.304  Approval of the justification.

    Certification, concurrence, and approval requirements. The Project 
Officer, the Project Officer's immediate supervisor, the head of the 
sponsoring program office, and the Contracting Officer shall certify 
that the justification is accurate and complete by signing the JOFOC. 
For acquisitions in the dollar amount cited in FAR 6.304(a)(2) through 
(a)(4), the CCO, if applicable, and the HCA shall indicate their review 
of, and concurrence with, the justification by signing the JOFOC.
    (a) The approving officials for JOFOCs are as follows:
    (1) The Contracting Officer shall exercise this approval authority 
unless a higher approval level is required by OPDIV procedures.
    (2) The CAs are listed in 306.501. This approval authority is not 
delegable.
    (3) The CA shall exercise this approval authority, except where the 
individual designated as the CA does not meet the requirements of FAR 
6.304 (a)(3)(ii). This approval authority is not delegable.
    (4) HHS' SPE is the Associate DAS for Acquisition.
    (c) A class justification shall be processed in the same manner as 
an individual justification. A class justification may consist of 
contracts/orders for the same or related supplies and services or other 
contract/order actions that require essentially identical 
justifications.

                   Subpart 306.5_Competition Advocates



Sec. 306.501  Requirement.

    The HHS CA is the Director, Strategic Acquisition Service, PSC. The 
CAs for each of HHS' contracting activities are as follows:

AHRQ: Director, Office of Performance Accountability, Resources and 
Technology
ASPR/OAMCG: Chief of Acquisition Policy
CDC: Chief Information Officer
CMS: Chief Operating Officer
FDA: Deputy Commissioner for Administration
HRSA: Associate Administrator, Office of Operations
IHS: Director, Office of Management Services
NIH: Senior Scientific Advisor for Extramural Research, Office of 
Extramural Research (R&D) and Senior Advisor to the Director (other than 
R&D)
    PSC: Director, Strategic Acquisition Service
    SAMHSA: Executive Officer

[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21510, Apr. 26, 2010]



Sec. 306.502  Duties and responsibilities.

    (a) Each OPDIV CA shall prepare an annual Competition Advocate 
Report (CAR), covering the prior fiscal year, in accordance with the 
requirements of FAR 6.502(b)(2) and 306.502(b), and provide it to the 
HHS CA not later than November 16 of each year or the next business day, 
if the due date falls on a non-business day. NIH's two CAs shall prepare 
and sign a joint report covering their respective areas of 
responsibility.
    (b) HHS requires that each CAR be prepared in a standard format. The 
template for the report is available on the ASFR/OGAPA/DA Internet Web 
site. As long as the standard headings are included and required 
information is addressed, the OPDIV may include additional information 
in accordance with OPDIV procedures.
    (1) The CAR shall be based on information and data for all 
acquisitions that exceed the micro-purchase threshold for the applicable 
fiscal year, unless otherwise noted in the standard format.
    (2) Each OPDIV CA shall obtain the information and data needed for 
preparation of the CAR from the responsible HCA and/or the CCO, as 
appropriate, who shall assist the CA in preparing the CAR.
    (3) Prior to forwarding the CAR to the HHS CA, each OPDIV CA shall 
provide the CAR to the responsible HCA, who shall review and approve it 
for accuracy and completeness.
    (c) The HHS CA shall consolidate all OPDIV CARs and provide an HHS-
wide CAR that addresses all requirements of FAR 6.502(b) to the HHS SPE 
and the CAO by December 20 of each year or the next business day, if the 
due date falls on a non-business day.

[[Page 35]]

                      PART 307_ACQUISITION PLANNING

                   Subpart 307.1_Acquisition Planning

Sec.

Sec. 307.104 General procedures.

Sec. 307.104-70 Acquisition strategy.

Sec. 307.104-71 Purpose and timing.

Sec. 307.105 Contents of written acquisition plans.

Sec. 307.108-70 Telecommuting of contractor employees.

     Subpart 307.70_Considerations in Selecting an Award Instrument


Sec. 307.7000 Scope of subpart.

Sec. 307.7001 Distinction between acquisition and assistance.

Sec. 307.7002 Procedures.

                     Subpart 307.71_Acquisition Plan


Sec. 307.7100 Scope of subpart.

Sec. 307.7101 Policy.

Sec. 307.7102 Content.

Sec. 307.7103 Format.

Sec. 307.7104 Review and certification.

Sec. 307.7105 Transmittal.

Sec. 307.7106 Acquisition milestones.

Sec. 307.7107 Responsibilities.

Sec. 307.7108 Statement of work.

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

    Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.

                   Subpart 307.1_Acquisition Planning



Sec. 307.104  General procedures.

    (a) Each contracting activity shall prepare an Annual Acquisition 
Plan (AAP) as far in advance of each fiscal year as possible, in 
accordance with the following:
    (1) The AAP shall contain all anticipated acquisition actions for 
the coming fiscal year that exceed the simplified acquisition threshold, 
including new acquisitions and contract/order modifications. The AAP 
must include--
    (i) The aggregate dollars planned for simplified acquisitions by 
quarter;
    (ii) Any long lead-time acquisitions that will be awarded in future 
fiscal years (see paragraph (c) below); and
    (iii) Proposed multi-agency and intra-agency contracts--see 317.70.
    (2) The HCA or the CCO, as appropriate, shall prepare the AAP and 
obtain the information needed for its preparation from the responsible 
program planning/budget office and/or the program offices.
    (3) Contracting activities shall use the AAP for reporting purposes 
and workload scheduling and monitoring.
    (4) The HCA/CCO and Small Business Specialist (SBS) in the Office of 
Small and Disadvantaged Business Utilization (OSDBU) shall review the 
AAP at least quarterly, with input from the cognizant program office, 
and modify it, as appropriate, during the fiscal year, with updated 
information, particularly regarding the specific acquisition method the 
contracting activity plans to use.
    (5) HHS requires use of a standard format for an AAP. The template 
for the plan is available on the ASFR/OGAPA/DA Internet Web site. For 
the data elements specified in the AAP format, the HCA/CCO may include 
information in addition to that required by the standard instructions 
accompanying the format.
    (b) As early as possible following completion of the AAP, the 
Contracting Officer shall initiate discussions with the assigned Project 
Officer, in consultation with the OSDBU SBS, for each action that 
exceeds the simplified acquisition threshold. As appropriate, the 
discussions shall include--
    (1) Determining the intended acquisition strategy and contract/order 
type, including the use of options;
    (2) Reviewing the SOW, if available, for adequacy and ensuring that 
a PWS is used for services, where practicable;
    (3) Evaluating the potential for, and maximizing the use of, 
competitive procedures;
    (4) Performing market research, identifying potential sources, and 
determining set-aside potential and small business subcontracting 
opportunities;
    (5) Assessing the availability of commercial items;
    (6) Determining required clearances/approvals and supporting 
documentation; and
    (7) Preparing an acquisition milestone schedule;
    (8) Determining the best multi- or intra-agency contracting activity 
to assist in awarding a contract on the requiring organization's behalf, 
if applicable; and

[[Page 36]]

    (9) Determining in the case of direct ordering that the chosen 
acquisition vehicle is the best way to obtain the required product or 
service, if a vehicle other than those listed in 317.7002(b) is 
proposed.
    (c) The HCA or designee (not lower than the CCO) shall establish 
standard lead-times for processing various types of acquisitions and 
applicable fiscal year deadlines for receipt of requirements to allow 
for well-planned and timely awards. The Project Officer shall initiate 
planning, to the extent possible, for certain requirements, such as 
major capital IT investments, major capital construction investments, 
and R & D projects that require peer review, at least 24 months before 
planned award, given the clearance/approval requirements and lead-time 
required for such complex acquisitions.
    (d) The outcome of the discussions referenced in paragraph (b) above 
shall be an agreement concerning the acquisition approach and 
documentation required. For those actions that require development of a 
written AP--see 307.7101, for which the Project Officer has ultimate 
responsibility, these discussions shall also result in an agreement 
concerning--
    (1) Which elements of the AP the Contracting Officer will assist the 
Project Officer in preparing; and
    (2) The date (as specified in the milestone schedule) the Project 
Officer will provide the AP to the CCO or designee.



Sec. 307.104-70  Acquisition strategy.

    Program and Project Managers responsible for major IT capital 
investments (and for any other investments designated by the HHS CIO, 
DASFMP, the CAO, or the cognizant HCA) shall prepare an acquisition 
strategy using the HHS acquisition strategy template. The template for 
the acquisition strategy is available on the ASFR/OGAPA/DA Internet Web 
site. Program and Project Managers must initiate the acquisition 
strategy for major IT capital investments as part of the planned 
investment's business case, usually during the Enterprise Performance 
Life Cycle concept phase.



Sec. 307.104-71  Purpose and timing.

    (a) The purpose of an acquisition strategy is to describe the 
overall approach for acquiring capabilities needed to fulfill 
investment/programmatic objectives. Acquisition strategy development 
requires identification of issues and risks that might impact an 
acquisition(s) to allow early action to eliminate or mitigate the issues 
and risks.
    (b) An acquisition strategy differs from an AP with respect to the 
timing of its development and the level of detail required.
    (1) An acquisition strategy is established at the inception (concept 
phase) of an investment/acquisition to support the business case, 
identify and mitigate risks, and begin the acquisition planning process. 
An acquisition strategy addresses the major issues surrounding business 
objectives, competitive forces, and various risks that need to be 
considered.
    (2) An acquisition strategy is a living document used throughout the 
investment's life-cycle. It should be continuously updated with the 
active involvement of the Program or Project Manager and the Contracting 
Officer at appropriate points, as plans for the investment/acquisition 
mature. An acquisition strategy ultimately will result in an AP--see 
307.71.
    (3) An AP, which is required to support proposed acquisitions 
expected to exceed $500,000 (inclusive of options, with certain 
exceptions)--see 307.7101, is developed closer to the time of 
solicitation. The AP addresses not only those issues in the acquisition 
strategy, but also the tactical details of how the acquisition will be 
executed.



Sec. 307.105  Contents of written acquisition plans.

    FAR 7.105 specifies the content requirements of a written AP. 
Subpart 307.71 incorporates and supplements those requirements.



Sec. 307.108-70  Telecommuting of contractor employees.

    (a) SOWs/PWSs shall permit offerors or contractors to specify their 
own place(s) of performance (hence authorize their employees to 
telecommute), except as follows:

[[Page 37]]

    (1) The Project Officer may restrict place of performance (hence 
restrict an offeror's or contractor's telecommuting) for any part of an 
SOW/PWS, after determining that the work or any portion thereof must be 
performed at a specified place of performance; or security would be 
compromised. The Project Officer must document this determination in 
writing and send a copy of the determination, along with the SOW/PWS, to 
the Contracting Officer. The Project Officer must also address in an HHS 
AP (or other acquisition request document) any performance requirements 
or security considerations that restrict place of performance--see 
307.71.
    (2) In accordance with FAR 7.108(a), if the Contracting Officer 
concurs with the Project Officer's determination in (a)(1) above, then 
the Contracting Officer must sign the Project Officer's determination; 
include it in the official contract file; and specify any prohibition 
against telecommuting in the solicitation and resultant contract.
    (3) In accordance with FAR 7.108(a), if the Contracting Officer 
decides to restrict a place of performance that the Project Officer did 
not restrict, then the Contracting Officer must document in writing the 
determination to preclude telecommuting in part or in whole; include the 
determination in the official contract file; and specify any prohibition 
against telecommuting in the solicitation and resultant contract.
    (b) If the Contracting Officer disagrees with the Project Officer's 
determination in (a)(1) above, then the Contracting Officer shall return 
both the SOW/PWS and determination to the Project Officer for further 
consideration.
    (c) The Contracting Officer shall ensure that authorized 
telecommuting of contractor employees does not result in increased cost 
or price to the Government.

     Subpart 307.70_Considerations in Selecting an Award Instrument



Sec. 307.7000  Scope of subpart.

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



Sec. 307.7001  Distinction between acquisition and assistance.

    (a) 31 U.S.C. 6301-6308 requires the use of contracts to acquire 
property or services for the direct benefit or use of the Government and 
grants or cooperative agreements to transfer money, property, services, 
or anything of value to eligible entities to accomplish a public purpose 
of support or stimulation authorized by Federal statute.
    (b) OPDIVs shall use a contract as the legal instrument to reflect a 
relationship between the Government and an entity whenever the--
    (1) Principal purpose of the instrument is the acquisition, by 
purchase, lease, or barter, of property or services for the direct 
benefit or use of the Government; or
    (2) Government determines in a certain situation that specific needs 
can be satisfied best by using the acquisition process. However, this 
authority does not permit circumventing the criteria for use of 
acquisition or assistance instruments. Use of this authority is 
restricted to extraordinary circumstances and requires the Associate DAS 
for Acquisition's prior approval.
    (c) OPDIVs shall use a grant or cooperative agreement as the legal 
instrument to reflect a relationship between the Government and an 
entity whenever the principal purpose of the relationship is the 
transfer of money, property, services, or anything of value to 
accomplish a public purpose of support or stimulation authorized by 
Federal statute.
    (1) OPDIVs shall use a grant when no substantial programmatic 
involvement is anticipated between the Government and the recipient 
during performance of the contemplated activity.
    (2) OPDIVs shall use a cooperative agreement when substantial 
programmatic involvement is anticipated between the Government and the 
recipient during performance of the contemplated activity.

[[Page 38]]

    (d) As a general rule, OPDIVs shall use contracts for the following 
purposes:
    (1) Evaluation (including research of an evaluative nature) of the 
performance of Government programs or projects or grantee activity 
initiated by the funding agency for its direct benefit or use.
    (2) Technical assistance rendered to the Government, or on behalf of 
the Government, to any third party, including those receiving grants or 
cooperative agreements.
    (3) Surveys, studies, and research which provide specific 
information desired by the Government for its direct activities, or for 
dissemination to the public.
    (4) Consulting services or professional services of all kinds if 
provided to the Government or, on behalf of the Government, to any third 
party.
    (5) Training projects where the Government selects the individuals 
or specific groups whose members are to be trained or specifies the 
content of the curriculum (not applicable to fellowship awards).
    (6) Production of publications or audiovisual materials the 
Government requires primarily for the conduct of its direct operations.
    (7) Design or development of items for Government use or pursuant to 
agency definition or specifications.
    (8) Conferences conducted on the Government's behalf.
    (9) Generation of management information or other data for 
Government use.



Sec. 307.7002  Procedures.

    (a) OPDIV program officials shall use existing budget and program 
planning procedures to propose new activities and major changes in 
ongoing programs. OPDIV program officials shall meet with the HCA and 
the Chief Grants Management Officer, or their designees, as necessary, 
to determine whether award is to be made through the acquisition or 
assistance process. This determination shall normally occur prior to the 
time when the AAP is reviewed and approved so that the AAP will reflect 
all known proposed contract actions. The HCA shall fully document a 
shift from one award instrument to another in the appropriate files to 
show a fundamental change in program purpose that unequivocally 
justifies the rationale for the shift.
    (b) The Contracting Officer shall confirm the appropriateness of the 
use of the contract instrument when reviewing the AP or other 
acquisition request document.
    (c) OPDIVs shall ensure that the choice of instrument is in 
accordance with 31 U.S.C. 6301-6308 and applicable HHS policies. If, 
however, there are major individual transactions or programs which 
contain elements of both acquisition and assistance in such a way that 
they cannot be characterized as having a principal purpose of one or the 
other instrument, OPDIVs shall obtain guidance from ASFR/OGAPA/DA, 
through appropriate acquisition channels, including the HCA, before 
proceeding with a determination.
    (d) Any public notice, program announcement, solicitation, or 
request for applications or proposals, or request for quotations shall 
indicate whether the intended relationship will be one of acquisition or 
financial assistance and specify the award instrument the OPDIV will 
use.

                     Subpart 307.71_Acquisition Plan



Sec. 307.7100  Scope of subpart.

    FAR 7.102 requires acquisition planning for all acquisitions. This 
subpart establishes: (a) when a written AP is required; (b) its contents 
and format; and (c) the need for review of the AP to certify that it is 
accurate, complete, and in the proper format. This subpart also 
establishes the documentation requirements for those acquisitions not 
requiring an AP.



Sec. 307.7101  Policy.

    (a) An AP is required for all acquisitions, to be placed by an HHS 
contracting office, expected to exceed $500,000 (inclusive of options) 
with the following exceptions:
    (1) Letter contracts.
    (2) Unsolicited proposals.
    (3) Regulated utility services available from only one source.
    (4) Proposals under the Small Business Innovative Research (SBIR) 
and

[[Page 39]]

Small Business Technology Transfer (STTR) programs.
    (5) Acquisition of commercial items/services--see FAR 2.101, 
including orders placed under FSS contracts meeting the definition of a 
commercial item/service, and not exceeding $5.5 million [$11 million for 
acquisitions as described in FAR 13.500(e)].
    (6) Task orders or delivery orders of any dollar amount placed 
under--
    (i) An IDIQ contract, other than a GWAC; or
    (ii) A BPA, provided there is an approved acquisition planning 
document for the original action, and there is no significant deviation 
from that plan.
    (7) Orders of any dollar amount placed under HHS-wide strategic 
sourcing vehicles.
    (8) Contract/order modifications that--
    (i) Exercise options;
    (ii) Only provide additional funding; or
    (iii) Make changes authorized by the Changes clause.
    (9) Assisted acquisitions processed pursuant to an interagency 
agreement. However, the OPDIV must comply with the requirements 
specified in 317.5 Interagency Agreements under the Economy Act and 
317.70, Multi-agency and Intra-agency Contracts.
    (b) In urgent or other justifiable cases, such as an emergency 
acquisition--see FAR Part 18, the HCA may waive, in writing, the 
requirement for completion of an AP. An HCA shall not approve a waiver 
request based on the lack of advance planning.
    (1) The Project Officer, the Project Officer's immediate supervisor, 
the head of the sponsoring program office, the Contracting Officer, and 
other signatories shall sign the waiver request in accordance with OPDIV 
policies. In OPDIVs where a CCO(s) is designated, as defined in 302.101, 
the cognizant CCO also shall sign the waiver request.
    (2) HHS has established a standard format for preparing an AP waiver 
request. The template for the waiver request is available on the ASFR/
OGAPA/DA Internet Web site. Contracting activities shall use this format 
when requesting a waiver.
    (3) The OPDIV shall provide ASFR/OGAPA/DA a copy of any approved 
waiver request within 5 business days after HCA approval.
    (c) For those acquisitions not requiring an AP, other than assisted 
acquisitions processed pursuant to an interagency agreement--see 317.5 
and 317.70, the Project Officer shall provide an acquisition request 
document (e.g., memorandum, requisition, or other form of transmittal) 
to the CCO or designee, requesting completion of the required action. 
The request must include, as applicable: a SOW/PWS (including 
deliverables and reporting requirements); a certified funding document; 
source selection strategy and criteria; necessary clearances, approvals, 
and justifications (e.g., a JOFOC); a milestone schedule; and an 
independent Government cost estimate.) In addition, OPDIVs shall use the 
content requirements of the AP as a reference in determining what other 
information and documentation is necessary to support the intended 
acquisition. Alternatively, OPDIVs may prescribe use of an AP for 
acquisitions excepted under 307.7101(a)(1) through (a)(8).

[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21510, Apr. 26, 2010]



Sec. 307.7102  Content.

    In accordance with 307.105, the FAR, HHSAR, and other Federal 
requirements that OPDIVs must consider in developing an AP, as well as 
its format, are stipulated in 307.7103. An AP shall address each 
applicable element. As indicated in the instructions, elements that are 
not applicable to an individual acquisition shall be marked ``N/A.'' The 
scope and depth of an AP may vary depending on the nature, complexity, 
and estimated cost of the proposed acquisition. As a result of new or 
revised FAR requirements or other Federal directives, the--
    (a) HCA or designee may make any needed interim changes to the AP;
    (b) HCA or designee shall notify ASFR/OGAPA/DA of the need to revise 
the AP; and
    (c) ASFR/OGAPA/DA shall update the AP, which would supersede any 
interim HCA (or designee) changes made

[[Page 40]]

to the acquisition plan for future acquisitions.

[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21510, Apr. 26, 2010]



Sec. 307.7103  Format.

    (a) HHS has established a standard format for preparing an AP. The 
template for the AP is available on the ASFR/OGAPA/DA Internet Web site.
    (b) OPDIVs may use the prescribed format without modification or use 
it as a guideline, as long as the format used by the OPDIV complies with 
the requirements specified in subparagraphs (c) and (d) below.
    (c) An AP must consist of seven (7) parts with standard headings, as 
follows:

Part I Transmittal and Approval Form.
Part II Summary Sheet.
Part III Project Considerations and Information.
Part IV Clearance/Approval Checklist.
Part V Acquisition Milestone Schedule.
Part VI Independent Government Cost Estimate.
Part VII Attachments.

    (d) Within each of the seven parts, there are required components 
that an OPDIV cannot modify and specific areas where OPDIVs can make 
changes. The table in the Requirements and Responsibilities section of 
the AP cites the titles, paragraph/subparagraph headings, narrative, and 
other requirements that must appear in each part of an AP in the 
specified format, as well as permissible modifications.



Sec. 307.7104  Review and certification.

    Before the Project Officer transmits the AP to the CCO or designee--
see 307.7105, the head of the sponsoring program office (typically a 
Division Director or equivalent), Project Officer, Funds Certification 
Official, Contracting Officer, and other signatories in accordance with 
OPDIV policies, shall review the AP and certify that it provides all 
required information in the prescribed format and the following:
    (a) Vague and ambiguous language has been eliminated.
    (b) A thorough technical review of the SOW/PWS has been completed.
    (c) The project is structured by phases or tasks, as appropriate.
    (d) Methods are available to assess the contractor's performance.
    (e) The acquisition mechanism is appropriate--i.e., the principal 
purpose of the project is to acquire supplies or services for the direct 
benefit or use of the Government.
    (f) The planned obligation of appropriated funds for the project 
satisfies a bona fide need of the requiring office arising in the fiscal 
year for which the appropriation was made.



Sec. 307.7105  Transmittal.

    The Project Officer shall convey the signed AP to the CCO or 
designee by providing a completed Part I--Transmittal and Approval Form, 
with other parts of the AP attached, no later than the date agreed to in 
the acquisition milestone schedule, unless the officials establish a 
different date by mutual agreement.



Sec. 307.7106  Acquisition milestones.

    The Contracting Officer shall retain the acquisition milestone 
schedule in the contract file and update/revise it to track progress of 
the acquisition. The milestone schedule signatories (see the 
Requirements and Responsibilities section of the AP--Part V of the 
table) shall mutually agree to any revisions to the milestone dates that 
will impact meeting the scheduled award date. Milestone schedule 
signatories shall report a failure to meet established milestones to a 
higher level official in accordance with OPDIV procedures.



Sec. 307.7107  Responsibilities.

    The following table summarizes the responsibilities of the various 
organizations and officials for acquisition planning:

------------------------------------------------------------------------
                                      Responsible
     Acquisition planning        organization/official   HHSAR reference
------------------------------------------------------------------------
Make necessary interim changes  OPDIV HCA or designee.  307.7102.
 to the AP and notify ASFR/
 OGAPA/DA of changes needed.

[[Page 41]]

 
Update the AP to reflect new    ASFR/OGAPA/DA.........  307.7102.
 or revised FAR and other
 Federal directives.
Prepare the AAP and update it   OPDIV-HCA/CCO.........  307.104,
 quarterly, as appropriate.                              subparagraph
                                                         (a).
Establish standard acquisition  OPDIV-HCA/CCO.........  307.104,
 lead-times and deadlines for                            subparagraph
 receipt of requirements for                             (d).
 award in an applicable fiscal
 year.
Identify and plan               OPDIV-Project Officer.  307.104,
 requirements, particularly                              subparagraph
 complex, long lead-time                                 (d).
 acquisitions, well in advance
 of the fiscal year in which
 they are to be awarded.
(i) Participate in acquisition  OPDIV-Project Officer.  (i) 307.104,
 planning; (ii) prepare the                              subparagraph
 AP; and (iii) provide the AP                            (c);
 to the Contracting Officer.                            (ii) 307.104,
                                                         subparagraph
                                                         (e); and (iii)
                                                         307.7105.
(i) Participate in acquisition  OPDIV-Contracting       (i) 307.104,
 planning; and (ii) assist the   Officer.                subparagraph
 Project Officer in AP                                   (c);
 preparation.                                           (ii) 307.104,
                                                         subparagraph
                                                         (e).
Waive requirement for           OPDIV-HCA.............  307.7101,
 development of an AP when                               subparagraph
 justified.                                              (b).
Review and certify that an AP   OPDIV-Head of the       307.7104
 is complete, accurate, and in   Sponsoring Program
 the proper format.              Office, Project
                                 Officer, Funds
                                 Certification
                                 Official, Contracting
                                 Officer, and other
                                 signatories in
                                 accordance with OPDIV
                                 policies.
Meet established acquisition    OPDIV-Project Officer   307.7106.
 milestone dates.                and Contracting
                                 Officer.
------------------------------------------------------------------------



Sec. 307.7108  Statement of work.

    (a) General. An SOW describes the work or services a contractor is 
to perform in reaching an end result without describing the method that 
the contractor shall use, unless the method of performance is critical 
or required in order to obtain successful performance. An SOW shall be 
clear and concise; completely define the responsibilities of both the 
contractor and the Government; and be worded to make misinterpretation 
virtually impossible.
    (b) Term (level of effort)form and completion form SOWs. Term-form 
(level of effort) SOWs essentially require the furnishing of technical 
effort, which may include a report thereof, while completion-form SOWs 
require development of tangible items designed to meet specific 
performance and/or design characteristics--see FAR 16.306(d) for this 
distinction.
    (1) Term (or level of effort). A term or level of effort-form SOW is 
appropriate for research where the objective is to discover the 
feasibility of later development or to gather general information. A 
term or level of effort-form SOW specifies that some number of labor 
hours be expended on a particular course of research or that a certain 
number of tests be run, without reference to any intended conclusion.
    (2) Completion. A completion-form SOW is appropriate for development 
work where the feasibility of producing an end item is already known. A 
completion-form SOW may describe what is to be achieved through the 
contracted effort, such as development of new methods, new end items, or 
other tangible results.
    (c) Phasing. Individual research, development, or demonstration 
projects frequently lie well beyond the present state of the art and 
entail procedures and techniques of great complexity and difficulty. 
Under these circumstances, a contractor, no matter how carefully 
selected, may be unable to deliver the desired result. Moreover, the job 
of evaluating the contractor's progress is often difficult. Such a 
contract is frequently phased and often divided into stages of 
accomplishment, each of which the contractor must complete and the 
Contracting Officer approve before the contractor may proceed to the 
next phase or stage. Phasing makes it necessary to develop methods and 
controls, including reporting requirements for each phase of the 
contract and criteria for evaluation of the report submitted, that will 
provide, at the earliest possible time, appropriate data for making 
decisions relative to future phases. A phased contract, such as one for 
an R & D or demonstration project,

[[Page 42]]

may include stages of accomplishment. Within each phase, there may be a 
number of tasks that the SOW should include. When phases of work can be 
identified, the SOW shall provide for phasing and the solicitation shall 
require offerors to submit proposed costs by phases. The resultant 
contract shall reflect costs by phases, require the contractor to 
identify incurred costs by phases, establish delivery schedules by 
phase, and require the written acceptance of each phase. The Contracting 
Officer shall not allow contractors to incur costs for phases that are 
dependent upon successful completion of earlier phases until the 
Contracting Officer provides written acceptance of the prior work.
    (d) Elements of the SOW. The elements of the SOW may vary with the 
objective, complexity, size, and nature of the acquisition. In general, 
the SOW shall include the following:
    (1) Purpose of the project. This includes a general description of 
the objectives of the project and the desired results.
    (2) Background information. This includes a brief history of the 
project and the importance of the project to the overall program 
objectives.
    (3) A detailed description of the technical requirements. The SOW 
shall provide sufficient detail to accurately reflect the Government's 
requirement. It shall state what is to be accomplished without 
prescribing the method the contractor is to use and shall include 
performance standards, if applicable. See 307.104(b)(2) and FAR 37.602 
for guidance on preparation of a PWS. An SOW may include tasks and 
subtasks. The degree of breakout depends on the size and complexity of 
the project. An SOW shall indicate whether the tasks are sequential or 
concurrent.
    (4) Reference material. This includes an explanation of all 
reference material a contractor needs to carry out the project; the 
applicability of the reference material; and a statement as to where 
potential offerors can obtain the material.
    (5) Level of effort. When a level of effort is necessary, the SOW 
shall specify the number and type of personnel required, if known, and 
the type and degree of expertise.
    (6) Special requirements (as applicable). This includes providing, 
in a separate section, any unusual or special contractual requirements 
that may affect performance. For example, the SOW shall specify 
separately the work requirements to implement information security 
management requirements--see 339.71 for additional information.
    (7) Deliverables and reporting requirements. This includes clearly 
and completely describing all deliverables and reports, including the 
time frame for completion, the format, and the required number of 
copies.

           PART 308_REQUIRED SOURCES OF SUPPLIES AND SERVICES

                 Subpart 308.4_Federal Supply Schedules

Sec.

Sec. 308.404 Use of Federal Supply Schedules.

Sec. 308.405-6 Limited source justification and approval.

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

    Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.

                 Subpart 308.4_Federal Supply Schedules



Sec. 308.404  Use of Federal Supply Schedules.

    (f) Technical Evaluation. When conducting a technical evaluation of 
quotations or proposals received under FAR Part 8, the provisions of 
315.305(a)(3) apply.



Sec. 308.405-6  Limited source justification and approval.

    (g)(1) As required by FAR 8.405-1 or 8.405-2, the responsible 
program office must provide a written justification whenever it requests 
an acquisition under the FSS program that restricts consideration of the 
number of schedule contractors or to an item peculiar to one 
manufacturer. The justification must be submitted with the AP or other 
acquisition request document--see 307.71. The Project Officer has 
responsibility for preparing the justification with assistance, as 
necessary, from the Contracting Officer.
    (i) Justifications for orders at or below the simplified acquisition

[[Page 43]]

threshold may be in the form of a paragraph or paragraphs contained in 
the requisition or other acquisition request document. Justifications 
for orders in excess of the simplified acquisition threshold shall be in 
the form of a separate, self-contained document, prepared in accordance 
with FAR 8.405-6(g) and 308.405-6(g), and titled ``Limited Source 
Justification'' (LSJ). HHS requires use of a standard format for an LSJ. 
The template for the justification is available on the ASFR/OGAPA/DA 
Internet Web site. Additional information may be included in the LSJ 
template in accordance with OPDIV procedures.
    (ii) Regardless of dollar amount of the acquisition, justifications 
shall--
    (A) Fully describe what is to be acquired;
    (B) Cite specific reasons that explain why it is necessary to 
restrict consideration of sources;
    (C) Be supported by verifiable facts rather than untested or 
unsubstantiated opinions or conclusions; and
    (D) Be written in a manner to permit an individual without technical 
knowledge of the requirement to understand the supporting rationale.
    (iii) Preliminary arrangements with, or verbal or written 
commitments to, a proposed contractor shall be avoided given the 
requirement to obtain competition for FSS orders using the procedures in 
FAR Subpart 8.4--see also FAR 6.102(d)(3).
    (iv) Justifications for non-FSS orders to be awarded without full 
and open competition shall comply with FAR 6.303 and 306.303.
    (h) Justification approvals.
    Certification, concurrence, and approval requirements. The Project 
Officer, the Project Officer's immediate supervisor, the head of the 
sponsoring program office, and the Contracting Officer shall certify 
that the justification is accurate and complete by signing the LSJ. For 
acquisitions in the dollar amount cited in FAR 8.405-6(h)(2) through 
(h)(4), the CCO, if applicable, and the HCA shall indicate their review 
of, and concurrence with, the justification by signing the LSJ. The 
approving officials for LSJs are as follows:
    (1) The Contracting Officer shall exercise this approval authority 
unless a higher approval level is required by OPDIV procedures.
    (2) The CAs are listed in 306.501. This approval authority is not 
delegable.
    (3) The CA shall exercise this approval authority, except where the 
individual designated as the competition advocate does not meet the 
requirements of FAR 8.405-6(h)(3)(ii). This approval authority is not 
delegable.
    (4) The HHS SPE is the Associate DAS for Acquisition.

                   PART 309_CONTRACTOR QUALIFICATIONS

         Subpart 309.4_Debarment, Suspension, and Ineligibility

Sec.

Sec. 309.403 Definitions.

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

Sec. 309.405 Effect of listing.

Sec. 309.406 Debarment.

Sec. 309.406-3 Procedures.

Sec. 309.407 Suspension.

Sec. 309.407-3 Procedures.

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

Sec. 309.470-1 Situations where reports are required.

Sec. 309.470-2 Contents of reports.

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

    Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.

         Subpart 309.4_Debarment, Suspension, and Ineligibility



Sec. 309.403  Definitions.

    Acquiring agency's head or designee, as used in the FAR, means, 
unless otherwise stated in this subpart, the HCA. The HCA may make the 
required justifications or determinations and take the necessary actions 
specified in FAR 9.405, 9.406 and 9.407, only after obtaining the 
written approval of the debarring or suspending official, as 
appropriate.
    Debarring official means the Deputy Assistant Secretary for Grants 
and Acquisition Policy and Accountability (DAS/GAPA).

[[Page 44]]

    Initiating official means the Contracting Officer, the HCA, the 
Associate DAS for Acquisition, or the Inspector General (IG).
    Suspending official means the DAS/GAPA.



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

    (c) The ASFR/OGAPA/DA shall perform the actions required by FAR 
9.404(c).
    (4) The ASFR/OGAPA/DA shall maintain all documentation the 
initiating official submits to recommend the debarment or suspension 
action and all correspondence and other pertinent documentation 
generated during the review.



Sec. 309.405  Effect of listing.

    (a) The HCA (non-delegable) may, with the written concurrence of the 
debarring or suspending official, make the determinations referenced in 
FAR 9.405(a) regarding contracts.
    (1) If a Contracting Officer considers it necessary to award a 
contract, or consent to a subcontract with a debarred or suspended 
contractor, the Contracting Officer shall prepare a determination, 
including all pertinent documentation, and submit it through appropriate 
acquisition channels to the HCA. The documentation shall include the 
date by which approval is required and a compelling reason for the 
proposed action. Compelling reasons for award of a contract or consent 
to a subcontract with a debarred or suspended contractor include the 
following:
    (i) Only the cited contractor can provide the property or services.
    (ii) The urgency of the requirement dictates that HHS conduct 
business with the cited contractor.
    (2) If the HCA decides to approve the requested action, the HCA 
shall request the concurrence of the debarring or suspending official 
and, if given, shall inform the Contracting Officer in writing of the 
decision within the required time period.



Sec. 309.406  Debarment.



Sec. 309.406-3  Procedures.

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



Sec. 309.407  Suspension.



Sec. 309.407-3  Procedures.

    (a) Investigation and referral. When an apparent cause for 
suspension becomes known, the initiating official shall prepare a report 
containing the information required by 309.470-2 along with a written 
recommendation and forward

[[Page 45]]

it through appropriate acquisition channels, including the HCA, to the 
suspending official in accordance with 309.470-1. The suspending 
official shall initiate an investigation.
    (b) Decision making process. The suspending official shall review 
the results of the investigation, if any, and make a written 
determination whether or not suspension shall occur. ASFR/OGAPA/DA shall 
send a copy of the determination through appropriate acquisition 
channels to the initiating official and the Contracting Officer. If the 
suspending official determines that suspension is necessary, the 
suspending official shall consult with OGC-GLD and then notify the 
contractor in accordance with FAR 9.407-3(c). If the action is not based 
on an indictment, and, subject to the provisions of FAR 9.407-3(b) (2), 
the contractor's submission in response to the notice raises a genuine 
dispute over facts material to the suspension, the suspending official 
shall, after imposing the suspension, arrange for fact-finding hearings 
and take the necessary actions specified in FAR 9.407-3(b)(2).



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



Sec. 309.470-1  Situations where reports are required.

    The Contracting Officer shall forward a report, incorporating the 
information required by 309.470-2, through appropriate acquisition 
channels, including the HCA, to the Associate DAS for Acquisition 
whenever a contractor--
    (a) Has committed, or is suspected of having committed, any of the 
acts described in FAR 9.406-2 or FAR 9.407-2; or
    (b) Is suspected of attempting to evade the prohibitions of 
debarment or suspension imposed under this subject, or any other 
comparable regulation, by changes of address, multiple addresses, 
formation of new companies, or by other devices.



Sec. 309.470-2  Contents of reports.

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

                        PART 310_MARKET RESEARCH

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

[[Page 46]]



Sec. 310.001  Policy.

    (a) OPDIVs are encouraged to conduct market research, to the maximum 
extent practicable, consistent with the urgency, complexity, and dollar 
value of a proposed acquisition, as well as their past experience with 
the same or similar requirements.
    (3)(i) An OPDIV may issue an advance notice, entitled ``Sources 
Sought'' in FedBizOpps in accordance with the requirements of FAR Part 
5, whenever a sufficient number of sources has not been identified to 
obtain adequate competition for a non-R & D project. The primary purpose 
of a Sources Sought notice is to identify all potential sources, 
regardless of organizational type and size classification, and determine 
their capabilities to fulfill a potential Government requirement. The 
notice is not intended to solicit technical, scientific, or business 
information for project planning purposes regarding existing or 
potential solutions. In the latter instance, an RFI may be used--see FAR 
15.201(e) and 315.201(e).
    (ii) When using a Sources Sought notice, an OPDIV shall not request 
that potential sources provide more than the minimum information 
necessary--see FAR 10.001(b), to determine whether they have the 
apparent capability to perform a requirement and, therefore, whether 
they should be included in any future competition. The notice and the 
information received shall not be used to determine how well respondents 
can perform a requirement, which can only be evaluated in response to a 
solicitation. Accordingly, the notice shall not be used to--
    (A) Obtain capability statements that are evaluated and determined 
acceptable or unacceptable;
    (B) Require cost/price proposals or detailed technical solutions;
    (C) Identify a prospective sole source; or
    (D) Exclude small business concerns.
    (iii) While not the primary intent of a Sources Sought notice, in 
addition to seeking information regarding all potential qualified 
sources, the notice may request that respondents provide information 
regarding their organizational size classification. For example, the 
notice may ask respondents to identify whether they are small 
businesses; HUBZone small businesses; service-disabled, veteran-owned 
small businesses; 8(a) small businesses; veteran-owned small businesses; 
woman-owned small businesses; or small disadvantaged businesses in order 
to determine the appropriate acquisition method, including whether a 
set-aside is possible. However, such a notice shall not be used solely 
to determine the size classification of respondents for a proposed non-R 
& D acquisition. In such instances, a ``Small Business Sources Sought'' 
notice may be used--see 319.202-2, in lieu of the procedures in this 
section.
    (iv) OPDIVs shall follow the standard HHS instructions for 
completing a Sources Sought notice. The Contracting Officer shall post 
the notice in FedBizOpps by selecting and completing a Sources Sought 
notice. The template for the notice is available on the ASFR/OGAPA/DA 
Internet Web site. Additional information may be included in the notice 
in accordance with OPDIV procedures. The Contracting Officer shall 
document, in the form of a memorandum to the file, the results of the 
review by technical personnel of information submitted in response to 
the notice, including whether each respondent appears to be capable of 
performing the requirement. The Contracting Officer shall attach a copy 
of the analysis provided by the technical personnel to the memorandum.
    (v) In instances where a sufficient number of sources has not been 
identified to compete for an R & D project, OPDIVs may use the 
procedures specified in 305.205, including the issuance of an ``R & D 
Sources Sought'' notice, as appropriate, in lieu of the procedures in 
this section.

[74 FR 62398, Nov. 27, 2009]

                    PART 311_DESCRIBING AGENCY NEEDS

           Subpart 311.70_Section 508 Accessibility Standards

Sec.

Sec. 311.7000 Defining electronic information technology requirements.

[[Page 47]]


Sec. 311.7001 Section 508 accessibility standards for HHS Web site 
          content and communication materials.

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

    Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.

           Subpart 311.70_Section 508 Accessibility Standards



Sec. 311.7000  Defining electronic information technology requirements.

    HHS staff that define agency needs for EIT products and services, 
including EIT deliverables such as electronic documents and reports, and 
perform market research to meet those needs, shall document EIT 
requirements, identify the applicable Section 508 accessibility 
standards, and document the market research. OPDIVs may develop 
procedures for these activities, based on the level of agency investment 
and risk, and shall ensure any procedures developed are in conformance 
with FAR Part 10. Procedures for defining EIT requirements may, but are 
not required to, include the use of the Buy Accessible Wizard (http://
www.buyaccessible.gov), managed by GSA, or other Federal agency tools.



Sec. 311.7001  Section 508 accessibility standards for HHS Web site 
          content and communications materials.

    (a) Section 508 of the Rehabilitation Act of 1973 [29 U.S.C. 
794(d)], as amended by the Workforce Investment Act of 1998, (Section 
508) specifies the accessibility standards that apply to all new 
solicitations and new or existing contracts or orders, regardless of 
dollar amount, for communications products and services that require a 
contractor or consultant to produce content in any format that is 
specifically intended for publication on, or delivery via, an HHS-owned 
or -funded Web site.
    (b) Accordingly, before forwarding a request to the contracting/
ordering office for the acquisition of communications products and 
services, including content in any format, such as reports, documents, 
charts, posters, presentations (such as Microsoft PowerPoint), or video 
material that is specifically intended for publication on, or delivery 
via, an HHS-owned or -funded Web site, the Project Officer shall consult 
with the OPDIV/STAFF Division (DIV) Section 508 Official or Coordinator, 
as necessary, to determine the applicability of Section 508, identify 
applicable Section 508 accessibility standards, and resolve any related 
issues.
    (c) Based on those discussions, the Project Officer shall provide a 
statement in the AP (or other acquisition request document)--see 
307.7101, as to the applicability of Section 508. If Section 508 applies 
to an acquisition, the Project Officer shall include the following ``HHS 
Section 508 Accessibility Standards Notice'' language in a separate, 
clearly designated section of the SOW/PWS, and any additional 
information applicable to the acquisition's Section 508 accessibility 
standards [e.g., the list of applicable accessibility standards of the 
Architectural and Transportation Barriers Compliance Board (Access 
Board) Final Rule (36 CFR Part 1194)]. If an AP does not address these 
issues, and it appears an acquisition involves Section 508, or if the 
discussion of Section 508 applicability to the acquisition is inadequate 
or incomplete, the Contracting Officer shall request that the Project 
Officer modify the AP accordingly.

     HHS Section 508 Accessibility Standards Notice (September 2009)

    This contract is subject to Section 508 of the Rehabilitation Act 
(the Act) of 1973 (29 U.S.C. 794d), as amended by the Workforce 
Investment Act of 1998, and the Architectural and Transportation 
Barriers Compliance Board (Access Board) Electronic and Information 
Accessibility Provisions (36 CFR Part 1194). Section 508 of the Act 
requires that, unless an exception applies, all communications products 
and services that require a contractor or consultant to produce content 
in any format that is specifically intended for publication on, or 
delivery via, a Federally owned or Federally funded Web site permit the 
following:
    (1) Federal employees with disabilities to have access to and use 
information and data that is comparable to the access and use of 
information and data by Federal employees who are not individuals with 
disabilities.
    (2) Members of the public with disabilities seeking information or 
services from a Federal agency to have access to and use of information 
and data that is comparable to the access and use of information and 
data by members of the public who are not individuals with disabilities.


[[Page 48]]


    Note: Information about Section 508 of the Act is available at 
http://www.section508.gov/. The complete text of Section 508 can be 
accessed at http://www.access-board.gov/sec508/provisions.htm.

    Accordingly, regardless of format, all Web content or communications 
materials specifically produced for publication on, or delivery via, HHS 
Web sites, including text, audio, or video, under this contract shall 
conform to applicable Section 508 accessibility standards. Remediation 
of any materials that do not comply with the applicable accessibility 
standards of 36 CFR Part 1194 as set forth herein shall be the 
responsibility of the Contractor.
    The following Section 508 accessibility standards apply to the 
content or communications material identified in this SOW or PWS:

    Note: The Project Officer shall list the applicable accessibility 
standards of the Access Board Final Rule (36 CFR Part 1194) (e.g., ``36 
CFR 1194.21(a)-(j).'' Most Web-based text and communication must meet 
the accessibility standards in 36 CFR 1194.22, ``Web-based intranet and 
Internet information and applications.'' Additionally, 36 CFR 1194.41, 
``Information, documentation and support,'' and 36 CFR 1194.24 ``Video 
and multimedia products'' apply to all written, graphical, or broadcast 
video materials or products produced for HHS, including training. 36 CFR 
1194.41(c) specifies that support services for products shall 
accommodate the communication needs of end-users with disabilities.

                PART 312_ACQUISITION OF COMMERCIAL ITEMS

          Subpart 312.1_Acquisition of Commercial Items_General

Sec.

Sec. 312.101 Policy

  Subpart 312.2_Special Requirements for the Acquisition of Commercial 
                                  Items


Sec. 312.202(d) Market research and description of agency need.

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

    Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.

          Subpart 312.1_Acquisition of Commercial Items_General



Sec. 312.101  Policy.

    (a) It is HHS policy to leverage its buying power, reduce 
acquisition administrative costs, and develop long-term, mutually 
beneficial partnerships with best-in-class providers of products and 
services. Accordingly, HHS has implemented a Strategic Sourcing Program 
through which it awards BPAs or other contract vehicles to achieve 
savings for commercial items and services across HHS and make the 
acquisition process more efficient. OPDIVs shall use HHS' strategic 
sourcing vehicles to the maximum extent possible--see the HHS strategic 
sourcing portion of the ASFR/OGAPA/DA intranet site for further 
information.

  Subpart 312.2_Special Requirements for the Acquisition of Commercial 
                                  Items



Sec. 312.202(d)  Market research and description of agency need.

    Whenever an OPDIV/STAFFDIV requires EIT products and services 
subject to Section 508 of the Rehabilitation Act of 1973, as amended, 
commercially available products and services shall be acquired to the 
maximum extent possible while ensuring Section 508 compliance. 
Consistent with paragraph 4.3.1 of the HHS Section 508 policy--see 
Section 508 policy on the HHS Office on Disability Web site, if products 
and services are commercially available that meet some but not all of 
the applicable Section 508 accessibility standards, and no commercially 
available products or services meet all of the applicable Section 508 
accessibility standards, an OPDIV/STAFFDIV shall acquire the products 
and services that best meet the applicable Section 508 accessibility 
standards. Commercial nonavailability exception determinations for EIT 
products and services that do not meet some or all of the applicable 
Section 508 accessibility standards shall be processed in accordance 
with 339.203.

[[Page 49]]

           SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES

               PART 313_SIMPLIFIED ACQUISITION PROCEDURES

Sec.

Sec. 313.003 Policy.

                        Subpart 313.1_Procedures


Sec. 313.106-2 Evaluation of quotations or offers.

              Subpart 313.3_Simplified Acquisition Methods


Sec. 313.301 Government-wide commercial purchase card.

Sec. 313.303 Blanket purchase agreements.

Sec. 313.303-5 Purchases under blanket purchase agreements.

         Subpart 313.5_Test Program for Certain Commercial Items


Sec. 313.501 Special documentation requirements.

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

    Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.



Sec. 313.003  Policy.

    EIT products and services, including EIT deliverables such as 
electronic documents and reports, acquired pursuant to FAR Part 13 shall 
comply with Section 508 of the Rehabilitation Act of 1973, as amended. 
Consistent with paragraph 4.3.1 of the HHS Section 508 policy--see 
Section 508 policy on HHS Office on Disability Web site, if products and 
services, including commercially available items, meet some but not all 
of the applicable Section 508 accessibility standards, and no 
commercially available products or services meet all of the applicable 
Section 508 accessibility standards, an OPDIV/STAFFDIV shall acquire the 
products and services that best meet the applicable Section 508 
accessibility standards. Commercial nonavailability exception 
determinations for EIT products and services that do not meet some or 
all of the applicable Section 508 accessibility standards shall be 
processed in accordance with 339.203.

                        Subpart 313.1_Procedures



Sec. 313.106-2  Evaluation of quotations or offers.

    (b)(5) Technical Evaluation. When conducting a technical evaluation 
of quotations or proposals received under FAR Part 13, the provisions of 
315.305(a)(3) apply.

              Subpart 313.3_Simplified Acquisition Methods



Sec. 313.301  Government-wide commercial purchase card.

    (b) HHS' procedures for the use and control of the Government-wide 
commercial purchase card may be found in the HHS Purchase Card Program 
Guide, available on the ASFR/OGAPA/DA Web site.
    (1) ASFR/OGAPA/DA has overall responsibility for monitoring the 
OPDIVs' implementation of the HHS purchase card program to foster 
compliance with FAR 13.301; OMB Circular A-123, Appendix B, ``Improving 
the Management of Government Charge Card Programs;'' GSA's SmartPay 
Program guidance; and HHS Purchase Card program standards.
    (2) The OPDIVs, through their designated Agency/Organization Program 
Coordinators, are responsible for establishing the necessary local 
procedures and appropriate training requirements to ensure effective 
implementation of the HHS purchase card program.
    (3) OPDIVs shall refer to 313.003 and the HHS Purchase Card Program 
Guide for information regarding acquiring EIT products and services 
subject to Section 508 of the Rehabilitation Act of 1973, as amended.



Sec. 313.303  Blanket purchase agreements.



Sec. 313.303-5  Purchases under blanket purchase agreements.

    (e)(5) HHS personnel that sign delivery documents, invoices, etc., 
verifying the receipt of an item or service shall forward such documents 
to the fiscal office or other paying office that the

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OPDIV designates. The fiscal or other paying officer shall use the 
signed document, invoice, etc., as the basis for payment. Alternatively, 
OPDIVs may use electronic methods to document, and transmit to the 
paying office, the receipt, inspection, and acceptance of items or 
services for payment purposes, provided such methods are authorized in 
local fiscal procedures. Contracting offices shall establish procedures 
to ensure that funds are available prior to placement of orders.

         Subpart 313.5_Test Program for Certain Commercial Items



Sec. 313.501  Special documentation requirements.

    (a)(1)
    (i) The justification requirements of 306.303-1(b) and 306.303-
1(b)(1) through (b)(4) apply to proposed noncompetitive acquisitions 
placed under FAR Subpart 13.5.
    (ii) The HHS standard format for JOFOCs cited in 306.303-1(b)(1) 
shall be used to support noncompetitive acquisitions in excess of the 
simplified acquisition threshold placed under FAR Subpart 13.5.
    (iii) The certification, concurrence, and approval requirements 
cited in 306.304 for JOFOCs apply to applicable noncompetitive 
acquisitions placed under FAR Subpart 13.5.
    (2)
    (i) The Contracting Officer shall exercise this approval authority 
unless a higher approval level is required by OPDIV procedures.
    (ii) The CAs are listed in 306.501. This approval authority is not 
delegable.
    (iii) The CA shall exercise this approval authority, except where 
the individual designated as the competition advocate does not meet the 
requirements of FAR 6.304(a)(3)(ii). This approval authority is not 
delegable.
    (iv) The HHS SPE is the Associate DAS for Acquisition.

                         PART 314_SEALED BIDDING

                   Subpart 314.1_Use of Sealed Bidding

Sec.

Sec. 314.103 Policy.

                   Subpart 314.2_Solicitation of Bids


Sec. 314.202 General rules for solicitation of bids.

Sec. 314.202-7 Facsimile bids.

           Subpart 314.4_Opening of Bids and Award of Contract


Sec. 314.404 Rejection of bids.

Sec. 314.404-1 Cancellation of invitations after opening.

Sec. 314.407 Mistakes in bids.

Sec. 314.407-3 Other mistakes disclosed before award.

Sec. 314.407-4 Mistakes after award.

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

    Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.

                   Subpart 314.1_Use of Sealed Bidding



Sec. 314.103  Policy.

    EIT products and services, including EIT deliverables such as 
electronic documents and reports, acquired using sealed-bid procedures 
shall comply with Section 508 of the Rehabilitation Act of 1973, as 
amended. Consistent with paragraph 4.3.1 of the HHS Section 508 policy--
see Section 508 policy on HHS Office of Disability Web site, if products 
and services, including commercially available items, meet some but not 
all of the applicable Section 508 accessibility standards, and no 
commercially available products or services meet all of the applicable 
Section 508 accessibility standards, an OPDIV/STAFFDIV shall acquire the 
products and services that best meet the applicable Section 508 
accessibility standards. Commercial nonavailability exception 
determinations for EIT products and services that do not meet some or 
all of the applicable Section 508 accessibility standards shall be 
processed in accordance with 339.203.

                   Subpart 314.2_Solicitation of Bids



Sec. 314.202  General rules for solicitation of bids.



Sec. 314.202-7  Facsimile bids.

    (c) If the HCA (non-delegable) determines that the contracting 
activity will allow use of facsimile bids and proposals, the HCA shall 
prescribe internal procedures, in accordance with the

[[Page 51]]

FAR 14.202-7, to ensure uniform processing and control.

           Subpart 314.4_Opening of Bids and Award of Contract



Sec. 314.404  Rejection of bids.



Sec. 314.404-1  Cancellation of invitations after opening.

    (c) The HCA or CCO (non-delegable) shall make the agency head 
determinations specified in FAR 14.404-1.



Sec. 314.407  Mistakes in bids.



Sec. 314.407-3  Other mistakes disclosed before award.

    (e) The CCO (non-delegable) has the authority to make determinations 
under paragraphs (a), (b), (c), and (d) of FAR 14.407-3.
    (f) OGC-GLD shall concur in each proposed determination.
    (i) The CCO shall submit directly to OGC-GLD cases in which the 
evidence is not clear and convincing or is otherwise doubtful.



Sec. 314.407-4  Mistakes after award.

    (c) The HCA or the CCO (non-delegable), in consultation with OGC-
GLD, has the authority to make administrative determinations in 
connection with mistakes in bid alleged after award.
    (d) OGC-GLD shall concur in each proposed determination.

                   PART 315_CONTRACTING BY NEGOTIATION

   Subpart 315.2_Solicitation and Receipt of Proposals and Information

Sec.

Sec. 315.201 Exchanges with industry before receipt of proposals.

Sec. 315.204-5 Part IV--Representations and instructions.

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

Sec. 315.209 Solicitation provisions and contract clauses.

                     Subpart 315.3_Source Selection


Sec. 315.303-70 Policy.

Sec. 315.304 Evaluation factors and significant subfactors.

Sec. 315.305 Proposal evaluation.

Sec. 315.306 Exchanges with offerors after receipt of proposals.

Sec. 315.307 Proposal revisions.

Sec. 315.370 Finalization of details with the selected source.

Sec. 315.371 Contract preparation and award.

Sec. 315.372 Preparation of negotiation memorandum.

                     Subpart 315.4_Contract Pricing


Sec. 315.404 Proposal analysis.

Sec. 315.404-2 Information to support proposal analysis.

Sec. 315.404-4 Profit.

                   Subpart 315.6_Unsolicited Proposals


Sec. 315.605 Content of unsolicited proposals.

Sec. 315.606 Agency procedures.

Sec. 315.606-1 Receipt and initial review.

Sec. 315.609 Limited use of data.

     Subpart 315.70_Acquisition of Electronic Information Technology


Sec. 315.7000 Section 508 accessibility standards.

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

    Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.

   Subpart 315.2_Solicitation and Receipt of Proposals and Information



Sec. 315.201  Exchanges with industry before receipt of proposals.

    (e)(1) An OPDIV may issue an advance notice, entitled ``Request for 
Information,'' in accordance with the requirements of FAR 15.201(e), 
whenever it requires technical, scientific, and/or business information 
and input from the marketplace for project planning purposes regarding 
the availability of existing or potential solutions. An RFI may be used 
for any type of requirement, but is particularly appropriate for complex 
projects involving R & D, IT, construction, and other highly technical 
requirements. An RFI may also be issued to identify issues about the 
Government's requirements and the planned acquisition strategy. Use of 
an RFI generally is appropriate under the following conditions:
    (i) It is not clear whether the purpose and performance requirements 
of a potential or planned project are feasible, achievable, and 
complete.
    (ii) It is not certain that a solution, technical approach, or 
product needed to accomplish a potential or planned

[[Page 52]]

project exists or can be developed, particularly in the case of a new, 
highly specialized/unique Government program mandate.
    (iii) It is necessary to test the marketplace to determine if there 
are questions or concerns regarding the use of a new or innovative 
acquisition strategy or instrument previously untried to accomplish a 
potential or planned project.
    (iv) It is necessary to determine the general effort or time 
(estimate or rough order of magnitude) that may be required to 
accomplish a potential or planned project.

    Note: This type of information may be requested, only if it is 
necessary, broad in scope, and required for planning purposes. Detailed 
estimates must not be requested.

    (v) It is necessary to ensure that unduly restrictive technical or 
business/acquisition requirements are not made part of any resultant 
solicitation so that maximum competition is generated.
    (2) When using an RFI, an OPDIV shall not request that potential 
sources provide more than the minimum information necessary--see FAR 
10.001(b), to obtain the input required. The notice and the information 
received shall not be used to determine how well respondents can perform 
a requirement, which can only be evaluated in response to a 
solicitation. Accordingly, the notice shall not be used to--
    (i) Obtain capability statements that are evaluated and determined 
acceptable or unacceptable;
    (ii) Require cost/price proposals or detailed technical solutions;
    (iii) Identify a prospective sole source; or
    (iv) Exclude small business concerns.
    (3) While not the primary intent of an RFI, an OPDIV may 
additionally request that respondents provide information regarding 
their organizational size classification and capabilities when the OPDIV 
is uncertain whether any organization, acting individually or in 
partnership with others, can satisfy the requirement. For example, the 
notice may ask respondents to identify whether they are small 
businesses; HUBZone small businesses; service-disabled, veteran-owned 
small businesses; 8(a) small businesses; veteran-owned small businesses; 
woman-owned small businesses; or a small disadvantaged businesses. 
However, an RFI shall not be used solely to determine the availability 
of qualified sources for a proposed project or to determine their size 
classification. In such instances, as applicable, an R & D Sources 
Sought notice, Sources Sought notice, or Small Business Sources Sought 
notice may be used--see HHSAR 305.205, 310.001, and 319.202-2.
    (4) OPDIVs shall follow the standard HHS instructions for completing 
an RFI. The template for an RFI is available on the ASFR/OGAPA/DA 
Internet Web site. The Contracting Officer shall post the notice in 
FedBizOpps by selecting and completing a Special Notice, accessible on 
the FedBizOpps ``Notices'' page at: http://www.fedbizopps.gov. RFIs must 
be published, at a minimum, in FedBizOpps--see FAR 10.002(b)(2)(iii) and 
15.201(d). Additional information may be included in an RFI in 
accordance with OPDIV procedures. The Contracting Officer shall 
document, in the form of a memorandum to the file, the results of the 
review by technical personnel of information submitted in response to 
the notice, including whether each respondent appears to be capable of 
performing the requirement. The Contracting Officer shall attach a copy 
of the analysis provided by the technical personnel to the memorandum.



Sec. 315.204-5  Part IV--Representations and instructions.

    (c) Section M, Evaluation factors for award.
    (1) General.
    (i) The Project Officer shall develop technical evaluation factors 
and submit them to the Contracting Officer as part of the acquisition 
plan or other acquisition request documentation for inclusion in a 
solicitation. The Project Officer shall indicate the relative importance 
or weight of the evaluation factors based on the requirements of an 
individual acquisition. Since the evaluation factors will serve as the 
standard for proposal evaluation, they require careful selection.
    (ii) Only a formal amendment to a solicitation can change the 
evaluation factors. Evaluation of proposals shall

[[Page 53]]

include only those factors set forth in a solicitation.
    (2) Review of evaluation factors.
    (i) The Contracting Officer shall review evaluation factors to 
ensure they are consistent with the SOW/PWS. This review is not intended 
to dictate technical requirements to the program office or Project 
Officer, but rather to ensure that the evaluation factors are clear, 
concise, and fair, so that all potential offerors are fully aware of the 
bases for proposal evaluation and are given an equal opportunity to 
compete.
    (ii) The Project Officer and the Contracting Officer shall review 
the evaluation factors to ascertain the following:
    (A) The factors address the key programmatic concerns which the 
offerors must be aware of in preparing proposals.
    (B) The factors are specifically applicable to the current 
acquisition and are not restatements of factors from previous 
acquisitions which are not relevant.
    (C) The factors represent only the significant areas of importance, 
rather than a multitude of factors. (Note: All factors tend to lose 
importance, if too many are included; and using too many factors may 
prove as detrimental as using too few.)
    (3) Examples of topics that form a basis for evaluation factors. 
Typical examples of topics that form a basis for the development of 
evaluation factors are listed in the following paragraphs. These 
examples may assist in the development of actual evaluation factors for 
a specific acquisition, as appropriate.
    (i) Understanding of the SOW/PWS.
    (ii) Method of accomplishing the objectives and intent of the SOW/
PWS.
    (iii) Soundness of the scientific or technical approach for 
executing the requirements of the SOW/PWS, including, when applicable, 
preliminary layouts, sketches, diagrams, other graphic representations, 
calculations, curves, and other data necessary for presentation, 
substantiation, justification, or understanding of the approach.
    (iv) Special technical factors, such as experience or pertinent 
novel ideas in the specific branch of science or technology involved.
    (v) Feasibility or practicality of successfully accomplishing the 
requirements (including a statement and discussion of anticipated major 
difficulties and problem areas, and recommended approaches for their 
resolution).
    (vi) Availability of required special research, test, and other 
equipment or facilities.
    (vii) Managerial capability (ability to achieve delivery or 
performance requirements as demonstrated by the proposed use of 
management and other personnel resources, and to successfully manage the 
project, including subcontractor and/or consultant efforts, if 
applicable, as evidenced by the management plan and demonstrated by 
previous experience).
    (viii) Availability, qualifications, experience, education, and 
competence of professional, technical, and other personnel, including 
proposed subcontractors and consultants (as evidenced by resumes, 
endorsements, and explanations of previous efforts).
    (ix) Soundness of the proposed staff time or labor hours, propriety 
of personnel classifications (professional, technical, others), 
necessity for type and quantity of material and facilities proposed, 
validity of proposed subcontracting, and necessity of proposed travel.
    (x) Quality of offeror's past performance on recent projects of 
similar size and scope.
    (xi) Extent of proposed participation of small disadvantaged 
business concerns in performance of the contract.



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

    (b) In addition to the provision in FAR 52.215-1, Instructions to 
Offerors--Competitive Acquisition, if an HCA determines that certain 
classes of biomedical or behavioral R & D acquisitions are subject to 
conditions other than those specified in FAR 52.215-1(c)(3), the HCA may 
authorize for use in competitive solicitations for R & D, valued at more 
than the simplified acquisition threshold, the use of the provision in 
352.215-70, Late Proposals and Revisions. This is an authorized FAR 
deviation.

[[Page 54]]

    (2) When the provision at 352.215-70 is included in the solicitation 
and a proposal is received after the exact time specified for receipt, 
the Contracting Officer, with the assistance of cost and technical 
personnel, shall make a written determination as to whether the proposal 
meets the requirements of the provision at 352.215-70 and, therefore, 
can be considered.



Sec. 315.209  Solicitation provisions and contract clauses.

    (a) The Contracting Officer shall insert paragraph (e) in 352.215-1 
in place of paragraph (e) in the provision in FAR 52.215-1, Instructions 
to Offerors--Competitive Acquisition, in solicitations for competitive, 
negotiated acquisitions valued at more than the simplified acquisition 
threshold. This is an authorized FAR deviation.

                     Subpart 315.3_Source Selection



Sec. 315.303-70  Policy.

    (a) If an OPDIV is required by statute to use peer review for 
technical review of specified contracts, the requirements of those 
statutes, any implementing regulatory requirements, the Federal Advisory 
Committee Act, and as applicable, any approved HHSAR deviation(s) from 
this subpart take precedence over the otherwise applicable requirements 
of this subpart.
    (1) The statutes that require such review and implementing 
regulations are as follows: NIH--42 U.S.C. 289a and 42 CFR Part 52h; 
SAMHSA--42 U.S.C. 290aa-3, and AHRQ--42 U.S.C. 299c-1.



Sec. 315.304  Evaluation factors and significant subfactors.

    (a) A solicitation for EIT products and services, including EIT 
deliverables such as electronic documents and reports, shall include a 
separate technical evaluation factor (which may be in the form of a 
technical evaluation criterion or a mandatory qualification criterion, 
as appropriate) developed by the Contracting Officer, Project Officer, 
and the OPDIV Section 508 Coordinator to determine vendor compliance 
with applicable Section 508 accessibility standards. The technical 
evaluation panel's assessment of Section 508 accessibility standards 
conformance shall be based on the Section 508 Product Assessment 
Template--see Section 508 policy on Office of Disability Web site for 
the template, and on any other pertinent information that offerors 
provide in response to a solicitation. The HHS Office on Disability is 
responsible for providing technical assistance in Section 508 evaluation 
factor development.
    (b) Before conducting negotiations or making an award, the 
Contracting Officer shall provide a summary of the technical evaluation 
panel's assessment of vendor responses to the solicitation's Section 508 
evaluation factor for review by the Section 508 Official or designee. 
The Section 508 Official or designee shall indicate approval/disapproval 
of the evaluation panel's assessment. The Contracting Officer shall 
coordinate the resolution of any issues raised by the Section 508 
Official or designee with the chair of the technical evaluation panel or 
Project Officer, as appropriate. The acquisition process shall not 
proceed unless and until the Section 508 Official or designee has 
approved the technical evaluation panel's assessment. The Contracting 
Officer shall include the assessment in the official contract file. See 
339.203 regarding processing exception determination requests.



Sec. 315.305  Proposal evaluation.

    (a)(1) Cost or price evaluation. (i) The Contracting Officer shall 
evaluate proposals in accordance with the FAR 15.404. The extent of cost 
or price analysis in each case depends on the availability of 
competition, contract type, the proposed amount, and technical 
complexity.
    (A) For competitive firm-fixed-price and fixed price with economic 
price adjustment contracts, price analysis should be sufficient to 
determine price fairness and reasonableness.
    (B) When competition is not adequate for the above contract types, 
and for cost-reimbursement and time and materials contracts, cost 
analysis may be required. In such cases, the Contracting Officer shall 
request the Project Officer's assistance in analyzing the following cost 
elements, if

[[Page 55]]

applicable, to determine if the proposed amounts are necessary and 
reasonable for efficient contract performance:
    (1) The number and mix of proposed labor hours relative to the 
technical requirements.
    (2) Types, numbers and hours/days of proposed consultants.
    (3) The kinds and quantities of material, equipment, supplies, and 
services.
    (4) Kinds and quantities of IT.
    (5) Logic of proposed subcontracting.
    (6) Travel proposed, including number of trips, locations, purpose, 
and travelers.
    (7) Other direct costs not specified above.
    (ii) The Project Officer shall provide written comments, including 
the rationale for any exceptions to the cost elements. The Contracting 
Officer shall consider the Project Officer's comments for negotiations 
or to support award without discussions. The Contracting Officer shall 
also request assistance of a cost/price analyst, when necessary.
    (2) Past performance evaluation. When evaluating past performance, 
the Contracting Officer shall check references to obtain information 
concerning the performance history of offerors in compliance with FAR 
42.1502. The Contracting Officer may require the assistance of the 
Project Officer as well as other Government technical personnel in 
performing this function.
    (3) Technical evaluation--(i) Technical evaluation plan.
    (A) The Contracting Officer shall require a technical evaluation 
plan if the proposed acquisition either requires preparation of an AP--
see 307.71 or is otherwise sufficiently complex.
    (B) The technical evaluation plan shall include, at a minimum, the 
following elements:
    (1) A list of recommended technical evaluation panel members, their 
organizations, a list of their major consulting clients (if applicable), 
their qualifications, and curricula vitae (if applicable).
    (2) A statement that the technical evaluation panel will include 
non-Federal technical proposal evaluators, if applicable, and a 
determination that sufficient Federal technical proposal evaluators are 
unavailable--see FAR 37.204. A determination to use non-Federal proposal 
evaluators shall be signed at a level no lower than the HCA. A 
determination is not required, however, if non-Federal evaluators will 
be used in accordance with 315.303-70(a).
    (3) A statement that there is no apparent or actual conflict of 
interest regarding any recommended panel member.
    (4) A copy of each rating sheet, approved by the Contracting 
Officer, to ensure consistency with the evaluation criteria.
    (5) A brief description of the general evaluation approach.
    (6) A description of the methodology for evaluating key elements in 
the technical evaluation plan, including any solicitation evaluation 
factor involving the acquisition of EIT products and services subject to 
Section 508.
    (C) Except as provided in OPDIV procedures, a program office 
official at least one level above the Project Officer shall approve the 
technical evaluation plan.
    (D) The Project Officer shall provide the technical evaluation plan 
to the Contracting Officer for review and approval before the 
solicitation is issued. The Contracting Officer shall ensure that the 
evaluation criteria reflect the significant factors and subfactors 
relating to the evaluation when conducting the review of the plan.
    (ii) Technical evaluation panel--(A) General. (1) A technical 
evaluation panel is required for all acquisitions subject to this 
subpart that require preparation of an AP. The Contracting Officer may 
require a technical evaluation panel for acquisitions that do not 
require preparation of an AP, based on the complexity of the acquisition 
and the role that the technical evaluation will have in the award 
decision.
    (2) The technical evaluation process requires careful consideration 
regarding the size, composition, expertise, and function of the 
technical evaluation panel. The panel's efforts will influence the 
success or failure of the acquisition.
    (3) At least 50 percent of the HHS personnel on a technical 
evaluation

[[Page 56]]

panel shall have successfully completed HHS University's ``Basic 
Contracting Officer's Technical Representative'' course or an equivalent 
course within 4 years before assuming their designated role. This 
training requirement applies to evaluators performing the initial 
technical evaluation and any subsequent technical evaluations, but does 
not apply to peer review panel members. The Contracting Officer may 
waive this training requirement in exigent circumstances if documented 
in writing and approved by the Head of Contracting Activity. This 
training requirement applies to evaluators performing the initial 
technical evaluation and any subsequent technical evaluations. However, 
this training requirement does not apply to peer review panel members.
    (B) Role of the Project Officer.
    (1) The Project Officer provides guidance, information, and 
assistance to the Contracting Officer on all technical aspects of a 
proposed acquisition--see 302.101. The Project Officer may be a voting 
member of the technical evaluation panel and may serve as the 
chairperson of the panel unless prohibited by law or contracting 
activity procedures.
    (2) The Project Officer shall recommend panel members who have 
sufficient expertise in the technical aspects of the acquisition to be 
able to evaluate strengths and weaknesses in proposals.
    (3) The Project Officer shall ensure that persons possessing 
expertise and experience in addressing issues relative to sex, race, 
national origin, and disability are included as panel members for 
acquisitions to which such issues apply.
    (4) The Project Officer shall submit a list of recommended panel 
members to a program office official at least one level higher than him/
herself. This official shall review the list and select the chairperson.
    (5) The Project Officer shall arrange for adequate and secure 
working space for the panel.
    (C) Role of the Contracting Officer.
    (1) The term ``Contracting Officer,'' as used in this subpart, may 
be the Contracting Officer or a Contract Specialist possessing an 
appropriate FAC-C certification.
    (2) The Contracting Officer shall not serve as a member of the 
technical evaluation panel, but shall--
    (i) Address the initial meeting of the technical evaluation panel;
    (ii) Provide assistance to the evaluators as required; and
    (iii) Ensure that the scores adequately reflect the written 
technical report comments.
    (D) Conflict of interest.
    (1) If a panel member has an actual or apparent conflict of interest 
related to a proposal under evaluation, the individual cannot serve on 
the panel. If a suitable replacement is not available, the panel shall 
perform the review without a replacement.
    (2) For the purposes of this subpart, conflicts of interest are 
defined in the Standards of Ethical Conduct for Employees of the 
Executive Branch (5 CFR part 2635), Supplemental Standards of Ethical 
Conduct for Employees of the Department of Health and Human Services (5 
CFR part 5501), and the Procurement Integrity Act. For outside 
evaluators serving on the technical evaluation panel, see paragraph 
(a)(3)(ii)(F) of this section.
    (E) Continuity of evaluation process.
    (1) The technical evaluation panel shall evaluate all original 
proposals; make recommendations to the chairperson regarding strengths 
and weaknesses of proposals; if required by the Contracting Officer, 
assist the Contracting Officer during communications and discussions; 
and review supplemental, revised or final proposal revisions. To the 
extent possible, the same evaluators shall be available throughout the 
entire evaluation and selection process to ensure continuity and 
consistency in the treatment of proposals. The following are examples of 
circumstances when it would not be necessary for the technical 
evaluation panel to evaluate revised proposals submitted during the 
acquisition:
    (i) The answers to questions do not have a substantial impact on the 
proposal.
    (ii) Final proposal revisions are not materially different from the 
original proposals.

[[Page 57]]

    (iii) Revisions to the proposals are relatively minor and do not 
affect the rankings of the offerors.
    (2) The Contracting Officer, with the written concurrence of the 
technical evaluation panel chairperson, may decide not to have the panel 
evaluate the revised proposals. The Contracting Officer shall fully 
document such a decision in the contract file.
    (3) When the Contracting Officer considers technical evaluation 
panel meetings necessary, the attendance of evaluators is mandatory. 
When the chairperson determines that an evaluator's failure to attend 
the meetings is prejudicial to the evaluation, the chairperson shall 
remove or replace the individual after discussing the situation with the 
Contracting Officer and obtaining the Contracting Officer's concurrence 
and the approval of the official responsible for appointing the panel 
members.
    (4) When continuity of the evaluation process is not possible, and 
new evaluators are selected or the size of the evaluation panel is 
reduced, each panel member shall review all proposals at the current 
stage of the acquisition--i.e., initial proposal, final proposal 
revisions, etc. Also, the Contracting Officer shall provide guidance 
concerning what steps to take if an unusually large number of proposals 
is received, including how to determine what constitutes an unusually 
large number of proposals.
    (F) Use of outside evaluators.
    (1) Except when peer review is required by statute as provided in 
315.303-70(a), decisions to disclose proposals to evaluators outside of 
the Government shall be made by the official responsible for appointing 
panel members in accordance with OPDIV procedures. The avoidance of 
organization conflict of interest and competitive relationships must be 
taken into consideration when making the decision to use outside 
evaluators.
    (2) When a solicited proposal will be disclosed outside the 
Government for evaluation purposes, the following or similar conditions 
shall be part of the written agreement with the evaluator(s) prior to 
disclosure:

                   Conditions for Evaluating Proposals

    The evaluator agrees to use the data (trade secrets, business data, 
and technical data) contained in the proposal for evaluation purposes 
only. The foregoing requirement does not apply to data obtained from 
another source without restriction. Any notice or legend placed on the 
proposal by either HHS or the submitter of the proposal shall be applied 
to any reproduction or abstract provided to the evaluator or made by the 
evaluator. Upon completion of the evaluation, the evaluator shall return 
to the Government the furnished copy of the proposal or abstract, and 
all copies thereof, to the HHS office which initially furnished the 
proposal for evaluation. Unless authorized by the HHS initiating office, 
the evaluator shall not contact the submitter of the proposal concerning 
any aspects of its contents. The evaluator's employees and 
subcontractors shall abide by these conditions.

    (iii) Receipt of proposals.
    (A) After the closing date for the receipt of proposals set in the 
solicitation, the Contracting Officer shall forward the technical 
proposals, by memorandum, to the Project Officer or chairperson for 
evaluation. The Contracting Officer shall retain the business proposals 
for evaluation.
    (B) The transmittal memorandum shall include at least the following 
elements:
    (1) A list of the names of the organizations submitting proposals.
    (2) A reference to the need to preserve the integrity of the source 
selection process.
    (3) A statement that only the Contracting Officer is authorized to 
conduct discussions.
    (4) A requirement for a technical evaluation report in accordance 
with paragraph (a)(3)(vi) of this section.
    (5) The establishment of a date for receipt of the technical 
evaluation report.
    (iv) Convening the technical evaluation panel.
    (A) Normally, the technical evaluation panel convenes to evaluate 
proposals. However, there may be situations when the panel chairperson 
determines that it is not feasible for the panel to convene. Whenever 
the panel does not convene, the panel chairperson shall closely monitor 
the technical review to produce acceptable results.

[[Page 58]]

    (B) When a panel convenes, the chairperson shall control the 
technical proposals provided by the Contracting Officer for use during 
the evaluation process. The chairperson normally distributes the 
technical proposals prior to the initial panel meeting and establishes 
procedures for securing the proposals whenever they are not being 
evaluated to ensure their confidentiality. After an evaluation is 
completed, the chairperson shall return all proposals to the Contracting 
Officer.
    (C) The Contracting Officer shall address the initial meeting of the 
panel and state the basic rules for conducting the evaluation. The 
Contracting Officer shall provide written guidance to the panel, if the 
Contracting Officer cannot attend the initial panel meeting. The 
guidance shall include the following elements:
    (1) An explanation of the evaluation process and the role of 
evaluators throughout the process.
    (2) The need for evaluators to read and understand the solicitation, 
especially the SOW/PWS and evaluation criteria, prior to reading the 
proposals.
    (3) The need for evaluators to restrict the review to only the SOW/
PWS, the evaluation criteria, and the contents of the technical 
proposals.
    (4) The need for each evaluator to review all of the proposals.
    (5) The need for evaluators to identify ambiguities, 
inconsistencies, errors, and deficiencies.
    (6) The need for the evaluators to provide complete written 
documentation of the individual strengths and weaknesses for each 
proposal.
    (7) An instruction specifying that, until an award is made, they may 
not disclose information concerning the acquisition to any person not 
directly involved in the evaluation process.
    (8) An explanation of conflicts of interest.
    (v) Rating and ranking of proposals. The evaluators shall 
individually read each proposal, describe tentative strengths and 
weaknesses, and independently assign preliminary scores in relation to 
each evaluation factor set forth in the solicitation. The evaluators may 
then discuss in detail the individual strengths and weaknesses described 
by each evaluator and, if possible, arrive at a common understanding of 
the major strengths and weaknesses and the potential for correcting each 
offeror's weakness(es). Each evaluator shall assign a final score to 
each proposal, and the technical evaluation panel shall collectively 
rank the proposals. Normally, ranking is the result of adding the 
numerical scores assigned to the evaluation factors and determining the 
average for each offeror. The evaluators shall then identify whether 
each proposal is acceptable or unacceptable. The technical evaluation 
panel shall not employ predetermined cutoff scores.
    (vi) Technical evaluation report. The chairperson shall prepare a 
technical evaluation report and provide it to the Contracting Officer, 
who shall maintain it as a permanent record in the contract file. The 
report shall reflect the ranking of the proposals and identify each 
proposal as acceptable or unacceptable. The report shall also include a 
narrative evaluation specifying the strengths and weaknesses of each 
proposal, and any reservations, qualifications, or areas to be addressed 
that might bear upon the selection of sources for negotiation and award. 
The report shall include concrete technical reasons supporting any 
determination of unacceptability of a proposal and, for acceptable 
proposals, include specific points and questions for discussions or 
negotiations. The technical evaluation report shall also include a copy 
of each signed rating sheet, unless the Contracting Officer determines, 
in accordance with FAR 15.305(a)(3)(ii), and 315.305(a)(3)(vi), that the 
technical evaluation report includes appropriate and sufficiently 
detailed supporting narrative (with specific references to particular 
portions of offerors' proposals) to (1) fully and reasonably explain the 
basis for the technical evaluation panel's assessments of each proposal, 
including an evaluation rating of ``acceptable'' or ``unacceptable; and 
(2) support any recommendation to include or not include a proposal in 
the competitive range. However, when peer review of proposals is 
required as provided in 315.303-70(a), OPDIVs shall follow applicable 
peer review guidelines

[[Page 59]]

and practices regarding the submission, maintenance, and disposal of 
reviewer rating sheets.

[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21510, Apr. 26, 2010]



Sec. 315.306  Exchanges with offerors after receipt of proposals.

    (d) Exchanges with offerors after establishment of the competitive 
range. The Project Officer or technical evaluation panel shall develop 
technical questions as part of the technical evaluation report. The 
questions shall disclose the ambiguities, weaknesses, and deficiencies 
of offeror(s)' proposals. The Contracting Officer, with the assistance 
of the Project Officer or panel as required, shall prepare the 
management, past performance, and cost or price questions. The method of 
requesting offerors in the competitive range to submit additional 
information may vary depending on the complexity of the questions, the 
extent of additional information necessary, the time needed to analyze 
the responses, and the time frame for making the award. However, to the 
extent practicable, all questions and answers shall be in writing. The 
Contracting Officer shall give each offeror in the competitive range an 
equitable period of time for preparation of responses to questions to 
the extent practicable.



Sec. 315.307  Proposal revisions.

    (b) Final proposal revisions are subject to--
    (1) A final evaluation of price or cost and other salient factors by 
the Contracting Officer and Project Officer, with assistance from a 
cost/price analyst, as appropriate; and
    (2) An evaluation of technical factors by the technical evaluation 
panel, as necessary.
    The technical evaluation panel may rescore and re-rank technical 
proposals in the competitive range and prepare a technical evaluation 
report. To the extent practicable, the same evaluators who reviewed the 
original proposals shall perform the evaluation. The Contracting Officer 
and Project Officer shall conduct a final evaluation of past 
performance. The technical evaluation panel may be involved in the final 
evaluation of past performance, if the panel is comprised solely of 
Government personnel.



Sec. 315.370  Finalization of details with the selected source.

    (a) After selection of the successful proposal, the Contracting 
Officer may finalize details with the selected offeror, if necessary. 
However, the Contracting Officer shall not introduce any factor that 
could have an effect on the selection process after the common cutoff 
date for receipt of final proposal revisions, nor shall the finalization 
process in any way prejudice the competitive interest or rights of the 
unsuccessful offerors. The Contracting Officer shall restrict 
finalization of details with the selected offeror to definitizing the 
final agreement on terms and conditions, assuming none of these factors 
were involved in the selection process.
    (b) Whenever a change occurs in the requirements, the Contracting 
Officer shall reopen the competition, and provide all offerors 
submitting final proposal revisions an opportunity to resubmit proposals 
based on the revised requirements. If there is a question as to whether 
a change is material and would require the initiation of a new 
competition, the Contracting Officer shall obtain the advice of 
technical personnel and OGC-GLD before proceeding. Significant changes 
in the offeror's cost proposal may also necessitate a reopening of a 
competition, if the changes alter the factors involved in the original 
selection process.
    (c) Upon finalization of details, the Contracting Officer shall 
obtain a confirmation letter from the successful offeror which includes 
any revisions to its technical proposal, the agreed upon price or cost, 
and, as applicable, a certificate of current cost or pricing data.



Sec. 315.371  Contract preparation and award.

    (a) After completing any activities that may be necessary to 
finalize details with the selected offeror, the Contracting Officer 
shall--
    (1) Prepare the negotiation memorandum in accordance with 315.372;
    (2) Prepare the contract containing all agreed to terms and 
conditions and clauses required by law or regulation;

[[Page 60]]

    (3) Include in the contract file the pertinent documents referenced 
in FAR 4.803; and
    (4) Obtain the appropriate approval of the proposed contract 
award(s) in accordance with subpart 304.71 and contracting activity 
procedures.
    (b) After receiving the required approvals, the Contracting Officer 
shall--
    (1) Transmit the contract to the prospective contractor for 
signature; and
    (2) Inform the prospective contractor that the contract is not 
effective until the Contracting Officer transmits the fully executed 
contract to the contractor.
    (c) The Contracting Officer shall not sign or issue the contract 
until the finance office certifies that the funds are available for 
obligation.



Sec. 315.372  Preparation of negotiation memorandum.

    The Contracting Officer shall prepare a negotiation memorandum, or 
summary of negotiations, to document all actions leading to award of a 
contract and support the source selection decision discussed in FAR 
15.308. The memorandum also satisfies the requirement for preparation of 
a ``cost/price negotiation memorandum'' required by FAR 15.406-3. The 
memorandum shall be in sufficient detail to explain and support the 
rationale, judgments, and authorities upon which all actions were 
predicated. The memorandum shall document the negotiation process and 
reflect the negotiator's actions and judgments in concluding a 
satisfactory agreement for the Government. The memorandum shall address 
each item listed below. If an item is not applicable, the memorandum 
shall so state. The Contracting Officer may reference information 
already contained in the contract file rather than reiterate it.
    (a) Description of articles and services and period of performance. 
Provide a description of the articles or services, quantity, unit price, 
total contract amount, and period of contract performance.
    (b) Acquisition planning. Summarize or reference any acquisition 
planning activities that have taken place.
    (c) Synopsis of acquisition. Provide a statement as to whether the 
acquisition has or has not been publicized in accordance with FAR 
Subpart 5.2. Include a brief statement referencing the specific basis 
for exemption under the FAR, if applicable.
    (d) Contract type. Provide sufficient detail to support the type of 
contractual instrument recommended for the acquisition. If the contract 
is a cost-sharing type, explain the essential cost-sharing features.
    (e) Extent of competition. Discuss the extent to which full and open 
competition was solicited and obtained. Include the date of 
solicitation, sources solicited, and solicitation results. If a late 
proposal was received, discuss whether or not the late proposal was 
evaluated and the rationale for the decision.
    (f) Technical evaluation. Summarize or reference the results 
presented in the technical evaluation report.
    (g) Business evaluation. Summarize or reference results presented in 
the business report.
    (h) Past performance. Summarize or reference results of both the 
past performance evaluation and reference checks.
    (i) Competitive range (if applicable). Describe how the competitive 
range was determined, and indicate the offerors that were included in 
and excluded from the competitive range.
    (j) Cost breakdown and analysis. Include a complete cost breakdown 
together with the Contracting Officer's analysis of the estimated cost 
by individual cost elements. The analysis shall discuss the items 
specified in FAR 15.406-3 and other cost factors, such as--
    (1) A comparison of cost factors proposed for the current 
requirement with actual factors used in earlier contracts, using the 
same cost centers of the same supplier or cost centers of other sources 
having recent contracts for the same or similar item;
    (2) Any pertinent Government-conducted audit of the proposed 
contractor's record or any pertinent cost advisory report;
    (3) Any pertinent technical evaluation inputs as to necessity, 
allocability and reasonableness of labor, material and other direct 
expenses;

[[Page 61]]

    (4) Any other pertinent information to fully support the basis for 
the cost analysis;
    (5) If the contract is an incentive type, a discussion of all 
elements of profit and fee structure; and
    (6) A justification of the reasonableness of the contractor's 
proposed profit or fixed fee considering the requirements of FAR 15.404-
4 and 315.404-4.
    (k) Cost realism. Describe the cost realism analysis performed on 
proposals.
    (l) Government-furnished property and facilities. With respect to 
Government-furnished facilities, equipment, tooling, or other property, 
include the following:
    (1) If the Government will not provide property, a statement to that 
effect.
    (2) If the Government will provide property, a full description of 
it, its estimated dollar value, the basis of price comparison with 
competitors, and the basis of rental charge, if rental is involved.
    (3) If a decision to furnish property has not been made, a detailed 
explanation.
    (m) Negotiations. Include a statement as to the date and place of 
negotiations, and identify members of both the Government and contractor 
negotiating teams by area of responsibility. Include negotiation details 
relative to the SOW/PWS, terms and conditions, and special provisions. 
The results of cost or price negotiations shall include the information 
required by FAR 31.109 and 15.406-3. In addition, if the potential 
contractor provided cost or pricing data, specify the extent to which 
the Contracting Officer relied upon the factual cost or pricing data 
submitted and used it in negotiating the cost or price.
    (n) Other considerations. Include coverage of areas such as the 
following:
    (1) Financial data with respect to a contractor's capacity and 
stability.
    (2) Determination of contractor responsibility.
    (3) Details as to why the method of payment, such as progress 
payments, advance payments, etc., is necessary and cite any required D & 
F's.
    (4) Information with respect to obtaining a certificate of current 
cost or pricing data.
    (5) Other required special approvals.
    (6) If the contract represents an extension of previous work, the 
status of funds and performance under the prior contract(s). Also, the 
Project Officer shall provide sufficient information for the Contracting 
Officer to determine that the Government has obtained enough actual or 
potential value from the work previously performed to warrant 
continuation with the same contractor.
    (7) A statement that the Contracting Officer has explained the equal 
opportunity provisions of the proposed contract to the contractor, and 
the contractor is aware of its responsibilities. Also, state whether or 
not an Equal Employment Opportunity (EEO) clearance is required.
    (8) If the contract is for services, a statement, in accordance with 
FAR 37.103, that the services are nonpersonal in nature.
    (o) Terms and conditions. Identify the general and special clauses 
and conditions that are contained in the contract, such as option 
arrangements, multi-year contracting, anticipatory costs, deviations 
from standard clauses, etc. The Contracting Officer shall state the 
rationale for inclusion of any special terms and conditions and, where 
applicable, identify the document which granted approval for their use.
    (p) Recommendation. Briefly state the basis (or bases) for 
recommending award.
    (q) Signature. The Contracting Officer and the individual who 
prepared the negotiation memorandum must sign the document.

                     Subpart 315.4_Contract Pricing



Sec. 315.404  Proposal analysis.



Sec. 315.404-2  Information to support proposal analysis.

    (a)(2) When some or all information sufficient to determine the 
reasonableness of the proposed cost or price is already available or can 
be obtained by phone from the cognizant audit agency, the Contracting 
Officer may request less-than-complete field pricing support (specifying 
in the request the information needed) or may waive in writing the 
requirement for audit and

[[Page 62]]

field pricing support by documenting the file to indicate what 
information will be used instead of the audit report and the field 
pricing report.
    (3) When initiating audit and field pricing support, the Contracting 
Officer shall do so by sending a request to the cognizant Administrative 
Contracting Officer, with an information copy to the cognizant audit 
office. When field pricing support is not available, the Contracting 
Officer shall initiate an audit by sending, in accordance with agency 
procedures, two (2) copies of the request to the OIG Office of Audit 
Services, Regional Inspector General. In both cases, the Contracting 
Officer shall, in the request--
    (i) Prescribe the extent of the support needed;
    (ii) State the specific areas for which input is required;
    (iii) Include the information necessary to perform the review, such 
as the offeror's proposal and the applicable portions of the 
solicitation, particularly those describing requirements and delivery 
schedules;
    (iv) Provide the complete address of the location of the offeror's 
financial records that support the proposal;
    (v) Identify the office having audit responsibility, if other than 
the HHS Regional Audit Office; and
    (vi) Specify a due date for receipt of a verbal report and the 
written audit report. If the time available is not adequate to permit 
satisfactory coverage of the proposal, the auditor shall so advise the 
Contracting Officer and indicate the additional time needed. The 
Contracting Officer shall submit one copy of the audit request letter 
provided to the Office of Audit Services, Regional Inspector General and 
a complete copy of the contract price proposal to OIG Office of Audit 
Services. Whenever the Office of Audit Services has conducted an audit 
review, the Contracting Officer shall forward two (2) copies of the 
memorandum of negotiation to OIG Office of Audit Services.



Sec. 315.404-4  Profit.

    (b) Policy. (1) The structured approach for determining profit 
provides a technique for establishing a profit objective for 
negotiation. A profit objective is that part of the estimated contract 
price objective or value which, in the judgment of the Contracting 
Officer, constitutes an appropriate amount of profit for the acquisition 
being considered. This technique allows for consideration of the profit 
factors described in paragraph (d) of this section. The Contracting 
Officer's analysis of these factors shall be based on available 
information, such as proposals, audit data, assessment reports, and pre-
award surveys. The structured approach provides a basis for documenting 
the profit objective. The Contracting Officer shall explain any 
significant departure from this objective. The amount of documentation 
depends on the dollar value and complexity of the proposed acquisition. 
The profit objective is a part of the overall negotiation objective and 
is directly related to the cost objective and any proposed sharing 
arrangement. The profit objective shall exclude factors considered 
inapplicable to the acquisition.
    (ii) The Contracting Officer shall negotiate the profit objective at 
the same time as the other cost items and as a whole rather than as 
individual profit factors. The profit factor breakdown shall be part of 
the documentation. The Contracting Officer shall use the profit analysis 
factors in FAR 15.404-4(d) in lieu of the structured approach in the 
following circumstances:
    (A) Contracts not expected to exceed $100,000.
    (B) A & E contracts.
    (C) Management contracts for operations or maintenance of Government 
facilities.
    (D) Construction contracts.
    (E) Contracts primarily requiring delivery of material supplies by 
subcontractors
    (F) Termination settlements.
    (G) Cost-plus-award-fee contracts.
    However, the Contracting Officer may perform a structured profit 
analysis as an aid in arriving at an appropriate fee arrangement. The 
Contracting Officer may make other exceptions in the negotiation of 
contracts having unusual pricing situations, but shall justify in 
writing those situations where the structured approach is determined to 
be unsuitable.
    (c) Contracting Officer responsibilities. The Contracting Officer 
shall develop

[[Page 63]]

the profit objective, which shall realistically reflect the total 
overall effort of the contractor. The Contracting Officer shall not 
begin to develop the profit objective until he or she has completed a 
thorough review of the proposed contract work; conducted a review of all 
available knowledge regarding the contractor pursuant to FAR subpart 
9.1, including audit data, pre-award survey reports and financial 
statements, as appropriate; and completed an analysis of the 
contractor's cost estimate and comparison with the Government's estimate 
or projection of cost.
    (d) Profit-analysis factors--(1) Common factors. The Contracting 
Officer shall consider the following factors in all cases in which 
profit is negotiated and shall use the weight ranges listed after each 
factor in all instances where the structured approach is used.

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

    (i) The Contracting Officer shall measure ``Contractor Effort'' by 
assigning a profit percentage within the designated weight range to each 
element of contract cost. The categories listed are for reference 
purposes only, but are broad and basic enough to provide guidance for 
other elements of cost. The Contracting Officer shall not include 
facilities capital cost of money. ``Contractor Effort'' shall include a 
computed total dollar profit.
    (ii) The Contracting Officer shall use the total dollar profit for 
the ``Contractor Effort'' to calculate specific profit dollars for 
``Other Factors''--cost risk, investment, performance, socioeconomic 
programs, and special situations. The Contracting Officer shall multiply 
the total dollar profit for the ``Contractor Effort'' by the weight 
assigned to each of the elements in the ``Other Factors'' category. 
Facilities capital cost of money is not included. Form HHS 674, 
Structured Approach Profit/Fee Objective, shall be used.
    (iii) In making a judgment of the value of each factor, the 
Contracting Officer shall consider the definition, description, and 
purpose of the factors together with considerations for evaluating them.
    (iv) The structured approach was designed for arriving at profit 
objectives for other than nonprofit organizations. However, the 
Contracting Officer shall use the modified structured approach in 
paragraph (d)(1)(iv)(B) of this section to establish fee objectives for 
nonprofit organizations.
    (A) For purposes of this section, nonprofit organizations are 
defined as those business entities organized and operated exclusively 
for charitable, scientific, or educational purposes, no part of the net 
earnings of which inure to the benefit of any private shareholder or 
individual, and which are exempt from Federal income taxation under 
Section 501(c)(3) of the Internal Revenue Code.
    (B) For contracts with nonprofit organizations where fee is 
involved, the Contracting Officer shall subtract up to three percentage 
points from the total ``profit'' objective percentage. In determining 
the amount of this adjustment, the Contracting Officer shall consider 
the following factors:
    (1) Tax position benefits.
    (2) Granting of financing through advance payments.
    (3) Other pertinent factors which may work to either the advantage 
or disadvantage of the contractor in its position as a nonprofit 
organization.
    (2) Contractor effort. Contractor effort is a measure of how much 
the contractor is expected to contribute to the overall effort necessary 
to meet the contract performance requirement in an efficient manner. 
This factor, which is apart from the contractor's responsibility for 
contract performance, takes into account what resources are necessary 
and what steps the contractor must take to accomplish a conversion of 
ideas and material into the final service or product called for in the 
contract. This is a recognition that within a given performance output, 
or within a given sales dollar figure, necessary

[[Page 64]]

efforts on the part of individual contractors can vary widely in both 
value and quantity, and that the profit objective shall reflect the 
extent and nature of the contractor's contribution to total performance. 
A major consideration, particularly in connection with experimental or R 
& D work, is the difficulty or complexity of the work to be performed, 
and the unusual demands of the contract, such as whether the project 
involves a new approach unrelated to existing technology or equipment or 
only refinements to these items. The evaluation of this factor requires 
an analysis of the cost content of the proposed contract as follows:
    (i) Material acquisition (subcontracted items, purchased parts, and 
other material). Analysis of these cost items shall include an 
evaluation of the managerial and technical effort necessary to obtain 
the required subcontracted items, purchased parts, material or services. 
The Contracting Officer shall determine whether the contractor will 
obtain the items or services by routine order from readily available 
sources or by detailed subcontracts for which the prime contractor must 
develop complex specifications. The Contracting Officer shall also 
consider the managerial and technical efforts necessary for the prime 
contractor to select subcontractors and to perform subcontract 
administration functions, which may be substantial. Normally, the lowest 
unadjusted weight for direct material is two percent. A weighting of 
less than two percent may be appropriate only in unusual circumstances 
when there is a minimal contribution by the contractor.
    (ii) Direct labor (professional, service, manufacturing and other 
labor). Analysis of the various labor categories of the cost content of 
the contract shall include evaluation of the comparative quality and 
quantity of professional and semiprofessional talents, manufacturing and 
service skills, and experience to be employed. In evaluating 
professional and semiprofessional labor for the purpose of assigning 
profit dollars, the Contracting Officer shall consider the amount of 
notable scientific talent or unusual or scarce talent needed in contrast 
to nonprofessional effort, including the contribution this talent will 
provide toward the achievement of contract objectives. Since 
nonprofessional labor is relatively plentiful and the contractor may 
easily obtain it, it is less critical to the successful performance of 
contract objectives. Therefore, the Contracting Officer cannot weight it 
nearly as high as professional or semiprofessional labor. The 
Contracting Officer shall evaluate service contract labor in a like 
manner by assigning higher weights to engineering or professional type 
skills required for contract performance and considering the variety of 
manufacturing and other categories of labor skills required and the 
contractor's personnel resources for meeting those requirements. For 
purposes of evaluation, the Contracting Officer may separately 
categorize, as appropriate, certain types of labor (e.g., quality 
control, receiving and inspection), that do not fall within the 
definition of professional, service or manufacturing labor; but shall 
apply the same evaluation considerations as outlined in this paragraph.
    (iii) Overhead and G & A expense. (A) Analysis of these overhead 
items of cost shall include the evaluation of the makeup of these 
expenses and how much they contribute to contract performance. To the 
extent practicable, analysis shall include a determination of the amount 
of labor within these overhead pools and how this labor would be treated 
if it were considered direct labor under the contract. The Contracting 
Officer shall give the allocable labor elements the same profit 
considerations that they would receive if they were treated as direct 
labor. The other elements of these overhead pools require analysis to 
determine whether they are routine expenses, such as utilities and 
maintenance, and hence given lesser profit consideration, or whether 
they are significant contributing elements. The composite of the 
individual determinations in relation to the elements of the overhead 
pools shall be the profit consideration given the pools as a whole. The 
procedure for assigning relative values to these overhead expenses 
differs from the method used in assigning values of the direct labor. 
The upper and lower limits assignable to the direct labor are absolute. 
In the case of overhead

[[Page 65]]

expenses, individual expenses may be assigned values outside the range 
as long as the composite ratio is within the range.
    (B) It is not necessary that the contractor's accounting system 
break down overhead expenses within the classifications of research 
overhead, other overhead pools, and general administrative expenses, 
unless dictated otherwise by Cost Accounting Standards (CAS). The 
contractor whose accounting system reflects only one overhead rate on 
all direct labor need not change its system, if CAS exempt, to 
correspond with these classifications. The Contracting Officer, in an 
evaluation of such a contractor's overhead rate, may break out the 
applicable sections of the composite rate which could be classified as 
research overhead, other overhead pools, and general and administrative 
expenses, and follow the appropriate evaluation technique.
    (C) The Contracting Officer shall consider management problems that 
may surface in varying degrees and the management expertise exercised to 
solve them as an element of profit. For example, a contract for a new R 
& D program or an item which is on the cutting edge may cause more 
problems and require more managerial time and abilities of a higher 
order than a follow-on contract. If new contracts create more problems 
and require a higher profit weight, the Contracting Officer shall adjust 
follow-ons downward because many of the problems should have been 
solved. In any event, the evaluation shall consider the underlying 
managerial effort involved on a case-by-case basis.
    (D) It may not be necessary for the Contracting Officer to make a 
separate profit evaluation of overhead expenses, in connection with each 
acquisition action for substantially the same project with the same 
contractor. Where the Contracting Officer has made an analysis of the 
profit weight to be assigned to the overhead pool, the weight assigned 
may apply to future acquisitions with the same contractor unless there 
is a change in the cost composition of the overhead pool or contract 
circumstances, or unless the factors discussed in paragraph 
(d)(2)(iii)(C) of this section are involved.
    (iv) Other costs. Analysis of this factor shall include all other 
direct costs associated with contractor performance (e.g., travel and 
relocation, direct support, and consultants). Analysis of these items of 
cost shall include the significance of the cost of contract performance, 
nature of the cost, and how much they contribute to contract 
performance. Normally, travel costs require minimal administrative 
effort by the contractor and, therefore, usually receive a weight no 
greater than one percent. Also, the contractor may designate individuals 
as ``consultants,'' but in reality the contractor may obtain these 
individuals to supplement its workforce in the performance of routine 
duties required by contract. These costs would normally receive a 
minimum weight. However, there may be instances when contract 
performance may require the contractor to obtain the services of 
consultants having expertise in fields such as medicine or human 
services. In these instances, the contractor may expend greater 
managerial and technical effort to obtain these services and, 
consequently, the costs shall receive a much greater weight.
    (3) Other factors: (i) Contract cost risk. The contract type 
employed basically determines the degree of cost risk assumed by the 
contractor. For example, where a portion of the risk has been shifted to 
the Government through cost-reimbursement provisions, unusual 
contingency provisions, or other risk-reducing measures, the amount of 
profit shall be less than where the contractor assumes all the risk.
    (A) In developing the prenegotiation profit objective, the 
Contracting Officer shall consider the type of contract anticipated and 
the contractor risk associated therewith, when selecting the position in 
the weight range for profit that is appropriate for the risk the 
contractor will bear. This factor is one of the most important in 
arriving at the prenegotiation profit objective. Evaluation of this risk 
requires a determination of: The degree of cost responsibility assumed 
by the contractor; the reliability of the cost estimates in relation to 
the tasks assumed by the contractor; and the complexity of the tasks 
assumed by the contractor. This

[[Page 66]]

factor is specifically limited to the risk of contract costs. Risks 
associated with a contractor's reputation, a contractor's potential loss 
of a commercial market, or a contractor's loss of potential profits in 
other fields, are not within the scope of this factor.
    (B) The first and basic determination of the degree of cost 
responsibility assumed by the contractor is related to the sharing of 
total risk of contract cost by the Government and the contractor through 
the selection of contract type. The extremes are a cost-plus-fixed-fee 
contract requiring the contractor to use its best efforts to perform a 
task and a firm fixed-price contract for a service or a complex item. A 
cost-plus-fixed-fee contract would reflect a minimum assumption of cost 
responsibility, whereas a firm-fixed-price contract would reflect a 
complete assumption of cost responsibility. The determination of risk by 
contract type usually falls into the following percentage ranges:

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

    (C) The second determination is that of the reliability of the cost 
estimates. Sound price negotiation requires well-defined contract 
objectives and reliable cost estimates. Prior experience assists the 
contractor in preparing reliable cost estimates on new acquisitions for 
similar efforts. An excessive cost estimate reduces the likelihood that 
the cost of performance will exceed the contract price, thereby reducing 
the contractor's assumption of contract cost risk.
    (D) The third determination is that of the difficulty of the 
contractor's task. The contractor's task can be difficult or easy, 
regardless of the type of contract.
    (E) Contractors are likely to assume greater cost risk only if 
Contracting Officers objectively analyze the risk associated with 
proposed contracts and are willing to compensate contractors for it. 
Generally, a cost-plus-fixed fee contract will not justify a reward for 
risk in excess of 0.5 percent, nor will a firm fixed-price contract 
justify a reward of less than the minimum in the structured approach. 
The reward for risk, by contract type, will usually fall into the 
following percentage ranges:
    (1) Type of contract and percentage ranges for profit objectives 
based on structured approach for R & D and manufacturing contracts:

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

    (2) Type of contract and percentage ranges for profit objectives 
based on the structured approach for service contracts:

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

    (F) These ranges may not be appropriate for all acquisitions. For 
instance, a fixed-price incentive contract with a low ceiling price and 
high incentive share may be tantamount to a firm fixed-price contract. 
In this situation, the Contracting Officer may determine that a basis 
exists for high confidence in the reasonableness of the estimate and 
that little opportunity exists for cost reduction without extraordinary 
efforts. On the other hand, a contract with a high ceiling and low 
incentive formula can be considered to contain cost-plus-incentive-fee 
contract features. In this situation, the Contracting Officer may 
determine that the Government is retaining much of the contract cost 
responsibility and that the risk the contractor assumes is minimal. 
Similarly, if a cost-plus-incentive-fee contract includes an unlimited 
downward (negative) fee adjustment on cost control, it could be 
comparable to a fixed-price-incentive contract. In such a pricing 
environment, the Contracting Officer may determine that the Government 
has transferred a greater amount of cost responsibility to the 
contractor than is typical under a normal cost-plus-incentive-fee 
contract.

[[Page 67]]

    (G) The contractor's subcontracting program may have a significant 
impact on the contractor's acceptance of risk. It could cause risk to 
increase or decrease in terms of both cost and performance. This 
consideration shall be a part of the Contracting Officer's overall 
evaluation in selecting a factor to apply to cost risk. The Contracting 
Officer may determine, for instance, that the prime contractor has 
effectively transferred real cost risk to a subcontractor and the 
contract cost risk evaluation may, as a result, be below the range which 
would otherwise apply for the contract type being proposed. However, 
without any substantial transfer of cost risk from the prime contractor 
to a subcontractor, the Contracting Officer shall not lower the contract 
cost risk evaluation merely because a substantial portion of the 
contract costs represents subcontracts.
    (H) In making a contract cost risk evaluation for an acquisition 
that involves definitization of a letter contract, unpriced change 
orders, and unpriced orders under basic ordering agreements, the 
Contracting Officer shall consider the effect on total contract cost 
risk of partial performance before definitization. Under some 
circumstances, the total amount of cost risk may have been effectively 
reduced. Under other circumstances it may be apparent that the 
contractor's cost risk remains substantially unchanged. To be equitable, 
the Contracting Officer shall make the determination of profit weight 
for all recognized costs, both incurred and yet to be expended, 
considering all attendant circumstances--not merely the portion of costs 
incurred or percentage of work completed prior to definitization.
    (I) The Contracting Officer shall consider time-and-materials and 
labor-hour contracts to be cost-plus-fixed-fee contracts for the purpose 
of establishing profit weights in the evaluation of the contractor's 
assumption of contract cost risk, unless otherwise exempt from use of 
the structured approach under paragraph (b)(1)(ii) of this section.
    (ii) Investment. HHS encourages its contractors to perform their 
contracts with the minimum of financial, facilities, or other assistance 
from the Government. As such, it is the purpose of this factor to 
encourage the contractor to acquire and use its own resources to the 
maximum extent possible. The evaluation of this factor shall include an 
analysis of the following:
    (A) Facilities (including equipment). Evaluating how this factor 
contributes to the profit objective requires knowledge of the level of 
facilities utilization needed for contract performance, the source and 
financing of the required facilities, and the overall cost-effectiveness 
of the facilities offered. The Contracting Officer shall provide 
contractors with additional profit, if they furnish their own facilities 
and such contractor-furnished facilities contribute significantly to 
lower total contract costs. On the other hand, contractors that rely on 
the Government to provide or finance needed facilities shall receive a 
corresponding reduction in profit. Between these extremes, the 
Contracting Officer shall evaluate cases on their merits and make 
positive or negative adjustments in profit, as appropriate. When 
applicable, the contractor's computation of facilities capital cost of 
money under CAS 414 can help the Contracting Officer identify the level 
of facilities investment the contractor will employ in contract 
performance.
    (B) Payments. In analyzing this factor, the Contracting Officer 
shall consider the frequency of payments by the Government to the 
contractor. The key to this weighting is to give proper consideration to 
the impact the contract will have on the contractor's cash flow. 
Generally, negative consideration applies to advance payments and 
payments more frequent than monthly, with the Contracting Officer making 
a maximum reduction as the contractor's working capital approaches zero. 
The Contracting Officer shall generally give positive consideration for 
payments less frequent than monthly and for a capital turn-over rate on 
the contract less than the contractor's or the industry's normal capital 
turn-over rate.
    (iii) Performance (cost control and other past accomplishments). The 
Contracting Officer shall evaluate the contractor's past performance in 
areas such as: quality of services or products,

[[Page 68]]

meeting performance schedules, efficiency in cost control (including 
need for and reasonableness of costs incurred), accuracy and reliability 
of previous cost estimates, degree of cooperation (both business and 
technical), compliance with previous contract requirements, and 
management of subcontract programs. Where a contractor has consistently 
achieved excellent results in these areas in comparison with other 
contractors in similar circumstances, this performance merits a 
proportionately greater opportunity for profit. Conversely, a poor 
record in this regard warrants less profit.
    (iv) Federal socioeconomic programs. This factor, which may apply to 
special circumstances or particular acquisitions, relates to the extent 
of a contractor's successful participation in Government sponsored 
programs involving: Small businesses; HUBZone small businesses; service-
disabled, veteran-owned small businesses; 8(a) small businesses; women-
owned small businesses; small disadvantaged businesses; sheltered 
workshops for the disabled; mentor-prot[eacute]g[eacute]; energy 
conservation, etc. The Contracting Officer shall give positive 
consideration for the contractor's policies and practices that support 
Federal socioeconomic programs and contribute to successful results. 
Conversely, the Contracting Officer shall view failure or unwillingness 
on the part of the contractor to support Federal socioeconomic programs 
as evidence of poor performance for the purpose of establishing a profit 
objective.
    (v) Special situations--(A) Inventive and developmental 
contributions. The Contracting Officer shall consider the extent and 
nature of contractor-initiated and contractor-financed independent 
development in formulating the profit objective, provided that the 
Contracting Officer has made a determination that the effort will 
benefit the contract. Examples of profit weighting factors include 
contribution of the independent development to health and human service-
related missions; the initiative demonstrated by the contractor in 
pursuing the independent development; the extent of the contractor's 
cost risk; and whether the independent development cost was recovered 
directly or indirectly from Government sources.
    (B) Unusual pricing agreements. Occasionally, unusual contract 
pricing arrangements are made with the contractor wherein it agrees to 
cost ceilings (e.g., a ceiling on overhead rates for conditions other 
than those discussed at FAR 42.707). In these circumstances, the 
Contracting Officer shall give the contractor favorable consideration in 
developing a profit objective.
    (C) Negative factors. Special situations need not be limited to 
those which only increase profit levels. A negative consideration may be 
appropriate when the contractor is expected to obtain spin-off-benefits 
as a direct result of the contract (e.g., products or services with 
commercial application).
    (4) Facilities capital cost of money. When facilities capital cost 
of money (cost of capital committed to facilities) is included as an 
item of cost in the contractor's proposal, the Contracting Officer shall 
reduce the profit objective in an amount equal to the amount of 
facilities capital cost of money allowed in accordance with the 
Facilities Capital Cost-of-Money cost principle. If the contractor does 
not propose this cost, the Contracting Officer shall insert a provision 
in the contract that makes facilities capital cost of money an 
unallowable cost.

                   Subpart 315.6_Unsolicited Proposals



Sec. 315.605  Content of unsolicited proposals.

    (d) Certification by offeror. To ensure against contacts between HHS 
personnel and prospective offerors that would exceed the limits of 
advance guidance set forth in FAR 15.604 and potentially result in an 
unfair advantage to an offeror, the Contracting Officer shall: Furnish 
the following certification template to any prospective offeror of an 
unsolicited proposal; and require that the executed certification be 
included in any resultant unsolicited proposal:


[[Page 69]]



                          Unsolicited Proposal

                        Certification by Offeror

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

Date:___________________________________________________________________
Organization____________________________________________________________
Name____________________________________________________________________
Title___________________________________________________________________

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



Sec. 315.606  Agency procedures.

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



Sec. 315.606-1  Receipt and initial review.

    (d) OPDIVs shall not refuse consideration of an unsolicited proposal 
because an organization initially submitted it as a grant application. 
However, OPDIVs shall not award contracts based on unsolicited proposals 
that have been rejected for grant awards due to lack of scientific 
merit.



Sec. 315.609  Limited use of data.

    An offeror shall use the legend, Use and Disclosure of Data, 
prescribed in FAR 15.609(a), to restrict the use of data for evaluation 
purposes only. However, data contained within the unsolicited proposal 
may need to be disclosed as a result of a request submitted pursuant to 
the Freedom of Information Act. Because of this possibility, the 
Contracting Officer shall provide the following notice to all 
prospective offerors of unsolicited proposals:

    ``The Government will attempt to comply with the ``Use and 
Disclosure of Data'' legend. However, the Government may not be able to 
withhold a record (data, document, etc.) or deny access to a record 
requested by an individual (the public) when an obligation is imposed on 
the Government under the Freedom of Information Act, 5 U.S.C. 552, as 
amended. The Government determination to withhold or disclose a record 
will be based upon the particular circumstances surrounding the record 
and on whether the record is exempt from disclosure under the Freedom of 
Information Act. Per FAR 15.609(e), the offeror should identify any 
records that it considers to be trade secrets, commercial or financial 
information, and privileged or confidential information.''

     Subpart 315.70_Acquisition of Electronic Information Technology



Sec. 315.7000  Section 508 accessibility standards.

    EIT products and services, including EIT deliverables such as 
electronic documents and reports, acquired using negotiated procedures 
shall comply with Section 508 of the Rehabilitation Act of 1973, as 
amended. Consistent with paragraph 4.3.1 of the HHS Section 508 policy--
see Section 508 policy on HHS Office on Disability Web site, if products 
and services, including commercially available items, meet some but not 
all of the applicable Section 508 accessibility standards, and no 
commercially available products or services meet all of the applicable 
Section 508 accessibility standards, an OPDIV/STAFFDIV shall acquire the 
products and services that best meet the applicable Section 508 
accessibility standards. Commercial nonavailability exception 
determinations for EIT products and services that do not meet some or 
all of the applicable Section 508 accessibility standards shall be 
processed in accordance with 339.203.

                       PART 316_TYPES OF CONTRACTS

               Subpart 316.3_Cost-reimbursement Contracts

Sec.

Sec. 316.307 Contract clauses.

               Subpart 316.5_Indefinite-Delivery Contracts


Sec. 316.505 Ordering.

[[Page 70]]

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


Sec. 316.603 Letter contracts.

Sec. 316.603-3 Limitations.

Sec. 316.603-70 Procedure for requesting authority to issue a letter 
          contract.

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

                        Subpart 316.7_Agreements


Sec. 316.770 Unauthorized types of agreements.

Sec. 316.770-2 Memoranda of understanding.

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

    Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.

               Subpart 316.3_Cost-reimbursement Contracts



Sec. 316.307  Contract clauses.

    (a) If a contract for R & D is with a hospital (profit or 
nonprofit), the Contracting Officer shall modify the ``Allowable Cost 
and Payment'' clause at FAR 52.216-7 by deleting from paragraph (a) the 
words ``Subpart 31.2 of the Federal Acquisition Regulation (FAR)'' and 
substituting ``45 CFR Part 74 Appendix E.''
    (j) The Contracting Officer shall insert the clause in 352.216-70, 
Additional Cost Principles, in solicitations and contracts when a cost-
reimbursement contract is contemplated.

               Subpart 316.5_Indefinite-Delivery Contracts



Sec. 316.505  Ordering.

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

AHRQ: Director, Office of Performance Accountability, Resources and 
Technology
ASPR/OAMCG: Chief of Acquisition Policy
CDC: Chief Information Officer
CMS: Chief Operating Officer
FDA: Director, Office of Acquisitions and Grants Services
HRSA: Associate Administrator, Office of Operations
IHS: Director, Office of Management Services
NIH: Senior Scientific Advisor for Extramural Research, Office of 
Extramural Research (R & D) and Senior Advisor to the Director (Other 
than R & D)
PSC: Director, Strategic Acquisition Service
SAMHSA: Executive Officer

[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21511, Apr. 26, 2010]

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



Sec. 316.603  Letter contracts.



Sec. 316.603-3  Limitations.

    An official one level above the Contracting Officer shall make the 
written determination that no other contract type is suitable.



Sec. 316.603-70  Procedure for requesting authority to issue a letter 
          contract.

    The Contracting Officer shall include the following information in a 
memorandum requesting approval to award a letter contract:
    (a) Name and address of proposed contractor.
    (b) Location where contract is to be performed.
    (c) Contract number, including modification number, if possible.
    (d) Brief description of work and services to be performed.
    (e) Proposed performance or delivery schedule.
    (f) Amount of letter contract.
    (g) Estimated total amount of definitized contract.
    (h) Type of definitive contract to be executed (fixed price, cost-
reimbursement, etc.).
    (i) Statement of the necessity and advantage to the Government of 
the use of the proposed letter contract.
    (j) Statement of percentage of the estimated cost that the 
obligation of funds represents (in rare instances where the obligation 
represents 50 percent or more of the proposed estimated cost of the 
acquisition, the Contracting Officer shall include a justification for 
that obligation (e.g., the contractor requires a large initial outlay of 
funds for major subcontract awards or an extensive purchase of materials 
to meet an urgent delivery requirement)). In every case, documentation 
shall demonstrate that the amount to be obligated is not in excess of an 
amount

[[Page 71]]

reasonably required to perform the work.
    (k) Period of effectiveness of a proposed letter contract. (If more 
than 180 days, the Contracting Officer shall provide a detailed 
justification).
    (l) A statement of any substantive matters that need to be resolved.



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

    An official one level above the Contracting Officer shall approve 
all letter contract modifications. Contracting activities shall process 
requests for authority to issue letter contract modifications in the 
same manner as requests for authority to issue letter contracts. A 
request shall include the following:
    (a) Name and address of the contractor.
    (b) Description of work and services.
    (c) Date original request was approved and name/title of approving 
official.
    (d) Letter contract number and date issued.
    (e) Detailed justification as to why the letter contract cannot 
currently be definitized.
    (f) Detailed justification as to why the level of funding must be 
increased.
    (g) Detailed justification as to why the period of effectiveness 
must be increased beyond 180 days, if applicable.
    (h) If the funding of the letter contract is to be increased to more 
than 50 percent of the estimated cost of the acquisition, the 
Contracting Officer shall include the information required by 316.603-
70(j).

                        Subpart 316.7_Agreements



Sec. 316.770  Unauthorized types of agreements.



Sec. 316.770-2  Memoranda of understanding.

    Use of a ``memorandum of understanding,'' which purports to modify 
mandatory FAR and HHSAR provisions to make them acceptable to a 
prospective contractor, is not authorized because it may address matters 
contrary to the language of the solicitation or prospective contract. A 
memorandum of understanding does not bind the Government under the 
contract. The Contracting Officer shall make a change in a solicitation 
or contract only by amendment or modification, respectively. When a 
change to a prescribed contract clause is considered necessary, the 
Contracting Officer shall request a deviation.

                  PART 317_SPECIAL CONTRACTING METHODS

                  Subpart 317.1_Multi-year Contracting

Sec.

Sec. 317.104 General.

Sec. 317.105 Policy.

Sec. 317.105-1 Uses.

Sec. 317.107 Options.

Sec. 317.108 Congressional notification.

                          Subpart 317.2_Options


Sec. 317.204 Contracts.

Sec. 317.207 Exercise of options.

      Subpart 317.5_Interagency Acquisitions Under the Economy Act


Sec. 317.503 Determination and findings requirements.

         Subpart 317.70_Multi-agency and Intra-agency Contracts


Sec. 317.7000 Scope of subpart.

Sec. 317.7001 Definitions.

Sec. 317.7002 Potential multi-agency and intra-agency sources.

Sec. 317.7003 Documentation for multi-agency contracts.

Sec. 317.7004 Documentation for intra-agency contracts.

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

    Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.

                  Subpart 317.1_Multi-year Contracting



Sec. 317.104  General.

    (b) The Senior Procurement Executive is the agency head for the 
purpose of FAR 17.104(b).



Sec. 317.105  Policy.



Sec. 317.105-1  Uses.

    (a) Each HCA determination to use multi-year contracting, as defined 
in FAR 17.103, is limited to individual acquisitions where the full 
estimated

[[Page 72]]

cancellation ceiling does not exceed 20 percent of the total contract 
value over the multi-year term or $11.5 million, whichever is less. 
Cancellation ceiling provisions shall conform to the requirements of FAR 
17.106-1(c). The determination is not delegable and shall address the 
issues in FAR 17.105-1(a) and the following:
    (1) The amount of, and basis for, the estimated cancellation 
ceiling.
    (2) Identification and assignment of a Contracting Officer holding a 
FAC-C Level III certification or, alternatively, one familiar with the 
application of this contracting method.
    (3) Availability of appropriations to fund the obligation of total 
contract costs for the first year of performance plus the estimated 
amount of the full cancellation ceiling.
    (4) Reasonable expectation that, throughout the contemplated 
contract performance period, the OPDIV, through its annual budget 
request, will seek funding for the contract at the level necessary to 
avoid contract cancellation; and
    (5) Program requirements are reasonably stable and the associated 
technical risks are not excessive--i.e., not of the nature or level to 
jeopardize contract completion or result in its cancellation.
    Upon SPE request, the HCA shall provide a copy of each determination 
(other than those specified in 317.105-1(b) below).
    (b)(1) SPE approval is required for any--
    (i) Individual determination to use multi-year contracting with a 
cancellation ceiling in excess of the limits in 317.105-1(a); or
    (ii) Class determination (see FAR Subpart 1.7).
    (2) A determination involving a cancellation ceiling in excess of 
the limits in 317.105-1(a) shall present a compelling justification for 
the estimated cancellation ceiling. When the estimated cancellation 
ceiling exceeds $11.5 million, the determination shall be accompanied by 
a draft congressional notification letter pursuant to FAR 17.108 and 
317.108.
    (c) The funding required for performance of each year of a multi-
year contract under FAR Subpart 17.1 and this subpart must be provided 
in full at the start of that program year.

[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21511, Apr. 26, 2010]



Sec. 317.107  Options.

    When used as part of a multi-year contract, options shall not be 
used to extend the performance of the original requirement for non-
severable services beyond 5 years. Options may serve as a means to 
acquire related services (severable or non-severable) and, upon being 
exercised, shall be funded from the then-current fiscal year's 
appropriation.

[75 FR 21511, Apr. 26, 2010]



Sec. 317.108  Congressional notification.

    (a) The SPE is the agency head for the purposes of FAR 17.108(a). 
Upon SPE approval of the determination required by 317.105-1(b)(1), the 
SPE will finalize and sign the congressional notification letter and 
provide it to the appropriate House and Senate committees.

                          Subpart 317.2_Options



Sec. 317.204  Contracts.

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



Sec. 317.207  Exercise of options.

    (h) Before exercising an option for a subsequent performance period/
additional quantity under a multiple-year contract/order--see 339.201-
70(c), which involves the acquisition of EIT products and services, 
including EIT deliverables such as electronic documents and reports, 
subject to Section 508 of the Rehabilitation Act of 1973, as amended, 
the Contracting Officer shall ensure that the contractor has provided to 
the Contracting Officer and Project Officer a properly completed HHS 
Section 508 Annual Report--see

[[Page 73]]

Section 508 policy on HHS Office on Disability Web site. The Contracting 
Officer shall request that the contractor provide the report in 
sufficient time for its review and approval by the Contracting Officer, 
Project Officer, and the Section 508 Official or designee, prior to 
exercise of an option. The Contracting Officer shall ensure that the 
report and all related approvals are made a part of the official 
contract/order file.

      Subpart 317.5_Interagency Acquisitions Under the Economy Act



Sec. 317.503  Determination and findings requirements.

    (a) In addition to the D & F contents specified in FAR 17.503(a)(1) 
and (2), each Assisted Contracting D & F shall address--
    (3) The servicing organization(s) contemplated (the assigned HHS 
contracting office shall be one of the servicing organizations 
contemplated);
    (4) For each organization and alternative approach contemplated, the 
anticipated benefits to the OPDIV; the anticipated costs, including 
associated fees or other compensation; and the contract/order placement 
timeframe;
    (5) The tradeoffs (cost, schedule, performance) among the approaches 
considered;
    (6) The recommended multi-agency or intra-agency contracting 
approach;
    (7) The conclusion that the contract to be awarded by the selected 
servicing organization is the most advantageous alternative to the 
Government, notwithstanding fees and the increased risk associated with 
assisted contracting; and
    (8) The steps that will be taken to ensure that contract funding 
will comply with the bona fide needs rule and the Anti-Deficiency Act.

[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21511, Apr. 26, 2010]

         Subpart 317.70_Multi-agency and Intra-agency Contracts



Sec. 317.7000  Scope of subpart.

    (a) This subpart prescribes policies for HHS' use of multi-agency 
and intra-agency contracting under all authorities. It does not apply 
when HHS transfers funds to another agency under an interagency 
agreement whose primary purpose is other than contracting on HHS' 
behalf.
    (b) For multi-agency contracts under the authority of the Economy 
Act, see FAR Subpart 17.5 and 317.503.
    (c) Multi-agency contracting authorities other than the Economy Act 
include but are not limited to the Clinger-Cohen Act [40 U.S.C. 
11302(e)]; the Government Management Reform Act (Pub. L. 103-356); Title 
III of the Federal Property and Administrative Services Act of 1949 (41 
U.S.C. 251, et seq.); and 40 U.S.C. 501, Services for Executive 
Agencies.



Sec. 317.7001  Definitions.

    As used in this subpart:
    Multi-agency contracting describes a procedure in which a Federal 
agency needing supplies or services obtains them using another Federal 
agency's contract (direct ordering), the contracting assistance of 
another Federal agency (assisted contracting), or both. In some cases, 
more than one servicing organization may be involved in assisted 
contracting.
    Intra-agency contracting describes a procedure in which an HHS 
OPDIV/STAFFDIV needing supplies or services obtains them by issuing an 
order under another HHS OPDIV/STAFFDIV's contract or agreement (e.g., a 
BPA--direct ordering); or using the contracting assistance of another 
OPDIV/STAFFDIV (assisted contracting); or both.
    Assisted contracting is a subset of multi-agency/intra-agency 
contracting in which a servicing contracting office other than the 
requesting organization's assigned contracting office contracts on 
behalf of the requesting organization.
    Direct ordering is a subset of multi-/intra-agency contracting in 
which a contracting or ordering officer issues an order under another 
OPDIV's or Federal agency's indefinite delivery vehicle (e.g., a GSA FSS 
schedule or a GWAC).
    Requesting organization refers to the organization with the 
requirement for a multi- or intra-agency contract.

[[Page 74]]

    Servicing organization refers to an organization that assists a 
requesting organization by awarding a contract or order on its behalf. 
In the context of multi-agency contracting, the servicing organization 
and requesting organization must be in different Federal agencies. For 
intra-agency contracting, the servicing and requesting organizations 
must both be HHS organizations.



Sec. 317.7002  Potential multi-agency and intra-agency sources.

    (a) Prior to deciding to use multi-agency or intra-agency 
contracting, the requesting organization must perform sufficient market 
research to consider the relative merits and costs of available 
contracts and contracting offices for meeting the requesting 
organization's need.
    (b) Direct ordering conducted by HHS contracting officers using GSA 
vehicles, GWACs, and vehicles established under the Federal Strategic 
Sourcing Initiative does not require justification. HHS contracting 
officers should be cautious about using unfamiliar contract vehicles. 
When using vehicles other than those listed above, the Contracting 
Officer shall include in the contract file a D & F, which is prepared in 
consultation with the SBS, and which concludes that the chosen vehicle 
is the best way to obtain the required product or service.
    (c) With the exception of assisted contracts and direct order 
acquisitions to be placed pursuant to the authority of the Economy Act, 
which always require preparation of a supporting D & F--see FAR 17.503, 
proposed assisted contracts approved as part of an annual or updated 
acquisition plan require no additional documentation or approvals.
    (d) For proposed assisted contracts not approved as part of an 
annual or update acquisition plan, the requiring organization shall 
identify the potential servicing organization(s); summarize the services 
each source provides; and describe the compensation arrangement(s). The 
assigned contracting office shall be one of the alternatives considered. 
For multi-agency contract actions, this information shall be included in 
the Assisted Contracting D & F required in 317.7003(b).



Sec. 317.7003  Documentation for multi-agency contracts.

    (a) In the case of proposed direct ordering using vehicles other 
than those listed in 317.7002(b), the HHS contracting officer shall 
comply with the D & F requirement in 317.7003(b).
    (b) If a proposed assisted contract, using a servicing organization 
outside HHS, was not approved during preparation and review of the 
annual acquisition plan, including updates, then the program/project 
office or other requiring activity shall prepare an Assisted Contracting 
D & F, similar to the D & F specified in FAR 17.503, but augmented with 
the information specified in 317.503. The Project Officer or other 
requiring official shall be responsible for preparing and staffing this 
Assisted Contracting D & F.
    (1) For assisted contracts greater than or equal to $500,000 
(including the value of the base contract and all options and, for 
indefinite delivery vehicles, the value of the vehicle and all potential 
orders), the assigned HHS Contracting Officer shall review and approve 
or reject the Assisted Contracting D & F, annotated with the SBS' 
recommendation. The Contracting Officer's signature on the Assisted 
Contracting D&F signifies his/her concurrence that assisted contracting 
through the proposed servicing contracting office is in the best 
interest of the government. The Project Officer must retain a copy of 
the approved Assisted Contracting D & F.
    (2) For assisted contracts less than $500,000, the HCA may delegate 
authority to the Project Officer or other requiring official to approve 
the required Assisted Contracting D & F. The $500,000 threshold includes 
the value of the base contract and all options and, for indefinite 
delivery vehicles, the value of the vehicle and all potential orders.
    (3) During a declared (Presidential or HHS Secretarial) emergency, 
funding and requirements documentation may be transferred to a servicing 
organization without an Assisted Contracting D & F. The Project Officer 
shall document his/her file, explaining the exigent circumstances.

[[Page 75]]

    (c) Assisted contracts require supporting interagency agreements, as 
described in OFPP's memorandum, ``Interagency Acquisitions,'' dated June 
2008. Note that Part A of an interagency agreement can support multiple 
assisted contracts. Each interagency agreement shall address all the 
elements identified in OFPP's model interagency agreement (Appendix 2 of 
OFPP's ``Interagency Acquisitions''). The level of detail in HHS 
interagency agreements should be commensurate with the dollar value and 
complexity of the assisted contract. HHS requesting organizations shall 
not forward funding or requirements documentation outside HHS without a 
properly executed interagency agreement; and servicing activities within 
HHS (e.g., PSC and the NIH Information Technology Acquisition and 
Assessment Center), shall not contract on behalf of non-HHS requesting 
organizations without properly executed interagency agreements.



Sec. 317.7004  Documentation for intra-agency contracts.

    (a) In the case of proposed direct ordering, using vehicles other 
than those listed in 317.7002(b), the HHS contracting officer shall 
comply with the D & F requirement in 317.7003(b).
    (b) With the exception of assisted contracts and direct order 
acquisitions to be placed pursuant to the authority of the Economy Act, 
which always require preparation of a supporting D & F--see FAR 17.503, 
proposed assisted contracts approved as part of an annual or updated 
acquisition plan require no additional documentation or approvals.
    (c) For proposed assisted contracts not approved as part of an 
annual or updated acquisition plan, the requiring organization shall 
identify the potential servicing organization(s); summarize the services 
the source(s) provide(s); and describe the compensation arrangement(s). 
The assigned contracting office shall be one of the alternatives 
considered.
    (d) Assisted intra-agency contracts may require supporting intra-
agency agreements or other documentation as prescribed by OPDIV 
procedures.

[[Page 76]]

                   SUBCHAPTER D_SOCIOECONOMIC PROGRAMS

                    PART 319_SMALL BUSINESS PROGRAMS

                         Subpart 319.2_Policies

Sec.

Sec. 319.201 General policy.

Sec. 319.202-2 Locating small business sources.

Sec. 319.270-1 Solicitation provision and contract clause.

               Subpart 319.5_Set-Asides for Small Business


Sec. 319.501 General.

Sec. 319.506 Withdrawing or modifying set-asides.

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


Sec. 319.705 Responsibilities of the Contracting Officer under the 
          subcontracting assistance program.

Sec. 319.705-5 Awards involving subcontracting plans.

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

    Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.

                         Subpart 319.2_Policies



Sec. 319.201  General policy.

    (d) The functional management responsibilities for HHS' small 
business program (i.e., small businesses; veteran-owned small 
businesses; service-disabled, veteran-owned small businesses; HUBZone 
small businesses; small disadvantaged businesses; and women-owned small 
businesses) are delegated to the OSDBU Director. See the HHS Small 
Business Program manual for information on the HHS small business 
program, including SBS and Small Business Administration (SBA) 
Procurement Center Representative (PCR) acquisition review timeframes.
    (e)(1) One or more qualified SBSs will implement the HHS small 
business program and shall be co-located within the following OPDIVs: 
AHRQ; ASPR/OAMCG; CDC; CMS; FDA; HRSA; IHS; NIH; PSC; and SAMHSA. The 
OSDBU Director shall exercise full management authority over SBSs.
    (2) Within IHS, the primary SBS will be responsible for IHS' overall 
implementation of the HHS small business program; however, each IHS 
contracting office will have a small business technical advisor (SBTA) 
to carry out those functions and responsibilities to implement the small 
business program. The primary IHS SBS shall assist and provide guidance 
to respective SBTAs.

[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21511, Apr. 26, 2010]



Sec. 319.202-2  Locating small business sources.

    (a) OPDIVs shall foster, to the extent practicable, maximum 
participation by small businesses in HHS acquisitions. Prior to issuing 
a solicitation, the Contracting Officer shall make every reasonable 
effort to find small business concerns that can compete for the proposed 
requirement--see FAR 19.202, 10.001(2)(v), and 10.002(b)(1)(vii).
    (1) If it cannot be determined in advance (through market research 
under FAR Part 10, discussions between the Contracting Officer and the 
SBS, or other means--see FAR 15.201, whether a solicitation in excess of 
the simplified acquisition threshold can be set aside exclusively for 
small business participation [whether for small businesses; HUBZone 
small businesses; service-disabled, veteran-owned small businesses; or 
8(a) small business(es)], the Contracting Officer may publish a notice 
entitled ``Small Business Sources Sought'' in FedBizOpps. The purpose of 
a Small Business Sources Sought notice is to identify the availability 
and capability of qualified small business sources; and their size 
classification relative to the appropriate North American Industry 
Classification System (NAICs) code. This will assist the Government in 
determining the appropriate acquisition method, including whether a set-
aside is possible. However, to solicit technical, scientific, or 
business information for project planning purposes, an RFI may be used--
see 315.201(e).

[[Page 77]]

    (2) When using a Small Business Sought notice, an OPDIV shall not 
request that potential sources provide more than the minimum information 
necessary--see FAR 10.001(b), to determine whether they have the 
apparent capability to perform a requirement and, therefore, whether 
they should be included in any future competition. The notice and the 
information received shall not be used to determine how well respondents 
can perform a requirement, which can only be evaluated in response to a 
solicitation. Accordingly, the notice shall not be used to--
    (i) Obtain capability statements that are evaluated and determined 
acceptable or unacceptable;
    (ii) Require cost/price proposals or detailed technical solutions;
    (iii) Identify a prospective sole source; or
    (iv) Exclude small business concerns.
    (3) OPDIVs shall follow the standard HHS instructions for completing 
a ``Small Business Sources Sought'' notice.'' The template for the 
notice is available on the ASFR/OGAPA/DA Internet Web site. The 
Contracting Officer shall post the notice in FedBizOpps by selecting and 
completing a Sources Sought notice, accessible on the FedBizOpps 
``Notices'' page at: http://www.fedbizopps.gov. Additional information 
may be included in the notice in accordance with OPDIV procedures. The 
Contracting Officer shall document, in the form of a memorandum to the 
file, the results of the review by technical personnel of information 
submitted in response to the notice, including whether each respondent 
appears to be capable of performing the requirement. The Contracting 
Officer shall attach a copy of the analysis provided by the technical 
personnel to the memorandum.



Sec. 319.270-1  Solicitation provision and contract clause.

    (a) The Contacting Officer shall insert the provision in 352.219-70, 
Mentor-Prot[eacute]g[eacute] Program, in solicitations that include the 
clause in FAR 52.219-9, Small Business Subcontracting Plan. The 
provision requires that offerors provide the Contracting Officer a copy 
of their HHS Office of Small and Disadvantaged Business Utilization 
(OSDBU)-approved mentor-prot[eacute]g[eacute] agreement in response to a 
solicitation. (b) The Contacting Officer shall insert the clause in 
352.219-71, Mentor-Prot[eacute]g[eacute] Program Reporting Requirements, 
in contracts that include the clause in FAR 52.219-9, Small Business 
Subcontracting Plan, and which are awarded to a contractor with an HHS 
OSDBU-approved mentor-prot[eacute]g[eacute] agreement.

               Subpart 319.5_Set-Asides for Small Business



Sec. 319.501  General.

    (e) Subsequent to the Contracting Officer's recommendation on Form 
HHS 653, HHS Small Business Review Form, the SBS shall review each 
proposed acquisition strategy and either concur or not concur with the 
Contracting Officer's recommendation. The PCR shall also review the 
acquisition strategy and either concur or not concur with the 
Contracting Officer's recommendation. If the Contracting Officer 
disapproves the SBS's or the PCR's set-aside recommendation, the 
Contracting Officer shall document the reasons on Form HHS 653 and place 
the form in the contract file. The Contracting Officer shall make the 
final determination as to whether the proposed acquisition will be set-
aside or not.



Sec. 319.506  Withdrawing or modifying set-asides.

    (d) Immediately upon notice from the Contracting Officer, the SBS 
shall provide notification of all set-aside withdrawals to the OSDBU 
Director by both telephone and e-mail.

[[Page 78]]

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



Sec. 319.705  Responsibilities of the Contracting Officer under the 
          subcontracting assistance program.



Sec. 319.705-5  Awards involving subcontracting plans.

    (a)(3) The Contracting Officer shall provide the PCR a period of 1 
to 5 working days to review the contract award package, depending upon 
the circumstances and complexity of the individual acquisition.

      PART 322_APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

               Subpart 322.8_Equal Employment Opportunity

Sec.

Sec. 322.810 Solicitation provisions and contract clauses.

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

    Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.

               Subpart 322.8_Equal Employment Opportunity



Sec. 322.810  Solicitation provisions and contract clauses.

    (h) The Contracting Officer shall insert the clause in 352.222-70, 
Contractor Cooperation in Equal Employment Opportunity Investigations, 
in solicitations, contracts, and orders that include the clause in FAR 
52.222-26, Equal Opportunity.

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

                    Subpart 323.70_Safety and Health

Sec.

Sec. 323.7000 Scope of subpart.

Sec. 323.7001 Policy.

Sec. 323.7002 Actions required.

              Subpart 323.71_Green Purchasing Requirements


Sec. 323.7100 Policy.

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

    Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.

                    Subpart 323.70_Safety and Health



Sec. 323.7000  Scope of subpart.

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



Sec. 323.7001  Policy.

    Various statutes and regulations (e.g., the Walsh-Healy Act and 
Service Contract Act), require adherence to minimum safety and health 
standards by contractors engaged in potentially hazardous work. FAR 
subpart 23.3 serves as the primary reference regarding hazardous 
materials. The Contracting Officer shall follow the guidance in this 
subpart when the guidance in the FAR is not sufficient or does not meet 
the safety and health situation for an acquisition.



Sec. 323.7002  Actions required.

    (a) Contracting activities. The Contracting Officer shall insert the 
clause in 352.223-70, Safety and Health, or a clause substantially the 
same, in solicitations and contracts that involve hazardous materials or 
operations for the following types of requirements:
    (1) Services or products.
    (2) Research, development, or test projects.
    (3) Transportation of hazardous materials.
    (4) Construction, including construction of facilities on the 
contractor's premises.
    (b) Safety officers. OPDIV safety officers shall advise and assist 
initiators of acquisition requests and Contracting Officers in--
    (1) Determining whether safety and health provisions shall be part 
of a prospective contract;

[[Page 79]]

    (2) Evaluating a prospective contractor's safety and health 
programs; and
    (3) Conducting post-award reviews and surveillance to the extent 
deemed necessary.
    (c) Initiators. Initiators of acquisition requests for items 
described in paragraph (a) of this section shall--
    (1) During the preparation of an acquisition plan or other 
acquisition request documentation, and in the solicitation, ensure that 
hazardous materials and operations to be used in the performance of the 
contract are clearly identified; and
    (2) During the period of performance--
    (i) Apprise the Contracting Officer of any noncompliance with safety 
and health provisions identified in the contract; and
    (ii) Cooperate with the safety officer in conducting review and 
surveillance activities.

              Subpart 323.71_Green Purchasing Requirements



Sec. 323.7100  Policy.

    (a) The HHS guidelines and procedures for ``green purchasing'' may 
be found in the HHS Affirmative Procurement Plan (APP), ``Purchasing 
Environmentally Preferable Products and Services at the U.S. Department 
of Health and Human Services.'' The APP encompasses the acquisition and 
use of designated recycled content, and Energy Star [supreg], Electronic 
Product Environmental Assessment Tool (EPEAT)-registered, energy-
efficient, bio-based, and environmentally preferable products.
    (1) ASFR/OGAPA/DA has overall responsibility for monitoring the 
OPDIVs' implementation of HHS' APP to ensure compliance with Executive 
Order 13423, ``Strengthening Federal Environmental, Energy, and 
Transportation Management;'' the White House Council on Environmental 
Quality's Implementing Instructions for Executive Order 13423; Section 
6002 of the Resource Conservation and Recovery Act of 1976; Section 104 
of the Energy Policy Act of 2005; Section 9002 of the Farm Security and 
Rural Investment Act of 2002; Section 612 of the Clean Air Act of 1990; 
and FAR Part 23.
    (2) The OPDIVs, through their designated APP Program Managers, are 
responsible for establishing the necessary local procedures and 
appropriate training requirements to ensure effective implementation of 
the HHS APP.

        PART 324_PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

             Subpart 324.1_Protection of Individual Privacy

Sec.

Sec. 324.000 Scope of subpart.

Sec. 324.102 General.

Sec. 324.103 Procedures.

                Subpart 324.2_Freedom of Information Act


Sec. 324.203 Policy.

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

    Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.

             Subpart 324.1_Protection of Individual Privacy



Sec. 324.000  Scope of subpart.

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



Sec. 324.102  General.

    (a) It is HHS policy to protect the privacy of individuals to the 
maximum possible extent, while permitting the exchange of records 
required to fulfill HHS administrative and program responsibilities and 
its responsibilities for disclosing records to which the general public 
is entitled under the Freedom of Information Act (5 U.S.C. 552). The 
Privacy Act of 1974 and the HHS implementation under 45 CFR Part 5b 
apply ``when an agency provides by a contract for the operation by or on 
behalf of the agency of a system of records to accomplish any agency 
function * * *.'' The key factor is whether an HHS function is involved. 
Therefore, the Privacy Act requirements apply to an HHS contract when, 
under the contract, the contractor must maintain or

[[Page 80]]

operate a system of records to accomplish an HHS function.
    (e) The Project Officer, and, as necessary, the official designated 
as the OPDIV's Privacy Act Coordinator and OGC-GLD, shall determine the 
applicability of the Privacy Act to each proposed acquisition. The 
Project Officer is required to include a statement in the AP or other 
acquisition request document indicating whether the Privacy Act is or is 
not applicable to a proposed acquisition.
    (f) Whenever a Contracting Officer is informed that the Privacy Act 
is not applicable, but the resultant contract will involve the 
collection of individually identifiable personal data by the contractor, 
the Contracting Officer shall include provisions to protect the 
confidentiality of the records and the privacy of individuals identified 
in the records.

[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21511, Apr. 26, 2010]



Sec. 324.103  Procedures.

    (a) The Contracting Officer shall review all acquisition request 
documentation to determine whether the Privacy Act requirements are 
applicable. The Privacy Act requirements apply when a contract or order 
will require the contractor to design, develop, or operate any Privacy 
Act system of records on individuals to accomplish an agency function. 
When applicable, the Contracting Officer shall include the two Privacy 
Act clauses required by FAR 24.104 in the solicitation and contract or 
order. In addition, the Contracting Officer shall include the two FAR 
Privacy Act clauses, and other pertinent information specified in this 
subpart, in any modification which results in the Privacy Act 
requirements becoming applicable to a contract or order.
    (b)(1) The Contracting Officer shall identify in the SOW/PWS the 
system(s) of records to which the Privacy Act and the implementing 
regulations are applicable.
    (2) The Contracting Officer shall include the clause specified in 
352.224-70, Privacy Act, in solicitations, contracts, and orders that 
involve Privacy Act requirements to notify the contractor that it and 
its employees are subject to criminal penalties for violations of the 
Privacy Act (5 U.S.C. 552a(i)) to the same extent as HHS employees. The 
clause also requires the contractor to ensure that each of its employees 
knows the prescribed rules of conduct and each contractor employee is 
aware that he/she is subject to criminal penalties for violations of the 
Privacy Act. These requirements also apply to all subcontracts awarded 
under the contract or order that require the design, development, or 
operation of a system of records. The Contracting Officer shall send the 
contractor a copy of 45 CFR Part 5b, which includes the rules of conduct 
and other Privacy Act requirements.
    (c) The Contracting Officer shall specify in the contract SOW/PWS 
the disposition to be made of the system(s) of records upon completion 
of contract performance. The contract SOW/PWS may require the contractor 
to destroy the records, remove personal identifiers, or turn the records 
over to the Contracting Officer. If there is a legitimate need for a 
contractor to keep copies of the records after completion of a contract, 
the contractor must take measures, as approved by the Contracting 
Officer, to keep the records confidential and protect the individuals' 
privacy.
    (d) For any acquisition subject to Privacy Act requirements, the 
Project Officer, prior to award, or the COTR, after award, shall prepare 
and have published in the Federal Register a ``system notice,'' 
describing HHS' intent to establish a new system of records on 
individuals, to make modifications to an existing system, or to disclose 
information in regard to an existing system. The Project Officer shall 
attach a copy of the system notice to the acquisition plan or other 
acquisition request documentation. If a system notice is not attached, 
the Contracting Officer shall inquire about its status and shall obtain 
a copy from the Project Officer for inclusion in the contract file. If a 
system notice has not been published in the Federal Register, the 
Contracting Officer may proceed with the acquisition but shall not award 
the contract until the system notice is published and the Contracting 
Officer verifies its publication.

[[Page 81]]

                Subpart 324.2_Freedom of Information Act



Sec. 324.203  Policy.

    (a) The HHS regulation implementing the Freedom of Information Act 
(FOIA), 5 U.S.C. 552, as amended, is set forth in 45 CFR Part 5.
    (b) The Contracting Officer, upon receiving a FOIA request, shall 
follow HHS and OPDIV procedures. As necessary, the Contracting Officer 
shall coordinate all actions with the cognizant Freedom of Information 
(FOI) Officer and the OGC-GLD. Only the FOI Officer is authorized to 
release or deny release of records. The Contracting Officer shall be 
familiar with the entire FOIA regulation in 45 CFR Part 5.

[[Page 82]]

              SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS

                 PART 327_PATENTS, DATA, AND COPYRIGHTS

               Subpart 327.4_Rights in Data and Copyrights

Sec.

Sec. 327.404-70 Solicitation provision and contract clause.

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

    Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.

               Subpart 327.4_Rights in Data and Copyrights



Sec. 327.404-70  Solicitation provision and contract clause.

    The Contracting Officer shall insert the clause in 352.227-70, 
Publications and Publicity, in solicitations, contracts, and orders that 
involve requirements which could lead to the contractor's publishing the 
results of the award.

                      PART 328_BONDS AND INSURANCE

                         Subpart 328.3_Insurance

Sec.

Sec. 328.301 Policy.

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

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

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

    Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.

                         Subpart 328.3_Insurance



Sec. 328.301  Policy.

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



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



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

    The Contracting Officer shall insert the clause in 352.228-7, 
Insurance--Liability to Third Persons, in lieu of the clause in FAR 
52.228-7, Insurance--Liability to Third Persons, in solicitations and 
contracts when a cost-reimbursement contract is contemplated. The 
Contracting Officer shall insert Alternate I or II based on the 
conditions specified therein. This is an authorized FAR deviation.

                   PART 330_COST ACCOUNTING STANDARDS

                 Subpart 330.2_CAS Program Requirements

Sec.

Sec. 330.201 Contract requirements.

Sec. 330.201-5 Waiver.

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

    Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.

                 Subpart 330.2_CAS Program Requirements



Sec. 330.201  Contract requirements.



Sec. 330.201-5  Waiver.

    (a) OPDIVs shall forward waiver requests through appropriate 
acquisition channels, including the HCA, to the Associate DAS for 
Acquisition (non-delegable) for review. Associate DAS for Acquisition 
shall exercise the waiver authority under FAR 30.201-5(a)(2).

            PART 331_CONTRACT COST PRINCIPLES AND PROCEDURES

                       Subpart 331.1_Applicability

Sec.

Sec. 331.101-70 Salary rate limitation.

Sec. 331.102-70 Pricing of adjustments.


[[Page 83]]


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

    Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.

                       Subpart 331.1_Applicability



Sec. 331.101-70  Salary rate limitation.

    (a) Beginning in fiscal year 1990, Congress has stipulated in HHS 
appropriations acts and continuing resolutions that, under applicable 
NIH, SAMHSA, and AHRQ contracts, appropriated funds cannot be used to 
pay the direct salary of an individual at a rate in excess of the 
Federal Executive Schedule Level I.
    (b) The Contracting Officer shall insert the clause in 352.231-70, 
Salary Rate Limitation, in NIH, SAMHSA, and AHRQ solicitations and 
contracts that exceed the simplified acquisition threshold when a cost-
reimbursement, fixed-price level-of-effort, time-and-materials, or 
labor-hour contract is contemplated, including modifications of 
contracts of those types for projects that support extramural program 
activities. For purposes of this clause, for NIH: Projects that support 
extramural program activities are basic and applied research projects; 
and for SAMHSA and AHRQ: Projects that support extramural program 
activities are mission-related projects, exclusive of contracts for 
general support services.



Sec. 331.102-70  Pricing of adjustments.

    The Contracting Officer shall insert the clause in 352.231-71, 
Pricing of Adjustments, in solicitations and contracts when a fixed-
price contract is contemplated.

                       PART 332_CONTRACT FINANCING

         Subpart 332.4_Advance Payments for Non-Commercial Items

Sec.

Sec. 332.402 General.

Sec. 332.403 Applicability.

Sec. 332.407 Interest.

Sec. 332.409 Contracting Officer action.

Sec. 332.409-1 Recommendation for approval.

              Subpart 332.5_Progress Payments Based on Cost


Sec. 332.501 General.

Sec. 332.501-2 Unusual progress payments.

                     Subpart 332.7_Contract Funding


Sec. 332.703-70 Funding contracts during a continuing resolution.

Sec. 332.704 Limitation of cost or funds.

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

    Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.

         Subpart 332.4_Advance Payments for Non-Commercial Items



Sec. 332.402  General.

    (e) The HCA (non-delegable) shall determine whether an advance 
payment is in the public interest in accordance with FAR 
32.402(c)(1)(iii)(A).



Sec. 332.403  Applicability.

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



Sec. 332.407  Interest.

    (d) The HCA (non-delegable) shall make the determinations in FAR 
32.407(d). The HCA may also approve interest-free advance payments for 
educational institutions and other nonprofit organizations, whether 
public or private, performing work under nonprofit contracts (without 
fee) involving health services, educational programs, or social service 
programs, such as the following:
    (1) Community health representative services for an Indian Tribe.
    (2) Narcotic addict rehabilitative services.
    (3) Comprehensive health care services for Model Neighborhood 
programs.
    (4) Planning and development of health maintenance organizations.
    (5) Dissemination of information derived from educational research.
    (6) Surveys or demonstrations in the field of education.
    (7) Producing or distributing educational media for disabled persons 
including captioned films for the hearing impaired.
    (8) Operation of language or area centers.
    (9) Biomedical research and support services.

[[Page 84]]

    (10) Research surveys or demonstrations involving the training and 
placement of health personnel and health professionals, and 
dissemination of related information.
    (11) Surveys or demonstrations in the field of social service.



Sec. 332.409  Contracting Officer action.



Sec. 332.409-1  Recommendation for approval.

    The Contracting Officer shall transmit the information in FAR 
32.409-1 (or FAR 32.409-2) to the HCA by memorandum.

              Subpart 332.5_Progress Payments Based on Cost



Sec. 332.501  General.



Sec. 332.501-2  Unusual progress payments.

    (a)(3) The HCA (non-delegable) shall approve an unusual progress 
payment.

                     Subpart 332.7_Contract Funding



Sec. 332.703-70  Funding contracts during a continuing resolution.

    (a) Continuing resolutions. A continuing resolution (CR) is a 
legislative measure enacted to keep existing Federal programs 
functioning, generally at minimal levels, after the expiration of prior 
fiscal year budget authority and until passage of regular appropriation 
acts by Congress.
    (b) Operating guidance. Because the terms of CRs may vary, for each 
CR, specific operating guidance will be issued by the Office of the 
Assistant Secretary for Financial Resources (ASFR). This guidance will--
    (1) Establish the availability of funds for existing and new 
projects or activities (consistent with the language of the CR);
    (2) Identify any specific limits or constraints imposed; and
    (3) Establish the authorized level and timing of obligations 
permitted.
    (c) Contracting activities, in concert with program, budget and 
finance personnel, must carefully assess contract funding decisions to--
    (1) Ensure compliance with HHS guidance regarding the specific terms 
of a CR;
    (2) Maintain essential operations and activities; and
    (3) Guard against violations of the Anti-Deficiency Act--see FAR 
32.702.

[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21511, Apr. 26, 2010]



Sec. 332.704  Limitation of cost or funds.

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

                PART 333_PROTESTS, DISPUTES, AND APPEALS

                         Subpart 333.1_Protests

Sec.

Sec. 333.102 General.

Sec. 333.103 Protests to the agency.

Sec. 333.104 Protests to GAO.

                   Subpart 333.2_Disputes and Appeals


Sec. 333.203 Applicability.

Sec. 333.209 Suspected fraudulent claims.

Sec. 333.211 Contracting Officer's decision.

Sec. 333.212 Contracting Officer's duties upon appeal.

Sec. 333.212-70 Formats.

Sec. 333.213 Obligation to continue performance.

Sec. 333.215-70 Contract clauses.

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

    Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.

                         Subpart 333.1_Protests



Sec. 333.102  General.

    (g)(1) The OGC-GLD serves as the liaison for protests lodged with 
the Government Accountability Office (GAO); is designated as the office 
responsible for all protests within HHS; and serves as the notification 
point with GAO for all protests.
    (2) Each contracting activity shall designate a protest control 
officer to serve as an advisor to the Contracting Officer and to monitor 
protests from the time of initial notification until the protest has 
been resolved. Contracting activities shall forward a copy of each 
appointment and termination of appointment of protest control officers 
through appropriate acquisition channels, including the HCA, to ASFR/
OGAPA/DA and the Deputy Associate General Counsel, OGC-GLD.

[[Page 85]]



Sec. 333.103  Protests to the agency.

    (f)(1) The Contracting Officer is authorized to make the 
determination, using the criteria in FAR 33.104(b), to award a contract 
notwithstanding the protest after obtaining the concurrence of the 
contracting activity's protest control officer and the OGC-GLD. If a 
protest has been lodged with the Secretary, is addressed to the 
Secretary, or requests referral to the Secretary, the Contracting 
Officer shall also obtain approval from Associate DAS for Acquisition 
and OGC-GLD before making the award.
    (2) The Contracting Officer shall require written confirmation of 
any oral protest. To be considered timely, the protester must file a 
written confirmation in accordance with the applicable provisions in FAR 
33.102(d)(2) and (e). In the following cases, the Contracting Officer 
shall forward written protests received before award through appropriate 
acquisition channels, including the HCA, to OGC-GLD for processing:
    (i) The protester requests referral to the Secretary of HHS.
    (ii) The protest is known to have been lodged with GAO or the 
Secretary or is addressed to either.
    (iii) The Contracting Officer entertains some doubt as to the proper 
action regarding the protest or believes it to be in the best interest 
of the Government that the Secretary or GAO consider the protest. 
Otherwise, the Contracting Officer may answer protests addressed to the 
Contracting Officer with the concurrence of the contracting activity's 
protest control officer and OGC-GLD.
    The Contracting Officer shall submit files concerning these protests 
in duplicate, or as otherwise specified by OGC-GLD, within 5 calendar 
days after protest receipt; mark the files ``IMMEDIATE ACTION--PROTEST 
BEFORE AWARD;'' and include any documents relevant to issues raised in 
the protest.
    (3) The Contracting Officer shall treat protests received after 
award as indicated in FAR 33.103(f)(3).



Sec. 333.104  Protests to GAO.

    (a) General procedures.
    (3)(ii) OGC-GLD shall process protests filed with GAO, whether pre- 
or post- award. The Contracting Officer shall prepare protest files as 
follows: assemble them in a secure binder, fastened at the left side 
with a fastener that will permit the full page to be read; include a 
numerical document index, with the first two positions reserved for the 
Contracting Officer's Statement of Facts and Circumstances and the 
second for OGC-GLD's Memorandum of Law, that is paginated and, as 
necessary for sizable files, divided into two or more volumes; and the 
cover of the report shall identify it as the protest file and include 
the solicitation number and the GAO Bid Protest file number--i.e., ``B- 
number.'' In addition, the Contracting Officer shall fold drawings and 
place them in an envelope in the binder and the solicitation/contract 
shall constitute a separate exhibit, if it is voluminous in size. The 
Contracting Officer shall distribute protest files as follows: four 
copies to OGC-GLD and one copy to the contracting activity's protest 
control officer. In addition to the items listed in FAR 
33.104(a)(3)(ii)(A) through (G), the protest file shall include the 
following documents:
    (H) The current status of award. (Note: When award has been made, 
this shall include whether performance has commenced, shipment or 
delivery has been made, or a stop work order has been issued.)
    (I) A copy of any mutual agreement to suspend work on a no-cost 
basis, when appropriate--see FAR 33.104(c)(4).
    (J) Copies of the notice of protest given offerors and other parties 
when the notice is appropriate--see FAR 33.104(a)(2).
    (K) A copy of the negotiation memorandum, when applicable.
    (L) The name and telephone number of the person in the contracting 
office who may be contacted for information relevant to the protest.
    (M) A copy of the competitive range determination.
    (N) The acquisition plan, source selection plan, and the source 
selection decision document.
    (O) The Contracting Officer's statement of facts and circumstances, 
including numbered findings of fact prepared with complete 
documentation,

[[Page 86]]

and all the facts and rationale, both favorable and unfavorable, to the 
Contracting Officer's position.
    (4) OGC-GLD shall make the necessary distributions referenced in FAR 
33.104(a)(4).
    (5) Unless an alternative arrangement is reached with OGC-GLD, the 
Contracting Officer shall furnish one copy of the protest file 
containing the documentation specified in paragraph (a)(3)(ii) of this 
section (with the exception of the Contracting Officer statement of 
facts and circumstances) and FAR 33.104(a)(3)(ii)(A) through (G) to OGC-
GLD within 5 calendar days from receipt of the protest. In addition, the 
Contracting Officer shall also accommodate any other OGC-GLD requests 
for documents which may be needed prior to the aforementioned 5-day time 
period. The Contracting Officer shall submit the Contracting Officer's 
statement of facts and circumstances and the additional copies of 
documentation within 14 calendar days from receipt of the protest. Since 
the statute allows only a short time period in which to respond to 
protests lodged with GAO, the Contracting Officer shall handle each 
protest on a priority basis. OGC-GLD shall submit copies of the protest 
file to GAO, the protestor, and any intervenors in accordance with FAR 
33.104(a)(4)(i).
    (6) Since OGC-GLD will furnish the protest file to GAO, the 
protestor, and any intervenors, comments on the file from the protestor 
and any intervenors will be sent to OGC-GLD.
    (7) OGC-GLD shall serve as the GAO point of contact for protests 
lodged with GAO.
    (b) Protests before award.
    (1) To make an award notwithstanding a protest, the Contracting 
Officer shall prepare a finding using the criteria in FAR 33.104(b)(1), 
have it executed by the HCA (non-delegable), and forward it, along with 
a written request for approval to make the award (addressed to the 
Associate DAS for Acquisition through OGC-GLD). Should OGC-GLD concur, 
it shall forward the request to the Associate DAS for Acquisition for 
final approval. The written request for approval shall contain all 
relevant documentation as attachments to the request, so that the 
information may be considered by Associate DAS for Acquisition.
    (2) If the request to make an award notwithstanding the protest is 
approved by the Associate DAS for Acquisition, OGC-GLD shall notify GAO. 
Whether the request is approved or not, OGC-GLD shall telephonically 
notify the contracting activity's protest control officer of the 
Associate DAS for Acquisition decision, and the contracting activity's 
protest control officer shall immediately notify the Contracting 
Officer. Should the Associate DAS for Acquisition approve the request, 
ASFR/OGAPA/DA shall send a copy of that written approval to the 
contracting activity's protest control officer.
    (c) Protests after award.
    (2) If the Contracting Officer believes performance should be 
allowed to continue notwithstanding a protest, the Contracting Officer 
shall prepare a written finding using the criteria in FAR 33.104(c)(2). 
The HCA (non-delegable) shall execute the written finding, which the 
contracting office shall forward pursuant to the procedures described in 
paragraph (b)(1) of this section. The notification procedures stated in 
paragraph (b)(2) of this section shall apply to protests after award.
    (d) Findings and notice. The Contracting Officer shall prepare the 
written notice required by FAR 33.104(d) and provide a copy to OGC-GLD. 
OGC-GLD shall provide copies to GAO, the protester, and any intervenors.
    (g) Notice to GAO. FAR 33.104(g) requires the agency to notify GAO, 
if the agency has not followed any of GAO's recommendations (other than 
costs) within 60 days after its decision. By the end of the 60-day 
period, the Contracting Officer shall notify OGC-GLD of the status of 
implementing the recommendations and reasons for any non-compliance. 
OGC-GLD shall serve as the designated official to comply with the 
requirements of FAR 33.104(g).
    (i) Express option. When GAO invokes the express option, the 
Contracting Officer shall prepare the complete protest file as described 
in paragraph (a)(3) of this section, to include the item in paragraph 
(a)(3)(i), and deliver it (hand-carry, if necessary) to OGC-GLD in time 
to meet the submittal date

[[Page 87]]

GAO established. OGC-GLD shall notify the Contracting Officer of the 
submittal date after GAO has finalized its requirements. If the 
Contracting Officer is not notified about a changed schedule, the 
timelines for a regular bid protest outlined in FAR 33.104(a)(3)(i) 
shall apply.

                   Subpart 333.2_Disputes and Appeals



Sec. 333.203  Applicability.

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



Sec. 333.209  Suspected fraudulent claims.

    The Contracting Officer shall submit any instance of a contractor's 
suspected fraudulent claim to the OIG for investigation.



Sec. 333.211  Contracting Officer's decision.

    (a)(2) The Contracting Officer shall refer a proposed final decision 
to OGC-GLD, for advice as to the legal sufficiency and format before 
sending the final decision to the contractor. The Contracting Officer 
shall provide OGC-GLD with the pertinent documents with the submission 
of each proposed final decision.
    (4)(v) When using the paragraph in FAR 33.211 (a)(4)(v), the 
Contracting Officer shall insert the words ``Civilian'' before each 
mention of the term ``Board of Contract Appeals.''
    (h) At any time within the period of appeal, the Contracting Officer 
may modify or withdraw the final decision. If a contractor has appealed 
the final decision to the CBCA, the Contracting Officer shall forward 
the recommended action to OGC-GLD with a supplement to the contract file 
that supports the recommended correction or amendment.



Sec. 333.212  Contracting Officer's duties upon appeal.

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

[[Page 88]]

it, and gives written notification of acceptance to the Government Trial 
Attorney or the concerned Contracting Officer, the Government Trial 
Attorney shall notify the CBCA of the disposition of the dispute in 
accordance with Rule 27 of the CBCA.
    (f) If the contractor has elected to appeal to the U.S. Court of 
Federal Claims, the U.S. Department of Justice will represent HHS. 
However, the Contracting Officer shall coordinate all actions through 
OGC-GLD.



Sec. 333.212-70  Formats.

    (a) Contracting activities shall use the following format in 
transmitting appeal files to CBCA:

Your reference:

(Docket No.)

(insert name)

Clerk of the Board, Civilian Board of Contract Appeals
1800 F. Street, Washington, DC 20405 (for regular mail delivery)
1800 M Street, 6th floor, Washington, DC 20036 [for overnight and 
    physical (hand-carry) delivery]

Dear (insert name):

Transmitted herewith are documents relative to the appeal under Contract 
    No. ---- with the ------------ (insert name of contractor) in 
    accordance with the procedures under Rule 4. The Government Trial 
    Attorney for this case is ------------ (insert General Law Division, 
    Office of General Counsel, Department of Health and Human Services, 
    330 Independence Avenue, SW., Washington, DC 20201).

The request for payment of charges resulting from the processing of this 
    appeal shall be addressed to: ------------ (insert name and address 
    of cognizant finance office.)

     Sincerely yours,

     Contracting Officer


Enclosures

    (b) Contracting activities shall use the following format in 
notifying the appellant that the appeal file was submitted to CBCA:
________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

(insert contractor name and address)
Dear ------------: (insert name)

An appeal file has been compiled relative to the appeal under Contract 
    No. ------ (insert number), and has been submitted to the Civilian 
    Board of Contract Appeals (CBCA). The enclosed duplicate of the 
    appeal file is identical to that submitted to CBCA, except for 
    contract documents which you already have been provided. You may 
    furnish or suggest any additional information deemed pertinent to 
    the appeal to CBCA according to their rules.

The CBCA will provide you with further information concerning this 
    appeal.

     Sincerely yours,

     Contracting Officer


Enclosure



Sec. 333.213  Obligation to continue performance.

    (a) The Contracting Officer shall use the Disputes clause at FAR 
52.233-1 without the use of Alternate I. However, if the Contracting 
Officer determines that the Government's interest would be better served 
by use of paragraph (i) in Alternate I, the HCA or CCO shall approve its 
use.



Sec. 333.215-70  Contract clauses.

    (a) The Contracting Officer shall insert the clause in 352.233-70, 
Choice of Law (Overseas), in solicitations and contracts when 
performance will be outside the United States, its possessions, and 
Puerto Rico, except as otherwise provided in a government-to-government 
agreement.
    (b) The Contracting Officer shall insert the clause in 352.233-71, 
Litigation and Claims, in solicitations and contracts when a cost-
reimbursement, time-and-materials, or labor-hour contract is 
contemplated (other than a contract for a commercial item.)

[[Page 89]]

             SUBCHAPTER F_SPECIAL CATEGORIES OF CONTRACTING

                    PART 334_MAJOR SYSTEM ACQUISITION

              Subpart 334.2_Earned Value Management System

Sec.

Sec. 334.200 Definitions.

Sec. 334.201 Policy.

Sec. 334.202 Integrated Baseline Reviews (IBRs).

Sec. 334.203 Solicitation provisions and contract clauses.

Sec. 334.203-70 HHS solicitation provisions and contract clauses.

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

    Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.

              Subpart 334.2_Earned Value Management System



Sec. 334.200  Definitions.

    As used in this subpart, the following definitions shall apply:
    Full EVMS means tracking and reporting of both the cost and schedule 
aspects of a contract using the principles and guidelines described in 
ANSI/EIA Standard-748, Earned Value Management Systems (using the 
version of the Standard that is in effect at the time of the 
solicitation).
    Partial EVMS means tracking and reporting of only the schedule 
aspects of a contract using the principles and guidelines described in 
ANSI/EIA Standard-748, Earned Value Management Systems (using the 
version of the Standard that is in effect at the time of the 
solicitation).



Sec. 334.201  Policy.

    (a) For acquisitions for development designated as major in 
accordance with both OMB Circular A-11 and HHS policy on major 
acquisitions; for acquisitions that involve substantial development, 
modification or enhancement; or for acquisitions that involve 
significant upgrade of operational or steady state systems or programs, 
use of an Earned Value Management System (EVMS) is required as follows:
    (1) For individual cost-reimbursement or fixed-price-incentive 
contracts (with incentive based on cost) valued at $10 million to $25 
million, including options, full EVMS (as defined in 334.200) is 
required and the contractor's EVMS shall comply with the guidelines in 
ANSI/EIA Standard-748.
    (2) For individual firm-fixed-price, term form (level-of-effort) of 
any type, time-and-materials, or labor-hour contracts valued at $10 
million to $25 million, including options, partial EVMS (as defined in 
334.200) is required and the contractor's EVMS shall comply with the 
guidelines in ANSI/EIA Standard-748.
    (3) For individual cost-reimbursement or fixed-price-incentive 
contracts (with incentive based on cost) valued at more than $25 
million, including options, full EVMS (as defined in 334.200) is 
required and the contractor's EVMS must be formally validated and 
accepted by the Government--i.e., the contractor's Cognizant Federal 
Agency (CFA), as defined in FAR 2.101 and described in FAR 42.003).
    (4) For individual firm-fixed-price, term form (level-of-effort) of 
any type, time-and-materials, or labor-hour contracts valued at more 
than $25 million, including options, partial EVMS (as defined in 
334.200) is required and the contractor's EVMS must be formally 
validated and accepted by the Government--i.e., the contractor's CFA.
    (5) For individual contracts of any type valued at less than $10 
million, including options, full or partial EVM application, as 
appropriate to the contract type involved, is optional. The 
recommendation to use EVM should be based upon a risk analysis by the 
Program Manager/Project Officer. A decision to use EVM at this level 
requires the prior approval of the cognizant HCA.
    (b) EVM is not required, but may be applied with prior written 
approval of the HCA, on contracts of any dollar amount meeting either of 
the following criteria:
    (1) The acquisition is for non-developmental support services (e.g., 
program office support, Independent Verification & Validation services), 
steady state operations, basic and applied research, and routine 
services

[[Page 90]]

(e.g., building maintenance, help-desk services, landscaping services).
    (2) The contract is for a commercial item(s) under FAR Part 12.
    (c) When full EVM is required on a prime contract, it applies to 
subcontracts issued there under if those subcontracts have a value and 
are of a type and subject matter that would have required the use of 
full EVM had they been prime contracts. However, if the prime contract 
requires the use of only partial EVM, any subcontracts to which EVM is 
made applicable, because of dollar value, contract type or subject 
matter, shall require only partial EVM.
    (d) When offerors are required to provide an EVMS plan as part of 
their proposals, the Contracting Officer shall request the assistance of 
the Project Officer (and/or an appropriate HHS-designated third party) 
in determining the adequacy of such proposed EVMS plans.
    (e) The selection or use of a particular contract type, if done only 
or primarily to avoid the application of full EVM to the acquisition is 
prohibited.



Sec. 334.202  Integrated Baseline Reviews (IBRs).

    (a) An IBR normally should be conducted as a post-award activity. A 
pre-award IBR may be conducted only if--
    (1) The AP contains documentation that demonstrates the need and 
rationale for a pre-award IBR, including an assessment of the impact on 
the source selection schedule and the expected benefits;
    (2) The use of a pre-award IBR is approved in writing by the HCA 
prior to the issuance of the solicitation;
    (3) The source selection plan specifically addresses how the results 
of a pre-award IBR will be used during source selection, including any 
weight to be given to it in source evaluation, and that same or similar 
rationale is clearly set forth in the solicitation; and,
    (4) Specific arrangements are made, and budget authority is 
provided, to compensate all offerors who prepare for or participate in a 
pre-award IBR; and the solicitation informs prospective offerors of the 
means for and conditions of such compensation.



Sec. 334.203  Solicitation provisions and contract clauses.

    The FAR EVMS solicitation provisions and contract clause shall not 
be used in HHS contracts. See 334.203-70 for the HHS solicitation 
provisions and contract clauses.



Sec. 334.203-70  HHS solicitation provisions and contract clauses.

    As provided in 334.201(a) and 334.202, the Contracting Officer shall 
insert the following:
    (a) The provision in 352.234-1, Notice of Earned Value Management 
System--Pre-Award IBR, in solicitations that will require the contractor 
to use an EVMS, whether full or partial, when the Government requires an 
IBR prior to award.
    (b) The provision in 352.234-2, Notice of Earned Value Management 
System--Post-Award IBR, in solicitations that will require the 
contractor to use an EVMS, whether full or partial, when the Government 
requires an IBR after contract award.
    (c) The clause in 352.234-3, Full Earned Value Management System, in 
solicitations and contracts, valued at, or greater than, $25 million, 
when a cost-reimbursement or fixed-price-incentive contract (where the 
incentive is based on cost) is contemplated, and which require a 
contractor to use full EVMS. The Contracting Officer shall use the 
clause with its Alternate I when the contract value is equal to or 
greater than $10 million, but less than $25 million.
    (d) The clause in 352.234-4, Partial Earned Value Management System, 
in solicitations and contracts, valued at, or greater than, $25 million, 
when a firm-fixed-price, time-and-materials, labor-hour, or term-form 
cost-plus-fixed-fee contract is contemplated, and which require a 
contractor to use partial EVMS. The Contracting Officer shall use the 
clause with its Alternate I when the contract value, is equal to or 
greater than $10 million, but less than $25 million.

[[Page 91]]

              PART 335_RESEARCH AND DEVELOPMENT CONTRACTING

Sec.

Sec. 335.070 Cost sharing.

Sec. 335.070-1 Policy.

Sec. 335.070-2 Amount of cost sharing.

Sec. 335.070-3 Method of cost sharing.

Sec. 335.070-4 Contract award.

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

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

    Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.



Sec. 335.070  Cost-sharing.



Sec. 335.070-1  Policy.

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



Sec. 335.070-2  Amount of cost sharing.

    When cost-sharing is appropriate, the Contracting Officer shall use 
the following guidelines to determine the amount of cost participation 
by the contractor:
    (a) The amount of cost participation depends on the extent to which 
the R & D effort or results are likely to enhance the performing 
organization's capability, expertise, or competitive position, and the 
value of this enhancement to the performing organization. Therefore, 
contractor cost participation could reasonably range from as little as 
one percent or less of the total project cost to more than 50 percent of 
the total project cost. Ultimately, cost-sharing is a negotiable item. 
As

[[Page 92]]

such, the amount of cost-sharing shall be proportional to the 
anticipated value of the contractor's gain.
    (b) If the performing organization will not acquire title to, or the 
right to use, inventions, patents, or technical information resulting 
from the R & D project, it is normally appropriate to obtain less cost-
sharing than in cases in which the performer acquires these rights.
    (c) A fee or profit is not normally paid to the performing 
organization, if the organization is to contribute to the cost of the R 
& D effort, but the amount of cost-sharing may be reduced to reflect the 
fact that the organization is foregoing its normal fee or profit in the 
research. However, if the R & D is expected to be of only minor value to 
the performing organization, and if a statute does not require cost-
sharing, it may be appropriate for the performer to make a contribution 
in the form of a reduced fee or profit rather than sharing costs of the 
project.
    (d) The organization's participation may be considered over the 
total term of the project, so that a relatively high contribution in one 
year may be offset by a relatively low contribution in another.
    (e) A relatively low degree of cost-sharing may be appropriate, if 
an area of R & D requires special stimulus in the national interest.



Sec. 335.070-3  Method of cost sharing.

    Cost-sharing on individual contracts may be accomplished either by a 
contribution of part or all of one or more elements of allowable cost of 
the work being performed or by a fixed amount or stated percentage of 
the total allowable costs of the project. Contractors shall not charge 
costs contributed to the Government under any other instrument (e.g., 
grant or contract), including allocations to other instruments as part 
of any independent R & D program.



Sec. 335.070-4  Contract award.

    Consistent with HHS' objectives of competition and support of the 
small business program, Contracting Officers shall not award contracts 
solely on the basis of an organization's ability or willingness to cost-
share. Contracting Officers shall make awards primarily on the 
contractor's competence and only after adequate competition has been 
obtained among large and small business organizations, whenever 
possible. An offeror's willingness to share costs is not a technical 
evaluation consideration, but a business consideration, which is 
secondary to selecting the best qualified source.



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

    OPDIV heads shall sign individual and class D & Fs for--
    (a) Acquisition or construction of equipment or facilities on 
property not owned by the United States pursuant to 42 U.S.C. 241(a)(7); 
and
    (b) Use of an indemnification provision in an R & D contract 
pursuant to 42 U.S.C. 241(a)(7).

                  PART 337_SERVICE CONTRACTING_GENERAL

                 Subpart 337.1_Service Contracts_General

Sec.

Sec. 337.103-70 Solicitation provisions and contract clauses.

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

    Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.

                 Subpart 337.1_Service Contracts_General



Sec. 337.103-70  Solicitation provisions and contract clauses.

    (a) The Contracting Officer shall insert the clause in 352.237-70, 
Pro-Children Act, in solicitations, contracts, and orders that involve 
(a) kindergarten, elementary, or secondary education or library services 
or (b) health or daycare services that are provided to children under 
the age of 18 on a routine or regular basis pursuant to the Pro-Children 
Act of 1994.
    (b) The Contracting Officer shall insert the clause in 352.237-71, 
Crime Control Act--Reporting of Child Abuse, in solicitations, 
contracts, and orders that require performance on Federal

[[Page 93]]

land or in a Federally operated (or contracted) facility and involve the 
professions/activities performed by persons specified in the Crime 
Control Act of 1990, including, but not limited to, physicians, nurses, 
dentists, health care practitioners, optometrists, psychologists, 
emergency medical technicians, alcohol or drug treatment personnel, 
child care workers and administrators, emergency medical technicians and 
ambulance drivers.
    (c) The Contracting Officer shall insert the clause in 352.237-72, 
Crime Control Act--Requirement for Background Checks, in solicitations, 
contracts, and orders that involve providing child care services to 
children under the age of 18, including social services, health and 
mental health care, child- (day) care, education (whether or not 
directly involved in teaching), and rehabilitative programs covered 
under the Crime Control Act of 1990 (Act).

             PART 339_ACQUISITION OF INFORMATION TECHNOLOGY

                          Subpart 339.1_General

Sec.

Sec. 339.101 Policy.

           Subpart 339.2_Electronic and Information Technology


Sec. 339.201 Clarification.

Sec. 339.201-70 Required provision and contract clause.

Sec. 339.203 Approval of exceptions.

 Subpart 339.70_Use of General Services Administration Blanket Purchase 
            Agreements for Independent Risk Analysis Services


Sec. 339.7000 Policy.

Sec. 339.7001 Request for approval to make an award to other than a GSA 
          BPA holder.

Sec. 339.7002 Notice of intended award.

             Subpart 339.71_Information Security Management


Sec. 339.7100 Definitions.

Sec. 339.7101 Policy.

Sec. 339.7102 Applicability.

Sec. 339.7103 Solicitation and contract clause.

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

    Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.

                          Subpart 339.1_General



Sec. 339.101  Policy.

    (d)(1) The Contracting Officer shall insert the clause in 352.239-
70, Standard for Security Configurations, in solicitations, contracts, 
and orders that involve the operation or acquisition of an information 
technology system (for definition of the latter term, see http://
www.hhs.gov/ocio/policy.)
    An HHS information security policy waiver, the template for which is 
available at: http://intranet.hhs.gov/infosec/policies--memos.html, must 
be approved in order to deviate from HHS OCIO Standard 2009-0001.001S, 
HHS Standard for Security Configurations Language in HHS Contracts, 
dated January 30, 2009. A copy of the approved waiver shall be forwarded 
to the Contracting Officer who, in turn, shall request a comparable 
deviation for the clause in 352.239-70.
    (2) The Contracting Officer shall insert the clause in 352.239-71, 
Standard for Encryption Language, in solicitations, contracts, and 
orders that involve the acquisition or lease of, or the requirement to 
use, desktop or laptop computers, mobile devices, or portable media to 
store or process HHS sensitive information that the Project Officer 
categorizes as moderate or high under Federal Information Processing 
Standard (FIPS) 199, Standards for Security Categorization of Federal 
Information and Information Systems, dated February 2004. An HHS 
information security policy waiver, the template for which is available 
at: http://intranet.hhs.gov/infosec/policies--memos.html, must be 
approved in order to deviate from HHS OCIO Standard 2009-0002.001S, HHS 
Standard for Encryption Language in HHS Contracts, dated January 30, 
2009. A copy of the approved waiver shall be forwarded to the 
Contracting Officer who, in turn, shall request a comparable deviation 
for the clause in 352.239-71.

           Subpart 339.2_Electronic and Information Technology



Sec. 339.201  Clarification.

    FAR Subpart 39.2, Electronic and Information Technology, requires 
Federal

[[Page 94]]

agencies to ensure that, when acquiring EIT, Federal employees with 
disabilities and members of the public with disabilities have access to 
and use of information and data that is comparable to individuals 
without disabilities. This EIT access requirement does not apply to a 
contractor's internal workplaces. EIT that is neither used nor accessed 
by Federal employees or members of the public is not subject to the 
Access Board accessibility standards. Contractors in their professional 
capacity are not members of the public for purposes of Section 508.



Sec. 339.201-70  Required provision and contract clause.

    (a) The Contracting Officer shall insert the provision in 352.239-
73(a), Electronic and Information Technology Accessibility, in 
solicitations valued at more than the micro-purchase threshold that 
involve the development, acquisition, maintenance, or use of EIT 
products and services subject to Section 508 of the Rehabilitation Act 
of 1973, as amended, including EIT deliverables such as electronic 
documents and reports. (Note: Exceptions to this requirement can be 
found in FAR 39.204.) After approval of the Section 508 Official or 
designee, the Contracting Officer may waive the requirement for offerors 
to provide an HHS Section 508 Product Assessment Template, if Section 
508 EIT conformance can be determined conclusively through other less 
formal methods. The Contracting Officer shall document in the award file 
any waiver for submission of the Product Assessment Template. The 
approval of a waiver by the Section 508 Official does not, however, 
eliminate the requirement for product assessment against Section 508 
accessibility standards.
    (b) The Contracting Officer shall insert the clause in 352.239-
73(b), Electronic and Information Technology Accessibility, in contracts 
and orders that involve the development, acquisition, maintenance, or 
use of EIT products and services, including EIT deliverables such as 
electronic documents and reports, subject to Section 508 of the 
Rehabilitation Act of 1973, as amended, unless the EIT products and 
services are incidental to the project. (Note: Other exceptions to this 
requirement can be found at FAR 39.204.)
    (c) When acquiring EIT products and services subject to Section 508 
of the Rehabilitation Act of 1973, as amended, in the following 
circumstances, the Contracting Officer shall insert the paragraph in 
352.239-73(c), Schedule for Contractor Submission of Section 508 Annual 
Report, which requires a contractor to provide an HHS Section 508 Annual 
Report, at the end of the clause in 352.239-73(b) and cite the schedule 
for report submission, where indicated:
    (1) New multiple-year contracts.
    (2) Existing multiple-year contracts, with a performance period of 1 
year or more remaining as of January 16, 2008 (the effective date of 
HHS' interim acquisition guidance).
    (3) New multiple-year task and delivery orders exceeding $100,000 
awarded under IDIQ or FSS contracts.
    (4) Existing multiple-year task and delivery orders exceeding 
$100,000 awarded under IDIQ or FSS contracts, with a task/delivery order 
performance period of 1 year or more remaining as of January 16, 2008.
    (5) New multiple-year BPA orders that exceed $100,000.
    (6) Existing multiple-year BPA orders with a performance period of 1 
year or more remaining as of January 16, 2008.
    (7) New multiple-year contracts with option periods/quantities.
    (8) Existing multiple-year contracts with option periods/quantities 
remaining as of January 16, 2008.
    (d) Before adding funds to a multiple-year contract or order--see 
339.201-70(c), that involves the acquisition of EIT products and 
services, including EIT deliverables such as electronic documents and 
reports, subject to Section 508 of the Rehabilitation Act of 1973, as 
amended, the Contracting Officer shall ensure that the contractor has 
provided to the Contracting Officer and COTR a properly completed HHS 
Section 508 Annual Report--see Section 508 policy on HHS Office on 
Disability Web site. The Contracting Officer shall request that the 
contractor provide the report in sufficient time for its review and 
approval by the Contracting Officer, COTR, and the Section 508 Official

[[Page 95]]

or designee, prior to funding performance beyond the currently funded 
contract performance period. The Contracting Officer shall ensure that 
the report and all related approvals are made a part of the official 
contract/order file. The Section 508 Official or designee shall monitor 
the Annual Reports, direct corrective measures to improve their 
submission and quality, and report improvement actions taken to the HHS 
Office on Disability.



Sec. 339.203  Approval of exceptions.

    (a) Procedures to document exception and determination requests are 
set forth in the OPDIV/STAFFDIV Section 508 Implementation Plans 
required by paragraph 4.1 of the HHS Section 508 policy.
    (b) In the development of an AP or other acquisition request 
document, the Contracting Officer shall ensure that all Section 508 
commercial non-availability or undue burden exception determination 
requests for applicable EIT requirements are: (1) Documented and 
certified in accordance with the requirements of paragraph 4.3, Section 
508 Compliance Exceptions, of the HHS Section 508 policy; (2) signed by 
the Project Officer; (3) approved by the OPDIV Section 508 Official or 
designee; and (4) included in the AP or other acquisition request 
document provided by the Project Officer to the contracting office.
    (c) In instances where a technical evaluation has been performed, 
and no organization's proposed products or services meet some or all of 
Section 508 accessibility standards, in order to proceed with the 
acquisition, the Contracting Officer shall provide an exception 
determination request along with the technical evaluation panel's 
assessment of the Section 508 evaluation factor to the designated 
Section 508 Official or designee for review and approval/disapproval. 
See 315.304 regarding obtaining approval of technical evaluation panel 
assessments by the Section 508 Official or designee. The Contracting 
Officer shall include the Section 508 Official's or designee's approval/
disapproval of the exception determination request in the official 
contract file and reference it, as appropriate, in all source selection 
documents. For further information, see paragraphs 4.3, Section 508 
Compliance Exceptions, and paragraph 11, Appendix A, of HHS Section 508 
policy--see Section 508 policy on HHS Office on Disability Web site.

 Subpart 339.70_Use of General Services Administration Blanket Purchase 
            Agreements for Independent Risk Analysis Services



Sec. 339.7000  Policy.

    GSA has established government-wide BPAs for independent risk 
analysis services, including verification and validation of in-house 
risk assessments. For information on ordering procedures, see the 
attachment to OMB memorandum (M-08-10), Use of Commercial Independent 
Risk Analysis Services Blanket Purchase Agreements (BPA), dated February 
4, 2008, available on the OMB Web site. HHS policy is for contracting 
activities to use the GSA BPA sources to the maximum practicable extent.



Sec. 339.7001  Request for approval to make an award to other than a GSA 
          BPA holder.

    The Contracting Officer, in conjunction with the OPDIV/STAFFDIV 
Chief Information Security Officer (CISO), may determine, as part of 
conducting market research for independent risk analysis services 
expected to exceed the micro-purchase threshold, that obtaining the 
required services from a source other than a GSA BPA holder will result 
in the best value to the Government. In that event, the Contracting 
Officer shall prepare a request for approval at least 15 business days 
prior to the planned date of the contract or order award and forward it 
through the HCA and the OPDIV/STAFFDIV CISO for concurrence, to the SPE. 
The SPE shall coordinate the processing of the request with the CAO and 
the HHS CIO. The request for approval shall briefly describe the 
services required, indicate the intended source's pricing and other 
terms and conditions, and provide the rationale for award to the 
intended source rather

[[Page 96]]

than the GSA BPA holders. The request may include additional supporting 
rationale to document the best value decision, as appropriate.



Sec. 339.7002  Notice of intended award.

    The CAO, or designee, in conjunction with the HHS CIO, will review 
the Contracting Officer's request for approval to make an award to other 
than a GSA BPA holder for independent risk analysis services and either 
approve or disapprove the request in writing. If the CAO, or designee, 
approves the request, upon approval, the CAO, or designee, shall send a 
notice of intended award to the designated GSA BPA Contracting Officer, 
with a copy to OMB's E-Government and Information Technology 
Administrator, at least 10 business days prior to the date of the 
proposed award explaining how it provides the best value to the 
Government. In the event of unusual and compelling urgency, the CAO, or 
designee, shall provide the notice of intended award to GSA as soon as 
practicable.

             Subpart 339.71_Information Security Management



Sec. 339.7100  Definitions.

    As used in this subpart, the following definitions shall apply:
    Adequate security means, in accordance with OMB Circular A-130, 
Management of Federal Information Resources, Appendix 3 (Security of 
Federal Automated Information Resources), security commensurate with the 
risk and magnitude of harm resulting from the loss, misuse, or 
unauthorized access to or modification of information.
    Federal information means, in accordance with OMB Circular A-130, 
Management of Federal Information Resources, Appendix 3 (Security of 
Federal Automated Information Resources), information created, 
collected, processed, disseminated, or disposed of by or for the Federal 
Government.
    Federal information system means an information system used or 
operated by an executive agency, by a contractor of an executive agency, 
or by another organization on behalf of an executive agency.
    Information means, in accordance with OMB Circular A-130, Management 
of Federal Information Resources, Appendix 3 (Security of Federal 
Automated Information Resources), any communication or representation of 
knowledge such as facts, data, or opinions in any medium or form, 
including textual, numerical, graphic, cartographic, narrative, or 
audiovisual forms.
    Information infrastructure means the underlying framework that 
information systems and assets rely on in processing, transmitting, 
receiving, or storing information electronically.
    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 non-
repudiation and authenticity;
    (2) Confidentiality, which means preserving authorized restrictions 
on access and disclosure, including means of protecting personal privacy 
and proprietary information;
    (3) Availability, which means ensuring timely and reliable access to 
and use of information; and
    (4) Privacy, which means regulating the appropriate collection, 
maintenance, use, and dissemination of personal information by Federal 
executive branch agencies. It essentially prohibits disclosure without 
consent.
    Information system means a discrete set of information resources 
organized for the collection, processing, maintenance, transmission, and 
dissemination of information, in accordance with defined procedures, 
whether automated or manual.
    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.

[[Page 97]]



Sec. 339.7101  Policy.

    HHS is responsible for implementing an information security program 
to ensure that its information systems and associated facilities, as 
well as those of its contractors, provide a level of security 
commensurate with the risk and magnitude of harm that could result from 
the loss, misuse, disclosure, or modification of the information 
contained in those systems. Each system's level of security shall 
protect the integrity, confidentiality, and availability of the 
information and comply with all security and privacy-related laws and 
regulations.



Sec. 339.7102  Applicability.

    Contracting Officers are responsible for ensuring that all 
information technology acquisitions comply with the Federal Information 
Security Management Act (FISMA), the HHS-OCIO Information Systems 
Security and Privacy Policy, and FISMA-related FAR and HHSAR 
requirements. This policy does not apply to national security systems as 
defined in FISMA.



Sec. 339.7103  Solicitation and contract clause.

    The Contracting Officer shall insert the clause in 352.239-72, 
Security Requirements for Federal Information Technology Resources, in 
solicitations and contracts that involve contractor access to Federal 
information or Federal information systems.

[[Page 98]]

                    SUBCHAPTER G_CONTRACT MANAGEMENT

                    PART 342_CONTRACT ADMINISTRATION

         Subpart 342.3_Contract Administration Office Functions

Sec.

Sec. 342.302 Contract administration functions.

                    Subpart 342.7_Indirect Cost Rates


Sec. 342.705 Final indirect cost rates.

                   Subpart 342.70_Contract Monitoring


Sec. 342.7000 Purpose.

Sec. 342.7001 Contract monitoring responsibilities.

Sec. 342.7002 Procedures to be followed when a contractor fails to 
          perform.

Sec. 342.7003 Withholding of contract payments.

Sec. 342.7003-1 Solicitation provisions and contract clauses.

Sec. 342.7003-2 Procedures to be followed when withholding payments.

         Subpart 342.71_Administrative Actions for Cost Overruns


Sec. 342.7100 Scope of subpart.

Sec. 342.7101 Contract administration.

Sec. 342.7101-1 General.

Sec. 342.7101-2 Procedures.

Sec. 342.7102 Contract modifications.

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

    Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.

         Subpart 342.3_Contract Administration Office Functions



Sec. 342.302  Contract administration functions.

    (c)(1) In multiple-year contracts or orders, the OPDIV's Section 508 
Official or designee, as well as the Contracting Officer and COTR, shall 
review and approve all Section 508 Annual Reports before the Contracting 
Officer makes final payment or any option is exercised under any 
applicable contract/order. In contracts/orders of 1 year or less in 
duration, the aforementioned officials shall review and approve the 
Section 508 conformance certification before final payment is made. The 
Contracting Officer also shall ensure that the report and all related 
approvals are made a part of the official contract/order file.
    (2) The Contracting Officer shall insert the clause in 352.242-70, 
Key Personnel, in solicitations and contracts when the Contracting 
Officer will designate contractor key personnel. See FAR 35.015 for 
additional information regarding key personnel when contracting for R & 
D.
    (3) The Contracting Officer shall insert the clause in 352.242-71, 
Tobacco-free Facilities, in solicitations, contracts, and orders when 
some or all of the contractor's performance (including construction 
services), will take place on HHS-owned or controlled properties. The 
clause shall not be included if performance requires only that 
contractor staff attend occasional meetings on HHS properties. In that 
case, contractor employees are considered ``visitors.'' Further, for any 
proposed or existing construction contract or order, the Contracting 
Officer shall coordinate any exceptions to the policy, raised by an 
incumbent or potential contractor based on union or collective 
bargaining agreements, with the designated OPDIV tobacco-free policy 
contact point for final disposition.
    (4) The Contracting Officer shall insert the clause in 352.242-72, 
Native American Graves Protection and Repatriation Act, in 
solicitations, contracts, and orders that require performance on Tribal 
lands or are for construction on Federal or Tribal lands.

                    Subpart 342.7_Indirect Cost Rates



Sec. 342.705  Final indirect cost rates.

    (a) The Division of Cost Allocation, PSC, shall establish indirect 
cost rates, research patient care rates, and, as necessary, fringe 
benefit, computer, and other special costing rates for use in contracts 
awarded to State and local governments, colleges and universities, 
hospitals, and other nonprofit organizations.
    (b) The Division of Financial Advisory Services, NIH, shall 
establish indirect cost rates, fringe benefit rates,

[[Page 99]]

and similar rates for use in contracts awarded to commercial 
organizations.

                   Subpart 342.70_Contract Monitoring



Sec. 342.7000  Purpose.

    Contract monitoring is an essential element of contract 
administration that the Contracting Officer and the COTR perform 
jointly. This subpart describes HHS' operating concepts.



Sec. 342.7001  Contract monitoring responsibilities.

    (a) The contract establishes the obligations of both the Government 
and the contractor. The Contracting Officer is the only person 
authorized to modify the contract and shall confirm all modifications in 
writing.
    (b) The Contracting Officer shall ensure the contractor's compliance 
with all the terms and conditions of the contract. The Contracting 
Officer shall inform the contractor by letter (if not already stipulated 
in the contract) of the authorities and responsibilities of the 
Government personnel involved with the contract.
    (c) The Contracting Officer shall use program, technical, and other 
personnel for assistance and advice in monitoring the contractor's 
performance and in other areas of post-award administration. The 
Contracting Officer shall ensure that these individuals understand and 
carry out their assigned responsibilities. The individual roles and 
corresponding responsibilities typically involve, but are not limited 
to, the following:
    (1) The role of program and technical personnel in monitoring the 
contract is to assist and advise the Contracting Officer, and act as the 
COTR when so designated by the Contracting Officer. COTR activities 
include--
    (i) Providing technical monitoring during contract performance and 
advising the Contracting Officer relating to delivery, acceptance, or 
rejection of deliverables in accordance with the terms of the contract;
    (ii) Assessing contractor performance;
    (iii) Recommending necessary changes to the schedule of work and 
period of performance to accomplish the objectives of the contract (The 
COTR shall provide the Contracting Officer a written request along with 
an appropriate justification and a funding document, if additional funds 
are needed.);
    (iv) Reviewing invoices/vouchers and recommending approval/
disapproval by the Contracting Officer, including providing comments 
regarding anything unusual discovered in the review (Note: If a contract 
contains the Salary Rate Limitation clause specified in 352.231-70, the 
Contracting Officer, in conjunction with the COTR, shall monitor the 
contractor's invoices to ensure that the contractor is billing salaries, 
including those of subcontractors, at rates no higher than the Federal 
Executive Schedule salary rate limitation in effect on the date(s) the 
expense(s) was/were incurred.);
    (v) Reviewing and recommending approval or disapproval of 
subcontractors, overtime, travel, and key personnel changes; and
    (vi) Participating, as necessary, in various phases of the contract 
closeout process.
    (2) The roles of the contract administrator, auditor, cost analyst, 
and property administrator are to assist or advise the Contracting 
Officer in post-award administration. Such activities include--
    (i) Evaluating contractor systems and procedures, including 
accounting policies and procedures, purchasing policies and practices, 
property accounting and control, wage and salary plans and rate 
structures, personnel policies and practices, etc.;
    (ii) Processing disputes under the Disputes clause and any resultant 
appeals;
    (iii) Modifying or terminating the contract; and
    (iv) Determining the allowability of: costs charged in incentive or 
cost- reimbursement type contracts, and progress payments under fixed-
price contracts. This is important for awards to new organizations or 
those with financial weaknesses.
    (d) The Contracting Officer shall ensure that contractor performance 
and contract monitoring conform with contract terms and conditions. If 
performance is not satisfactory or if problems

[[Page 100]]

are anticipated, the Contracting Officer shall take immediate action to 
protect the Government's rights under the contract. The Contracting 
Officer shall notify appropriate officials of problems that cannot be 
resolved within contract limitations and whenever the contractor is not 
meeting contract or program objectives. The notification shall include a 
statement of corrective actions that the Contracting Officer is taking.



Sec. 342.7002  Procedures to be followed when a contractor fails to 
          perform.

    (a) The Contracting Officer shall initiate immediate action to 
protect the Government's rights whenever the contractor fails to comply 
with either the delivery or reporting terms of the contract. Compliance 
with the reporting terms includes those reports the contractor is 
required to submit directly to the payment office. The payment office 
shall notify the Contracting Officer promptly when the contractor does 
not submit such a report on time.
    (b) When the contract contains a termination for default clause, the 
contractor's failure to submit any report, perform services, or deliver 
work when required by the contract is considered a default in 
performance. The Contracting Officer shall immediately issue a formal 
10-day cure notice pursuant to FAR 49.607. The notice shall include a 
statement to the effect that payments will be withheld if the default is 
not cured within the time period specified in the notice or if the 
default is not determined to be excusable.
    (1) If the default is cured or is determined to be excusable, the 
Contracting Officer shall not initiate the withholding action.
    (2) If the default is not determined to be excusable or a response 
is not received within the allotted time, the Contracting Officer shall 
initiate withholding action on all contract payments and shall determine 
whether termination for default or other action would be in the best 
interest of the Government.
    (c) When the contract does not contain a termination for default 
clause, the Contracting Officer shall consider a contractor's failure to 
submit any required report, perform services, or deliver work when 
required by the contract a failure to perform. The Contracting Officer 
shall immediately issue a written notice to the contractor that: 
specifies the failure, and provides a 10-day period (or longer period if 
the Contracting Officer deems it necessary) within which the contractor 
shall either cure the failure or provide reasons for an excusable delay. 
The notice shall include a statement to the effect that payments will be 
withheld, if the default is not cured within the time period specified 
in the notice or if the default is not determined to be excusable.
    (1) If the contractor cures the failure or the Contracting Officer 
determines it to be excusable, the Contracting Officer shall not 
initiate the withholding action.
    (2) If the Contracting Officer does not determine the failure 
excusable or the contractor does not provide a response within the 
allotted time, the Contracting Officer shall initiate withholding action 
on all contract payments and shall determine whether termination for 
convenience or other action would be in the best interest of the 
Government.
    (d) The Contracting Officer shall consult FAR subpart 49.4 for 
further guidance before taking any of the actions described in this 
section.



Sec. 342.7003  Withholding of contract payments.



Sec. 342.7003-1  Solicitation provisions and contract clauses.

    (a) The Contracting Officer shall insert the clause in 352.242-73, 
Withholding of Contract Payments, and the clause in FAR 52.249-14, 
Excusable Delays, in solicitations and contracts when a cost-
reimbursement, time-and-materials, or labor-hour contract is 
contemplated.
    (b) The Contracting Officer shall insert the clause in 352.242-74, 
Final Decisions on Audit Findings, in solicitations and contracts when a 
cost-reimbursement contract is contemplated, except for those contracts 
with:
    (1) A foreign government or agency of that government; or
    (2) An international organization or a subsidiary body of that 
organization that the HCA determines would not be appropriate.

[[Page 101]]



Sec. 342.7003-2  Procedures to be followed when withholding payments.

    (a) When appropriate, the Contracting Officer shall withhold any 
contract payment when a required report is overdue or the contractor 
fails to perform or deliver required work or services. When making the 
determination to withhold contract payments in accordance with the 
Withholding of Contract Payments clause, the Contracting Officer shall 
immediately notify the servicing finance office in writing of the 
determination to withhold payments. The notice of suspension shall 
contain all information necessary for the finance office to identify the 
contract--i.e., contract number, task/delivery order number, and 
contractor name and address.
    (b) The Contracting Officer shall immediately notify the contractor 
in writing that payments have been suspended until the default or 
failure is cured.
    (c) When the contractor cures the default or failure, the 
Contracting Officer shall immediately notify, in writing, all recipients 
of the notice of withholding that the withholding is to be lifted and 
contract payments are to be resumed.
    (d) When taking any actions regarding the withholding of payments, 
the Contracting Officer shall not waive any of the Government's rights 
when corresponding with the contractor.

         Subpart 342.71_Administrative Actions for Cost Overruns



Sec. 342.7100  Scope of subpart.

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



Sec. 342.7101  Contract administration.



Sec. 342.7101-1  General.

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



Sec. 342.7101-2  Procedures.

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

[[Page 102]]

    (c) After receiving the decision by the program office, the 
Contracting Officer shall promptly notify the contractor in writing of 
the following:
    (1) The specified amount of additional funds allotted to the 
contract.
    (2) Work shall be discontinued when the allotted funds are 
exhausted, and any work performed after that date is at the contractor's 
risk.
    (3) The Government is considering whether to allot additional funds 
to the contract and will notify the contractor as soon as possible, but 
that any work performed after the currently allotted funds are exhausted 
is at the contractor's risk. (Timely, formal notification of the 
Government's intention is essential to preclude loss of contractual 
rights in the event of dispute, termination, or litigation.)
    (d) If the program office permits, the Contracting Officer shall 
refrain from issuing any contractual documents that require new work or 
an extension of time, pending resolution of the projected overrun.



Sec. 342.7102  Contract modifications.

    (a) Modifications to contracts containing the Limitation of Cost 
clause shall include either--
    (1) A provision which: Increases the estimated or ceiling amount in 
the Limitation of Cost clause of the contract; and states that such 
clause will thereafter apply to the increased amount; or
    (2) A provision stating that the estimated or ceiling amount in the 
Limitation of Cost clause is not changed by the modification.
    (b) The Contracting Officer shall not change a fixed-fee in a 
contract when funding a cost overrun. The Contracting Officer shall make 
changes in fixed-fee only to reflect changes in the SOW/PWS that justify 
an increase or decrease in fee.

[[Page 103]]

                     SUBCHAPTER H_CLAUSES AND FORMS

          PART 352_SOLICITATION PROVISIONS AND CONTRACT CLAUSES

       Subpart 352.1_Instructions for Using Provisions and Clauses

Sec.

Sec. 352.100 Scope of subpart.

Sec. 352.101-70 Application of provisions and clauses.

              Subpart 352.2_Texts of Provisions and Clauses


Sec. 352.201-70 Paperwork Reduction Act.

Sec. 352.202-1 Definitions.

Sec. 352.203-70 Anti-lobbying.

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

Sec. 352.215-70 Late proposals and revisions.

Sec. 352.216-70 Additional cost principles.

Sec. 352.219-70 Mentor-prot[eacute]g[eacute] program.

Sec. 352.219-71 Mentor-prot[eacute]g[eacute] program reporting 
          requirements.

Sec. 352.222-70 Contractor cooperation in equal employment opportunity 
          investigations.

Sec. 352.223-70 Safety and health.

Sec. 352.224-70 Privacy Act.

Sec. 352.227-70 Publications and publicity.

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

Sec. 352.231-70 Salary rate limitation.

Sec. 352.231-71 Pricing of adjustments.

Sec. 352.233-70 Choice of law (overseas).

Sec. 352.233-71 Litigation and claims.

Sec. 352.234-1 Notice of earned value management system--pre-award 
          Integrated Baseline Review.

Sec. 352.234-2 Notice of earned value management system--post-award 
          Integrated Baseline Review.

Sec. 352.234-3 Full earned value management system.

Sec. 352.234-4 Partial earned value management system.

Sec. 352.237-70 Pro-Children Act.

Sec. 352.237-71 Crime Control Act--reporting of child abuse.

Sec. 352.237-72 Crime Control Act--requirement for background checks.

Sec. 352.239-70 Standard for security configurations.

Sec. 352.239-71 Standard for encryption language.

Sec. 352.239-72 Security requirements for Federal information technology 
          resources.

Sec. 352.239-73 Electronic information and technology accessibility.

Sec. 352.242-70 Key personnel.

Sec. 352.242-71 Tobacco-free facilities.

Sec. 352.242-72 Native American Graves Protections and Repatriation Act.

Sec. 352.242-73 Withholding of contract payments.

Sec. 352.242-74 Final decisions on audit findings.

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

Sec. 352.270-2 Indian preference.

Sec. 352.270-3 Indian preference program.

Sec. 352.270-4 Protection of human subjects.

Sec. 352.270-5 Care of laboratory animals.

Sec. 352.270-6 Restriction on use of human subjects.

Sec. 352.270-7 Conference sponsorship request and conference materials 
          disclaimer.

Sec. 352.270-8 Prostitution and related activities.

Sec. 352.270-9 Non-discrimination for conscience.

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

    Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.

       Subpart 352.1_Instructions for Using Provisions and Clauses



Sec. 352.100  Scope of subpart.

    This subpart provides guidance for applying HHS provisions and 
clauses in solicitations, contracts, and orders.



Sec. 352.101-70  Application of provisions and clauses.

    (a) Unless otherwise qualified (e.g., by the type of contract 
contemplated, the nature of the requirement, or dollar amount) in a 
prescription for a solicitation provision or contract clause specified 
in Part 352 or elsewhere in the HHSAR, the term ``contract'' means--
    (1) An award, including modifications thereunder, that exceeds the 
simplified acquisition threshold, including a task order or delivery 
order, whether placed under a GSA FSS contract, an IDIQ contract, a 
GWAC, or a BPA, and a purchase order placed under the authority of FAR 
subpart 13.5); and
    (2) A bilateral award--i.e., when both the Contracting Officer and 
the contractor sign the award document, that exceeds the micro-purchase 
threshold but which does not exceed the simplified acquisition 
threshold.
    (b) When the term ``order'' is specified in a prescription for a 
solicitation provision or order clause, it means an order that exceeds 
the micro-purchase

[[Page 104]]

threshold but which does not exceed the simplified acquisition 
threshold, except those bilateral awards specified in (a)(2) above.
    (c) If a clause is included in the master instrument (e.g., in an 
IDIQ contract or a BPA), it is not necessary to also include the clause 
in a task order or delivery order thereunder.
    (d) When a dollar amount or dollar threshold is specified (e.g., $25 
million or simplified acquisition threshold), the dollar amount of the 
award (contract or order) includes any options thereunder.

              Subpart 352.2_Texts of Provisions and Clauses



Sec. 352.201-70  Paperwork Reduction Act.

    As prescribed in 301.106(b), the Contracting Officer shall insert 
the following clause:

                 Paperwork Reduction Act (January 2006)

    (a) This contract involves a requirement to collect or record 
information calling either for answers to identical questions from 10 or 
more persons other than Federal employees, or information from Federal 
employees which is outside the scope of their employment, for use by the 
Federal government or disclosure to third parties; therefore, the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) shall apply to 
this contract. No plan, questionnaire, interview guide or other similar 
device for collecting information (whether repetitive or single time) 
may be used without the Office of Management and Budget (OMB) first 
providing clearance. Contractors and the Contracting Officer's Technical 
Representative shall be guided by the provisions of 5 CFR Part 1320, 
Controlling Paperwork Burdens on the Public, and seek the advice of the 
HHS operating division or Office of the Secretary Reports Clearance 
Officer to determine the procedures for acquiring OMB clearance.
    (b) The Contractor shall not expend any funds or begin any data 
collection until OMB Clearance is received. Once OMB Clearance is 
received from the Contracting Officer's Technical Representative, the 
Contracting Officer shall provide the Contractor with written 
notification authorizing the expenditure of funds and the collection of 
data. The Contractor shall allow at least 120 days for OMB clearance. 
The Contracting Officer will consider excessive delays caused by the 
Government which arise out of causes beyond the control and without the 
fault or negligence of the Contractor in accordance with the Excusable 
Delays or Default clause of this contract.

                             (End of clause)



Sec. 352.202-1  Definitions.

    As prescribed in FAR 2.201, the Contracting Officer shall insert the 
clause in FAR 52.202-1, Definitions, as revised by 302.201:

                       Definitions (January 2006)

    (a) In accordance with 52.202-1(a)(1), substitute the following as 
paragraph (a):
    ``(a) The term ``Secretary'' or ``Head of the Agency'' (also called 
``Agency Head'') means the Secretary, Deputy Secretary, or any Assistant 
Secretary, Administrator or Commissioner of the Department of Health and 
Human Services; and the term ``his/her duly authorized representative'' 
means any person, persons, or board authorized to act for the 
Secretary.''

    (b) In accordance with 52.202-1(a)(1), add the following paragraph 
(h):

    ``(h) The term ``Contracting Officer's Technical Representative'' 
means the person who monitors the technical aspects of contract 
performance. The Contracting Officer's Technical Representative is not 
authorized to issue any instructions or directions which cause any 
increase or decrease in the Statement of Work/Performance Work 
Statement/Specifications which would result in the increase or decrease 
in the price of this contract, or changes in the delivery schedule or 
period of performance of this contract. If applicable, the Contracting 
Officer's Technical Representative is not authorized to receive or act 
upon any notification or revised cost estimate provided by the 
Contractor in accordance with the Limitation of Cost or Limitation of 
Funds clauses of this contract.''



Sec. 352.203-70  Anti-lobbying.

    As prescribed in 303.808-70, the Contracting Officer shall insert 
the following clause:

                      Anti-Lobbying (January 2006)

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

[[Page 105]]

(iii) payment of salary or expenses of the Contractor, or any agent 
acting for the Contractor, related to any activity designed to influence 
legislation or appropriations pending before the Congress or any State 
legislature.

                             (End of clause)



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

    As prescribed in 315.209, the Contracting Officer shall insert the 
following paragraph (e) in the provision in FAR 52.215-1, Instructions 
to Offerors--Competitive Acquisition:

    (e) Restriction on disclosure and use of data.
    (1) The proposal submitted in response to this request may contain 
data (trade secrets; business data (e.g., commercial information, 
financial information, cost and pricing data); and technical data) which 
the offeror, including its prospective subcontractor(s), does not want 
used or disclosed for any purpose other than for evaluation of the 
proposal. The use and disclosure of any data may be so restricted; 
provided, that the Government determines that the data is not required 
to be disclosed under the Freedom of Information Act, 5 U.S.C. 552, as 
amended, and the offeror marks the cover sheet of the proposal with the 
following statements, specifying the particular portions of the proposal 
which are to be restricted:
    ``Unless disclosure is required by the Freedom of Information Act, 5 
U.S.C. 552, as amended, (the Act) as determined by Freedom of 
Information (FOI) officials of the Department of Health and Human 
Services (HHS), data contained in the portions of this proposal which 
the offeror has specifically identified by page number, paragraph, etc. 
as containing restricted information shall not be used or disclosed 
except for evaluation purposes.
    The offeror acknowledges that HHS may not be able to withhold a 
record (e.g., data, document, etc.) nor deny access to a record 
requested pursuant to the Act and that the HHS' FOI officials must make 
that determination. The offeror hereby agrees that the Government is not 
liable for disclosure if HHS has determined that disclosure is required 
by the Act.
    If a contract is awarded to the offeror as a result of, or in 
connection with, the submission of this proposal, the Government shall 
have the right to use or disclose the data to the extent provided in the 
contract. Proposals not resulting in a contract remain subject to the 
Act.
    The offeror also agrees that the Government is not liable for 
disclosure or use of unmarked data and may use or disclose the data for 
any purpose, including the release of the information pursuant to 
requests under the Act. The data subject to this restriction are 
contained in pages (insert page numbers, paragraph designations, etc. or 
other identification).''
    (2) In addition, the offeror must mark each page of data it wishes 
to restrict with the following statement
    ``Use or disclosure of data contained on this page is subject to the 
restriction on the cover sheet of this proposal or quotation.''
    (3) Offerors are cautioned that proposals submitted with restrictive 
statements or statements differing in substance from those cited above 
may not be considered for award. The Government reserves the right to 
reject any proposal submitted with nonconforming statement(s).



Sec. 352.215-70  Late proposals and revisions.

    As prescribed in 315.208, the Contracting Officer shall insert the 
following provision:

               Late Proposals and Revisions (January 2006)

    Notwithstanding the procedures contained in FAR 52.215-1(c)(3) of 
the provision of this solicitation entitled Instructions to Offerors--
Competitive Acquisition, the Government may consider a proposal received 
after the date specified for receipt if it appears to offer the best 
value to the Government and it was received before proposals were 
distributed for evaluation, or within 5 calendar days after the exact 
time specified for receipt, whichever is earlier.

                           (End of provision)



Sec. 352.216-70  Additional cost principles.

    As prescribed in 316.307(j), the Contracting Officer shall insert 
the following clause:

                Additional Cost Principles (January 2006)

    (a) Bid and proposal (B & P) costs. (1) B & P costs are the 
immediate costs of preparing bids, proposals, and applications for 
potential Federal and non-Federal contracts, grants, and agreements, 
including the development of scientific, cost, and other data needed to 
support the bids, proposals, and applications.
    (2) B & P costs of the current accounting period are allowable as 
indirect costs.
    (3) B & P costs of past accounting periods are unallowable in the 
current period. However, if the organization's established practice is 
to treat these costs by some other method, they may be accepted if they 
are found to be reasonable and equitable.

[[Page 106]]

    (4) B & P costs do not include independent research and development 
(IR & D) costs covered by the following paragraph, or pre-award costs 
covered by paragraph 36 of Attachment B to OMB Circular A-122.
    (b) IR & D costs. (1) IR & D is research and development conducted 
by an organization which is not sponsored by Federal or non-Federal 
contracts, grants, or other agreements.
    (2) IR & D shall be allocated its proportionate share of indirect 
costs on the same basis as the allocation of indirect costs to sponsored 
research and development.
    (3) The cost of IR & D, including its proportionate share of 
indirect costs, is unallowable.

                             (End of clause)



Sec. 352.219-70  Mentor-prot[eacute]g[eacute] program.

    As prescribed in 319.270-1(a), the Contracting Officer shall insert 
the following provision:

           Mentor-Prot[eacute]g[eacute] Program (January 2010)

    (a) Large business prime contractors serving as mentors in the HHS 
Mentor-Prot[eacute]g[eacute] program are eligible for HHS subcontracting 
plan credit, and shall submit a copy of their HHS Office of Small and 
Disadvantaged Business Utilization (OSDBU)-approved mentor 
prot[eacute]g[eacute] agreements as part of their offers. The amount of 
credit provided by the Contracting Officer to a mentor firm for 
prot[eacute]g[eacute] firm developmental assistance costs shall be 
calculated on a dollar for dollar basis and reported by the mentor firm 
in the Summary Subcontract Report via the Electronic Subcontracting 
Reporting System (eSRS) at http://www.esrs.gov. The mentor firm and 
prot[eacute]g[eacute] firm shall submit to the Contracting Officer a 
signed joint statement agreeing on the dollar value of the developmental 
assistance the mentor firm provided. (For example, a mentor firm would 
report a $10,000 subcontract awarded to a prot[eacute]g[eacute] firm and 
provision of $5,000 of developmental assistance as $15,000 of 
developmental assistance.) The mentor firm may use this additional 
credit towards attaining its subcontracting plan participation goal 
under this contract.
    (b) The program consists of--
    (1) Mentor firms--large businesses that: (i) demonstrate the 
interest, commitment, and capability to provide developmental assistance 
to small business prot[eacute]g[eacute] firms; and (ii) have a Mentor-
Prot[eacute]g[eacute] agreement approved by HHS' OSDBU;
    (2) Prot[eacute]g[eacute] firms--firms that: (i) seek developmental 
assistance; (ii) qualify as small businesses, veteran-owned small 
businesses, service-disabled veteran-owned small businesses, HUBZone 
small businesses, small disadvantaged businesses, or woman-owned 
businesses; and (iii) have a Mentor-Prot[eacute]g[eacute] agreement 
approved by HHS' OSDBU; and
    (3) Mentor-Prot[eacute]g[eacute] agreements--joint agreements, 
approved by HHS' OSDBU, which detail the specific terms, conditions, and 
responsibilities of the mentor-prot[eacute]g[eacute] relationship.

                           (End of provision)

[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21511, Apr. 26, 2010]



Sec. 352.219-71  Mentor-prot[eacute]g[eacute] program reporting 
          requirements.

    As prescribed in 319.270-1(b), the Contracting Officer shall insert 
the following clause:

  Mentor-Prot[eacute]g[eacute] Program Reporting Requirements (January 
                                  2010)

    The Contractor shall comply with all reporting requirements 
specified in its Mentor-Prot[eacute]g[eacute] agreement approved by HHS' 
OSDBU.

                             (End of clause)

[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21511, Apr. 26, 2010]



Sec. 352.222-70  Contractor cooperation in equal employment opportunity 
          investigations.

    As prescribed in 322.810(h), the Contracting Officer shall insert 
the following clause:

 Contractor Cooperation in Equal Employment Opportunity Investigations 
                             (January 2010)

    (a) In addition to complying with the clause in FAR 52.222-26, Equal 
Opportunity, the Contractor shall, in good faith, cooperate with the 
Department of Health and Human Services (Agency) in investigations of 
Equal Employment Opportunity (EEO) complaints processed pursuant to 29 
CFR Part 1614. For purposes of this clause, the following definitions 
apply:
    (1) ``Complaint'' means a formal or informal complaint that has been 
lodged with Agency management, Agency EEO officials, the Equal 
Employment Opportunity Commission (EEOC), or a court of competent 
jurisdiction.
    (2) ``Contractor employee'' means all current Contractor employees 
who work or worked under this contract. The term also includes current 
employees of subcontractors who work or worked under this contract. In 
the case of Contractor and subcontractor employees, who worked under 
this contract, but who are no longer employed by

[[Page 107]]

the Contractor or subcontractor, or who have been assigned to another 
entity within the Contractor's or subcontractor's organization, the 
Contractor shall provide the Agency with that employee's last known 
mailing address, e-mail address, and telephone number, if that employee 
has been identified as a witness in an EEO complaint or investigation.
    (3) ``Good faith cooperation'' cited in paragraph (a) includes, but 
is not limited to, making Contractor employees available for: (i) Formal 
and informal interviews by EEO counselors or other Agency officials 
processing EEO complaints; (ii) formal or informal interviews by EEO 
investigators charged with investigating complaints of unlawful 
discrimination filed by Federal employees; (iii) reviewing and signing 
appropriate affidavits or declarations summarizing statements provided 
by such Contractor employees during the course of EEO investigations; 
(iv) producing documents requested by EEO counselors, EEO investigators, 
Agency employees, or the EEOC in connection with a pending EEO 
complaint; and (v) preparing for and providing testimony in hearings 
before the EEOC and U.S. District Court.
    (b) The Contractor shall include the provisions of this clause in 
all subcontract solicitations and subcontracts awarded at any tier under 
this contract.
    (c) Failure on the part of the Contractor or its subcontractors to 
comply with the terms of this clause may be grounds for the Contracting 
Officer to terminate this contract for default.

                             (End of clause)

[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21511, Apr. 26, 2010]



Sec. 352.223-70  Safety and health.

    As prescribed in 323.7002, the Contracting Officer shall insert the 
following clause:

                    Safety and Health (January 2006)

    (a) To help ensure the protection of the life and health of all 
persons, and to help prevent damage to property, the Contractor shall 
comply with all Federal, State, and local laws and regulations 
applicable to the work being performed under this contract. These laws 
are implemented or enforced by the Environmental Protection Agency, 
Occupational Safety and Health Administration (OSHA) and other 
regulatory/enforcement agencies at the Federal, State, and local levels.
    (1) In addition, the Contractor shall comply with the following 
regulations when developing and implementing health and safety operating 
procedures and practices for both personnel and facilities involving the 
use or handling of hazardous materials and the conduct of research, 
development, or test projects:
    (i) 29 CFR 1910.1030, Bloodborne pathogens; 29 CFR 1910.1450, 
Occupational exposure to hazardous chemicals in laboratories; and other 
applicable occupational health and safety standards issued by OSHA and 
included in 29 CFR Part 1910. These regulations are available at http://
www.osha.gov.
    (ii) Nuclear Regulatory Commission Standards and Regulations, 
pursuant to the Energy Reorganization Act of 1974 (42 U.S.C. 5801 et 
seq.). The Contractor may obtain copies from the U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001.
    (2) The following Government guidelines are recommended for 
developing and implementing health and safety operating procedures and 
practices for both personnel and facilities:
    (i) Biosafety in Microbiological and Biomedical Laboratories, CDC. 
This publication is available at http://www.cdc.gov/OD/ohs/biosfty/
bmbl4/bmbl4toc.htm.
    (ii) Prudent Practices for Safety in Laboratories (1995), National 
Research Council, National Academy Press, 500 Fifth Street, NW., Lockbox 
285, Washington, DC 20055 (ISBN 0-309-05229-7). This publication is 
available at http://www.nap.edu/catalog/4911.html.
    (b) Further, the Contractor shall take or cause to be taken 
additional safety measures as the Contracting Officer, in conjunction 
with the Contracting Officer's Technical Representative or other 
appropriate officials, determines to be reasonably necessary. If 
compliance with these additional safety measures results in an increase 
or decrease in the cost or time required for performance of any part of 
work under this contract, the Contracting Officer will make an equitable 
adjustment in accordance with the applicable ``Changes'' clause set 
forth in this contract.
    (c) The Contractor shall maintain an accurate record of, and 
promptly report to the Contracting Officer, all accidents or incidents 
resulting in the exposure of persons to toxic substances, hazardous 
materials or hazardous operations; the injury or death of any person; or 
damage to property incidental to work performed under the contract and 
all violations for which the Contractor has been cited by any Federal, 
State or local regulatory/enforcement agency. The report shall include a 
copy of the notice of violation and the findings of any inquiry or 
inspection, and an analysis addressing the impact these violations may 
have on the work remaining to be performed. The report shall also state 
the required action(s), if any, to be taken to correct any violation(s) 
noted by

[[Page 108]]

the Federal, State or local regulatory/enforcement agency and the time 
frame allowed by the agency to accomplish the necessary corrective 
action.
    (d) If the Contractor fails or refuses to comply with the Federal, 
State or local regulatory/enforcement agency's directive(s) regarding 
any violation(s) and prescribed corrective action(s), the Contracting 
Officer may issue an order stopping all or part of the work until 
satisfactory corrective action (as approved by the Federal, State or 
local regulatory/enforcement agencies) has been taken and documented to 
the Contracting Officer. No part of the time lost due to any stop work 
order shall be subject to a claim for extension of time or costs or 
damages by the Contractor.
    (e) The Contractor shall insert the substance of this clause in each 
subcontract involving toxic substances, hazardous materials, or 
hazardous operations. The Contractor is responsible for the compliance 
of its subcontractors with the provisions of this clause.

                             (End of clause)



Sec. 352.224-70  Privacy Act.

    As prescribed in 324.103(b)(2), the Contracting Officer shall insert 
the following clause:

                       Privacy Act (January 2006)

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

                             (End of clause)



Sec. 352.227-70  Publications and publicity.

    As prescribed in 327.404-70, the Contracting Officer shall insert 
the following clause:

                Publications and Publicity (January 2006)

    (a) Unless otherwise specified in this contract, the Government 
encourages the Contractor to publish the results of its work under this 
contract. A copy of each article the Contractor submits for publication 
shall be promptly sent to the Contracting Officer's Technical 
Representative. The Contractor shall also inform the Contracting 
Officer's Technical Representative when the article or other publication 
is published, and furnish a copy of it as finally published.
    (b) Unless authorized by the Contracting Officer's Technical 
Representative, the Contractor shall not display the HHS logo on any 
publications.

                             (End of clause)



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

    As prescribed in 328.311-2, the Contracting Officer shall insert the 
following clause and either Alternate I or II, as appropriate:

          Insurance--Liability to Third Persons (December 1991)

    (a)(1) Except as provided in paragraph (a)(2) immediately following, 
or in paragraph (h) of this clause [if the clause has a paragraph (h)], 
the Contractor shall provide and maintain workers' compensation, 
employer's liability, comprehensive general liability (bodily injury), 
comprehensive automobile liability (bodily injury and property damage) 
insurance, and such other insurance as the Contracting Officer may 
require under this contract.
    (2) The Contractor may, with the approval of the Contracting 
Officer, maintain a self-insurance program; provided that, with respect 
to workers' compensation, the Contractor is qualified pursuant to 
statutory authority.
    (3) All insurance required by this paragraph shall be in form and 
amount and for those periods as the Contracting Officer may require or 
approve and with insurers approved by the Contracting Officer.
    (b) The Contractor agrees to submit for the Contracting Officer's 
approval, to the extent and in the manner required by the Contracting 
Officer, any other insurance that is maintained by the Contractor in 
connection

[[Page 109]]

with performance of this contract and for which the Contractor seeks 
reimbursement.
    (c) Except as provided in paragraph (h) of this clause [if the 
clause has a paragraph (h)], the Contractor shall be reimbursed--
    (1) For that portion of the reasonable cost of insurance allocable 
to this contract, and required or approved under this clause; and
    (2) For certain liabilities (and expenses incidental to such 
liabilities) to third persons not compensated by insurance or otherwise 
within the funds available under the Limitation of Cost or the 
Limitation of Funds clause of this contract. These liabilities must 
arise out of the performance of this contract, whether or not caused by 
the negligence of the Contractor or the Contractor's agents, servants, 
or employees, and must be represented by final judgments or settlements 
approved in writing by the Government. These liabilities are for--
    (i) Loss of or damage to property (other than property owned, 
occupied, or used by the Contractor, rented to the Contractor, or in the 
care, custody, or control of the Contractor); or
    (ii) Death or bodily injury.
    (d) The Government's liability under paragraph (c) of this clause is 
limited to the amounts reflected in final judgments, or settlements 
approved in writing by the Government, but in no event to exceed the 
funds available under the Limitation of Cost or Limitation of Funds 
clause of this contract. Nothing in this contract shall be construed as 
implying that, at a later date, the Government will request, or the 
Congress will appropriate, funds sufficient to meet any deficiencies.
    (e) The Government shall not reimburse the Contractor for 
liabilities (and expenses incidental to such liabilities)--
    (1) For which the Contractor is otherwise responsible under the 
express terms of any clause specified in the Schedule or elsewhere in 
the contract;
    (2) For which the Contractor has failed to insure or to maintain 
insurance as required by the Contracting Officer; or
    (3) That result from willful misconduct or lack of good faith on the 
part of the Contractor's directors, officers, managers, superintendents, 
or other representatives who have supervision or direction of --
    (i) All or substantially all of the Contractor's business;
    (ii) All or substantially all of the Contractor's operations at any 
one plant or separate location in which this contract is being 
performed; or
    (iii) A separate and complete major industrial operation in 
connection with the performance of this contract.
    (f) The provisions of paragraph (e) of this clause shall not 
restrict the right of the Contractor to be reimbursed for the cost of 
insurance maintained by the Contractor in connection with the 
performance of this contract, other than insurance required in 
accordance with this clause; provided, that such cost is allowable under 
the Allowable Cost and Payment clause of this contract.
    (g) If any suit or action is filed or any claim is made against the 
Contractor, the cost and expense of which may be reimbursable to the 
Contractor under this contract, and the risk of which is then uninsured 
or is insured for less than the amount claimed, the Contractor shall--
    (1) Immediately notify the Contracting Officer and promptly furnish 
copies of all pertinent papers received;
    (2) Authorize Government representatives to collaborate with counsel 
for the insurance carrier in settling or defending the claim when the 
amount of the liability claimed exceeds the amount of coverage; and
    (3) Authorize Government representatives to settle or defend the 
claim and to represent the Contractor in or to take charge of any 
litigation, if required by the Government, when the liability is not 
insured or covered by the bond. The Contractor may, at its own expense, 
be associated with the Government representatives in any such claim or 
litigation.

                             (End of clause)

    Alternate I (APR 1984). If the successful offeror represents in its 
offer that it is partially immune from tort liability as a State agency, 
the Contracting Officer shall add the following paragraph (h) to the 
basic clause:
    (h) Notwithstanding paragraphs (a) and (c) of this clause--
    (1) The Government does not assume any liability to third persons, 
nor will the Government reimburse the Contractor for its liability to 
third persons, with respect to loss due to death, bodily injury, or 
damage to property resulting in any way from the performance of this 
contract or any subcontract under this contract; and
    (2) The Contractor need not provide or maintain insurance coverage 
as required by paragraph (a) of this clause; provided, that the 
Contractor may obtain any insurance coverage deemed necessary, subject 
to approval by the Contracting Officer as to form, amount, and duration. 
The Contractor shall be reimbursed for the cost of such insurance and, 
to the extent provided in paragraph (c) of this clause, for liabilities 
to third persons for which the Contractor has obtained insurance 
coverage as provided in this paragraph, but for which such coverage is 
insufficient in amount.

[[Page 110]]

                             (End of clause)

    Alternate II (APR 1984). If the successful offeror represents in its 
offer that it is totally immune from tort liability as a State agency, 
the Contracting Officer shall substitute the following paragraphs (a) 
and (b) for paragraphs (a) and (b) of the basic clause:
    (a) The Government does not assume any liability to third persons, 
nor will the Government reimburse the Contractor for its liability to 
third persons, with respect to loss due to death, bodily injury, or 
damage to property resulting in any way from the performance of this 
contract or any subcontract under this contract.
    (b) If any suit or action is filed, or if any claim is made against 
the Contractor, the cost and expense of which may be reimbursable to the 
Contractor under this contract, the Contractor shall immediately notify 
the Contracting Officer and promptly furnish copies of all pertinent 
papers received by the Contractor. The Contractor shall, if Government 
requires, authorize Government representatives to settle or defend the 
claim and to represent the Contractor in or take charge of any 
litigation. The Contractor may, at its own expense, be associated with 
the Government representatives in any such claims or litigation.

                             (End of clause)



Sec. 352.231-70  Salary rate limitation.

    As prescribed in 331.101-70, the Contracting Officer shall insert 
the following clause:

                  Salary Rate Limitation (January 2010)

    (a) Pursuant to the current and applicable prior HHS appropriations 
acts, the Contractor shall not use contract funds to pay the direct 
salary of an individual at a rate in excess of the Federal Executive 
Schedule Level I in effect on the date an expense is incurred.
    (b) For purposes of the salary rate limitation, the terms ``direct 
salary,'' ``salary,'' and ``institutional base salary'' have the same 
meaning and are collectively referred to as ``direct salary'' in this 
clause. An individual's direct salary is the annual compensation that 
the Contractor pays for an individual's direct effort (costs) under the 
contract. Direct salary excludes any income that an individual may be 
permitted to earn outside of duties to the Contractor. Direct salary 
also excludes fringe benefits, overhead, and general and administrative 
expenses (also referred to as indirect costs or facilities and 
administrative [F&A] costs).

    Note: The salary rate limitation does not restrict the salary that 
an organization may pay an individual working under an HHS contract or 
order; it merely limits the portion of that salary that may be paid with 
Federal funds.

    (c) The salary rate limitation also applies to individuals under 
subcontracts. If this is a multiple-year contract or order, it may be 
subject to unilateral modification by the Contracting Officer to ensure 
that an individual is not paid at a rate that exceeds the salary rate 
limitation provision established in the HHS appropriations act in effect 
when the expense is incurred regardless of the rate initially used to 
establish contract or order funding.
    (d) See the salaries and wages pay tables on the U.S. Office of 
Personnel Management Web site for Federal Executive Schedule salary 
levels that apply to the current and prior periods.

                             (End of clause)

[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21511, Apr. 26, 2010]



Sec. 352.231-71  Pricing of adjustments.

    As prescribed in 331.102-70, the Contracting Officer shall insert 
the following clause:

                  Pricing of Adjustments (January 2001)

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

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


[[Page 111]]

                             (End of clause)



Sec. 352.233-70  Choice of law (overseas).

    As prescribed in 333.215-70(a), the Contracting Officer shall insert 
the following clause:

                 Choice of Law (Overseas) (January 2010)

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

                             (End of clause)

[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21511, Apr. 26, 2010]



Sec. 352.233-71  Litigation and claims.

    As prescribed in 333.215-70(b), the Contracting Officer shall insert 
the following clause:

                  Litigation and Claims (January 2006)

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

                             (End of clause)



Sec. 352.234-1  Notice of earned value management system--pre-award 
          Integrated Baseline Review.

    As prescribed in 334.203-70(a), the Contracting Officer shall insert 
the following provision:

Notice of Earned Value Management System--Pre-Award Integrated Baseline 
                          Review (October 2008)

    The offeror shall provide documentation that its proposed Earned 
Value Management System (EVMS) complies with the EVMS guidelines in 
ANSI/EIA Standard-748 (current version at time of solicitation).
    (a) If the offeror proposes to use a system that currently does not 
meet the requirements of paragraph (a) of this provision, the offeror 
shall submit a comprehensive plan for compliance with the guidelines.
    (1) The plan shall--
    (i) Describe the EVMS the offeror intends to use in performance of 
the contract;
    (ii) Distinguish between the offeror's existing management system 
and modifications proposed to meet the guidelines;
    (iii) Describe the management system and its application in terms of 
the EVMS guidelines;
    (iv) Describe the proposed procedure for application of the EVMS 
requirements to subcontractors;
    (v) Provide documentation describing the process and results, 
including Government participation if applicable, of any third-party 
evaluation or self-evaluation of the

[[Page 112]]

system's compliance with the EVMS guidelines; and
    (vi) Provide a schedule of events leading up to formal validation 
and Government acceptance of the offeror's EVMS, if the value of the 
offeror's proposal, including options, is $25 million or more.
    (2) The offeror shall provide information and assistance, as 
required by the Contracting Officer, to support review of the plan.
    (3) The Contracting Officer will review the offeror's EVMS 
implementation plan prior to contract award.
    (4) The offeror's EVMS plan must provide milestones indicating when 
the offeror anticipates that the EVMS will be compliant with the ANSI/
EIS Standard-748 guidelines.
    (b) The offeror shall identify in its offer the subcontractors, or 
subcontracted effort if subcontractors have not been identified, to 
which the requirements of EVMS will be applied. Prior to contract award, 
the offeror and HHS shall agree on the subcontractors, or subcontracted 
effort, subject to the EVMS requirement.
    (c) HHS will conduct an Integrated Baseline Review (IBR) prior to 
contract award. The offeror shall be compensated as set forth elsewhere 
in this solicitation for its preparation for and participation in the 
IBR.

                           (End of provision)



Sec. 352.234-2  Notice of earned value management system--post-award 
          Integrated Baseline Review.

    As prescribed in 334.203-70(b), the Contracting Officer shall insert 
the following provision:

Notice of Earned Value Management System--Post-Award Integrated Baseline 
                          Review (October 2008)

    (a) The offeror shall provide documentation that its proposed Earned 
Value Management System (EVMS) complies with the EVMS guidelines in 
ANSI/EIA Standard-748 (current version in effect at time of 
solicitation).
    (b) If the offeror proposes to use a system that currently does not 
meet the requirements of paragraph (a) of this provision, the offeror 
shall submit a comprehensive plan for compliance with the guidelines.
    (1) The plan shall--
    (i) Describe the EVMS the offeror intends to use in performance of 
the contract;
    (ii) Distinguish between the offeror's existing management system 
and modifications proposed to meet the guidelines;
    (iii) Describe the management system and its application in terms of 
the EVMS guidelines;
    (iv) Describe the proposed procedure for application of the EVMS 
requirements to subcontractors;
    (v) Provide documentation describing the process and results, 
including Government participation if applicable, of any third-party 
evaluation or self-evaluation of the system's compliance with the EVMS 
guidelines; and
    (vi) Provide a schedule of events leading up to formal validation 
and Government acceptance of the offeror's EVMS, if the value of the 
offeror's proposal, including options, is $25 million or more.
    (2) The offeror shall provide information and assistance, as 
required by the Contracting Officer, to support review of the plan.
    (3) The Contracting Officer will review the offeror's EVMS 
implementation plan prior to contract award.
    (4) The offeror's EVMS plan must provide milestones indicating when 
the offeror anticipates that the EVM system will be compliant with the 
ANSI/EIA Standard-748 guidelines.
    (c) The offeror shall identify in its offer the subcontractors, or 
subcontracted effort if subcontractors have not been identified, to 
which the requirements of EVMS will be applied. Prior to contract award, 
the offeror and HHS shall agree on the subcontractors, or subcontracted 
effort, subject to the EVMS requirement.
    (d) HHS will conduct an Integrated Baseline Review after contract 
award.

                           (End of provision)



Sec. 352.234-3  Full earned value management system.

    As prescribed in 334.203-70(c), the Contracting Officer shall insert 
the following clause:

           Full Earned Value Management System (October 2008)

    (a) The Contractor shall use an Earned Value Management System 
(EVMS) that has been validated and accepted by the Cognizant Federal 
Agency (CFA) as being compliant with the guidelines in ANSI/EIA 
Standard-748 (current version at the time of award) to manage this 
contract. If the Contractor's current EVMS has not been validated and 
accepted by the CFA at the time of award, see paragraph (b) of this 
clause. The Contractor shall submit EVM reports in accordance with the 
requirements of this contract.
    (b) If, at the time of award, the Contractor's EVM system has not 
been validated and accepted by the CFA as complying with EVMS guidelines 
in ANSI/EIA Standard-748 (current version at time of award), the 
Contractor shall--

[[Page 113]]

    (1) Apply the current system to the contract; and
    (2) Take necessary and timely actions to meet the milestones in the 
Contractor's EVMS plan approved by the Contracting Officer.
    (c) HHS requires the Contractor to obtain validation and acceptance 
of its EVM system by the CFA during the base period of performance of 
this contract. The Contracting Officer or designee will conduct a 
Compliance Review to assess the Contractor's compliance with its 
approved plan. If the Contractor does not follow the approved 
implementation schedule or correct all resulting system deficiencies 
noted during the Compliance Review within a reasonable time, the 
Contracting Officer may take remedial action, which may include, but is 
not limited to, suspension of or reduction in progress payments, or a 
reduction in fee.
    (d) HHS will conduct an Integrated Baseline Review (IBR). If a pre-
award IBR has not been conducted, a post-award IBR will be conducted by 
HHS as early as practicable, but no later than 90 days after contract 
award. The Contracting Officer may also require an IBR as part of the 
exercise of an option or the incorporation of a major modification.
    (e) Unless a waiver is granted by the CFA, Contractor-proposed EVMS 
changes require approval of the CFA prior to implementation. The CFA 
will advise the Contractor of the acceptability of such changes within 
30 calendar days after receipt of the notice of proposed changes from 
the Contractor. If the advance approval requirements are waived by the 
CFA, the Contractor shall disclose EVMS changes to the CFA at least 14 
calendar days prior to the effective date of implementation.
    (f) The Contractor shall provide access to all pertinent records and 
data requested by the Contracting Officer or a duly authorized 
representative as necessary to permit Government surveillance to ensure 
that the EVMS conforms, and continues to conform, with the requirements 
referenced in paragraph (a) of this clause.
    (g) The Contractor shall require the subcontractors specified below 
to comply with the requirements of the clause: (Insert list of 
applicable subcontractors.)
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

                             (End of clause)

    (Alternate I) (October 2008) As prescribed in 334.203-70(c), the 
Contracting Officer shall substitute the following paragraphs (a), (b), 
and (c) for paragraphs (a), (b), and (c) of the basic clause and delete 
paragraph (e) of the basic clause:
    (a) The Contractor shall use an Earned Value Management System 
(EVMS) that is compliant with the guidelines in ANSI/EIA Standard-748 
(current version at the time of award) to manage this contract. If the 
Contractor's current EVMS is not compliant at the time of award, see 
paragraph (b) of this clause. The Contractor shall submit EVM reports in 
accordance with the requirements of this contract.
    (b) If, at the time of award, the Contractor's EVM system is not in 
compliance with the EVMS guidelines in ANSI/EIA Standard-748 (current 
version at time of award), the Contractor shall--
    (1) Apply the current system to the contract; and
    (2) Take necessary and timely actions to meet the milestones in the 
Contractor's EVMS plan approved by the Contracting Officer.
    (c) HHS will not formally validate or accept the Contractor's EVMS 
with respect to this contract. The use of the Contractor's EVMS for this 
contract does not imply HHS acceptance of the Contractor's EVMS for 
application to future contracts. The Contracting Officer or designee 
will conduct a Compliance Review to assess the Contractor's compliance 
with its approved plan. If the Contractor does not follow the approved 
implementation schedule or correct all resulting system deficiencies 
noted during the Compliance Review within a reasonable time, the 
Contracting Officer may take remedial action that may include, but is 
not limited to, suspension of or reduction in progress payments, or a 
reduction in fee.



Sec. 352.234-4  Partial earned value management system.

    As prescribed in 334.203-70(d), the Contracting Officer shall insert 
the following clause:

          Partial Earned Value Management System (October 2008)

    (a) The Contractor shall use an Earned Value Management System 
(EVMS) that has been validated and accepted by the Cognizant Federal 
Agency (CFA) as being compliant with the schedule-related guidelines in 
ANSI/EIA Standard-748 (current version at the time of award) to manage 
this contract. If the Contractor's current EVMS has not been validated 
and accepted by the CFA at the time of award, see paragraph (b) of this 
clause. The Contractor shall submit EVM reports in accordance with the 
requirements of this contract.
    (b) If, at the time of award, the Contractor's EVM system has not 
been validated and accepted by the CFA as complying with the

[[Page 114]]

schedule-related EVMS guidelines in ANSI/EIA Standard-748 (current 
version at time of award), the Contractor shall--
    (1) Apply the current system to the contract; and
    (2) Take necessary and timely actions to meet the milestones in the 
Contractor's EVMS plan approved by the Contracting Officer.
    (c) HHS requires the Contractor to obtain validation and acceptance 
of the schedule-related portions of its EVM system by the CFA during the 
base period of performance of this contract. The Contracting Officer or 
designee will conduct a Compliance Review to assess the Contractor's 
compliance with its approved plan. If the Contractor does not follow the 
approved implementation schedule or correct all resulting system 
deficiencies noted during the Compliance Review within a reasonable 
time, the Contracting Officer may take remedial action, which may 
include, but is not limited to, suspension of or reduction in progress 
payments, or a reduction in fee.
    (d) HHS will conduct an Integrated Baseline Review (IBR). If a pre-
award IBR has not been conducted, a post-award IBR will be conducted by 
HHS as early as practicable, but no later than 90 days after contract 
award. The Contracting Officer may also require an IBR as part of the 
exercise of an option or the incorporation of a major modification.
    (e) Unless a waiver is granted by the CFA, Contractor-proposed EVMS 
changes require approval of the CFA prior to implementation. The CFA 
will advise the Contractor of the acceptability of such changes within 
30 calendar days after receipt of the notice of proposed changes from 
the Contractor. If the advance approval requirements are waived by the 
CFA, the Contractor shall disclose EVMS changes to the CFA at least 14 
calendar days prior to the effective date of implementation.
    (f) The Contractor shall provide access to all pertinent records and 
data requested by the Contracting Officer or a duly authorized 
representative as necessary to permit Government surveillance to ensure 
that the EVMS conforms, and continues to conform, with the requirements 
referenced in paragraph (a) of this clause.
    (g) The Contractor shall require the subcontractors specified below 
to comply with the requirements of the clause: (Insert list of 
applicable subcontractors.)
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

                             (End of clause)

    Alternate I (October 2008) As prescribed in 334.203-70(d), the 
Contracting Officer shall substitute the following paragraphs (a), (b), 
and (c) for paragraphs (a), (b), and (c) of the basic clause and delete 
paragraph (e) of the basic clause:

    (a) The Contractor shall use an Earned Value Management System 
(EVMS) that is compliant with the schedule-related guidelines in ANSI/
EIA Standard-748 (current version at the time of award) to manage this 
contract. If the Contractor's current EVMS is not compliant at the time 
of award, see paragraph (b) of this clause. The Contractor shall submit 
EVM reports in accordance with the requirements of this contract.
    (b) If, at the time of award, the Contractor's schedule-related EVM 
system is not in compliance with the schedule-related EVMS guidelines in 
ANSI/EIA Standard-748 (current version at time of award), or the 
Contractor does not have an existing schedule control system that is 
compliant with such guidelines, the Contractor shall--
    (1) Apply the current system to the contract; and
    (2) Take necessary and timely actions to meet the milestones in the 
Contractor's EVMS plan approved by the Contracting Officer.
    (c) HHS will not formally validate or accept the Contractor's 
schedule-related EVMS with respect to this contract. The use of the 
Contractor's EVMS for this contract does not imply HHS acceptance of the 
Contractor's EVMS for application to future contracts. The Contracting 
Officer or designee will conduct a Compliance Review to assess the 
Contractor's compliance with its approved plan. If the Contractor does 
not follow the approved implementation schedule or correct all resulting 
system deficiencies noted during the Compliance Review within a 
reasonable time, the Contracting Officer may take remedial action that 
may include, but is not limited to, suspension of or reduction in 
progress payments, or a reduction in fee.



Sec. 352.237-70  Pro-Children Act.

    As prescribed in 337.103-70(a), the Contracting Officer shall insert 
the following clause:

                     Pro-Children Act (January 2006)

    (a) Public Law 103-227, Title X, Part C, also known as the Pro-
Children Act of 1994 (Act), 20 U.S.C. 7183, imposes restrictions on 
smoking in facilities where certain Federally funded children's services 
are provided. The Act prohibits smoking within any indoor facility (or 
portion thereof), whether owned, leased, or contracted for, that is used 
for the routine or regular provision of (i) kindergarten, elementary, or 
secondary education or library services or (ii) health or day care 
services that are provided to children under

[[Page 115]]

the age of 18. The statutory prohibition also applies to indoor 
facilities that are constructed, operated, or maintained with Federal 
funds.
    (b) By acceptance of this contract or order, the Contractor agrees 
to comply with the requirements of the Act. The Act also applies to all 
subcontracts awarded under this contract for the specified children's 
services. Accordingly, the Contractor shall ensure that each of its 
employees, and any subcontractor staff, is made aware of, understand, 
and comply with the provisions of the Act. Failure to comply with the 
Act may result in the imposition of a civil monetary penalty in an 
amount not to exceed $1,000 for each violation and/or the imposition of 
an administrative compliance order on the responsible entity. Each day a 
violation continues constitutes a separate violation.

                             (End of clause)



Sec. 352.237-71  Crime Control Act--reporting of child abuse.

    As prescribed in 337.103-70(b), the Contracting Officer shall insert 
the following clause:

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

    (a) Public Law 101-647, also known as the Crime Control Act of 1990 
(Act), imposes responsibilities on certain individuals who, while 
engaged in a professional capacity or activity, as defined in the Act, 
on Federal land or in a Federally-operated (or contracted) facility, 
learn of facts that give the individual reason to suspect that a child 
has suffered an incident of child abuse.
    (b) The Act designates ``covered professionals'' as those persons 
engaged in professions and activities in eight different categories 
including, but not limited to, physicians, dentists, medical residents 
or interns, hospital personnel and administrators, nurses, health care 
practitioners, chiropractors, osteopaths, pharmacists, optometrists, 
podiatrists, emergency medical technicians, ambulance drivers, alcohol 
or drug treatment personnel, psychologists, psychiatrists, mental health 
professionals, child care workers and administrators, and commercial 
film and photo processors. The Act defines the term ``child abuse'' as 
the physical or mental injury, sexual abuse or exploitation, or 
negligent treatment of a child.
    (c) Accordingly, any person engaged in a covered profession or 
activity under an HHS contract or subcontract, regardless of the purpose 
of the contract or subcontract, shall immediately report a suspected 
child abuse incident in accordance with the provisions of the Act. If a 
child is suspected of being harmed, the appropriate State Child Abuse 
Hotline, local child protective services (CPS), or law enforcement 
agency shall be contacted. For more information about where and how to 
file a report, the Childhelp USA, National Child Abuse Hotline (1-800-4-
A-CHILD) shall be called. Any covered professional failing to make a 
timely report of such incident shall be guilty of a Class B misdemeanor.
    (d) By acceptance of this contract or order, the Contractor agrees 
to comply with the requirements of the Act. The Act also applies to all 
applicable subcontracts awarded under this contract. Accordingly, the 
Contractor shall ensure that each of its employees, and any 
subcontractor staff, is made aware of, understand, and comply with the 
provisions of the Act.

                             (End of clause)



Sec. 352.237-72  Crime Control Act--requirement for background checks.

    As prescribed in 337.103-70(c), the Contracting Officer shall insert 
the following clause:

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

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

[[Page 116]]

                             (End of clause)



Sec. 352.239-70  Standard for security configurations.

    As prescribed in 339.101(d)(1), the Contracting Officer shall insert 
the following clause:

           Standard for Security Configurations (January 2010)

    (a) The Contractor shall configure its computers that contain HHS 
data with the applicable Federal Desktop Core Configuration (FDCC) (see 
http://nvd.nist.gov/fdcc/index.cfm) and ensure that its computers have 
and maintain the latest operating system patch level and anti-virus 
software level.

    Note: FDCC is applicable to all computing systems using Windows 
XPTM and Windows VistaTM, including desktops and 
laptops--regardless of function--but not including servers.

    (b) The Contractor shall apply approved security configurations to 
information technology (IT) that is used to process information on 
behalf of HHS. The following security configuration requirements apply:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
    Note: The Contracting Officer shall specify applicable security 
configuration requirements in solicitations and contracts based on 
information provided by the Project Officer, who shall consult with the 
OPDIV/STAFFDIV Chief Information Security Officer.

    (c) The Contractor shall ensure IT applications operated on behalf 
of HHS are fully functional and operate correctly on systems configured 
in accordance with the above configuration requirements. The Contractor 
shall use Security Content Automation Protocol (SCAP)-validated tools 
with FDCC Scanner capability to ensure its products operate correctly 
with FDCC configurations and do not alter FDCC settings--see http://
nvd.nist.gov/validation.cfm. The Contractor shall test applicable 
product versions with all relevant and current updates and patches 
installed. The Contractor shall ensure currently supported versions of 
information technology products meet the latest FDCC major version and 
subsequent major versions.
    (d) The Contractor shall ensure IT applications designed for end 
users run in the standard user context without requiring elevated 
administrative privileges.
    (e) The Contractor shall ensure hardware and software installation, 
operation, maintenance, update, and patching will not alter the 
configuration settings or requirements specified above.
    (f) The Contractor shall (1) include Federal Information Processing 
Standard (FIPS) 201-compliant (see http://csrc.nist.gov/publications/
fips/fips201-1/FIPS-201-1-chng1.pdf), Homeland Security Presidential 
Directive 12 (HSPD-12) card readers with the purchase of servers, 
desktops, and laptops; and (2) comply with FAR Subpart 4.13, Personal 
Identity Verification.
    (g) The Contractor shall ensure that its subcontractors (at all 
tiers) which perform work under this contract comply with the 
requirements contained in this clause.

                             (End of clause)

[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21511, Apr. 26, 2010]



Sec. 352.239-71  Standard for encryption language.

    As prescribed in 339.101(d)(2), the Contracting Officer shall insert 
the following clause:

             Standard for Encryption Language (January 2010)

    (a) The Contractor shall use Federal Information Processing Standard 
(FIPS) 140-2-compliant encryption (Security Requirements for 
Cryptographic Module, as amended) to protect all instances of HHS 
sensitive information during storage and transmission. (Note: The 
Government has determined that HHS information under this contract is 
considered ``sensitive'' in accordance with FIPS 199, Standards for 
Security Categorization of Federal Information and Information Systems, 
dated February 2004.)
    (b) The Contractor shall verify that the selected encryption product 
has been validated under the Cryptographic Module Validation Program 
(see http://csrc.nist.gov/cryptval/) to confirm compliance with FIPS 
140-2 (as amended). The Contractor shall provide a written copy of the 
validation documentation to the Contracting Officer and the Contracting 
Officer's Technical Representative.
    (c) The Contractor shall use the Key Management Key (see FIPS 201, 
Chapter 4, as amended) on the HHS personal identification verification 
(PIV) card; or alternatively, the Contractor shall establish and use a 
key recovery mechanism to ensure the ability for authorized personnel to 
decrypt and recover all encrypted information (see http://csrc.nist.gov/
drivers/documents/ombencryption-guidance.pdf). The Contractor shall 
notify the Contracting Officer and the Contracting Officer's Technical 
Representative of personnel authorized to decrypt and recover all 
encrypted information.
    (d) The Contractor shall securely generate and manage encryption 
keys to prevent unauthorized decryption of information in accordance 
with FIPS 140-2 (as amended).

[[Page 117]]

    (e) The Contractor shall ensure that this standard is incorporated 
into the Contractor's property management/control system or establish a 
separate procedure to account for all laptop computers, desktop 
computers, and other mobile devices and portable media that store or 
process sensitive HHS information.
    (f) The Contractor shall ensure that its subcontractors (at all 
tiers) which perform work under this contract comply with the 
requirements contained in this clause.

                             (End of clause)

[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21511, Apr. 26, 2010]



Sec. 352.239-72  Security requirements for Federal information 
          technology resources.

    As prescribed in 339.7103, the Contracting Officer shall insert the 
following clause:

   Security Requirements for Federal Information Technology Resources 
                             (January 2010)

    (a) Applicability. This clause applies whether the entire contract 
or order (hereafter ``contract''), or portion thereof, includes 
information technology resources or services in which the Contractor has 
physical or logical (electronic) access to, or operates a Department of 
Health and Human Services (HHS) system containing, information that 
directly supports HHS' mission. The term ``information technology 
(IT)'', as used in this clause, 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. This clause does not apply to national security 
systems as defined in FISMA.
    (b) Contractor responsibilities. The Contractor is responsible for 
the following:
    (1) Protecting Federal information and Federal information systems 
in order to ensure their--
    (i) Integrity, which means guarding against improper information 
modification or destruction, and includes ensuring information non-
repudiation and authenticity;
    (ii) Confidentiality, which means preserving authorized restrictions 
on access and disclosure, including means for protecting personal 
privacy and proprietary information; and.
    (iii) Availability, which means ensuring timely and reliable access 
to and use of information.
    (2) Providing security of any Contractor systems, and information 
contained therein, connected to an HHS network or operated by the 
Contractor, regardless of location, on behalf of HHS.
    (3) Adopting, and implementing, at a minimum, the policies, 
procedures, controls, and standards of the HHS Information Security 
Program to ensure the integrity, confidentiality, and availability of 
Federal information and Federal information systems for which the 
Contractor is responsible under this contract or to which it may 
otherwise have access under this contract. The HHS Information Security 
Program is outlined in the HHS Information Security Program Policy, 
which is available on the HHS Office of the Chief Information Officer's 
(OCIO) Web site.
    (c) Contractor security deliverables. In accordance with the 
timeframes specified, the Contractor shall prepare and submit the 
following security documents to the Contracting Officer for review, 
comment, and acceptance:
    (1) IT Security Plan (IT-SP)--due within 30 days after contract 
award. The IT-SP shall be consistent with, and further detail the 
approach to, IT security contained in the Contractor's bid or proposal 
that resulted in the award of this contract. The IT-SP shall describe 
the processes and procedures that the Contractor will follow to ensure 
appropriate security of IT resources that are developed, processed, or 
used under this contract. If the IT-SP only applies to a portion of the 
contract, the Contractor shall specify those parts of the contract to 
which the IT-SP applies.
    (i) The Contractor's IT-SP shall comply with applicable Federal laws 
that include, but are not limited to, the Federal Information Security 
Management Act (FISMA) of 2002 (Title III of the E-Government Act of 
2002, Public Law 107-347), and the following Federal and HHS policies 
and procedures:
    (A) Office of Management and Budget (OMB) Circular A-130, Management 
of Federal Information Resources, Appendix III, Security of Federal 
Automated Information Resources.
    (B) National Institute of Standards and Technology (NIST) Special 
Publication (SP) 800-18, Guide for Developing Security Plans for Federal 
Information Systems, in form and content, and with any pertinent 
contract Statement of Work/Performance Work Statement (SOW/PWS) 
requirements. The IT-SP shall identify and document appropriate IT 
security controls consistent with the sensitivity of the information and 
the requirements of Federal Information Processing Standard (FIPS) 200, 
Recommended Security Controls for Federal Information Systems. The 
Contractor shall review and update the IT-SP in accordance with NIST SP 
800-26, Security Self-Assessment Guide

[[Page 118]]

for Information Technology Systems and FIPS 200, on an annual basis.
    (C) HHS-OCIO Information Systems Security and Privacy Policy.
    (ii) After resolution of any comments provided by the Government on 
the draft IT-SP, the Contracting Officer shall accept the IT-SP and 
incorporate the Contractor's final version into the contract for 
Contractor implementation and maintenance. On an annual basis, the 
Contractor shall provide to the Contracting Officer verification that 
the IT-SP remains valid.
    (2) IT Risk Assessment (IT-RA)--due within 30 days after contract 
award. The IT-RA shall be consistent, in form and content, with NIST SP 
800-30, Risk Management Guide for Information Technology Systems, and 
any additions or augmentations described in the HHS-OCIO Information 
Systems Security and Privacy Policy. After resolution of any comments 
provided by the Government on the draft IT-RA, the Contracting Officer 
shall accept the IT-RA and incorporate the Contractor's final version 
into the contract for Contractor implementation and maintenance. The 
Contractor shall update the IT-RA on an annual basis.
    (3) FIPS 199 Standards for Security Categorization of Federal 
Information and Information Systems Assessment (FIPS 199 Assessment)--
due within 30 days after contract award. The FIPS 199 Assessment shall 
be consistent with the cited NIST standard. After resolution of any 
comments by the Government on the draft FIPS 199 Assessment, the 
Contracting Officer shall accept the FIPS 199 Assessment and incorporate 
the Contractor's final version into the contract.
    (4) IT Security Certification and Accreditation (IT-SC&A)--due 
within 3 months after contract award. The Contractor shall submit 
written proof to the Contracting Officer that an IT-SC&A was performed 
for applicable information systems--see paragraph (a) of this clause. 
The Contractor shall perform the IT-SC&A in accordance with the HHS 
Chief Information Security Officer's Certification and Accreditation 
Checklist; NIST SP 800-37, Guide for the Security Certification and 
Accreditation of Federal Information Systems; and NIST SP 800-53, 
Recommended Security Controls for Federal Information Systems. An 
authorized senior management official shall sign the draft IT-SC&A and 
provide it to the Contracting Officer for review, comment, and 
acceptance.
    (i) After resolution of any comments provided by the Government on 
the draft IT-SC&A, the Contracting Officer shall accept the IT-SC&A and 
incorporate the Contractor's final version into the contract as a 
compliance requirement.
    (ii) The Contractor shall also perform an annual security control 
assessment and provide to the Contracting Officer verification that the 
IT-SC&A remains valid. Evidence of a valid system accreditation includes 
written results of:
    (A) Annual testing of the system contingency plan; and
    (B) The performance of security control testing and evaluation.
    (d) Personal identity verification. The Contractor shall identify 
its employees with access to systems operated by the Contractor for HHS 
or connected to HHS systems and networks. The Contracting Officer's 
Technical Representative (COTR) shall identify, for those identified 
employees, position sensitivity levels that are commensurate with the 
responsibilities and risks associated with their assigned positions. The 
Contractor shall comply with the HSPD-12 requirements contained in 
``HHS-Controlled Facilities and Information Systems Security'' 
requirements specified in the SOW/PWS of this contract.
    (e) Contractor and subcontractor employee training. The Contractor 
shall ensure that its employees, and those of its subcontractors, 
performing under this contract complete HHS-furnished initial and 
refresher security and privacy education and awareness training before 
being granted access to systems operated by the Contractor on behalf of 
HHS or access to HHS systems and networks. The Contractor shall provide 
documentation to the COTR evidencing that Contractor employees have 
completed the required training.
    (f) Government access for IT inspection. The Contractor shall afford 
the Government access to the Contractor's and subcontractors' 
facilities, installations, operations, documentation, databases, and 
personnel used in performance of this contract to the extent required to 
carry out a program of IT inspection (to include vulnerability testing), 
investigation, and audit to safeguard against threats and hazards to the 
integrity, confidentiality, and availability, of HHS data or to the 
protection of information systems operated on behalf of HHS.
    (g) Subcontracts. The Contractor shall incorporate the substance of 
this clause in all subcontracts that require protection of Federal 
information and Federal information systems as described in paragraph 
(a) of this clause, including those subcontracts that--
    (1) Have physical or electronic access to HHS' computer systems, 
networks, or IT infrastructure; or
    (2) Use information systems to generate, store, process, or exchange 
data with HHS or on behalf of HHS, regardless of whether the data 
resides on a HHS or the Contractor's information system.
    (h) Contractor employment notice. The Contractor shall immediately 
notify the Contracting Officer when an employee either begins or 
terminates employment (or is no longer assigned to the HHS project under

[[Page 119]]

this contract), if that employee has, or had, access to HHS information 
systems or data.
    (i) Document information. The Contractor shall contact the 
Contracting Officer for any documents, information, or forms necessary 
to comply with the requirements of this clause.
    (j) Contractor responsibilities upon physical completion of the 
contract. The Contractor shall return all HHS information and IT 
resources provided to the Contractor during contract performance and 
certify that all HHS information has been purged from Contractor-owned 
systems used in contract performance.
    (k) Failure to comply. Failure on the part of the Contractor or its 
subcontractors to comply with the terms of this clause shall be grounds 
for the Contracting Officer to terminate this contract.

                             (End of clause)

[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21511, Apr. 26, 2010]



Sec. 352.239-73  Electronic information and technology accessibility.

    (a) As prescribed in 339.201-70(a), the Contracting Officer shall 
insert the following provision:

   Electronic and Information Technology Accessibility (January 2010)

    (a) Section 508 of the Rehabilitation Act of 1973 (29 U.S.C. 794d), 
as amended by the Workforce Investment Act of 1998, and the 
Architectural and Transportation Barriers Compliance Board Electronic 
and Information (EIT) Accessibility Standards (36 CFR Part 1194), 
require that, unless an exception applies, all EIT products and services 
developed, acquired, maintained, or used by any Federal department or 
agency permit--
    (1) Federal employees with disabilities to have access to and use 
information and data that is comparable to the access and use of 
information and data by Federal employees who are not individuals with 
disabilities; and
    (2) Members of the public with disabilities seeking information or 
services from a Federal agency to have access to and use of information 
and data that is comparable to the access and use of information and 
data by members of the public who are not individuals with disabilities.
    (b) Accordingly, any vendor submitting a proposal/quotation/bid in 
response to this solicitation must demonstrate compliance with the 
established EIT accessibility standards. Information about Section 508 
is available at http://www.section508.gov/. The complete text of Section 
508 Final Provisions can be accessed at http://www.access-board.gov/
sec508/provisions.htm.
    (c) The Section 508 accessibility standards applicable to this 
solicitation are identified in the Statement of Work/Specification/
Performance Work Statement. In order to facilitate the Government's 
evaluation to determine whether EIT products and services proposed meet 
applicable Section 508 accessibility standards, offerors must prepare an 
HHS Section 508 Product Assessment Template, in accordance with its 
completion instructions, and provide a binding statement of conformance. 
The purpose of the template is to assist HHS acquisition and program 
officials in determining that EIT products and services proposed support 
applicable Section 508 accessibility standards. The template allows 
vendors or developers to self-evaluate their products or services and 
document in detail how they do or do not conform to a specific Section 
508 accessibility standard. Instructions for preparing the HHS Section 
508 Evaluation Template may be found under Section 508 policy on the HHS 
Office on Disability Web site (http://www.hhs.gov/od).
    (d) Respondents to this solicitation must also provide any 
additional detailed information necessary for determining applicable 
Section 508 accessibility standards conformance, as well as for 
documenting EIT products or services that are incidental to the project, 
which would constitute an exception to Section 508 requirements. If a 
vendor claims its products or services, including EIT deliverables such 
as electronic documents and reports, meet applicable Section 508 
accessibility standards in its completed HHS Section 508 Product 
Assessment Template, and it is later determined by the Government--i.e., 
after award of a contract/order, that products or services delivered do 
not conform to the described accessibility standards in the Product 
Assessment Template, remediation of the products or services to the 
level of conformance specified in the vendor's Product Assessment 
Template will be the responsibility of the Contractor and at its 
expense.

                           (End of provision)

    (b) As prescribed in 339.201-70(b), the Contracting Officer shall 
insert the following clause:

   Electronic and Information Technology Accessibility (January 2010)

    (a) Pursuant to Section 508 of the Rehabilitation Act of 1973 (29 
U.S.C. 794d), as amended by the Workforce Investment Act of 1998, all 
electronic and information technology

[[Page 120]]

(EIT) products and services developed, acquired, maintained, or used 
under this contract/order must comply with the ``Electronic and 
Information Technology Accessibility Provisions'' set forth by the 
Architectural and Transportation Barriers Compliance Board (also 
referred to as the ``Access Board'') in 36 CFR part 1194. Information 
about Section 508 is available at http://www.section508.gov/. The 
complete text of Section 508 Final Provisions can be accessed at http://
www.access-board.gov/sec508/provisions.htm.
    (b) The Section 508 accessibility standards applicable to this 
contract/order are identified in the Statement of Work/Specification/
Performance Work Statement. The Contractor must provide a written 
Section 508 conformance certification due at the end of each contract/
order exceeding $100,000 when the contract/order duration is one year or 
less. If it is determined by the Government that EIT products and 
services provided by the Contractor do not conform to the described 
accessibility standards in the Product Assessment Template, remediation 
of the products or services to the level of conformance specified in the 
Contractor's Product Assessment Template will be the responsibility of 
the Contractor at its own expense.
    (c) In the event of a modification(s) to this contract/order, which 
adds new EIT products or services or revises the type of, or 
specifications for, products or services the Contractor is to provide, 
including EIT deliverables such as electronic documents and reports, the 
Contracting Officer may require that the contractor submit a completed 
HHS Section 508 Product Assessment Template to assist the Government in 
determining that the EIT products or services support Section 508 
accessibility standards. Instructions for documenting accessibility via 
the HHS Section 508 Product Assessment Template may be found under 
Section 508 policy on the HHS Office on Disability Web site (http://
www.hhs.gov/od).

    (c) As prescribed in 339.201-70(c), the Contracting Officer shall 
add the following paragraph to the end of clause 352.239-73(b):

    Prior to the Contracting Officer exercising an option for a 
subsequent performance period/additional quantity or adding funding for 
a subsequent performance period under this contract, as applicable, the 
Contractor must provide a Section 508 Annual Report to the Contracting 
Officer and Project Officer. Unless otherwise directed by the 
Contracting Officer in writing, the Contractor shall provide the cited 
report in accordance with the following schedule. Instructions for 
completing the report are available in the Section 508 policy on the HHS 
Office on Disability Web site under the heading Vendor Information and 
Documents. The Contractor's failure to submit a timely and properly 
completed report may jeopardize the Contracting Officer's exercising an 
option or adding funding, as applicable.

     Schedule for Contractor Submission of Section 508 Annual Report

    (To be completed by the Contracting Officer at time of contract/
order award.)

[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21512, Apr. 26, 2010]



Sec. 352.242-70  Key personnel.

    As prescribed in 342.302(c)(2), the Contracting Officer shall insert 
the following clause:

                      Key Personnel (January 2006)

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

                             (End of clause)



Sec. 352.242-71  Tobacco-free facilities.

    As prescribed in 342.302(c)(3), the Contracting Officer shall insert 
the following clause:

                 Tobacco-free Facilities (January 2006)

    In accordance with Department of Health and Human Services (HHS) 
policy, the Contractor and its staff are prohibited from using tobacco 
products of any kind (e.g., cigarettes, cigars, pipes, and smokeless 
tobacco) while on any HHS property, including use in personal or company 
vehicles operated by Contractor employees while on an HHS property. This 
policy also applies to all subcontracts awarded under the contract or 
order. The term ``HHS properties'' includes all properties owned, 
controlled and/or leased by HHS when totally occupied by HHS, including 
all indoor and outdoor areas of such properties. Where HHS only 
partially occupies such properties, it includes all HHS-

[[Page 121]]

occupied interior space. Where HHS leases space in a multi-occupant 
building or complex, the tobacco-free HHS policy will apply to the 
maximum area permitted by both law and current lease agreements. The 
Contractor shall ensure that each of its employees, and any 
subcontractor staff, is made aware of, understand, and comply with this 
policy.

                             (End of clause)



Sec. 352.242-72  Native American Graves Protection and Repatriation Act.

    As prescribed in 342.302(c)(4), the Contracting Officer shall insert 
the following clause:

  Native American Graves Protection and Repatriation Act (January 2006)

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

                             (End of clause)



Sec. 352.242-73  Withholding of contract payments.

    As prescribed in 342.7003-1(a), the Contracting Officer shall insert 
the following clause:

             Withholding of Contract Payments (January 2006)

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

                             (End of clause)



Sec. 352.242-74  Final decisions on audit findings.

    As prescribed in 342.7003-1(b), the Contracting Officer shall insert 
the following clause:

             Final Decisions on Audit Findings (April 1984)

    For the purpose of issuing final decisions under the Disputes clause 
of this contract concerning monetary audit findings, the Contracting 
Officer is the individual authorized to make such decisions.

                             (End of clause)



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

    As prescribed in 370.102, the Contracting Officer shall insert the 
following clause:

  Accessibility of Meetings, Conferences, and Seminars to Persons With 
                       Disabilities (January 2001)

    The Contractor agrees as follows:
    (a) Planning. The Contractor shall develop a plan to assure that any 
meeting, conference, or seminar held pursuant to this contract will meet 
or exceed the minimum accessibility standards set forth in 28 CFR 
36.101-36.500 and Appendix A: ADA Accessibility Guidelines (ADAAG). The 
Contractor shall submit the plan to the Contracting Officer's Technical 
Representative for approval prior to initiating action. (The Contractor 
may submit a consolidated or master plan for contracts requiring 
numerous meetings, conferences, or seminars in lieu of separate plans.)
    (b) Facilities. Any facility the Contractor intends to utilize for 
meetings, conferences, or seminars in performance of this contract shall 
be in compliance with 28 CFR 36.101-

[[Page 122]]

36.500 and Appendix A. The Contractor shall determine, by an on-site 
inspection, that the facility meets these requirements. (1) Parking. 
Parking shall be in compliance with 228 CFR 36.101-36.500 and Appendix 
A.
    (2) Entrances. Entrances shall be in compliance with 28 CFR 36.101-
36.500 and Appendix A.
    (3) Meeting Rooms. Meeting rooms, including seating arrangements, 
shall be in compliance with 28 CFR 36.101-36.500 and Appendix A. In 
addition, stages, speaker platforms, etc. which are to be used by 
persons in wheelchairs must be accessible by ramps or lifts. When used, 
the ramp may not necessarily be independently negotiable if space does 
not permit. However, the Contracting Officer's Technical Representative 
must approve any slope over 1:12, and the Contractor must provide 
assistance to negotiate access to the stage or platform.
    (4) Restrooms. Restrooms shall be in compliance with 28 CFR 36.101-
36.500 and Appendix A.
    (5) Eating Facilities. Eating facilities in the meeting facility 
must also comply with 28 CFR 36.101-36.500 and Appendix A.
    (6) Overnight Facilities. If overnight accommodations are required, 
the facility providing the overnight accommodations shall also comply 
with 28 CFR 36.101-36.500 and Appendix A.
    (7) Water Fountains. Water fountains shall comply with 28 CFR 
36.101-36.500 and Appendix A.
    (8) Telephones. Public telephones shall comply with 28 CFR 36.101-
36.500 and Appendix A.
    (c) Provisions of Services for Attendees with Sensory Impairments.
    (1) The Contractor, in planning the meeting, conference, or seminar, 
shall include in all announcements and other materials pertaining to the 
meeting, conference, or seminar a notice indicating that services will 
be made available to persons with sensory impairments attending the 
meeting, if requested within five (5) days of the date of the meeting, 
conference, or seminar. The announcement(s) and other material(s) shall 
indicate that persons with sensory impairments may contact a specific 
person(s), at a specific address and phone number(s), to make their 
service requirements known. The phone number(s) shall include a 
telecommunication device for the deaf (TDD).
    (2) The Contractor shall provide, at no additional cost to the 
individual, those services required by persons with sensory impairments 
to ensure their complete participation in the meeting, conference, or 
seminar.
    (3) At a minimum, when requested in advance, the Contractor shall 
provide the following services:
    (i) For persons with hearing impairments, qualified interpreters. 
Also, the meeting rooms shall be adequately illuminated so signing by 
interpreters can be easily seen.
    (ii) For persons with vision impairments, readers and/or cassette 
materials, as necessary, to enable full participation. Also, meeting 
rooms shall be adequately illuminated.
    (iii) Agenda and other conference material(s) shall be translated 
into a usable form for persons with sensory impairments. Readers, 
Braille translations, large print text, and/or tape recordings are all 
acceptable. These materials shall be available to individuals with 
sensory impairments upon their arrival.
    (4) The Contractor shall make a reasonable effort to ascertain the 
number of individuals with sensory impairments who plan to attend the 
meeting, conference, or seminar. However, if the Contractor can 
determine that there will be no person with sensory impairment in 
attendance, the provision of those services under paragraph (c) of this 
clause for the non-represented group, or groups, is not required.

                             (End of clause)



Sec. 352.270-2  Indian preference.

    As prescribed in 370.202(a), the Contracting Officer shall insert 
the following clause:

                     Indian Preference (April 1984)

    (a) The Contractor agrees to give preference in employment 
opportunities under this contract to Indians who can perform required 
work, regardless of age (subject to existing laws and regulations), sex, 
religion, or Tribal affiliation. To the extent feasible and consistent 
with the efficient performance of this contract, the Contractor further 
agrees to give preference in employment and training opportunities under 
this contract to Indians who are not fully qualified to perform 
regardless of age (subject to existing laws and regulations), sex, 
religion, or Tribal affiliation. The Contractor also agrees to give 
preference to Indian organizations and Indian-owned economic enterprises 
in the awarding of any subcontracts to the extent feasible and 
consistent with the efficient performance of this contract. The 
Contractor shall maintain statistical records as are necessary to 
indicate compliance with this paragraph.
    (b) In connection with the Indian employment preference requirements 
of this clause, the Contractor shall provide opportunities for training 
incident to such employment. Such training shall include on-the-job, 
classroom or apprenticeship training which is designed to increase the 
vocational effectiveness of an Indian employee.
    (c) If the Contractor is unable to fill its employment and training 
opportunities after

[[Page 123]]

giving full consideration to Indians as required by this clause, the 
Contractor may satisfy those needs by selecting persons other than 
Indians in accordance with the clause of this contract entitled ``Equal 
Opportunity.''
    (d) If no Indian organizations or Indian-owned economic enterprises 
are available under reasonable terms and conditions, including price, 
for awarding of subcontracts in connection with the work performed under 
this contract, the Contractor agrees to comply with the provisions of 
this contract involving utilization of small businesses; HUBZone small 
businesses; service-disabled, veteran-owned small businesses; 8(a) small 
businesses; veteran-owned small businesses; women-owned small 
businesses; or small disadvantaged businesses.
    (e) As used in this clause,
    (1) ``Indian'' means a person who is a member of an Indian Tribe. If 
the Contractor has reason to doubt that a person seeking employment 
preference is an Indian, the Contractor shall grant the preference but 
shall require the individual to provide evidence within 30 days from the 
Tribe concerned that the person is a member of the Tribe.
    (2) ``Indian Tribe'' means an Indian Tribe, pueblo, band, nation, or 
other organized group or community, including Alaska Native village or 
regional or village corporation as defined in or established pursuant to 
the Alaska Native Claims Settlement Act (85 Stat. 688; 43 U.S.C. 1601) 
which is recognized as eligible for the special programs and services 
provided by the United States to Indians because of their status as 
Indians.
    (3) ``Indian organization'' means the governing body of any Indian 
Tribe or entity established or recognized by such governing body in 
accordance with the Indian Financing Act of 1974 (88 Stat. 77; 25 U.S.C. 
1451).
    (4) ``Indian-owned economic enterprise'' means any Indian-owned 
commercial, industrial, or business activity established or organized 
for the purpose of profit, provided that such Indian ownership shall 
constitute not less than 51 percent of the enterprise, and that 
ownership shall encompass active operation and control of the 
enterprise.
    (f) The Contractor agrees to include the provisions of this clause, 
including this paragraph (f) of this clause, in each subcontract awarded 
at any tier under this contract.
    (g) In the event of noncompliance with this clause, the Contracting 
Officer may terminate the contract in whole or in part or may impose any 
other sanctions authorized by law or by other provisions of the 
contract.

                             (End of clause)



Sec. 352.270-3  Indian preference program.

    As prescribed in 370.202(b), the Contracting Officer shall insert 
the following clause:

                Indian Preference Program (January 2006)

    (a) In addition to the requirements of the clause of this contract 
entitled ``Indian Preference,'' the Contractor agrees to establish and 
conduct an Indian preference program which will expand opportunities for 
Indians to receive preference for employment and training in connection 
with the work to be performed under this contract, and which will expand 
the opportunities for Indian organizations and Indian-owned economic 
enterprises to receive a preference in the awarding of subcontracts. In 
this connection, the Contractor shall perform the following:
    (1) Designate a liaison officer who will maintain liaison with the 
Government and the Tribe(s) on Indian preference matters; supervise 
compliance with the provisions of this clause; and administer the 
Contractor's Indian preference program.
    (2) Advise its recruitment sources in writing and include a 
statement in all advertisements for employment that Indian applicants 
will be given preference in employment and training incident to such 
employment.
    (3) Not more than 20 calendar days after award of the contract, post 
a written notice in the Tribal office of any reservations on which or 
near where the work under this contract is to be performed that sets 
forth the Contractor's employment needs and related training 
opportunities. The notice shall include the approximate numbers and 
types of employees needed; the approximate dates of employment; the 
experience or special skills required for employment, if any; training 
opportunities available; and other pertinent information necessary to 
advise prospective employees of any other employment requirements. The 
Contractor shall also request the Tribe(s) on or near whose 
reservation(s) the work is to be performed to provide assistance to the 
Contractor in filling its employment needs and training opportunities. 
The Contracting Officer will advise the Contractor of the name, 
location, and phone number of the Tribal officials to contact in regard 
to the posting of notices and requests for Tribal assistance.
    (4) Establish and conduct a subcontracting program which gives 
preference to Indian organizations and Indian-owned economic enterprises 
as subcontractors and suppliers under this contract. The Contractor 
shall give public notice of existing subcontracting opportunities and, 
to the extent feasible and consistent with the efficient performance of 
this contract, shall solicit bids or proposals

[[Page 124]]

only from Indian organizations or Indian-owned economic enterprises. The 
Contractor shall request assistance and information on Indian firms 
qualified as suppliers or subcontractors from the Tribe(s) on or near 
whose reservation(s) the work under the contract is to be performed. The 
Contracting Officer will advise the Contractor of the name, location, 
and phone number of the Tribal officials to be contacted in regard to 
the request for assistance and information. Public notices and 
solicitations for existing subcontracting opportunities shall provide an 
equitable opportunity for Indian firms to submit bids or proposals by 
including--
    (i) A clear description of the supplies or services required, 
including quantities, specifications, and delivery schedules which 
facilitate the participation of Indian firms;
    (ii) A statement indicating that preference will be given to Indian 
organizations and Indian-owned economic enterprises in accordance with 
section 7(b) of Public Law 93-638 [88 Stat. 2205; 25 U.S.C. 450e(b)];
    (iii) Definitions for the terms ``Indian organization'' and 
``Indian-owned economic enterprise'' as prescribed under the ``Indian 
Preference'' clause of this contract;
    (iv) A statement to be completed by the bidder or offeror that it is 
an Indian organization or Indian-owned economic enterprise; and
    (v) A closing date for receipt of bids or proposals which provides 
sufficient time for preparation and submission of a bid or proposal. If 
after soliciting bids or proposals from Indian organizations and Indian-
owned economic enterprises, no responsive bid or acceptable proposal is 
received, the Contractor shall comply with the requirements of paragraph 
(d) of the ``Indian Preference'' clause of this contract. If one or more 
responsible bids or acceptable proposals are received, award shall be 
made to the low responsible bidder or acceptable offeror if the price is 
determined to be reasonable. If the low responsive bid or acceptable 
proposal is determined to be unreasonable as to price, the Contractor 
shall attempt to negotiate a reasonable price and award a subcontract. 
If a reasonable price cannot be agreed upon, the Contractor shall comply 
with the requirements of paragraph (d) of the ``Indian Preference'' 
clause of this contract.
    (5) Maintain written records under this contract which indicate--
    (i) The numbers of Indians seeking employment for each employment 
position available under this contract;
    (ii) The number and types of positions filled by Indians and non-
Indians;
    (iii) The total number of Indians employed under this contract;
    (iv) For those positions where there are both Indian and non-Indian 
applicants, and a non-Indian is selected for employment, the reason(s) 
why the Indian applicant was not selected;
    (v) Actions taken to give preference to Indian organizations and 
Indian-owned economic enterprises for subcontracting opportunities which 
exist under this contract;
    (vi) Reasons why preference was not given to Indian firms as 
subcontractors or suppliers for each requirement where it was determined 
by the Contractor that such preference would not be consistent with the 
efficient performance of the contract; and
    (vii) The number of Indian organizations and Indian-owned economic 
enterprises contacted, and the number receiving subcontract awards under 
this contract.
    (6) Submit to the Contracting Officer for approval a quarterly 
report which summarizes the Contractor's Indian preference program and 
indicates the number and types of available positions filled by Indians 
and non-Indians, and the dollar amounts of all subcontracts awarded to 
Indian organizations and Indian-owned economic enterprises, and to all 
other firms.
    (7) Maintain records pursuant to this clause and keep them available 
for review by the Government for one year after final payment under this 
contract, or for such longer period as may be required by any other 
clause of this contract or by applicable law or regulation.
    (b) For purposes of this clause, the following definitions of terms 
shall apply:
    (1) The terms ``Indian,'' ``Indian Tribe,'' ``Indian Organization,'' 
and ``Indian-owned economic enterprise'' are defined in the clause of 
this contract entitled ``Indian Preference.''
    (2) ``Indian reservation'' includes Indian reservations, public 
domain Indian Allotments, former Indian reservations in Oklahoma, and 
land held by incorporated Native groups, regional corporations, and 
village corporations under the provisions of the Alaska Native Claims 
Settlement Act (85 Stat. 688; 43 U.S.C. 1601 et seq.)
    (3) ``On or near an Indian Reservation'' means on a reservation or 
reservations or within that area surrounding an Indian reservation(s) 
where a person seeking employment could reasonably be expected to 
commute to and from in the course of a work day.
    (c) Nothing in the requirements of this clause shall be interpreted 
to preclude Indian Tribes from independently developing and enforcing 
their own Indian preference requirements. Such requirements must not 
conflict with any Federal statutory or regulatory requirement dealing 
with the award and administration of contracts.
    (d) The Contractor agrees to include the provisions of this clause, 
including this paragraph (d), in each subcontract awarded at any tier 
under this contract and to notify the Contracting Officer of such 
subcontracts.

[[Page 125]]

    (e) In the event of noncompliance with this clause, the Contracting 
Officer may terminate the contract in whole or in part or may impose any 
other sanctions authorized by law or by other provisions of the 
contract.

                             (End of clause)



Sec. 352.270-4  Protection of human subjects.

    (a) As prescribed in 370.303(a), the Contracting Officer shall 
insert the following provision:

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

    (a) Copies of the Department of Health and Human Services (HHS) 
regulations for the protection of human subjects, 45 CFR Part 46, are 
available from the Office for Human Research Protections (OHRP), 
Bethesda, Maryland 20892. The regulations provide a systematic means, 
based on established ethical principles, to safeguard the rights and 
welfare of individuals who participate as subjects in research 
activities supported or conducted by HHS.
    (b) The regulations define a human subject as a living individual 
about whom an investigator (whether professional or student) conducting 
research obtains data through intervention or interaction with the 
individual, or identifiable private information. The regulations extend 
to the use of human organs, tissue, and body fluids from individually 
identifiable human subjects as well as to graphic, written, or recorded 
information derived from individually identifiable human subjects. The 
use of autopsy materials is governed by applicable State and local law 
and is not directly regulated by 45 CFR Part 46.
    (c) Activities in which the only involvement of human subjects will 
be in one or more of the categories set forth in 45 CFR 46.101(b)(1-6) 
are exempt from coverage.
    (d) Inappropriate designations of the noninvolvement of human 
subjects or of exempt categories of research in a project may result in 
delays in the review of a proposal. The Government's Project Officer 
will make a final determination of whether the proposed activities are 
covered by the regulations or are in an exempt category, based on the 
information provided in the proposal. In doubtful cases, the Project 
Officer will consult with OHRP.
    (e) In accordance with 45 CFR Part 46, offerors being considered for 
award shall file with OHRP an acceptable Assurance of Compliance with 
the regulations, specifying review procedures and assigning 
responsibilities for the protection of human subjects. The initial and 
continuing review of a research project by an institutional review board 
shall ensure that: the rights and welfare of the human subjects involved 
are adequately protected; the risks to the subjects are reasonable in 
relation to both the potential benefits, if any, to the subjects and the 
importance of the knowledge to be gained; and informed consent will be 
obtained by methods that are adequate and appropriate. HHS regulations 
for the protection of human subjects (45 CFR Part 46), information 
regarding OHRP registration and assurance requirements/processes, and 
OHRP contact information can be accessed at the OHRP Web site (at http:/
/www.hhs.gov/ohrp/).
    (f) Offerors may consult with OHRP for advice or guidance concerning 
either regulatory requirements or ethical issues pertaining to research 
involving human subjects.

                           (End of provision)

    (b) As prescribed in 370.304(a), the Contracting Officer shall 
insert the following clause:

               Protection of Human Subjects (January 2006)

    (a) The Contractor agrees that the rights and welfare of human 
subjects involved in research under this contract shall be protected in 
accordance with 45 CFR Part 46 and with the Contractor's current 
Assurance of Compliance on file with the Office for Human Research 
Protections (OHRP), Department of Health and Human Services. The 
Contractor further agrees to provide certification at least annually 
that the Institutional Review Board has reviewed and approved the 
procedures, which involve human subjects in accordance with 45 CFR Part 
46 and the Assurance of Compliance.
    (b) The Contractor shall bear full responsibility for the 
performance of all work and services involving the use of human subjects 
under this contract and shall ensure that work is conducted in a proper 
manner and as safely as is feasible. The parties hereto agree that the 
Contractor retains the right to control and direct the performance of 
all work under this contract. The Contractor shall not deem anything in 
this contract to constitute the Contractor or any subcontractor, agent 
or employee of the Contractor, or any other person, organization, 
institution, or group of any kind whatsoever, as the agent or employee 
of the Government. The Contractor agrees that it has entered into this 
contract and will discharge its obligations, duties, and undertakings 
and the work pursuant thereto, whether requiring professional judgment 
or otherwise, as an independent contractor without imputing liability on 
the part of the Government for the acts of the Contractor or its 
employees.

[[Page 126]]

    (c) If at any time during the performance of this contract, the 
Contracting Officer determines, in consultation with OHRP that the 
Contractor is not in compliance with any of the requirements and/or 
standards stated in paragraphs (a) and (b) above, the Contracting 
Officer may immediately suspend, in whole or in part, work and further 
payments under this contract until the Contractor corrects the 
noncompliance. The Contracting Officer may communicate the notice of 
suspension by telephone with confirmation in writing. If the Contractor 
fails to complete corrective action within the period of time designated 
in the Contracting Officer's written notice of suspension, the 
Contracting Officer may, after consultation with OHRP, terminate this 
contract in whole or in part, and the Contractor's name may be removed 
from the list of those contractors with approved Human Subject 
Assurances.

                             (End of clause)



Sec. 352.270-5  Care of laboratory animals.

    (a) As prescribed in 370.403(a), the Contracting Officer shall 
insert the following provision:

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

    The Public Health Service (PHS) Policy on Humane Care and Use of 
Laboratory Animals (PHS Policy) establishes a number of requirements for 
research activities involving animals. Before award may be made to an 
applicant organization, the organization shall file, with the Office of 
Laboratory Animal Welfare (OLAW), National Institutes of Health (NIH), a 
written Animal Welfare Assurance (Assurance) which commits the 
organization to comply with the provisions of the PHS Policy, the Animal 
Welfare Act, and the Guide for the Care and Use of Laboratory Animals 
(National Academy Press, Washington, DC). In accordance with the PHS 
Policy, applicant organizations must establish an Institutional Animal 
Care & Use Committee (IACUC), qualified through the experience and 
expertise of its members, to oversee the institution's animal program, 
facilities and procedures. Applicant organizations are required to 
provide verification of IACUC approval prior to release of an award 
involving live vertebrate animals. No award involving the use of animals 
shall be made unless OLAW approves the Assurance and verification of 
IACUC approval for the proposed animal activities has been provided to 
the Contracting Officer. Prior to award, the Contracting Officer will 
notify Contractor(s) selected for projects that involve live vertebrate 
animals that an Assurance and verification of IACUC approval are 
required. The Contracting Officer will request that OLAW negotiate an 
acceptable Assurance with those Contractor(s) and request verification 
of IACUC approval. For further information, contact OLAW at NIH, 6705 
Rockledge Drive, RKL1, Suite 360, MSC 7982 Bethesda, Maryland 20892-7982 
(E-mail: [email protected]; Phone: 301-496-7163).

                           (End of provision)

    (b) As prescribed in 370.404, the Contracting Officer shall insert 
the following clause:

             Care of Live Vertebrate Animals (October 2009)

    (a) Before undertaking performance of any contract involving animal-
related activities where the species is regulated by USDA, the 
Contractor shall register with the Secretary of Agriculture of the 
United States in accordance with 7 U.S.C. 2136 and 9 CFR sections 2.25 
through 2.28. The Contractor shall furnish evidence of the registration 
to the Contracting Officer.
    (b) The Contractor shall acquire vertebrate animals used in research 
from a dealer licensed by the Secretary of Agriculture under 7 U.S.C. 
2133 and 9 CFR Sections 2.1-2.11, or from a source that is exempt from 
licensing under those sections.
    (c) The Contractor agrees that the care, use and intended use of any 
live vertebrate animals in the performance of this contract shall 
conform with the Public Health Service (PHS) Policy on Humane Care of 
Use of Laboratory Animals (PHS Policy), the current Animal Welfare 
Assurance (Assurance), the Guide for the Care and Use of Laboratory 
Animals (National Academy Press, Washington, DC) and the pertinent laws 
and regulations of the United States Department of Agriculture (see 7 
U.S.C. 2131 et seq. and 9 CFR Subchapter A, Parts 1-4). In case of 
conflict between standards, the more stringent standard shall govern.
    (d) If at any time during performance of this contract, the 
Contracting Officer determines, in consultation with the Office of 
Laboratory Animal Welfare (OLAW), National Institutes of Health (NIH), 
that the Contractor is not in compliance with any of the requirements 
and standards stated in paragraphs (a) through (c) above, the 
Contracting Officer may immediately suspend, in whole or in part, work 
and further payments under this contract until the Contractor corrects 
the noncompliance. Notice of the suspension may be communicated by 
telephone and confirmed in writing. If the Contractor fails to complete 
corrective action within the period of time designated in the 
Contracting Officer's written notice of suspension, the Contracting 
Officer may, in consultation with OLAW, NIH, terminate this contract in 
whole or in part, and the

[[Page 127]]

Contractor's name may be removed from the list of those contractors with 
approved Assurances.

    Note: The Contractor may request registration of its facility and a 
current listing of licensed dealers from the Regional Office of the 
Animal and Plant Health Inspection Service (APHIS), USDA, for the region 
in which its research facility is located. The location of the 
appropriate APHIS Regional Office, as well as information concerning 
this program may be obtained by contacting the Animal Care Staff, USDA/
APHIS, 4700 River Road, Riverdale, Maryland 20737 (E-mail: 
[email protected]; Web site: (http://www.aphis.usda.gov/animal--
welfare).

                             (End of clause)



Sec. 352.270-6  Restriction on use of human subjects.

    As prescribed in 370-304(b), the Contracting Officer shall insert 
the following clause:

           Restriction on Use of Human Subjects (January 2006)

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

                             (End of clause)



Sec. 352.270-7  Conference sponsorship request and conference materials 
          disclaimer.

    As prescribed in 370.602, the Contracting Officer shall insert the 
following clause:

   Conference Sponsorship Request and Conference Materials Disclaimer 
                             (January 2010)

    (a) If HHS is not the sole provider of funding under this conference 
contract, then prior to the Contractor claiming HHS conference 
sponsorship, the Contractor shall submit a written request (including 
rationale) to the Contracting Officer for permission to claim such HHS 
sponsorship.
    (b) Whether or not HHS is the conference sponsor, the Contractor 
shall include the following statement on conference materials, including 
promotional materials, agendas, and Web sites:
    ``This conference was funded, in whole or in part, through a 
contract (insert contract number) with the Department of Health and 
Human Services (HHS) (insert name of OPDIV/STAFFDIV). The views 
expressed in written conference materials and by speakers and moderators 
at this conference, do not necessarily reflect the official policies of 
HHS, nor does mention of trade names, commercial practices, or 
organizations imply endorsement by the U.S. Government.''
    (c) Unless authorized by the Contracting Officer's Technical 
Representative, the Contractor shall not display the HHS logo on any 
conference materials.

                             (End of clause)

[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21512, Apr. 26, 2010]



Sec. 352.270-8  Prostitution and related activities.

    As prescribed in 370.701, the Contracting Officer shall insert the 
following clause:

           Prostitution and Related Activities (January 2010)

    (a) The U.S. Government is opposed to prostitution and related 
activities, which are inherently harmful and dehumanizing and contribute 
to the phenomenon of trafficking in persons.
    (b) Neither the Contractor nor any subcontractor(s) shall use 
Government funds provided under this contract to promote or advocate the 
legalization or practice of prostitution or sex trafficking. (Note: The 
term ``contract'' includes ``order'' wherever it appears in this 
clause.) The Contractor shall not construe anything in the preceding 
sentence to preclude providing individuals with palliative care, 
treatment, or post-exposure pharmaceutical prophylaxis, and necessary 
pharmaceuticals and commodities, including test kits, condoms, and, when 
proven effective, microbicides.
    (c) The Government does not require the Contractor to endorse or 
utilize a multisectoral approach to combating HIV/AIDS, or endorse, 
utilize, or participate in a prevention method or treatment program to 
which it has a religious or moral objection. Any information the 
Contractor provides about the use of condoms as part of projects or 
activities that are funded in connection with this contract shall be 
medically accurate and shall include the public health benefits and 
failure rates of such use.
    (d) In addition, the Contractor shall have a policy explicitly 
opposing prostitution and sex trafficking. The preceding sentence shall 
not apply to any ``exempt organizations''

[[Page 128]]

(i.e., the Global Fund to Fight AIDS, Tuberculosis and Malaria; the 
World Health Organization; the International AIDS Vaccine Initiative; 
and any United Nations agency), or to any contractors that are awarded 
``specified types of commercial contracts'' as set forth below.
    (e) The following definitions apply for purposes of this clause:
    (1) ``Commercial sex act'' means any sex act on account of which 
anything of value is given to or received by any person.
    (2) ``Prostitution'' means procuring or providing any commercial sex 
act.
    (3) ``Sex trafficking'' means the recruitment, harboring, 
transportation, provision, or obtaining of a person for the purpose of a 
commercial sex act [22 U.S.C. 7102(9)].
    (4) ``Specified types of commercial contracts'' means contracts 
awarded for commercial items and services as defined in Federal 
Acquisition Regulation (FAR) 2.101, such as pharmaceuticals, medical 
supplies, logistics support, data management, and freight forwarding. 
Notwithstanding the preceding definition of ``specified types of 
commercial contracts,'' contracts for the purposes specified in 
paragraphs (e)(4)(i) through (iii) of this clause, that are awarded to 
implement HIV/AIDS programs, require that the Contractor have a policy 
explicitly opposing prostitution and sex trafficking--
    (i) Supplies or services provided directly to the final populations 
receiving such supplies or services in host countries;
    (ii) Technical assistance and training furnished directly to host 
country individuals or entities for the provision of supplies or 
services to the final populations receiving such supplies and services; 
or
    (iii) The types of services listed in FAR 37.203(b)(1)-(6) that 
involve giving advice about substantive policies of a recipient, giving 
advice regarding the activities referenced in paragraphs (e)(4)(i) and 
(ii) of this clause, or making decisions or functioning in a recipient's 
chain of command (e.g., providing managerial or supervisory services; 
approving financial transactions, personnel actions, etc.).
    (f) The Contractor must have and maintain ``objective integrity and 
independence'' from any organization that engages in activities 
inconsistent with a policy opposing prostitution and sex trafficking. 
HHS will consider the Contractor to have objective integrity and 
independence from such an organization if the--
    (1) Organization is a legally separate entity;
    (2) Organization receives no transfer of Leadership Act funds, and 
Leadership Act funds do not subsidize activities inconsistent with a 
policy opposing prostitution and sex trafficking; and
    (3) Contractor is physically and financially separate from the 
organization. Mere bookkeeping separation of Leadership Act funds from 
other funds is not sufficient. HHS will determine, on a case-by-case 
basis, and based on the totality of the facts, whether sufficient 
physical and financial separation exists. The presence or absence of any 
one factor below will not be determinative. Factors relevant to this 
determination shall include, but not be limited to, the following:
    (i) The existence of separate personnel, management, and governance.
    (ii) The existence of separate accounts, accounting records, and 
timekeeping records.
    (iii) The degree of separation from facilities, equipment, and 
supplies used by the organization to conduct activities inconsistent 
with a policy opposing prostitution and sex trafficking, and the extent 
of such activities by the organization.
    (iv) The extent to which--
    (A) Signs and other forms of identification that distinguish the 
Contractor from the organization are present, and
    (B) Signs and materials that could be associated with the 
organization or activities inconsistent with a policy opposing 
prostitution and sex trafficking are absent.
    (v) The extent to which the U.S. Government, HHS, and the project 
name are protected from public association with an organization and its 
activities that are inconsistent with a policy opposing prostitution and 
sex trafficking in materials, such as publications, conferences, and 
press or public statements.
    (g) The Contractor shall include, as express terms and conditions, 
the applicable provisions of this clause in all subcontract 
solicitations and subcontracts awarded under this contract. The 
Contractor agrees that HHS may, at any reasonable time, inspect the 
documents and materials the Contractor maintains or prepares in the 
usual course of its operations that relate to the Contractor's 
compliance with this clause.
    (h) As a prerequisite to award and payment of any Government funds 
under this contract, the Contractor shall certify compliance with this 
clause for the performance period funded by the contract. The Contractor 
shall provide the three following compliance certifications in a written 
statement addressed to the Contracting Officer:
    (1) Organizational Integrity Certification:
    ``I certify that (insert Contractor's name), which will be the 
recipient of Government funds made available through this contract, has 
objective integrity and independence from any organization that engages 
in activities inconsistent with a policy opposing prostitution and sex 
trafficking.''
    (2) Subcontractor Compliance Certification:
    ``I certify that (insert Contractor's name) will include the 
Organizational Integrity certification in any subcontract awarded under 
this contract and will require such

[[Page 129]]

subcontractor to provide the same certification that the Contractor 
provided.''
    (3) Acknowledgment Certification:
    ``I certify that (insert Contractor's name) acknowledges that these 
certifications are a prerequisite to receipt of Government funds in 
connection with this contract, and that any violation of these 
certifications by the Contractor or subcontractor(s) at any level shall 
be grounds for termination of the contract by HHS in accordance with the 
Federal Acquisition Regulation, Part 49, as well as any other remedies 
provided by law.''

    Note: In the case of existing contracts, the Contracting Officer 
shall add the certification requirements whenever the contract is 
modified to extend the period of performance or add funds, including any 
options that may be exercised. In so doing, the Contracting Officer 
shall delete in paragraph (h) the language ``As a prerequisite to award 
and payment of any Government funds under this contract,'' and replace 
it with: ``As a prerequisite to continuation of this contract and 
payment of any Government funds under it,''.

    (i) A person(s) authorized to bind the Contractor and any 
subcontractor(s) shall execute the certifications. The Contractor shall 
provide its certifications to the Contracting Officer. A 
subcontractor(s) shall provide its certifications to the Contractor. The 
Contracting Officer may request that the Contractor provide any 
subcontractor certifications. In addition, the Contractor and any 
subcontractors shall provide renewed certifications for any modification 
that extends the contract period of performance or adds funds to the 
contract, including any options that may be exercised.
    (j) This clause does not affect the applicability of the FAR clause 
at 52.222-50 entitled, ``Combating Trafficking in Persons.''

                             (End of clause)

[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21512, Apr. 26, 2010]



Sec. 352.270-9  Non-discrimination for conscience.

    As prescribed in 370.702, the Contracting Officer shall insert the 
following provision:

            Non-discrimination for Conscience (January 2010)

    (a) Section 301(d) of the United States Leadership Against HIV/AIDS, 
Tuberculosis, and Malaria Act, as amended, provides that an 
organization, including a faith-based organization, that is otherwise 
eligible to receive assistance under section 104A of the Foreign 
Assistance Act of 1961, under the United States Leadership Against HIV/
AIDS, Tuberculosis, and Malaria Act of 2003, under the Tom Lantos and 
Henry J. Hyde United States Global Leadership Against HIV/AIDS, 
Tuberculosis, and Malaria Reauthorization Act of 2008, or under any 
amendment to the foregoing Acts for HIV/AIDS prevention, treatment, or 
care--
    (1) Shall not be required, as a condition of receiving such 
assistance, to--
    (i) Endorse or utilize a multisectoral or comprehensive approach to 
combating HIV/AIDS; or
    (ii) Endorse, utilize, make a referral to, become integrated with, 
or otherwise participate in any program or activity to which the 
organization has a religious or moral objection.
    (2) Shall not be discriminated against under the provisions of law 
in subparagraph (a) for refusing to meet any requirement described in 
paragraph (a)(1) in this solicitation.
    (b) Accordingly, an offeror who believes this solicitation contains 
work requirements that would require it to endorse or utilize a 
multisectoral or comprehensive approach to combating HIV/AIDS, or to 
endorse, utilize, make referral to, become integrated with, or otherwise 
participate in a program or activity to which it has a religious or 
moral objection, shall identify those work requirements it has excluded 
in its technical proposal.
    (c) The Government acknowledges that an offeror has specific rights, 
as cited in paragraph (b) of this provision, to exclude certain work 
requirements in this solicitation from its proposal. However, the 
Government reserves the right to not make an award to an offeror whose 
proposal does not comply with the salient work requirements of the 
solicitation. Any exercise of that Government right will be made by the 
Head of the Contracting Activity.

                           (End of provision)

[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21512, Apr. 26, 2010]

                             PART 353_FORMS

                  Subpart 353.3_Illustrations of Forms

Sec.

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

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

    Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.

[[Page 130]]

                  Subpart 353.3_Illustrations of Forms



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

    This form is available from local cost advisory personnel or PSC.

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

                       SUBCHAPTERS I	L [RESERVED]

                        PARTS 354	369 [RESERVED]

[[Page 131]]

                    SUBCHAPTER M_HHS SUPPLEMENTATIONS

             PART 370_SPECIAL PROGRAMS AFFECTING ACQUISITION

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

Sec.

Sec. 370.101 Policy.

Sec. 370.102 Responsibilities.

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


Sec. 370.201 Statutory requirements.

Sec. 370.202 Applicability.

Sec. 370.203 Definitions.

Sec. 370.204 Compliance enforcement.

Sec. 370.205 Tribal preference requirements.

           Subpart 370.3_Acquisitions Involving Human Subjects


Sec. 370.300 Scope of subpart.

Sec. 370.301 Policy.

Sec. 370.302 Types of assurances.

Sec. 370.303 Notice to offerors.

Sec. 370.304 Contract clauses.

   Subpart 370.4_Acquisitions Involving the Use of Laboratory Animals


Sec. 370.400 Scope of subpart.

Sec. 370.401 Policy.

Sec. 370.402 Assurances.

Sec. 370.403 Notice to offerors.

Sec. 370.404 Contract clause.

           Subpart 370.5_Acquisitions Under the Buy Indian Act


Sec. 370.500 Scope of subpart.

Sec. 370.501 Policy.

Sec. 370.502 Definitions.

Sec. 370.503 Requirements.

Sec. 370.504 Competition.

Sec. 370.505 Responsibility determinations.

            Subpart 370.6_Conference Funding and Sponsorship


Sec. 370.600 Policy.

Sec. 370.601 Funding and sponsorship.

Sec. 370.602 Contract clause.

           Subpart 370.7_Acquisitions under the Leadership Act


Sec. 370.700 Scope of subpart.

Sec. 370.701 Contract clause.

Sec. 370.702 Solicitation provision.

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

    Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.

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



Sec. 370.101  Policy.

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



Sec. 370.102  Responsibilities.

    (a) The Contracting Officer shall insert the clause in 352.270-1, 
Accessibility of Meetings, Conferences, and Seminars to Persons with 
Disabilities, in solicitations, contracts, and orders when the SOW/PWS 
requires the contractor to conduct meetings, conferences, or seminars in 
accordance with 370.101(b).
    (b) The COTR shall obtain, review, and approve the contractor's 
plan, which is to be submitted in response to paragraph (a) of the 
contract clause in 352.270-1. A consolidated or master plan for 
contracts requiring numerous meetings, conferences, or seminars is 
acceptable. The COTR, prior to approving the plan, shall consult with 
the OPDIV or other designated organization responsible for monitoring 
compliance with the Architectural Barriers Act of 1968 and the Americans 
with Disabilities Act of 1990, to ensure that the contractor's plan 
meets the accessibility requirements of the contract

[[Page 132]]

clause. The COTR shall request the responsible organization to review, 
and determine the adequacy of, the contractor's plan, and respond to the 
COTR, in writing, within 10 working days of receiving the request from 
the COTR.

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



Sec. 370.201  Statutory requirements.

    Section 7(b) of the Indian Self-Determination and Education 
Assistance Act, Public Law 93-638, 88 Stat. 2205, 25 U.S.C. 450e(b), 
requires:
    ``Any contract, subcontract, grant, or subgrant pursuant to this 
Act, the Act of April 16, 1934 (48 Stat. 596), as amended, or any other 
Act authorizing Federal contracts with or grants to Indian organizations 
or for the benefit of Indians, shall require that to the greatest extent 
feasible:
    (1) Preferences and opportunities for training and employment in 
connection with the administration of such contracts or grants shall be 
given to Indians; and
    (2) Preference in the award of subcontracts and subgrants in 
connection with the administration of such contracts or grants shall be 
given to Indian organizations and to Indian-owned economic enterprises 
as defined in section 3 of the Indian Financing Act of 1974 (88 Stat. 
77).''



Sec. 370.202  Applicability.

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



Sec. 370.203  Definitions.

    For purposes of this Subpart 370.2, the following definitions shall 
apply:
    (a) Indian means a person who is a member of an Indian Tribe. If the 
contractor has reason to doubt that a person seeking employment 
preference is an Indian, the contractor shall grant the preference but 
shall require the individual to provide evidence within 30 days from the 
Tribe concerned that the person is a member of the Tribe.
    (b) Indian Tribe means an Indian Tribe, pueblo, band, nation, or 
other organized group or community, including any Alaska Native Village 
or regional or village corporation as defined in or established pursuant 
to the Alaska Native Claims Settlement Act (85 Stat. 688, 43 U.S.C. 
1601), which is recognized as eligible for the special programs and 
services provided by the United States to Indians because of their 
status as Indians.

[[Page 133]]

    (c) Indian organization means the governing body of any Indian 
Tribe, or entity established or recognized by such governing body, in 
accordance with the Indian Financing Act of 1974 (88 Stat. 77, 25 U.S.C. 
1451).
    (d) Indian-owned economic enterprise means any Indian-owned 
commercial, industrial, or business activity established or organized 
for the purpose of profit, provided that such Indian ownership shall 
constitute not less than 51 percent of the enterprise, and the ownership 
shall encompass active operation and control of the enterprise.
    (e) Indian reservation includes Indian reservations, public domain 
Indian allotments, former Indian reservations in Oklahoma, and land held 
by incorporated Native groups, regional corporations, and village 
corporations under the provisions of the Alaska Native Claims Settlement 
Act (85 Stat. 688, 43 U.S.C. 1601 et seq.)
    (f) On or near an Indian Reservation means on a reservation or 
reservations or within that area surrounding an Indian reservation(s) 
where a person seeking employment could reasonably be expected to 
commute to and from in the course of a work day.



Sec. 370.204  Compliance enforcement.

    (a) The contracting activity shall conduct periodic reviews to 
ensure contractor compliance with the requirements of the clauses in 
352.270-2 and 352.270-3. The Indian Tribe(s) concerned may assist in the 
conduct of these reviews.
    (b) The Contracting Officer shall promptly investigate and resolve 
complaints of noncompliance with the requirements of the clauses in 
352.270-2 and 352.270-3 that are filed in writing with the contracting 
activity.



Sec. 370.205  Tribal preference requirements.

    (a) When the contractor will perform work under a contract on an 
Indian reservation, the Contracting Officer may supplement the clause in 
352.270-3 by adding specific Indian preference requirements of the Tribe 
on whose reservation the work is to be performed. The contracting 
activity and the Tribe shall jointly develop supplemental requirements 
for the contract. Supplemental preference requirements shall represent a 
further implementation of the requirements of section 7(b) of Public Law 
93-638 and require the approval of the affected program director and 
OGC-GLD, or a regional attorney, before the Contracting Officer adds 
them to a solicitation and resultant contract. Any supplemental 
preference requirements the Contracting Officer adds to the clause in 
352.270-3 shall also be part of the solicitation and clearly identified, 
to ensure uniform understanding of the additional requirements by all 
prospective bidders or offerors.
    (b) Nothing in this part shall preclude tribes from independently 
developing and enforcing their own Tribal preference requirements. Such 
independently developed Tribal preference requirements shall not, except 
as provided in paragraph (a) of this section, become a requirement in 
contracts covered under this 370.2, and shall not conflict with any 
Federal statutory or regulatory requirement concerning the award and 
administration of contracts.

           Subpart 370.3_Acquisitions Involving Human Subjects



Sec. 370.300  Scope of subpart.

    This subpart applies to all R & D activities involving human 
subjects conducted under contract--see 45 CFR 46.102(d) and (f).



Sec. 370.301  Policy.

    It is HHS policy that the Contracting Officer shall not award a 
contract involving human subjects until a prospective contractor has 
provided acceptable assurance that the activity will be subject to 
initial and continuing review by an appropriate Institutional Review 
Board (IRB) as described in HHS regulations at 45 CFR 46.103. The 
Contracting Officer shall require an applicable Federal-wide assurance 
(FWA), approved by the HHS Office for Human Research Protections (OHRP), 
of each contractor, subcontractor, or cooperating institution having 
responsibility for human subjects involved in performance of a contract. 
OHRP is responsible for negotiating assurances covering all HHS-
supported or HHS-conducted activities involving

[[Page 134]]

human subjects. OHRP shall provide guidance to Contracting Officers 
regarding non-award or termination of a contract due to inadequate 
assurance or breach of assurance for protection of human subjects.



Sec. 370.302  Types of assurances.

    (a) If an institution does not currently hold an FWA, it should 
submit one. An FWA listed in OHRP's current ``List of Registered 
Institutional Review Boards (IRBs)/Independent Ethics Committees (IECs) 
and Approved Assurances'' is acceptable for the purposes of this policy.
    (b) The OHRP Web site includes links to instructions and the forms 
for submitting both a domestic and international FWA at: http://
www.hhs.gov/ohrp/assurances/assurances--index.html. To expedite approval 
of a FWA, as well as any update/renewal, the institution shall use the 
OHRP Electronic Submission System. Once the institution ``submits'' an 
electronic file to OHRP, the institution must fax or mail (but not both) 
a copy of the signature page to initiate the review process. The 
institution shall mail the FWA to the OHRP, U.S. Department of Health 
and Human Services, 1101 Wootton Parkway, Suite 200, Rockville, Maryland 
20852, or fax it to OHRP at 240-453-8202 (but not both).



Sec. 370.303  Notice to offerors.

    (a) The Contracting Officer shall insert the provision in 352.270-
4(a), Notice to Offerors of Requirements of 45 CFR Part 46, Protection 
of Human Subjects, in solicitations that involve human subjects.
    (b) Institutions having an OHRP-approved FWA shall certify IRB 
approval of submitted proposals in the manner required by instructions 
for completion of the contract proposal; by completion of an OMB Form 
No. 0990-0263, ``Protection of Human Subjects Assurance Identification/
IRB Certification/Declaration of Exemption (Common Rule); or by letter 
indicating the institution's OHRP-assigned FWA number, the date of IRB 
review and approval, and the type of review (convened or expedited). The 
date of IRB approval must not be more than 12 months prior to the 
deadline for proposal submission.
    (c) The Contracting Officer generally will not request FWAs for 
contractors, subcontractors, or cooperating institutions prior to 
determination that a contract proposal has been selected for 
negotiation. When a contractor submits an FWA, it provides certification 
for the initial contract period. No additional documentation is 
required. If the contract provides for additional years to complete the 
project, the contractor shall certify the noncompetitive renewal 
proposal in the manner described in the preceding paragraph.



Sec. 370.304  Contract clauses.

    (a) The Contracting Officer shall insert the clause in 352.270-4(b), 
Protection of Human Subjects, in solicitations, contracts, and orders 
that involve human subjects.
    (b) The Contracting Officer shall insert the clause in 352.270-6, 
Restriction on Use of Human Subjects, in contracts and orders if the 
contractor has an approved Federal-wide assurance of compliance in 
place, but cannot certify prior to award that the research has been 
reviewed and approved by the IRB designated under the contractor's 
Federal-wide assurance of compliance, because definite plans for 
involvement of human subjects are not set forth in the proposal (e.g., 
projects in which human subjects' involvement will depend upon 
completion of instruments, prior animal studies, or purification of 
compounds). Under these conditions, the Contracting Officer may make the 
award without the requisite certification, as long as the Contracting 
Officer includes appropriate conditions in the contract or order.

   Subpart 370.4_Acquisitions Involving the Use of Laboratory Animals



Sec. 370.400  Scope of subpart.

    This subpart applies to all R & D, research training, biological 
testing, housing and maintenance, and other activities involving live 
vertebrate animals conducted under contract (see

[[Page 135]]

Public Health Service Policy on Humane Care and Use of Laboratory 
Animals (PHS Policy), Rev. 1986, Repr. 1996).

[75 FR 21512, Apr. 26, 2010]



Sec. 370.401  Policy.

    (a) It is HHS policy that contracting activities shall not award a 
contract involving live vertebrate animals until the contractor has 
given acceptable assurance that the work under the contract will be 
subject to initial and continuing review by an appropriate Institutional 
Animal Care and Use Committee (IACUC) as described in the PHS Policy at 
IV.B.6. and 7. The Contracting Officer shall require an applicable Full 
Animal Welfare Assurance or Inter-institutional Agreement/Assurance, 
approved by the Office of Laboratory Animal Welfare (OLAW), NIH, of each 
contractor, subcontractor, or cooperating institution having 
responsibility for animal care and use involved in performance of the 
contract--see PHS Policy II., IV.A., and V.B.
    (b) The OLAW, NIH, is responsible for negotiating assurances 
covering all HHS/PHS-supported or HHS/PHS-conducted activities involving 
the care and use of live vertebrate animals. OLAW shall provide guidance 
to Contracting Officers regarding adequate animal care, and use, 
approval, disapproval, restriction, or withdrawal of approval of 
assurances--see PHS Policy V.A.



Sec. 370.402  Assurances.

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



Sec. 370.403  Notice to offerors.

    (a) The Contracting Officer shall insert the provision in 352.270-
5(a), Notice to Offerors of Requirement for Compliance with the Public 
Health Service Policy on Humane Care and Use of Laboratory Animals, in 
solicitations that involve live vertebrate animals.
    (b) Offerors having a full AWA on file with OLAW shall submit IACUC 
approval of the use of animals in the manner required by instructions 
for completion of the contract proposal, but prior to the technical 
review of the proposal. The date of IACUC approval must not be more than 
36 months prior to the deadline for proposal submission.
    (c) It is not necessary for non-assured offerors to submit 
assurances or IACUC approval with proposals. OLAW shall contact 
contractors, subcontractors and cooperating institutions to negotiate 
necessary assurances and verify IACUC approvals when requested by the 
Contracting Officer.

[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21512, Apr. 26, 2010]



Sec. 370.404  Contract clause.

    The Contracting Officer shall insert the clause in 352.270-5(b), 
Care of Live Vertebrate Animals, in solicitations, contracts, and orders 
that involve live vertebrate animals.

[75 FR 21512, Apr. 26, 2010]

[[Page 136]]

           Subpart 370.5_Acquisitions Under the Buy Indian Act



Sec. 370.500  Scope of subpart.

    This subpart sets forth the policy on preferential acquisition from 
Indians under the negotiation authority of the Buy Indian Act. This 
subpart applies only to acquisitions made by or on behalf of IHS.



Sec. 370.501  Policy.

    (a) The IHS shall utilize the negotiation authority of the Buy 
Indian Act to give preference to Indians whenever the use of that 
authority is authorized and is practicable. The Buy Indian Act, 25 
U.S.C. 47, prescribes the application of the advertising requirements of 
section 3709 of the Revised Statutes to the acquisition of Indian 
supplies. As specified in 25 U.S.C. 47, the Buy Indian Act provides 
that, so far as may be practicable, Indian labor shall be employed, and 
purchases of the products (including, but not limited to printing, 
notwithstanding any other law) of Indian industry may be made in open 
market in the discretion of the Secretary of the Interior.
    (b) Due to the transfer of authority from the Department of the 
Interior to HHS, the Secretary of HHS is authorized to use the Buy 
Indian Act in the acquisition of products of Indian industry, in 
connection with the maintenance and operation of hospital and health 
facilities for Indians, and for the conservation of the health of 
Indians. This authority has been delegated exclusively to IHS and is not 
available for use by any other HHS component (unless that component is 
making an acquisition on behalf of IHS). However, the Buy Indian Act 
itself does not exempt IHS from meeting the statutorily mandated small 
business goals.
    (c) Subsequent legislation, particularly Public Law 94-437 and 
Public Law 96-537, have emphasized the use of the Buy Indian Act 
negotiation authority.



Sec. 370.502  Definitions.

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



Sec. 370.503  Requirements.

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

[[Page 137]]

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



Sec. 370.504  Competition.

    (a) Contracts awarded under the Buy Indian Act are subject to 
competition among Indians or Indian concerns to the maximum extent 
practicable. When the Contracting Officer determines that competition is 
not practicable, a JOFOC is required in accordance with 306.303.
    (b) The Contracting Officer shall: synopsize and publicize 
solicitations in FedBizOpps and provide copies of the synopses to the 
Tribal office of the Indian Tribal government directly concerned with 
the proposed acquisition as well as to Indian concerns and others having 
a legitimate interest. The synopses shall state that the acquisitions 
are restricted to Indian firms under the Buy Indian Act.



Sec. 370.505  Responsibility determinations.

    (a) The Contracting Officer may award a contract under the Buy 
Indian Act only if the Contracting Officer determines that the project 
or function to be contracted is likely to be: satisfactorily performed 
under that contract; and properly completed or maintained under that 
contract.
    (b) The Contracting Officer shall make the determination specified 
in paragraph (a) of this section in writing prior to the award of a 
contract. The determination shall reflect an analysis of the standards 
set forth in FAR9.104-1.

            Subpart 370.6_Conference Funding and Sponsorship



Sec. 370.600  Policy.

    It is HHS policy that the conferences it funds or sponsors shall: be 
consistent with HHS missions, objectives, and policies; represent an 
efficient and effective use of taxpayer funds; and be able to withstand 
public scrutiny.



Sec. 370.601  Funding and sponsorship.

    Funding a conference through an HHS contract does not automatically 
imply HHS (OPDIV/STAFFDIV) conference sponsorship, unless the conference 
is funded entirely by HHS.

[[Page 138]]

Also, HHS staff attendance or participation at a conference does not 
imply HHS conference sponsorship. Accordingly, for other than conference 
contracts funded entirely by HHS, prior to a contractor claiming HHS 
conference sponsorship, the contractor must provide to the Contracting 
Officer a written request for permission to claim HHS as the conference 
sponsor--see 370.602. The OPDIV/STAFFDIV head, or designee, shall 
approve such requests.



Sec. 370.602  Contract clause.

    To ensure that a contractor:
    (a) Properly requests approval to claim HHS as the conference 
sponsor, where HHS is not the sole provider of conference funding; and
    (b) Includes an appropriate Federal funding disclosure and content 
disclaimer statement on conference materials, the Contracting Officer 
shall include the clause in 352.270-7, Conference Sponsorship Request 
and Conference Materials Disclaimer, in solicitations, contracts, and 
orders that provide funding, in whole or in part, to support a 
conference.

           Subpart 370.7_Acquisitions Under the Leadership Act



Sec. 370.700  Scope of subpart.

    This subpart sets forth the acquisition requirements regarding 
implementation of HIV/AIDS programs under the President's Emergency Plan 
for AIDS Relief under the Leadership Act of 2003, and under the Tom 
Lantos and Henry J. Hyde United States Global Leadership Against HIV/
AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008 (Emergency 
Plan reauthorization legislation), which was signed by the President on 
July 30, 2008.



Sec. 370.701  Contract clause.

    The Contracting Officer shall insert the clause in 352.270-8, 
Prostitution and Related Activities, in solicitations, contracts, and 
orders, and in existing contracts and orders (whenever they are modified 
to extend the period of performance or add funds, including any options 
that may be exercised): in connection with the implementation of HIV/
AIDS programs under the President's Emergency Plan for AIDS Relief; or 
where the contractor will receive funding under the United States 
Leadership Against HIV/AIDS, Tuberculosis and Malaria Act of 2003. 
(Note: See 370.702 and 352.270-9 for the ``Non-discrimination for 
Conscience'' provision that must also be included in applicable 
solicitations.) In resolving any issues/complaints that offerors/
contractors may raise about meeting the requirements specified in the 
clause, the Contracting Officer shall consult with the Office of Global 
Health Affairs, Office of the General Counsel, the Project Officer, and 
other HHS officials, as appropriate.



Sec. 370.702  Solicitation provision.

    The Contracting Officer shall insert the provision in 352.270-9, 
Non-discrimination for Conscience, in solicitations valued at more than 
the micro-purchase threshold: in connection with the implementation of 
HIV/AIDS programs under the President's Emergency Plan for AIDS Relief; 
or where the contractor will receive funding under the United States 
Leadership Against HIV/AIDS, Tuberculosis and Malaria Act of 2003. 
(Note: See 370.701 and 352.270-8 for the ``Prostitution and Related 
Activities'' clause that must also be included in applicable 
solicitations, contracts, and orders.) In resolving any issues/
complaints that offerors may raise about meeting the requirements 
specified in the provision, the Contracting Officer shall consult with 
the Office of Global Health Affairs, Office of the General Counsel, the 
Project Officer, and other HHS officials, as appropriate.

[[Page 139]]



                  CHAPTER 4--DEPARTMENT OF AGRICULTURE




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

                          SUBCHAPTER A--GENERAL
Part                                                                Page
401             Agriculture Acquisition Regulation System...         141
402             Definitions of words and terms..............         146
403             Improper business practices and personal 
                    conflicts of interest...................         146
404             Administrative matters......................         148
           SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
405             Publicizing contract actions................         150
406             Competition requirements....................         150
407             Acquisition planning........................         151
408             Required sources of supplies and services...         152
409             Contractor qualifications...................         154
410             Market research.............................         156
411             Describing agency needs.....................         156
412             Acquisition of commercial items.............         157
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
413             Simplified acquisition procedures...........         159
414             Sealed bidding..............................         159
415             Contracting by negotiation..................         160
416             Types of contracts..........................         162
417             Special contracting methods.................         163
418

[Reserved]

                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
419             Small business programs.....................         164
420-421

[Reserved]

422             Application of labor laws to Government 
                    acquisitions............................         165
423             Environment, energy and water efficiency, 
                    renewable energy technologies, 
                    occupational safety, and drug-free 
                    workplace...............................         167
424             Protection of privacy and freedom of 
                    information.............................         169
425             Foreign acquisition.........................         170

[[Page 140]]

426             Other socioeconomic programs................         171
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
427             Patents, data, and copyrights...............         172
428             Bonds and insurance.........................         172
429

[Reserved]

430             Cost accounting standards administration....         173
431             Contract cost principles and procedures.....         174
432             Contract financing..........................         174
433             Protests, disputes and appeals..............         178
             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
434             Major system acquisition....................         180
435             Research and development contracting........         181
436             Construction and architect-engineer 
                    contracts...............................         181
437             Service contracting.........................         184
438

[Reserved]

439             Acquisition of information technology.......         185
440

[Reserved]

441             Acquisition of utility services.............         186
                    SUBCHAPTER G--CONTRACT MANAGEMENT
442             Contract administration.....................         187
443-444

[Reserved]

445             Government property.........................         187
446             Quality assurance...........................         188
447             Transportation..............................         188
448

[Reserved]

449             Termination of contracts....................         189
450             Extraordinary contractual actions...........         189
451

[Reserved]

                     SUBCHAPTER H--CLAUSES AND FORMS
452             Solicitation provisions and contract clauses         191
453             Forms.......................................         201
                 SUBCHAPTER I--FOOD ASSISTANCE PROGRAMS
470             Commodity acquisitions......................         203

[[Page 141]]

                          SUBCHAPTER A_GENERAL

           PART 401_AGRICULTURE ACQUISITION REGULATION SYSTEM

Sec.

Sec. 401.000 Scope of part.

               Subpart 401.1_Purpose, Authority, Issuance


Sec. 401.101 Purpose.

Sec. 401.103 Authority.

Sec. 401.104 Applicability.

Sec. 401.105 Issuance.

Sec. 401.105-1 Publication and code arrangement.

Sec. 401.105-2 Arrangement of regulations.

Sec. 401.105-3 Copies.

Sec. 401.106 OMB approval under the Paperwork Reduction Act.

Sec. 401.170 Electronic access to regulatory information.

                      Subpart 401.2_Administration


Sec. 401.201 Maintenance of the FAR.

Sec. 401.201-1 The two councils.

              Subpart 401.3_Agency Acquisition Regulations


Sec. 401.301 Policy.

Sec. 401.304 Agency control and compliance procedures.

Sec. 401.370 Exclusions.

Sec. 401.371 AGAR Advisories.

Sec. 401.372 Departmental directives.

             Subpart 401.4_Deviations From the FAR and AGAR


Sec. 401.402 Policy.

Sec. 401.403 Individual deviations.

Sec. 401.404 Class deviations.

        Subpart 401.6_Contracting Authority and Responsibilities


Sec. 401.601 General.

Sec. 401.602 Contracting officers.

Sec. 401.602-3 Ratification of unauthorized commitments.

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

Sec. 401.603-1 General.

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

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



Sec. 401.000  Scope of part.

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

               Subpart 401.1_Purpose, Authority, Issuance



Sec. 401.101  Purpose.

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



Sec. 401.103  Authority.

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



Sec. 401.104  Applicability.

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



Sec. 401.105  Issuance.



Sec. 401.105-1  Publication and code arrangement.

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

[[Page 142]]

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

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



Sec. 401.105-2  Arrangement of regulations.

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



Sec. 401.105-3  Copies.

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



Sec. 401.106  OMB approval under the Paperwork Reduction Act.

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

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


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



Sec. 401.170  Electronic access to regulatory information.

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

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

                      Subpart 401.2_Administration



Sec. 401.201  Maintenance of the FAR.



Sec. 401.201-1  The two councils.

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

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

              Subpart 401.3_Agency Acquisition Regulations



Sec. 401.301  Policy.

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

[[Page 143]]

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

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

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



Sec. 401.304  Agency control and compliance procedures.

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



Sec. 401.370  Exclusions.

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



Sec. 401.371  AGAR Advisories.

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

[[Page 144]]

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

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



Sec. 401.372  Departmental directives.

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

             Subpart 401.4_Deviations From the FAR and AGAR



Sec. 401.402  Policy.

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



Sec. 401.403  Individual deviations.

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



Sec. 401.404  Class deviations.

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

        Subpart 401.6_Contracting Authority and Responsibilities



Sec. 401.601  General.

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

[[Page 145]]

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



Sec. 401.602  Contracting officers.



Sec. 401.602-3  Ratification of unauthorized commitments.

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

[[Page 146]]



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



Sec. 401.603-1  General.

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

                 PART 402_DEFINITIONS OF WORDS AND TERMS

Sec.

Sec. 402.000 Scope of part.

                        Subpart 402.1_Definitions


Sec. 402.101 Definitions.

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

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



Sec. 402.000  Scope of part.

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

                        Subpart 402.1_Definitions



Sec. 402.101  Definitions.

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

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

 PART 403_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

                        Subpart 403.1_Safeguards

Sec.

Sec. 403.101 Standards of conduct.

Sec. 403.101-3 Agency regulations.

Sec. 403.104 Procurement integrity.

Sec. 403.104-5 [Reserved]

Sec. 403.104-7 Violations or possible violations.

       Subpart 403.2_Contractor Gratuities to Government Personnel


Sec. 403.203 Reporting suspected violations of the gratuities clause.

Sec. 403.204 Treatment of violations.

         Subpart 403.3_Reports of Suspected Antitrust Violations


Sec. 403.303 Reporting suspected antitrust violations.

                      Subpart 403.4_Contingent Fees


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

             Subpart 403.5_Other Improper Business Practices


Sec. 403.502 Subcontractor kickbacks.

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


Sec. 403.602 Exceptions.

Sec. 403.603 Responsibilities of the contracting officer.

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


Sec. 403.806 Processing suspected violations

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

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

[[Page 147]]

                        Subpart 403.1_Safeguards



Sec. 403.101  Standards of conduct.



Sec. 403.101-3  Agency regulations.

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



Sec. 403.104  Procurement integrity.



Sec. 403.104-5  [Reserved]



Sec. 403.104-7  Violations or possible violations.

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

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

       Subpart 403.2_Contractor Gratuities to Government Personnel



Sec. 403.203  Reporting suspected violations of the gratuities clause.

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



Sec. 403.204  Treatment of violations.

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

         Subpart 403.3_Reports of Suspected Antitrust Violations



Sec. 403.303  Reporting suspected antitrust violations.

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

                      Subpart 403.4_Contingent Fees



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

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

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

[[Page 148]]

             Subpart 403.5_Other Improper Business Practices



Sec. 403.502  Subcontractor kickbacks.

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

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

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



Sec. 403.602  Exceptions.

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



Sec. 403.603  Responsibilities of the contracting officer.

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

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



Sec. 403.806  Processing suspected violations.

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

                     PART 404_ADMINISTRATIVE MATTERS

                   Subpart 404.2_Contract Distribution

Sec.

Sec. 404.203 Taxpayer identification information.

    Subpart 404.4_Safeguarding Classified Information Within Industry


Sec. 404.403 Responsibilities of contracting officers.

                    Subpart 404.6_Contract Reporting


Sec. 404.601 [Reserved]

Sec. 404.602 Federal Procurement Data System.

                 Subpart 404.8_Government Contract Files


Sec. 404.870 Document numbering system.

             Subpart 404.11_Central Contractor Registration


Sec. 404.1103 Procedures.

                   Subpart 404.70_Precontract Notices


Sec. 404.7001 Solicitation provision.

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

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

                   Subpart 404.2_Contract Distribution



Sec. 404.203  Taxpayer identification information.

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

[70 FR 44, Jan. 3, 2005]

[[Page 149]]

    Subpart 404.4_Safeguarding Classified Information Within Industry



Sec. 404.403  Responsibilities of contracting officers.

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

[70 FR 44, Jan. 3, 2005]

                    Subpart 404.6_Contract Reporting



Sec. 404.601  [Reserved]



Sec. 404.602  Federal Procurement Data System.

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

[70 FR 44, Jan. 3, 2005]

                 Subpart 404.8_Government Contract Files



Sec. 404.870  Document numbering system.

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

[70 FR 44, Jan. 3, 2005]

             Subpart 404.11_Central Contractor Registration



Sec. 404.1103  Procedures.

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

[70 FR 44, Jan. 3, 2005]

                   Subpart 404.70_Precontract Notices



Sec. 404.7001  Solicitation provision.

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

[[Page 150]]

            SUBCHAPTER B_COMPETITION AND ACQUISITION PLANNING

                  PART 405_PUBLICIZING CONTRACT ACTIONS

                Subpart 405.3_Synopses of Contract Awards

Sec.

Sec. 405.303 Announcement of contract awards.

                  Subpart 405.4_Release of Information


Sec. 405.403 Requests from Members of Congress.

Sec. 405.404 Release of long-range acquisition estimates.

Sec. 405.404-1 Release procedures.

                    Subpart 405.5_Paid Advertisements


Sec. 405.502 Authority.

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

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

                Subpart 405.3_Synopses of Contract Awards



Sec. 405.303  Announcement of contract awards.

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

                  Subpart 405.4_Release of Information



Sec. 405.403  Requests from Members of Congress.

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

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



Sec. 405.404  Release of long-range acquisition estimates.



Sec. 405.404-1  Release procedures.

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

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

                    Subpart 405.5_Paid Advertisements



Sec. 405.502  Authority.

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

                    PART 406_COMPETITION REQUIREMENTS

   Subpart 406.2_Full and Open Competition After Exclusion of Sources

Sec.

Sec. 406.202 Establishing or maintaining alternative sources.

           Subpart 406.3_Other Than Full and Open Competition


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

Sec. 406.302-70 Otherwise authorized by law.

                   Subpart 406.5_Competition Advocates


Sec. 406.501 Requirements.


[[Page 151]]


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

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

   Subpart 406.2_Full and Open Competition After Exclusion of Sources



Sec. 406.202  Establishing or maintaining alternative sources.

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

           Subpart 406.3_Other Than Full and Open Competition



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



Sec. 406.302-70  Otherwise authorized by law.

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

                   Subpart 406.5_Competition Advocates



Sec. 406.501  Requirements.

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

[70 FR 45, Jan. 3, 2005]

                      PART 407_ACQUISITION PLANNING

                     Subpart 407.1_Acquisition Plans

Sec.

Sec. 407.103 Agency-head responsibilities.

Sec. 407.170 Advance acquisition plans.

Subpart 407.3 [Reserved]

             Subpart 407.5_Inherently Governmental Functions


Sec. 407.503 Policy.

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

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

                     Subpart 407.1_Acquisition Plans



Sec. 407.103  Agency-head responsibilities.

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



Sec. 407.170  Advance acquisition plans.

    Each HCA shall maintain an advance acquisition planning system.

[70 FR 45, Jan. 3, 2005]

Subpart 407.3 [Reserved]

             Subpart 407.5_Inherently Governmental Functions



Sec. 407.503  Policy.

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

[[Page 152]]

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

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

           PART 408_REQUIRED SOURCES OF SUPPLIES AND SERVICES

                 Subpart 408.4_Federal Supply Schedules

Sec.

Sec. 408.404 Using schedules.

Sec. 408.404-3 Requests for waivers.

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


Sec. 408.701 Definitions.

Sec. 408.705 Procedures.

Sec. 408.705-2 Direct order process.

Sec. 408.705-3 Allocation process.

Sec. 408.705-4 Compliance with orders.

Sec. 408.706 Purchase exemptions.

Sec. 408.707 Prices.

Sec. 408.711 Quality complaints.

Sec. 408.712 Specification changes.

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

       Subpart 408.8_Acquisition of Printing and Related Supplies


Sec. 408.802 Policy.

                Subpart 408.11_Leasing of Motor Vehicles


Sec. 408.1103 Contract requirements.

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

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

                 Subpart 408.4_Federal Supply Schedules



Sec. 408.404  Using schedules.



Sec. 408.404-3  Requests for waivers.

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

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

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

    Editorial Note: Nomenclature changes to subpart 408.7 of part 408 
appear at 70 FR 45, Jan. 3, 2005.



Sec. 408.701  Definitions.

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

[70 FR 45, Jan. 3, 2005]



Sec. 408.705  Procedures.

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

[[Page 153]]

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

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



Sec. 408.705-2  Direct order process.

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



Sec. 408.705-3  Allocation process.

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



Sec. 408.705-4  Compliance with orders.

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



Sec. 408.706  Purchase exemptions.

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



Sec. 408.707  Prices.

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



Sec. 408.711  Quality complaints.

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



Sec. 408.712  Specification changes.

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



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

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

       Subpart 408.8_Acquisition of Printing and Related Supplies



Sec. 408.802  Policy.

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

[[Page 154]]

                Subpart 408.11_Leasing of Motor Vehicles



Sec. 408.1103  Contract requirements.

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

[70 FR 45, Jan. 3, 2005]

                   PART 409_CONTRACTOR QUALIFICATIONS

          Subpart 409.4_Debarment, Suspension and Ineligibility

Sec.

Sec. 409.403 Definitions.

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

Sec. 409.405 Effect of listing.

Sec. 409.405-1 Continuation of current contracts.

Sec. 409.405-2 Restrictions on subcontracting.

Sec. 409.406 Debarment.

Sec. 409.406-3 Procedures.

Sec. 409.407 Suspension.

Sec. 409.407-3 Procedures.

    Subpart 409.5_Organizational and Consultant Conflicts of Interest


Sec. 409.503 Waiver.

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

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

          Subpart 409.4_Debarment, Suspension and Ineligibility



Sec. 409.403  Definitions.

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

[63 FR 26995, May 15, 1998]



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

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



Sec. 409.405  Effect of listing.

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



Sec. 409.405-1  Continuation of current contracts.

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



Sec. 409.405-2  Restrictions on subcontracting.

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

[[Page 155]]



Sec. 409.406  Debarment.



Sec. 409.406-3  Procedures.

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



Sec. 409.407  Suspension.



Sec. 409.407-3  Procedures.

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

    Subpart 409.5_Organizational and Consultant Conflicts of Interest



Sec. 409.503  Waiver.

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

[[Page 156]]

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

                        PART 410_MARKET RESEARCH

Sec.

Sec. 410.001 Policy.

Sec. 410.002 Procedures.

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

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



Sec. 410.001  Policy.

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



Sec. 410.002  Procedures.

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

                    PART 411_DESCRIBING AGENCY NEEDS

      Subpart 411.1_Selecting and Developing Requirements Documents

Sec.

Sec. 411.101 Order of precedence for requirements documents.

Sec. 411.103 Market acceptance.

Sec. 411.106 Purchase descriptions for service contracts.

Sec. 411.170 Brand name or equal.

Sec. 411.171 Solicitation provisions and contract clauses.

       Subpart 411.2_Using and Maintaining Requirements Documents


Sec. 411.202 Maintenance of standardization documents.

             Subpart 411.4_Delivery or Performance Schedules


Sec. 411.404 Contract clauses.

                Subpart 411.6_Priorities and Allocations


Sec. 411.600 Scope of subpart.

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

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

      Subpart 411.1_Selecting and Developing Requirements Documents



Sec. 411.101  Order of precedence for requirements documents.

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

[70 FR 45, Jan. 3, 2005]



Sec. 411.103  Market acceptance.

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



Sec. 411.106  Purchase descriptions for service contracts.

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

[[Page 157]]

personnel fail to identify themselves as non-Government officials.

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



Sec. 411.170  Brand name or equal.

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



Sec. 411.171  Solicitation provisions and contract clauses.

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

[63 FR 26995, May 15, 1998]

       Subpart 411.2_Using and Maintaining Requirements Documents



Sec. 411.202  Maintenance of standardization documents.

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

             Subpart 411.4_Delivery or Performance Schedules



Sec. 411.404  Contract clauses.

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

[63 FR 26995, May 15, 1998]

                Subpart 411.6_Priorities and Allocations



Sec. 411.600  Scope of subpart.

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

                PART 412_ACQUISITION OF COMMERCIAL ITEMS

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

[[Page 158]]

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



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

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

[61 FR 53646, Oct. 15, 1996]

[[Page 159]]

           SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES

               PART 413_SIMPLIFIED ACQUISITION PROCEDURES

              Subpart 413.3_Simplified Acquisition Methods

Sec.

Sec. 413.301 Governmentwide commercial purchase card.

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

Sec. 413.307 Forms.

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

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

              Subpart 413.3_Simplified Acquisition Methods



Sec. 413.301  Governmentwide commercial purchase card.

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



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

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



Sec. 413.307  Forms.

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

[70 FR 45, Jan. 3, 2005]

                         PART 414_SEALED BIDDING

                   Subpart 414.2_Solicitation of Bids

Sec.

Sec. 414.201 Preparation of invitations for bids.

Sec. 414.201-6 Solicitation provision.

           Subpart 414.4_Opening of Bids and Award of Contract


Sec. 414.404 Rejection of bids.

Sec. 414.404-1 Cancellation of invitations after opening.

Sec. 414.407 Mistakes in bids.

Sec. 414.407-3 Other mistakes disclosed before award.

Sec. 414.407-4 Mistakes after award.

Sec. 414.409 Information to bidders.

Sec. 414.409-2 Award of classified contracts.

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

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

                   Subpart 414.2_Solicitation of Bids



Sec. 414.201  Preparation of invitations for bids.



Sec. 414.201-6  Solicitation provision.

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

           Subpart 414.4_Opening of Bids and Award of Contract



Sec. 414.404  Rejection of bids.



Sec. 414.404-1  Cancellation of invitations after opening.

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



Sec. 414.407  Mistakes in bids.



Sec. 414.407-3  Other mistakes disclosed before award.

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

[[Page 160]]



Sec. 414.407-4  Mistakes after award.

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



Sec. 414.409  Information to bidders.



Sec. 414.409-2  Award of classified contracts.

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

[70 FR 45, Jan. 3, 2005]

                   PART 415_CONTRACTING BY NEGOTIATION

   Subpart 415.2_Solicitation and Receipt of Proposals and Information

Sec.

Sec. 415.204 Contract format.

Sec. 415.207 Handling proposals and information.

Sec. 415.209 Solicitation provisions and contract clauses.

                     Subpart 415.3_Source Selection


Sec. 415.303 Responsibilities.

Sec. 415.305 Proposal evaluation.

                     Subpart 415.4_Contract Pricing


Sec. 415.404-4 Profit.

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


Sec. 415.570 Post-award conference.

                   Subpart 415.6_Unsolicited Proposals


Sec. 415.604 Agency points of contact.

Sec. 415.606 Agency procedures.

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

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

   Subpart 415.2_Solicitation and Receipt of Proposals and Information



Sec. 415.204  Contract format.

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



Sec. 415.207  Handling proposals and information.

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

         Agreement Governing the Use and Disclosure of Proposals

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

[[Page 161]]

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

                           (End of provision)

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

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



Sec. 415.209  Solicitation provisions and contract clauses.

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

                     Subpart 415.3_Source Selection



Sec. 415.303  Responsibilities.

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



Sec. 415.305  Proposal evaluation.

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

                     Subpart 415.4_Contract Pricing



Sec. 415.404-4  Profit.

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

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



Sec. 415.570  Post-award conference.

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

[[Page 162]]

                   Subpart 415.6_Unsolicited Proposals



Sec. 415.604  Agency points of contact.

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



Sec. 415.606  Agency procedures.

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

                       PART 416_TYPES OF CONTRACTS

Sec.

Sec. 416.000 Scope of part.

                   Subpart 416.2_Fixed-Price Contracts


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

Sec. 416.203-4 Contract clauses.

                    Subpart 416.4_Incentive Contracts


Sec. 416.405 Cost-reimbursement incentive contracts.

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

Sec. 416.406 Contract clauses.

Sec. 416.470 Solicitation provision.

               Subpart 416.5_Indefinite-Delivery Contracts


Sec. 416.505 Ordering.

Sec. 416.506 Solicitation provision and contract clauses.

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


Sec. 416.603 Letter contracts.

Sec. 416.603-2 Application.

Sec. 416.603-4 Contract clauses.

Sec. 416.670 Contract clauses.

                        Subpart 416.7_Agreements


Sec. 416.702 Basic agreements.

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

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



Sec. 416.000  Scope of part.

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

                   Subpart 416.2_Fixed-Price Contracts



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



Sec. 416.203-4  Contract clauses.

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

                    Subpart 416.4_Incentive Contracts



Sec. 416.405  Cost-reimbursement incentive contracts.



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

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

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



Sec. 416.406  Contract clauses.

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

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



Sec. 416.470  Solicitation provision.

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

[[Page 163]]

               Subpart 416.5_Indefinite-Delivery Contracts



Sec. 416.505  Ordering.

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

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



Sec. 416.506  Solicitation provision and contract clauses.

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

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



Sec. 416.603  Letter contracts.



Sec. 416.603-2  Application.

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



Sec. 416.603-4  Contract clauses.

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



Sec. 416.670  Contract clauses.

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

                        Subpart 416.7_Agreements



Sec. 416.702  Basic agreements.

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

                  PART 417_SPECIAL CONTRACTING METHODS

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

                          Subpart 417.2_Options



Sec. 417.204  Contracts.

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

[61 FR 53646, Oct. 15, 1996]

                           PART 418 [RESERVED]

[[Page 164]]

                   SUBCHAPTER D_SOCIOECONOMIC PROGRAMS

                    PART 419_SMALL BUSINESS PROGRAMS

                         Subpart 419.2_Policies

Sec.

Sec. 419.201 General policy.

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

Sec. 419.201-71 Small business coordinators.

Sec. 419.201-73 Reports.

               Subpart 419.5_Set-Asides for Small Business


Sec. 419.508 Solicitation provisions and contract clauses.

     Subpart 419.6_Certificates of Competency and Determinations of 
                             Responsibility


Sec. 419.602 Procedures.

Sec. 419.602-1 Referral.

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

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

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

                         Subpart 419.2_Policies

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



Sec. 419.201  General policy.

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



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

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



Sec. 419.201-71  Small business coordinators.

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

[[Page 165]]

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



Sec. 419.201-73  Reports.

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

               Subpart 419.5_Set-Asides for Small Business



Sec. 419.508  Solicitation provisions and contract clauses.

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

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

     Subpart 419.6_Certificates of Competency and Determinations of 
                             Responsibility



Sec. 419.602  Procedures.



Sec. 419.602-1  Referral.

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



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

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

[63 FR 26995, May 15, 1998]

                        PARTS 420	421 [RESERVED]

      PART 422_APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

                   Subpart 422.1_Basic Labor Policies

Sec.

Sec. 422.103 Overtime.

Sec. 422.103-4 Approvals.

       Subpart 422.3_Contract Work Hours and Safety Standards Act


Sec. 422.302 Liquidated damages and overtime pay.

[[Page 166]]

   Subpart 422.4_Labor Standards for Contracts Involving Construction


Sec. 422.404 Davis-Bacon Act wage determinations.

Sec. 422.404-6 Modifications of wage determinations.

Sec. 422.406 Administration and enforcement.

Sec. 422.406-8 Investigations.

             Subpart 422.6_Walsh-Healey Public Contracts Act


Sec. 422.604 Exemptions.

Sec. 422.604-2 Regulatory exemptions.

Sec. 422.608 [Reserved]

               Subpart 422.8_Equal Employment Opportunity


Sec. 422.803 Responsibilities.

Sec. 422.804 Affirmative action programs.

Sec. 422.804-2 Construction.

Sec. 422.807 Exemptions.

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


Sec. 422.1305 Waivers.

Sec. 422.1308 Complaint procedures.

         Subpart 422.14_Employment of Workers With Disabilities


Sec. 422.1403 Waivers.

Sec. 422.1406 Complaint procedures.

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

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

                   Subpart 422.1_Basic Labor Policies



Sec. 422.103  Overtime.



Sec. 422.103-4  Approvals.

    Requests for the use of overtime shall be approved by an acquisition 
official at a level above the contracting officer in accordance with the 
procedures in FAR 22.103-4 (a) and (b).

       Subpart 422.3_Contract Work Hours and Safety Standards Act



Sec. 422.302  Liquidated damages and overtime pay.

    Heads of contracting activities (HCA's) are authorized to review 
determinations of liquidated damages due under section 104(c) of the 
Contract Work Hours and Safety Standards Act, and to take remedial 
action, if appropriate, in accordance with FAR 22.302(c). Contractors or 
subcontractors may request review of administrative determinations of 
liquidated damages by written notice to the contracting officer. The 
contracting officer shall promptly forward appeals of liquidated damages 
determinations to the HCA.

   Subpart 422.4_Labor Standards for Contracts Involving Construction



Sec. 422.404  Davis-Bacon Act wage determinations.



Sec. 422.404-6  Modifications of wage determinations.

    HCA's are authorized to request extension of the 90 day period for 
award after bid opening as provided in FAR 22.404-6(b)(6).



Sec. 422.406  Administration and enforcement.



Sec. 422.406.8  Investigations.

    Reports of violations shall be forwarded to the HCA, who shall 
process such reports in accordance with FAR 22.406-8(d).

             Subpart 422.6_Walsh-Healey Public Contracts Act



Sec. 422.604  Exemptions.



Sec. 422.604-2  Regulatory exemptions.

    The Assistant Secretary for Administration can request the Secretary 
of Labor to exempt contracts from the Walsh-Healey Public Contracts Act 
pursuant to FAR 22.604-2(b). A written finding justifying the request 
for exemption shall be prepared for the Assistant Secretary's signature 
and submitted by the HCA to the Senior Procurement Executive (SPE) for 
referral to the Assistant Secretary.

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

[[Page 167]]



Sec. 422.608  [Reserved]

               Subpart 422.8_Equal Employment Opportunity



Sec. 422.803  Responsibilities.

    The contracting office shall submit questions involving the 
applicability of Executive Order 11246 and FAR subpart 22.8 through the 
HCA to the SPE for resolution.



Sec. 422.804  Affirmative action programs.



Sec. 422.804-2  Construction.

    The HCA shall ensure that each contracting office, awarding 
nonexempt construction contracts, maintains a current listing of covered 
geographical areas subject to affirmative action requirements specifying 
goals for minorities and women in covered construction trades.



Sec. 422.807  Exemptions.

    (a) The Assistant Secretary for Administration is authorized to make 
the determination in FAR 22.807(a)(1) that a contract is essential to 
the national security.
    (b) The contracting officer shall submit requests for exemptions 
under FAR 22.807(a)(1), (a)(2), and (b)(5) through the HCA to the SPE 
for determination by the Assistant Secretary of Administration or 
referral to the Deputy Assistant Secretary for Federal Contract 
Compliance Programs, Department of Labor, as appropriate.

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

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

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



Sec. 422.1305  Waivers.

    (a) The Assistant Secretary for Administration is authorized to make 
the waiver determination in FAR 22.1305(b) that a contract is essential 
to the national security.
    (b) The contracting officer shall submit requests for exemptions 
under FAR 22.1305(a) and (b) through the HCA to the SPE for 
determination by the Assistant Secretary for Administration or referral 
to the Deputy Assistant Secretary for Federal Contract Compliance 
Programs, Department of Labor as appropriate.



Sec. 422.1308  Complaint procedures.

    The contracting officer shall forward complaints received about the 
administration of the Vietnam Era Veterans Readjustment Assistance Act 
directly to the Department of Labor as prescribed in FAR 22.1308.

         Subpart 422.14_Employment of Workers With Disabilities



Sec. 422.1403  Waivers.

    (a) The Assistant Secretary for Administration is authorized to make 
the waiver determinations under FAR 22.1403(a) and (b) with the 
concurrence of the Deputy Assistant Secretary for Federal Contract 
Compliance Programs, Department of Labor.
    (b) The contracting officer shall submit requests for waivers 
through the HCA to the SPE for determination by the Assistant Secretary 
for Administration.

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



Sec. 422.1406  Complaint procedures.

    The contracting officer shall forward complaints received about the 
administration of Section 503 of the Rehabilitation Act of 1973, as 
amended, directly to the OFCCP as prescribed in FAR 22.1406.

  PART 423_ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY 
       TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

Subpart 423.1 [Reserved]

     Subpart 423.2_Energy and Water Efficiency and Renewable Energy

Sec.

Sec. 423.202 Policy.

[[Page 168]]

                Subpart 423.4_Use of Recovered Materials


Sec. 423.400 Scope of subpart.

Sec. 423.402 [Reserved]

Sec. 423.403 Policy.

Sec. 423.404 Agency affirmative procurement programs.

Sec. 423.405 Procedures.

                    Subpart 423.5_Drug-Free Workplace


Sec. 423.506 Suspension of payments, termination of contract, and 
          debarment and suspension actions.

              Subpart 423.6_Notice of Radioactive Material


Sec. 423.601 Requirements.

 Subpart 423.7_Contracting for Environmentally Preferable Products and 
                                Services


Sec. 423.703 Policy.

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

    Source: 70 FR 47, Jan. 3, 2005, unless otherwise noted.

Subpart 423.1 [Reserved]

     Subpart 423.2_Energy and Water Efficiency and Renewable Energy



Sec. 423.202  Policy.

    Information on Energy Star, energy efficient, water efficient, and 
low standby products covered by this policy is available via the 
Internet at http://www.eere.energy.gov/femp/technologies/eeproducts.cfm.

                Subpart 423.4_Use of Recovered Materials



Sec. 423.400  Scope of subpart.

    This subpart implements and supplements FAR policies and procedures 
for acquiring products and services when preference is given to offers 
of products containing recovered materials. This subpart further 
supplements FAR subpart 23.4 by providing guidance for affirmative 
procurement programs in accordance with Executive Order 13101 and 42 
U.S.C. 6962.



Sec. 423.402  [Reserved]



Sec. 423.403  Policy.

    It is the policy of USDA to acquire and use Environmental Protection 
Agency (EPA) designated recycled content products.



Sec. 423.404  Agency affirmative procurement programs.

    The USDA affirmative procurement program (APP) policy applicable to 
all USDA agencies and staff offices is hereby established. The 
components of this APP include:
    (a) Recovered Materials Preference Program. In accord with the 
requirements of Section 402(c) of Executive Order 13101, Greening the 
Government Through Recycling, Waste Prevention, and Federal Acquisition, 
USDA agencies will include, in all applicable solicitations and 
contracts, a preference for products and services which meet or exceed 
the EPA purchasing guidelines as contained in the EPA product Recovered 
Materials Advisory Notices (RMANs). Agencies may choose an evaluation 
factor preference, or other method of indicating preference in accord 
with their agency needs. Agencies will, as appropriate, eliminate virgin 
material requirements in contract specifications and replace them with a 
statement of preference for recycled materials.
    (b) Promotion program. USDA agencies will actively promote a 
preference for recovered materials, environmentally preferable products, 
and biobased products in contacts with vendors, in written materials, 
and other appropriate opportunities.
    (c) Reasonable estimation of recovered materials used in the 
performance of contracts. USDA agencies annually will provide in writing 
to the USDA Senior Procurement Executive, in response to a call for data 
for the Resource Conservation and Recovery report, reasonable estimates, 
certification, and verification of recovered material used in the 
performance of contracts.
    (d) Annual review and monitoring of effectiveness of the program. 
USDA agencies will provide an annual assessment of the effectiveness of 
their affirmative

[[Page 169]]

procurement program actions in increasing the purchase and use of EPA 
designated products.
    (e) Purchase of EPA designated products. USDA agencies will require 
that 100% of purchases of EPA-designated products contain recovered 
material, unless the item cannot be acquired--
    (1) Competitively within a reasonable time frame;
    (2) Meeting appropriate performance standards; or
    (3) At a reasonable price.
    (f) The 100% purchase requirement of paragraph (e) of this section 
applies to all USDA agency purchases, including those at or below the 
micro-purchase threshold.



Sec. 423.405  Procedures.

    (a) The threshold of purchase for EPA designated items is $10,000 
per year at the USDA departmental, not individual agency, level. 
Therefore, the APP requirements above, including the 100% purchase 
requirement, apply at the individual agency and staff office level.
    (b) Contracting officers should refer to EPA's list of designated 
products and products identified as recycled content when purchasing 
supplies or services. Information on EPA designated products is 
available at: www.epa.gov/cpg/products.htm.
    (c) All agencies and USDA Contracting Officers must take necessary 
actions to carry out the provisions of the USDA APP policy described in 
this subpart.

                    Subpart 423.5_Drug-Free Workplace



Sec. 423.506  Suspension of payments, termination of contract, and 
          debarment and suspension actions.

    (a) The contracting officer may recommend waiver of the 
determination to suspend payments, to terminate a contract, or to debar 
or to suspend a contractor.
    (b) The recommendation shall be submitted through the HCA to the SPE 
and shall include a full description of the disruption of USDA 
operations should the determination not be waived.
    (c) The SPE will submit the request for a waiver to the Secretary 
with a recommendation for action.

              Subpart 423.6_Notice of Radioactive Material



Sec. 423.601  Requirements.

    The HCA shall establish a system of instructions to identify the 
installation/facility radiation protection officer.

 Subpart 423.7_Contracting for Environmentally Preferable Products and 
                                Services



Sec. 423.703  Policy.

    (a) USDA's Affirmative Procurement Program promotes energy-
efficiency, water conservation, and the acquisition of environmentally 
preferable products and services. In its acquisitions, USDA will support 
federal ``green purchasing'' principles in the acquisition of products 
and services that are environmentally preferable or that are biobased 
content products and services.
    (b) USDA agencies will actively promote this preference for 
environmentally preferable products and biobased products in contacts 
with vendors, in written materials, and other appropriate opportunities.

        PART 424_PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

             Subpart 424.1_Protection of Individual Privacy

Sec.

Sec. 424.103 Procedures.

Sec. 424.104 Contract clauses.

                Subpart 424.2_Freedom of Information Act


Sec. 424.203 Policy.

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

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

[[Page 170]]

             Subpart 424.1_Protection of Individual Privacy



Sec. 424.103  Procedures.

    USDA regulations implementing the Privacy Act are found in 7 CFR, 
subtitle A, part 1, subpart G. Contracting officers shall follow these 
regulations when responding to requests for information or awarding 
contracts that will involve the design, development, or operation of a 
system of records on individuals to accomplish agency functions.



Sec. 424.104  Contract clauses.

    When applicable, the contracting officer shall insert the clause at 
452.224-70, Confidentiality of Information, in contracts involving 
confidential information.

                Subpart 424.2_Freedom of Information Act



Sec. 424.203  Policy.

    USDA regulations implementing the Freedom of Information Act are 
found in 7 CFR, Subtitle A, Part 1, Subpart A. Contracting officers 
shall follow these regulations when responding to requests for 
information.

[70 FR 48, Jan. 3, 2005]

                      PART 425_FOREIGN ACQUISITION

                 Subpart 425.1_Buy American Act_Supplies

Sec.

Sec. 425.102 [Reserved]

Sec. 425.103 Exceptions.

Sec. 425.104 Nonavailable articles.

Sec. 425.105 Determining reasonableness of cost.

Sec. 425.108 [Reserved]

          Subpart 425.2_Buy American Act_Construction Materials


Sec. 425.202 Exceptions.

Sec. 425.203-425.204 [Reserved]

Subparts 425.3-425.4 [Reserved]

                      Subpart 425.6_Trade Sanctions


Sec. 425.602 Exceptions.

Subpart 425.9 [Reserved]

        Subpart 425.10_Additional Foreign Acquisition Regulations


Sec. 425.1001 Waiver of right to examination of records.

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

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

                 Subpart 425.1_Buy American Act_Supplies

    Source: 70 FR 48, Jan. 3, 2005, unless otherwise noted.



Sec. 425.102  [Reserved]



Sec. 425.103  Exceptions.

    (a) The Senior Procurement Executive (SPE) shall make the 
determination prescribed in FAR 25.103(a).
    (b) Copies of determinations of nonavailability in accordance with 
FAR 25.103(b)(2) or 25.202(a)(2), for articles, material or supplies not 
listed in FAR 25.104, may be submitted to the SPE for submission to the 
Civilian Agency Acquisition Council (CAAC).



Sec. 425.104  Nonavailable articles.

    Information required by FAR 25.104(b) shall be submitted to the SPE 
for submission to the CAAC.



Sec. 425.105  Determining reasonableness of cost.

    The SPE may make the determination prescribed in FAR 25.105(a). 
Requests for a determination by the SPE shall be submitted by the HCA, 
in writing, and shall provide a detailed justification supporting why 
evaluation factors higher than those listed in FAR 25.102(b)(1) and (2) 
should be applied to determine whether the offered price of a domestic 
end product is unreasonable.



Sec. 425.108  [Reserved]

          Subpart 425.2_Buy American Act_Construction Materials



Sec. 425.202  Exceptions.

    (a) The SPE shall make the determination prescribed in FAR 
25.202(a)(1).
    (b) If a contracting officer proposes that the use of a particular 
domestic

[[Page 171]]

construction material should be waived for a contract on the grounds 
that its use would be impracticable, the contracting officer shall 
submit a proposed determination with supporting information through the 
HCA to the SPE for approval or disapproval.

[63 FR 26995, May 15, 1998, as amended at 70 FR 48, Jan. 3, 2005]



Sec. 425.203-425.204  [Reserved]

Subparts 425.3-425.4 [Reserved]

                      Subpart 425.6_Trade Sanctions



Sec. 425.602  Exceptions.

    The Secretary, without power of redelegation, has the authority to 
make the necessary determination(s) and authorize award(s) of 
contract(s) in accordance with FAR 25.602(b).

[70 FR 48, Jan. 3, 2005]

Subpart 425.9 [Reserved]

        Subpart 425.10_Additional Foreign Acquisition Regulations



Sec. 425.1001  Waiver of right to examination of records.

    The SPE shall make the determination under FAR 25.1001(a)(2)(iii).

[70 FR 48, Jan. 3, 2005]

                  PART 426_OTHER SOCIOECONOMIC PROGRAMS

Subpart 426.70 [Reserved]

[[Page 172]]

              SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS

                 PART 427_PATENTS, DATA, AND COPYRIGHTS

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

                          Subpart 427.1_General



Sec. 427.104  General guidance.

    As used in FAR part 27, the agency head or agency head designee is 
the Senior Procurement Executive, except under FAR 27.306(a) and (b). 
Under FAR 27.306(a) and (b), the agency head is the Secretary without 
power of redelegation.

[61 FR 53646, Oct. 15, 1996]

                      PART 428_BONDS AND INSURANCE

           Subpart 428.1_Bonds and Other Financial Protections

Sec.

Sec. 428.101 Bid guarantees.

Sec. 428.101-1 Policy on use.

Sec. 428.106 Administration.

Sec. 428.106-6 Furnishing information.

           Subpart 428.2_Sureties and Other Security for Bonds


Sec. 428.203 Acceptability of individual sureties.

Sec. 428.204 Alternatives in lieu of corporate or individual sureties.

Sec. 428.204-2 Certified or cashier's checks, bank drafts, money orders, 
          or currency.

                         Subpart 428.3_Insurance


Sec. 428.307 Insurance under cost-reimbursement contracts.

Sec. 428.307-1 Group insurance plans.

Sec. 428.310 Contract clause for work on a Government installation.

Sec. 428.370 Government-owned vehicles operated in foreign countries.

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

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

           Subpart 428.1_Bonds and Other Financial Protections



Sec. 428.101  Bid guarantees.



Sec. 428.101-1  Policy on use.

    The Senior Procurement Executive may authorize class waivers of the 
requirement to obtain bid guarantees.



Sec. 428.106  Administration.



Sec. 428.106-6  Furnishing information.

    Heads of contracting activities (HCA's) or their designees may 
furnish certified copies of bonds and the contracts for which they were 
given as provided by FAR 28.106-6(c). Requesters may be required to pay 
costs of certification and copying established by the Departmental Fee 
Schedule for records requests (7 CFR part 1, subpart A, appendix A).

           Subpart 428.2_Sureties and Other Security for Bonds



Sec. 428.203  Acceptability of individual sureties.

    Evidence of possible criminal or fraudulent activities by an 
individual surety shall be reported to the Office of Inspector General 
in accordance with Departmental Regulations (1700 series).



Sec. 428.204  Alternatives in lieu of corporate or individual sureties.

    HCA's shall establish procedures to ensure protection and conveyance 
of deposited securities of the types listed in FAR 28.204-1 through 
28.204-3.



Sec. 428.204-2  Certified or cashier's checks, bank drafts, money 
          orders, or currency.

    The contracting officer shall insert the provision at 452.228-70, 
Alternative Forms of Security, in a solicitation if a bond is required.

[[Page 173]]

                         Subpart 428.3_Insurance



Sec. 428.307  Insurance under cost-reimbursement contracts.



Sec. 428.307-1  Group insurance plans.

    Under cost-reimbursement contracts, before buying insurance under a 
group insurance plan, the contractor shall submit the plan to the 
contracting officer for review. During review, the contracting officer 
shall use all sources of information available, such as audits, industry 
practice, or other sources of information, to determine whether 
acceptance of the plan submitted would be in the Government's best 
interest.



Sec. 428.310  Contract clause for work on a Government installation.

    The contracting officer shall insert the clause at 452.228-71, 
Insurance Coverage, in solicitations and contracts which include the 
clause at FAR 52.228-5, Insurance--Work on a Government Installation. If 
property liability insurance is required, the contracting officer shall 
use the clause with its Alternate I.



Sec. 428.370  Government-owned vehicles operated in foreign countries.

    USDA is authorized to obtain insurance to cover liability incurred 
by any of its employees while acting within the scope of their 
employment and operating a Government-owned vehicle in a foreign 
country. (7 U.S.C. 2262).

                           PART 429 [RESERVED]

            PART 430_COST ACCOUNTING STANDARDS ADMINISTRATION

Sec.

Sec. 430.070 Definitions.

                 Subpart 430.2_CAS Program Requirements


Sec. 430.201 Contract requirements.

Sec. 430.201-5 Waiver.

Sec. 430.202 Disclosure requirements.

Sec. 430.202-2 Impracticality of submission.

Sec. 430.202-8 Subcontractor Disclosure Statements.

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

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



Sec. 430.070  Definitions.

    ACO, as used in this part and in FAR part 30, means administrative 
contracting officer as described in FAR part 42.

                 Subpart 430.2_CAS Program Requirements



Sec. 430.201  Contract requirements.



Sec. 430.201-5  Waiver.

    The Senior Procurement Executive (SPE), without the authority to 
further redelegate, is authorized to request the Cost Accounting 
Standards Board to waive the application of the Cost Accounting 
Standards (CAS). Contracting officers shall prepare waiver requests in 
accordance with 48 CFR chapter 99 (Appendix B, FAR loose-leaf edition), 
subsection 9903.201-5, and submit them to the SPE through the head of 
the contracting activity (HCA).



Sec. 430.202  Disclosure requirements.



Sec. 430.202-2  Impracticality of submission.

    (a) The Secretary, without the power to delegate, is authorized to 
determine, in accordance with FAR part 99 (Appendix B), subsection 
9903.202-2, that the Disclosure Statement is impractical to secure and 
to authorize award without obtaining the Disclosure Statement.
    (b) The request for this determination is to be prepared in 
accordance with FAR part 99 (Appendix B), subsection 9903.202-2 and is 
to contain the proposed report to the CASB.
    (c) Requests for a determination under paragraph (a) of this section 
shall be prepared by the contracting officer and submitted through the 
HCA to the SPE for concurrence and submittal to the Secretary.



Sec. 430.202-8  Subcontractor Disclosure Statements.

    (a) The Secretary, without the power to redelegate, is authorized to 
determine that the Disclosure Statement for a subcontractor is 
impractical to secure and to authorize award without obtaining the 
Disclosure Statement.
    (b) Requests for this determination are to be prepared and forwarded 
as described in 430.202-2.

[[Page 174]]

            PART 431_CONTRACT COST PRINCIPLES AND PROCEDURES

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

                       Subpart 431.1_Applicability



Sec. 431.101  Objectives.

    (a) The SPE is designated as the official authorized to give advance 
approval of an individual deviation concerning cost principles.
    (b) The SPE is designated as the official authorized to give advance 
approval of a class deviation concerning cost principles after 
coordination with the Civilian Agency Acquisition Council.
    (c) Requests for advance approval of class deviations concerning 
cost principles must be submitted to the SPE through the HCA.

[61 FR 53646, Oct. 15, 1996]

                       PART 432_CONTRACT FINANCING

Sec.

Sec. 432.001 Definitions.

Sec. 432.003 Simplified acquisition procedures financing.

Sec. 432.006 Reduction or suspension of contract payments upon finding 
          of fraud.

Sec. 432.006-2 Definitions.

Sec. 432.006-3 Responsibilities.

Sec. 432.006-4 Procedures.

Sec. 432.006-5 Reporting.

Sec. 432.007 Contract financing payments.

          Subpart 432.1_Non-Commercial Item Purchase Financing


Sec. 432.102 Description of contract financing methods.

Sec. 432.103 Progress payments under construction contracts.

Sec. 432.111 Contract clauses for non-commercial purchases.

Sec. 432.113 Customary contract financing.

Sec. 432.114 Unusual contract financing.

            Subpart 432.2_Commercial Item Purchase Financing


Sec. 432.202 General.

Sec. 432.202-1 Policy.

Sec. 432.202-4 Security for Government financing.

Sec. 432.206 Solicitation provisions and contract clauses.

Sec. 432.207 Administration and payment of commercial financing 
          payments.

          Subpart 432.3_Loan Guarantees for Defense Production


Sec. 432.301 Definitions.

         Subpart 432.4_Advance Payments for Non-Commercial Items


Sec. 432.402 General.

Sec. 432.406 Letters of credit.

Sec. 432.407 Interest.

Sec. 432.412 Contract clause.

                      Subpart 432.6_Contract Debts


Sec. 432.601 Definition.

Sec. 432.616 Compromise actions.

                     Subpart 432.7_Contract Funding


Sec. 432.703 Contract funding requirements.

Sec. 432.703-3 Contracts crossing fiscal years.

Sec. 432.770 USDA specific funding limitations.

                   Subpart 432.8_Assignment of Claims


Sec. 432.802 Conditions.

Sec. 432.803 Policies.

Sec. 432.805 Procedure.

Sec. 432.806 Contract clauses.

                      Subpart 432.9_Prompt Payment


Sec. 432.904 Determining payment due dates.

                Subpart 432.10_Performance-Based Payments


Sec. 432.1007 Administration and payment of performance-based payments.

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

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



Sec. 432.001  Definitions.

    The agency contract finance office is the office, other than the 
office of the requisitioner, providing funding or performing funding 
record keeping for the contract action.
    Responsible fiscal authority is that officer in the agency contract 
finance office with the responsibility to ensure that adequate funds are 
available and usable for the intended purpose.



Sec. 432.003  Simplified acquisition procedures financing.

    (a) The chief of the contracting office may approve contract 
financing on a contract to be entered under the simplified acquisition 
procedures. Class approvals may not be made.

[[Page 175]]

    (b) The signed approval must contain the supporting rationale for 
the action and an estimate of the cost and/or risk to the government.



Sec. 432.006  Reduction or suspension of contract payments upon finding 
          of fraud.



Sec. 432.006-2  Definitions.

    (a) The USDA remedy coordination official (RCO) is the Assistant 
Secretary for Administration.
    (b) For the purposes of this part, head of the agency means, 
exclusively, the Secretary or the Deputy Secretary.



Sec. 432.006-3  Responsibilities.

    When a contracting officer suspects that a request for advance, 
partial, or progress payment is based on fraud, the request shall be 
referred directly to the Office of Inspector General (OIG) in accordance 
with their instructions. A copy of the referral shall be submitted 
through the head of the contracting activity (HCA) to the Senior 
Procurement Executive (SPE).



Sec. 432.006-4  Procedures.

    (a) Immediately upon submittal of the referral described in 432.006-
3, the HCA and the contracting officer shall confer with the SPE and 
representatives of the OIG to discuss the potential for reduction or 
suspension of further payments based on the considerations listed in FAR 
32.006-4(d) (1) through (5).
    (b) The SPE will determine whether the contractor has contracts with 
other Departments or contracting activities and will involve them, as 
necessary, in the decision making process.
    (c) The OIG will determine the need for and the extent of an 
investigation.
    (d) Immediately upon completion of the OIG investigation (or, if 
deemed necessary by the OIG and the SPE, before completion of the 
investigation) the SPE, in coordination with the HCA, the contracting 
officer, and the OIG, shall make a report on the action to the RCO.
    (e) Upon receipt of the report, the RCO will submit a recommendation 
to the Secretary.
    (f) Upon receipt of the RCO's report the Secretary will:
    (1) Notify the contractor in writing, allowing 30 calendar days 
after receipt of the notice, that the contractor may submit in writing 
information and arguments in opposition to the recommendation; and
    (2) Consider the RCO's recommendation, the SPE's report, the 
response of the contractor, and any other relevant information in order 
to make an appropriate final determination.
    (g) This determination will be provided to the contractor and to the 
SPE for distribution to the agencies involved and for appropriate action 
under the determination.
    (h) The determination and the supporting documentation will be 
placed in the contract file(s) and a copy will be maintained by the SPE.
    (i) The contracting officer will advise the SPE of the actual date 
of the reduction or suspension action.
    (j) Not later than 150 calendar days after the actual date of the 
reduction or suspension action, the SPE will prepare for the RCO a 
review of the agency head's determination, and will propose a 
recommendation from the RCO to the agency head as to whether the 
reduction or suspension action should continue. The RCO will submit the 
recommendation (including a recommendation for the time period of a 
follow up review) to the agency head. This recommendation will be 
considered by the Secretary and handled as a final action described in 
paragraph (f) of this section.
    (k) The contract may not be closed nor final payment made prior to a 
final determination by the Secretary.



Sec. 432.006-5  Reporting.

    The annual report required by FAR 32.006-5 is to be prepared by the 
SPE and to be submitted to the Secretary within 90 calendar days after 
the end of the fiscal year. When signed by the Secretary, the report is 
to be maintained by the SPE.



Sec. 432.007  Contract financing payments.

    The HCA may prescribe, on a case-by-case basis, a shorter period for 
financing payments.

[61 FR 53646, Oct. 15, 1996. Redesignated at 70 FR 48, Jan. 3, 2005]

[[Page 176]]

          Subpart 432.1_Non-Commercial Item Purchase Financing



Sec. 432.102  Description of contract financing methods.

    Progress payments based on a percentage or stage of completion are 
authorized for use as a payment method under USDA contracts or 
subcontracts for construction, alteration or repair, and shipbuilding 
and conversion. Such payments also are authorized for service contracts, 
if the contracting officer determines that progress payments based on 
costs are not practicable and adequate safeguards are provided to 
administer progress payments based on a percentage or stage of 
completion. For all other contracts, progress payment provisions shall 
be based on costs except that the HCA may authorize progress payments 
based on a percentage or stage of completion on a case-by-case basis. 
Each authorization by the HCA shall include a determination and finding 
that progress payments based on costs cannot be employed practically and 
that there are adequate safeguards provided for the administration of 
progress payments based on a percentage or stage of completion.



Sec. 432.103  Progress payments under construction contracts.

    (a) When approving a progress payment under a construction contract, 
the contracting officer shall indicate the amount to be paid by the 
payment office and include in the contract file the rationale in support 
of the payment.
    (b) When a retainage is made on a progress payment under a 
construction contract, the contracting officer shall place in the 
contract file a written determination stating the reason(s) for the 
retainage.
    (c) When a progress payment under a construction contract has been 
approved, the amount to be paid, the amount of any retainage withheld, 
and the reason(s) for the retainage shall be provided to the contractor 
by the contracting officer in writing before the payment due date.
    (d) When the contractor, under a fixed-price construction contract, 
furnishes evidence to the contracting officer that the surety has been 
paid in full for bond premiums and requests reimbursement, the first 
subsequent progress payment shall include the total amount attributable 
to such bond premiums and the Government shall pay that amount in full. 
This amount paid for the bond premiums is not an amount in addition to 
the stated contract price.



Sec. 432.111  Contract clauses for non-commercial purchases.

    The contracting officer shall insert the clause at 452.232-70, 
Reimbursement for Bond Premiums--Fixed Price Construction Contracts, 
whenever the clause at FAR 52.232-5, Payments under Fixed-Price 
Construction Contracts, is used in a contract.

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



Sec. 432.113  Customary contract financing.

    The contracting officer may determine the necessity for customary 
contract financing. The determination and finding that customary 
contract financing is needed shall be placed in the contract file.



Sec. 432.114  Unusual contract financing.

    The HCA is authorized to approve unusual contract financing. The 
signed determination and finding supporting this approval shall be 
included in the contract file.

            Subpart 432.2_Commercial Item Purchase Financing



Sec. 432.202  General.



Sec. 432.202-1  Policy.

    In the case of unusual contract financing, the approval by the HCA 
shall be recorded in a determination and finding and maintained in the 
contract file.



Sec. 432.202-4  Security for Government financing.

    Prior to determining that an offeror's financial condition is 
adequate security, the contracting officer must obtain the concurrence 
of the funding activity in the proposed determination.

[[Page 177]]



Sec. 432.206  Solicitation provisions and contract clauses.

    The responsibility for administration of the liquidation provisions 
of a contract may not be transferred from the contracting officer.



Sec. 432.207  Administration and payment of commercial financing 
          payments.

    The responsibility for receiving, reviewing, and approval of 
contract financing requests may not be transferred from the contracting 
officer.

          Subpart 432.3_Loan Guarantees for Defense Production



Sec. 432.301  Definitions.

    Within this subpart, the ``agency'' or ``guaranteeing agency'' is 
the ``head of the contracting activity'' (HCA) and may not be 
redelegated.

         Subpart 432.4_Advance Payments for Non-Commercial Items



Sec. 432.402  General.

    The HCA is designated as the individual responsible for making the 
findings and determination, and for approval of the contract terms 
concerning advance payments.



Sec. 432.406  Letters of credit.

    The HCA is designated as the individual responsible for coordination 
with the Department of Treasury concerning letters of credit.



Sec. 432.407  Interest.

    (a) The HCA is designated as the individual who may authorize, on a 
case by case basis, advance payments without interest for the contract 
types described in FAR 32.407(d)(1), (2), (3), and (4). The signed 
determination and findings supporting these authorizations shall be 
included in the contract files.
    (b) The SPE is designated as the individual who may authorize 
advance payments without interest other than those described in 
paragraph (a) of this section.



Sec. 432.412  Contract clause.

    The decision to use Alternates I or III to clause 52.232-12 must be 
supported by a determination and finding.

                      Subpart 432.6_Contract Debts



Sec. 432.601  Definition.

    Responsible official means the contracting officer.



Sec. 432.616  Compromise actions.

    Compromise of a debt within the proceedings under appeal to the 
Civilian Board of Contract Appeals is the responsibility of the 
contracting officer.

[72 FR 31438, June 7, 2007]

                     Subpart 432.7_Contract Funding



Sec. 432.703  Contract funding requirements.



Sec. 432.703-3  Contracts crossing fiscal years.

    Funds appropriated to USDA may be used for one-year contracts which 
are to be performed in two fiscal years so long as the total amount for 
such contracts is obligated in the year for which the funds are 
appropriated (7 U.S.C. 2209c).



Sec. 432.770  USDA specific funding limitations.

    (a) The USDA is authorized to subscribe for newspapers as may be 
necessary to carry out its authorized work: Provided, that such 
subscriptions shall not be made unless provision is made therefor in the 
applicable appropriation and the cost thereof is not in excess of 
limitations prescribed therein (7 U.S.C. 2258).
    (b) The expenditure of any USDA appropriation for any consulting 
service through any contract, pursuant to section 3109 of Title 5 of the 
U.S. Code shall be limited to those contracts where such expenditures 
are a matter of public record and available for public inspection, 
except where otherwise provided under existing law, or under existing 
Executive Order issued pursuant to existing law (7 U.S.C. 2225a).

[[Page 178]]

                   Subpart 432.8_Assignment of Claims



Sec. 432.802  Conditions.

    Written notices of assignment and a true copy of the assigned 
instrument are to be sent to the contracting officer rather than the 
agency head. Other copies are distributed as directed in FAR 32.802.



Sec. 432.803  Policies.

    The HCA may make a determination of need to include a no-setoff 
commitment in a contract.



Sec. 432.805  Procedure.

    The information described in FAR 32.805 shall be filed with the 
contracting officer.



Sec. 432.806  Contract clauses.

    The contracting officer may make the determination whether to 
include the clause at FAR 52.232-23 in any purchase order expected to 
exceed the micro-purchase threshold.

                      Subpart 432.9_Prompt Payment



Sec. 432.904  Determining payment due dates.

    The payment terms for supplies and services on the Procurement List 
and provided by a Javits-Wagner-O'Day Act participating nonprofit agency 
are governed by FAR 8.709.

[61 FR 53646, Oct. 15, 1996. Redesignated at 70 FR 48, Jan. 3, 2005]

                Subpart 432.10_Performance-Based Payments



Sec. 432.1007  Administration and payment of performance-based payments.

    The responsibility for receiving, reviewing, and approval of 
performance-based payment requests may not be transferred from the 
contracting officer.

                 PART 433_PROTESTS, DISPUTES AND APPEALS

                         Subpart 433.1_Protests

Sec.

Sec. 433.102 General.

Sec. 433.103 Protests to the agency.

Sec. 433.104 [Reserved]

                   Subpart 433.2_Disputes and Appeals


Sec. 433.203 Applicability.

Sec. 433.203-70 Civilian Board of Contract Appeals.

Sec. 433.209 Suspected fraudulent claims.

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

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

                         Subpart 433.1_Protests



Sec. 433.102  General.

    (a) The Senior Procurement Executive (SPE) is responsible for 
coordinating the handling of bid protests lodged with the Government 
Accountability Office (GAO).
    (b) The head of the contracting activity (HCA), on a non-delegable 
basis, may resolve protests and authorize reimbursement of costs in 
accordance with FAR 33.102(b).

[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 48, Jan. 3, 2005]



Sec. 433.103  Protests to the agency.

    (a) Actual or prospective bidders or offerors may file protests 
either with the HCA, as provided by 433.102(b), or with the contracting 
officer. Protesters who file protests with the HCA shall furnish a 
complete copy to the contracting officer no later than 1 day after the 
protest is filed with the HCA.
    (b) When a protest is received, the adjudicating official shall take 
prompt action towards resolution and notify the protester in writing of 
the action taken. The written final decision shall include a paragraph 
substantially as follows:

    This decision shall be final and conclusive unless a further written 
notice of protest is filed with the Government Accountability Office in 
accordance with 4 CFR part 21. Neither the filing of a protest with USDA 
nor the filing of a protest with the Government Accountability Office 
affects your right to file an action in a district court of the United 
States or the United States Court of Federal Claims.

[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 48, Jan. 3, 2005]

[[Page 179]]



Sec. 433.104  [Reserved]

                   Subpart 433.2_Disputes and Appeals



Sec. 433.203  Applicability.

    The Assistant Secretary for Administration is authorized to 
determine the applicability of the Contract Disputes Act to contracts 
with foreign governments pursuant to FAR 33.203.



Sec. 433.203-70  Civilian Board of Contract Appeals.

    The organization, jurisdiction, and functions of the Civilian Board 
of Contract Appeals, together with its Rules of Procedure, are set out 
in 48 CFR part 6101.

[72 FR 31438, June 7, 2007]



Sec. 433.209  Suspected fraudulent claims.

    The contracting officer shall refer all matters related to suspected 
fraudulent claims by a contractor under the conditions in FAR 33.209 to 
the Office of Inspector General for additional action or investigation.

[[Page 180]]

             SUBCHAPTER F_SPECIAL CATEGORIES OF CONTRACTING

                    PART 434_MAJOR SYSTEM ACQUISITION

                          Subpart 434.0_General

Sec.

Sec. 434.001 Definitions.

Sec. 434.002 Policy.

Sec. 434.003 Responsibilities.

Sec. 434.004 Acquisition strategy.

Sec. 434.005 General requirements.

Sec. 434.005-6 Full production.

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

    Source: 70 FR 49, Jan. 3, 2005, unless otherwise noted.

                          Subpart 434.0_General



Sec. 434.001  Definitions.

    Pursuant to OMB Circular No. A-109 (A-109) and the definition at FAR 
2.101, within USDA, a system shall be considered a major system if:
    (a) The total acquisition costs (for information technology, life 
cycle costs) are estimated to be $50 million or more, or
    (b) The system, regardless of estimated acquisition or life cycle 
costs, has been specifically designated to be a major system by the USDA 
Acquisition Executive or by the Major Information Technology Systems 
Executive.



Sec. 434.002  Policy.

    In addition to the policy guidance at FAR 34.002 and other parts of 
the FAR, the policies outlined in paragraph 6 of A-109 should serve as 
guidelines for all contracting activities in planning and developing 
systems, major or otherwise.



Sec. 434.003  Responsibilities.

    (a) The Secretary of Agriculture or other designated USDA key 
executive is responsible for making four key decisions in each major 
system acquisition process. These are listed in paragraph 9 of A-109 and 
elaborated on in paragraphs 10 through 13. The key executives of USDA 
(Secretary, Deputy Secretary, Under Secretaries and Assistant 
Secretaries) individually or as a group will participate in this 
decision making process.
    (b) The Chief Information Officer (CIO) is the Major Information 
Technology Systems Executive. For acquisitions of information 
technology, the CIO will ensure that A-109 is implemented in USDA and 
that the management objectives of the Circular are realized. The CIO is 
responsible for designating the program manager for each major 
information technology system acquisition, designating an acquisition to 
be a major information technology system acquisition, and approving the 
written charter and project control system for each major information 
technology system acquisition.
    (c) The Assistant Secretary for Administration (ASA) is the USDA 
Acquisition Executive for major system acquisitions other than 
acquisitions of information technology. The ASA will ensure that A-109 
is implemented in USDA and that the management objectives of the 
Circular are realized. The ASA is responsible for designating the 
program manager for each major system acquisition, designating an 
acquisition to be a major system acquisition, and approving the written 
charter and project control system for each major system acquisition.
    (d) Heads of contracting activities must:
    (1) Ensure compliance with the requirements of A-109, FAR Part 34 
and AGAR Part 434.
    (2) Ensure that potential major system acquisitions are brought to 
the attention of the USDA Acquisition Executive or the Major Information 
Technology Systems Executive, as appropriate.
    (3) Recommend qualified candidates for designation as program 
managers for each major system acquisition within their jurisdiction.
    (4) Ensure that program managers fulfill their responsibilities and 
discharge their duties.
    (5) Cooperate with the ASA and Major Information.
    Technology Systems Executive in implementing the requirements of A-
109.

[[Page 181]]

    (e) The program manager is responsible for planning and executing 
the major system acquisition, ensuring appropriate coordination with the 
USDA Acquisition Executive and Major Information Technology Systems 
Executive and other key USDA executives.



Sec. 434.004  Acquisition strategy.

    (a) The program manager will develop, in coordination with the 
Acquisition Executive or Major Information Technology Systems Executive, 
a written charter outlining the authority, responsibility, 
accountability, and budget for accomplishing the proposed objective.
    (b) The program manager will develop, subject to the approval of the 
Acquisition Executive or Major Information Technology Systems Executive, 
a project control system to schedule, monitor, and regularly report on 
all aspects of the project. The control system shall establish reporting 
periods and milestones consistent with the key decisions listed in 
paragraph 9 of A-109.
    (c) Upon initiation of the project, the program manager will report 
regularly to the Acquisition Executive or Major Information Technology 
Systems Executive.
    (d) Specific procedures and requirements for information technology 
systems are included in the USDA Information Technology Capital Planning 
and Investment Control Guide which can be accessed on the USDA OCIO Web 
site at http://www.ocio.usda.gov.



Sec. 434.005  General requirements.



Sec. 434.005-6  Full production.

    The Secretary or the USDA key executive designated by the Secretary 
for the specific program is the agency head for the purposes of FAR 
34.005-6.

              PART 435_RESEARCH AND DEVELOPMENT CONTRACTING

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



Sec. 435.010  Scientific and technical reports.

    Research and development contracts shall contain a provision 
requiring that the contractor send copies of all scientific and 
technical reports to the National Technical Information Service at the 
address indicated in FAR 35.010(b). The release of research and 
development contract results to other government activities and to the 
private sector is subject to the provisions of FAR subpart 4.4.

[61 FR 53646, Oct. 15, 1996]

         PART 436_CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

      Subpart 436.2_Special Aspects of Contracting for Construction

Sec.

Sec. 436.201 Evaluation of contractor performance.

Sec. 436.203 Government estimate of construction costs.

Sec. 436.204 Disclosure of the magnitude of construction projects.

Sec. 436.205 Statutory cost limitations.

Sec. 436.209 Construction contracts with architect-engineer firms.

Sec. 436.213 Special procedures for sealed bidding in construction 
          contracting.

Sec. 436.213-2 Presolicitation notices.

Subpart 436.3 [Reserved]

                     Subpart 436.5_Contract Clauses


Sec. 436.500 Scope of subpart.

Sec. 436.571 Prohibition against the use of lead-based paint.

Sec. 436.572 Use of premises.

Sec. 436.573 Archeological or historic sites.

Sec. 436.574 Control of erosion, sedimentation, and pollution.

Sec. 436.575 Maximum workweek-construction schedule.

Sec. 436.576 Samples and certificates.

Sec. 436.577 Emergency response.

Sec. 436.578 [Reserved]

Sec. 436.579 Opted timber sale road requirements.

                Subpart 436.6_Architect-Engineer Services


Sec. 436.601 Policy.

Sec. 436.601-3 Applicable contracting procedures.

Sec. 436.602 Selection of firms for architect-engineer contracts.

Sec. 436.602-1 Selection criteria.

Sec. 436.602-2 Evaluation boards.

Sec. 436.602-3 Evaluation board functions.

Sec. 436.602-4 Selection authority.

Sec. 436.602-5 Short selection process for contracts not to exceed the 
          simplified acquisition threshold.

Sec. 436.603 Collecting data on and appraising firms' qualifications.

[[Page 182]]


Sec. 436.604 Performance evaluation.

Sec. 436.605 Government cost estimate for architect-engineer work.

Sec. 436.609 Contract clauses.

Sec. 436.609-1 Design within funding limitations.

Sec. 436.670 Firms ineligible for award--construction.

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

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

      Subpart 436.2_Special Aspects of Contracting for Construction



Sec. 436.201  Evaluation of contractor performance.

    Preparation of performance evaluation reports. In addition to the 
requirements of FAR 36.201, performance evaluation reports shall be 
prepared for indefinite-delivery type contracts when either the contract 
maximum or the contracting activity's reasonable estimate of services to 
be ordered exceeds $500,000.00. For these contracts, performance 
evaluation reports shall be prepared for each order at the time of final 
acceptance of the work under the order.



Sec. 436.203  Government estimate of construction costs.

    For acquisitions using sealed bid procedures, the contracting 
officer may disclose the overall amount of the Government's estimate of 
construction costs following identification of the responsive bid most 
advantageous to the Government; verification of that bid's price 
reasonableness; and verification of the bidder's responsibility. For 
acquisitions using other than sealed bid procedures (e.g., negotiation), 
the contracting officer may disclose the overall amount of the estimate 
after contract award.



Sec. 436.204  Disclosure of the magnitude of construction projects.

    In the case of indefinite-delivery type contracts, the reasonable 
estimate of work to be done or the maximum in the solicitation, both 
including all options, is to be used to select the price range. 
Contracting officers may elect to use both a price range for the base 
period of services and the total, inclusive of options, to best describe 
the magnitude of the solicitation.



Sec. 436.205  Statutory cost limitations.

    (a) When it appears that funds available for a project may be 
insufficient for all the desired features of construction, the 
contracting officer may provide in the solicitation for a base bid item 
covering the work generally as specified and for one or more additive or 
deductive bid items which progressively add or omit specified features 
of the work in a stated order of priority. In this case, the contracting 
officer shall insert the provision at 452.236-70, Additive or Deductive 
Items, in solicitations for construction.
    (b) In the alternative to the process in paragraph (a) of this 
section, the contracting officer may use the policies and procedures 
found in FAR 17.2.



Sec. 436.209  Construction contracts with architect-engineer firms.

    The head of the contracting activity (HCA) is authorized to approve 
the award of a contract to construct a project, in whole or in part, to 
the firm (inclusive of its subsidiaries or affiliates) that designed the 
project.



Sec. 436.213  Special procedures for sealed bidding in construction 
          contracting.



Sec. 436.213-2  Presolicitation notices.

    The authority to waive a presolicitation notice is restricted to the 
HCA.

[63 FR 26995, May 15, 1998]

Subpart 436.3 [Reserved]

                     Subpart 436.5_Contract Clauses



Sec. 436.500  Scope of subpart.

    This subpart prescribes clauses for insertion in USDA solicitations 
and contracts for construction and for dismantling, demolition, or 
removal of improvements or structures. The contracting officer shall use 
the clauses as prescribed, in contracts that exceed the simplified 
acquisition threshold. The contracting officer may use the clauses if 
the contract amount is expected to be within the simplified acquisition 
threshold.

[[Page 183]]



Sec. 436.571  Prohibition against the use of lead-based paint.

    The contracting officer shall insert the clause at 452.236-71, 
Prohibition Against the Use of Lead-Based Paint, in solicitations and 
contracts, if the work involves construction or rehabilitation 
(including dismantling, demolition, or removal) of residential 
structures. This clause may be used in contracts for other than 
residential structures.



Sec. 436.572  Use of premises.

    The contracting officer shall insert the clause at 452.236-72, Use 
of Premises, if the contractor will be permitted to use land or premises 
administered by USDA.



Sec. 436.573  Archeological or historic sites.

    The contracting officer shall insert the clause at 452.236-73, 
Archeological or Historic Sites, if the contractor will be working in an 
area where such sites may be found. Use of the clause is optional in 
service contracts for on-the-ground work, e.g., reforestation, 
silvicultural, land stabilization, or other agricultural-related 
projects.



Sec. 436.574  Control of erosion, sedimentation, and pollution.

    The contracting officer shall insert the clause at 452.236-74, 
Control of Erosion, Sedimentation and Pollution, if there is a need for 
applying environmental controls in the performance of work. Use of the 
clause is optional in service contracts for on-the-ground e.g., 
reforestation, silvicultural, land stabilization, or other agricultural-
related projects.



Sec. 436.575  Maximum workweek-construction schedule.

    The contracting officer shall insert the clause at 452.236-75, 
Maximum Workweek-Construction Schedule, if the clause at FAR 52.236-15 
is used and the contractor's work schedule is restricted by access to 
the facility or must be coordinated with the schedule of contract 
administration personnel.

[63 FR 26996, May 15, 1998]



Sec. 436.576  Samples and certificates.

    The contracting officer shall insert the clause at 452.236-76, 
Samples and Certificates, in all contracts.



Sec. 436.577  Emergency response.

    The contracting officer may insert the clause at 452.236-77, 
Emergency Response, in construction contracts awarded for the Forest 
Service.



Sec. 436.578  [Reserved]



Sec. 436.579  Opted timber sale road requirements.

    The contracting officer shall insert the clause at 452.236-79, Opted 
Timber Sale Road Requirements, in road construction contracts resulting 
from a timber sale turnback.

                Subpart 436.6_Architect-Engineer Service



Sec. 436.601  Policy.



Sec. 436.601-3  Applicable contracting procedures.

    The technical official's listing of areas where recovered materials 
cannot be used shall be referred to the contracting activity's official 
designated in accordance with FAR 23.404. A copy of the listing and of 
any approval or disapproval by that official is to be retained in the 
solicitation file.



Sec. 436.602  Selection of firms for architect-engineer contracts.



Sec. 436.602-1  Selection criteria.

    The HCA is authorized to approve the use of design competition under 
the conditions in FAR 36.602-1(b).



Sec. 436.602-2  Evaluation boards.

    HCA's shall establish written procedures for providing permanent or 
ad hoc architect-engineer evaluation boards as prescribed in FAR 36.602-
2. The procedures may provide for the appointment of private 
practitioners of architecture, engineering, or related professions when 
such action is determined by the HCA to be essential to meet the 
Government's minimum needs.

[[Page 184]]



Sec. 436.602-3  Evaluation board functions.

    The selection report required in FAR 36.602-3(d) shall be prepared 
for the approval of the HCA. The HCA may authorize an acquisition 
official above the level of the contracting officer to execute the 
required approval.



Sec. 436.602-4  Selection authority.

    (a) The HCA shall serve as the selection authority in accordance 
with FAR 36.602-4. The HCA may authorize an acquisition official above 
the level of the contracting officer to serve as the selection 
authority.
    (b) A copy of the final selection, inclusive of the supporting 
documents, shall be provided to the contracting officer and maintained 
in the solicitation file.



Sec. 436.602-5  Short selection process for contracts not to exceed the 
          simplified acquisition threshold.

    The HCA may include either or both procedures in FAR 36.602-5 in the 
procedures for evaluation boards.



Sec. 436.603  Collecting data on and appraising firms' qualifications.

    (a) HCA's which require architect-engineer services shall establish 
procedures to comply with the requirements of FAR 36.603.
    (b) The procedures shall include a list of names, addresses, and 
phone numbers of offices or boards assigned to maintain architect-
engineer qualification data files. The list shall be updated annually.



Sec. 436.604  Performance evaluation.

    Preparation of performance evaluation reports. (a) In addition to 
the requirements of FAR 36.604, performance evaluation reports shall be 
prepared for indefinite-delivery type contracts when either the contract 
maximum or the contracting activities reasonable estimate of services to 
be ordered exceeds $25,000.00. For these contracts, performance 
evaluation reports shall be prepared for each order at the time of final 
acceptance of the work under the order.
    (b) The contracting officer may require a performance evaluation 
report on the work done by the architect-engineer after the completion 
of or during the construction of the designed project.



Sec. 436.605  Government cost estimate for architect-engineer work.

    The contracting officer may release the Government's total cost 
estimate in accordance with FAR 36.605(b).



Sec. 436.609  Contract clauses.



Sec. 436.609-1  Design within funding limitations.

    (a) Should the head of the contracting activity appoint a designee 
to make the determination in FAR 36.609-1(c)(1), the appointment may be 
to one no lower than the official authorized to commit program funds for 
the work being acquired.
    (b) The contracting officer, with the advice of appropriate 
technical representatives, may make the determination in FAR 36.609-
1(c)(2) or (3).
    (c) A copy of the determinations described in paragraph (b) and (c) 
of this section shall be maintained in the contract file.



Sec. 436.670  Firms ineligible for award--construction.

    The contracting officer shall insert the clause at 452.236-80, Firms 
Ineligible For Award--Construction, in the contract for architect-
engineering services except as provided in FAR 36.209 and AGAR 436.209.

                      PART 437_SERVICE CONTRACTING

                 Subpart 437.1_Service Contracts_General

Sec.

Sec. 437.104 Personal services contracts.

Sec. 437.110 Solicitation provisions and contract clauses.

             Subpart 437.2_Advisory and Assistance Services


Sec. 437.203 Policy.

Sec. 437.204 Guidelines for determining availability of personnel.

Sec. 437.270 Solicitation provisions and contract clauses.

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

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

[[Page 185]]

                 Subpart 437.1_Service Contracts_General



Sec. 437.104  Personal services contracts.

    USDA has the following specific statutory authorities to contract 
for personal services:
    (a) Section 706(a) of the Organic Act of 1944 (7 U.S.C. 2225) 
authorizes contracting with persons or organizations on a temporary 
basis, without regard to civil service compensation classification 
standards in 5 U.S.C., Chapter 51 and Subchapter III of Chapter 53, 
Provided:
    (1) That no expenditures shall be made unless specifically provided 
for in the applicable appropriation, and
    (2) Expenditures do not exceed any limitations prescribed in the 
appropriation.
    (b) 7 U.S.C. 1627 authorizes the Secretary of Agriculture to 
contract with technically qualified persons, firms or organizations to 
perform research, inspection, classification, technical, or other 
special services, without regard to the civil-service laws, Provided: it 
is for a temporary basis and for a term not to exceed six months in any 
fiscal year.



Sec. 437.110  Solicitation provisions and contract clauses.

    (a) The contracting officer shall insert a clause substantially the 
same as the clause at 452.237-70, Loss Damage, Destruction or Repair, in 
contracts for equipment rental, whether the equipment is furnished with 
or without operator.
    (b) The contracting officer shall insert a provision substantially 
the same as the clause at 452.237-71, Pre-Bid/Pre-Proposal Conference, 
in all solicitations if a conference with prospective offerors will be 
held prior to the submittal of bids or proposals.
    (c) The contracting officer shall insert the provision at 452.237-
73, Equipment Inspection visit, in solicitations if work is to be done 
on Government equipment and an offeror's inspection is encouraged for an 
understanding of the work to be performed prior to submittal of bids or 
proposals.
    (d) The contracting officer shall insert a clause substantially the 
same as the clause at 452.237-74, Key Personnel, in contracts if 
contract performance requires identification of the contractor's key 
personnel.
    (e) The contracting officer shall insert a clause substantially the 
same as the clause at 452.237-75, Restrictions Against Disclosure, in 
service contracts (including architect-engineer contracts) requiring 
restrictions on release of information developed or obtained in 
connection with performance of the contract.

             Subpart 437.2_Advisory and Assistance Services



Sec. 437.203  Policy.

    Contracting for advisory and assistance services is subject to the 
policy and procedures in Departmental Regulations (5000 series).



Sec. 437.204  Guidelines for determining availability of personnel.

    The head of the contracting activity (HCA) is authorized to approve 
the use of non-Government evaluators in proposal evaluation. Each such 
decision shall be supported by a written determination in accordance 
with FAR 37.204.

[64 FR 52675, Sept. 30, 1999]



Sec. 437.270  Solicitation and contract clauses.

    (a) The contracting officer shall insert a clause substantially the 
same as the clause at 452.237-76, Progress Reporting, in all contracts 
for advisory and assistance services. It may also be used in other 
service contracts.
    (b) The contracting officer shall insert a clause substantially the 
same as the clause at 452.237-78, Contracts with Consulting Firms for 
Services, in solicitations and contracts for consulting services which 
prohibit follow-on contracts with the contracting firm.

                           PART 438 [RESERVED]

             PART 439_ACQUISITION OF INFORMATION TECHNOLOGY

                          Subpart 439.1_General

Sec.

Sec. 439.101 Policy.


[[Page 186]]


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

                          Subpart 439.1_General



Sec. 439.101  Policy.

    (a) In addition to policy and regulatory guidance contained in the 
FAR and AGAR:
    (1) The USDA Information Technology Capital Planning and Investment 
Control Guide (CPIC) establishes requirements for the acquisition of 
information technology.
    (2) Specific thresholds at which USDA Office of the Chief 
Information Officer Information Technology Acquisition Approval is 
required have been established.
    (3) The procurement authority delegated to USDA Agencies is 
established in Departmental Regulations 5000 series.
    (4) The CPIC Guide and USDA CIO policy and procedural guidance are 
available on the USDA OCIO Web site at http://www.ocio.usda.gov. Notices 
of changes in the Information Technology Acquisition Approval Thresholds 
are also promulgated by AGAR Advisory.
    (b) Acquisition of on-line courseware libraries and learning 
management system services requires specific approval of the ASA and 
CIO. Information regarding the specific approval requirements and 
processes is promulgated by AGAR Advisory.

[70 FR 49, Jan. 3, 2005]

                           PART 440 [RESERVED]

                PART 441_ACQUISITION OF UTILITY SERVICES

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

                Subpart 441.2_Acquiring Utility Services



Sec. 441.201  Policy.

    As used in FAR 41.201(d)(2)(i) and 41.201(d)(3) the Federal agency 
head designee is the head of the contracting activity.

[61 FR 53646, Oct. 15, 1996]

[[Page 187]]

                    SUBCHAPTER G_CONTRACT MANAGEMENT

                    PART 442_CONTRACT ADMINISTRATION

  Subpart 442.1_Interagency Contract Administration and Audit Services

Sec.

Sec. 442.102 Procedures.

            Subpart 442.15_Contractor Performance Information


Sec. 442.1502 Policy.

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

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

  Subpart 442.1_Interagency Contract Administration and Audit Services



Sec. 442.102  Procedures.

    (a) The Office of Inspector General (OIG), Audit Division, has 
established a cross-servicing arrangement with the Defense Contract 
Audit Agency (DCAA) to provide contract audit services required by the 
FAR.
    (b) All contract audit services required by contracting officers, 
except those which can be accomplished in-house, shall be coordinated 
through the cognizant OIG Regional Inspector General--Auditing (RIG-A). 
Cognizance is determined on the basis of the contractor's location. 
There is no charge for DCAA audit services coordinated through OIG.
    (c) In order to ensure compliance with this requirement and to 
evaluate the results of audits, contracting officers shall forward to 
the RIG-A copies of all price negotiation memoranda prepared for 
contracts and contract modifications in excess of $500,000.

            Subpart 442.15_Contractor Performance Information



Sec. 442.1502  Policy.

    The Contractor Performance System (CPS), developed by the National 
Institutes of Health, is designated as the single USDA-wide system for 
maintaining contractor performance/evaluation information. Use of the 
CPS is mandatory. As a minimum, the CPS shall be accessed for contractor 
past performance information as part of proposal evaluation in 
accordance with FAR subpart 15.3, and information resulting from the 
evaluation of contractor performance in accordance with FAR subpart 
42.15 shall be entered into and maintained in this system. The CPS is a 
part of the USDA Acquisition Toolkit which can be accessed from the USDA 
Procurement Homepage at http://www.usda.gov/procurement/.

[66 FR 49867, Oct. 1, 2001]

                        PARTS 443	444 [RESERVED]

                      PART 445_GOVERNMENT PROPERTY

       Subpart 445.3_Providing Government Property to Contractors

Sec.

Sec. 445.302 Providing facilities.

Sec. 445.302-1 Policy.

     Subpart 445.4_Contractor Use and Rental of Government Property


Sec. 445.403 Rental--Use and Charges clause.

Sec. 445.407 Non-Government use of plant equipment.

Subpart 445.6 [Reserved]

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

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

       Subpart 445.3_Providing Government Property to Contractors



Sec. 445.302  Providing facilities.



Sec. 445.302-1  Policy.

    Heads of contracting activities (HCA's) are authorized to make 
determinations for providing facilities to a contractor as prescribed in 
FAR 45.302-1(a)(4).

[[Page 188]]

     Subpart 445.4_Contractor Use and Rental of Government Property



Sec. 445.403  Rental--Use and Charges clause.

    HCA's are authorized to make determinations for charging rent on the 
basis of use under the Use and Charges clause in FAR 52.245-9 as 
prescribed in FAR 45.403(a).



Sec. 445.407  Non-Government use of plant equipment.

    Requests for non-Government use of plant equipment as prescribed in 
FAR 45.407 shall be submitted by the HCA to the Senior Procurement 
Executive (SPE) for approval.

Subpart 445.6 [Reserved]

                       PART 446_QUALITY ASSURANCE

    Authority: 5 U.S.C. 30 and 40 U.S.C. 486(c).

                     Subpart 446.3_Contract Clauses



Sec. 446.370  Inspection and acceptance.

    The Contracting Officer shall insert the clause at 452.246-70, 
Inspection and Acceptance, in contracts where inspection and acceptance 
will be performed at the same location. The clause with its Alternate I 
is for use when inspection and acceptance will be performed at different 
locations.

[61 FR 53646, Oct. 15, 1996]

                         PART 447_TRANSPORTATION

            Subpart 447.3_Transportation in Supply Contracts

Sec.

Sec. 447.302 Place of delivery--F.O.B. point.

Sec. 447.305 Solicitation provisions, contract clauses, and 
          transportation factors.

Sec. 447.305-10 Packing, marking, and consignment instructions.

    Authority: 5 U.S.C. 30 and 40 U.S.C. 486(c).

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

            Subpart 447.3_Transportation in Supply Contracts



Sec. 447.302  Place of delivery--F.O.B. point.

    The contracting officer shall insert a clause substantially the same 
as the clause at 452.247-70, Delivery Location, in supply contracts when 
it is necessary to specify delivery locations. If appropriate, the 
clause may reference an attachment which lists various delivery 
locations and other delivery details (e.g., quantities to be delivered 
to each location, etc.).



Sec. 447.305  Solicitation provisions, contract clauses, and 
          transportation factors.



Sec. 447.305-10  Packing, marking, and consignment instructions.

    (a) The contracting officer shall insert a clause substantially the 
same as the clause at 452.247-71, Marking Deliverables, in solicitations 
and contracts if special marking on deliverables (other than reports) 
are required.
    (b) The contracting officer shall insert the clause at 452.247-72, 
Packing for Domestic Shipment, in contracts when item(s) will be 
delivered for immediate use to a destination in the continental United 
States; when the material specification or purchase description does not 
provide preservation, packaging, packing, and/or marking requirements; 
and/or when the requiring activity has not cited a specific 
specification for packaging.
    (c) The contracting officer shall insert the clause at 452.247-73, 
Packing for Overseas Shipment, in contracts when item(s) will be 
delivered to an overseas destination for immediate use, the material 
specification does not specify packing levels, and the required activity 
has not specified such requirements.

                           PART 448 [RESERVED]

[[Page 189]]

                    PART 449_TERMINATION OF CONTRACTS

                    Subpart 449.1_General Principles

Sec.

Sec. 449.106 Fraud or other criminal conduct.

Sec. 449.111 Review of proposed settlements.

                  Subpart 449.4_Termination for Default


Sec. 449.402 Termination of fixed-price contracts for default.

Sec. 449.402-3 Procedure for default.

               Subpart 449.5_Contract Termination Clauses


Sec. 449.501 General.

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

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

                    Subpart 449.1_General Principles



Sec. 449.106  Fraud or other criminal conduct.

    (a) If the contracting officer suspects fraud or other criminal 
conduct a written report documenting the facts shall be submitted by the 
head of the contracting activity (HCA) to the Office of Inspector 
General. Copies of documents or other information connected with the 
suspected fraud or criminal conduct shall be provided with the report. 
Concurrently, a copy of the report shall also be submitted to the Senior 
Procurement Executive.
    (b) Depending on the findings of the Office of Inspector General, 
the HCA may initiate suspension or debarment action as prescribed in FAR 
part 9.4 and part 409.4.



Sec. 449.111  Review of proposed settlements.

    Proposed settlement agreements shall be reviewed and approved in 
accordance with contracting activity procedures.

                  Subpart 449.4_Termination for Default



Sec. 449.402  Termination of fixed-price contracts for default.



Sec. 449.402-3  Procedure for default.

    In addition to the requirements of FAR 49.402-3(g), the notice of 
termination shall contain instructions regarding the disposition of any 
Government property in the possession of the contractor (see FAR 45.508-
1) and, in the case of construction contracts, such materials, 
appliances, and structures as may be on the site of the construction 
work. The notice shall also contain a statement concerning the liability 
of the contractor or its surety for any liquidated damages (see FAR 
49.402-7).

               Subpart 449.5_Contract Termination Clauses



Sec. 449.501  General.

    Use of special purpose termination clauses pursuant to the authority 
of FAR 49.501 shall be approved in advance by the HCA.

               PART 450_EXTRAORDINARY CONTRACTUAL ACTIONS

Sec.

Sec. 450.001 Definitions.

Subpart 450.1 [Reserved]

  Subpart 450.2_Delegation of and Limitations on Exercise of Authority


Sec. 450.201 Delegation of authority.

                   Subpart 450.3_Contract Adjustments


Sec. 450.303 Contract adjustment.

Sec. 450.303-1 Contractor requests.

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

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



Sec. 450.001  Definitions.

    Approving authority, as used in this part, means the Assistant 
Secretary for Administration.
    Secretarial level, as used in this part means the Assistant 
Secretary for Administration.

[[Page 190]]

Subpart 450.1 [Reserved]

  Subpart 450.2_Delegation of and Limitations on Exercise of Authority



Sec. 450.201  Delegation of authority.

    The Assistant Secretary for Administration is authorized to approve 
all actions under FAR part 50 except indemnification actions listed in 
FAR 50.201(d) which must be approved by the Secretary, without power of 
delegation.

                   Subpart 450.3_Contract Adjustments



Sec. 450.303  Contract adjustment.



Sec. 450.303-1  Contractor requests.

    Contractor requests shall be submitted to the contracting officer.

                           PART 451 [RESERVED]

[[Page 191]]

                     SUBCHAPTER H_CLAUSES AND FORMS

          PART 452_SOLICITATION PROVISIONS AND CONTRACT CLAUSES

              Subpart 452.2_Texts of Provisions and Clauses

Sec.

Sec. 452.204-70 Inquiries.

Sec. 452.211-70 Brand Name or Equal.

Sec. 452.211-71 Equal Products Offered.

Sec. 452.211-72 Statement of Work/Specifications.

Sec. 452.211-73 Attachments to Statement of Work/Specifications.

Sec. 452.211-74 Period of Performance.

Sec. 452.211-75 Effective Period of the Contract.

Sec. 452.214-70 Award by Lot.

Sec. 452.215-71 Instructions for the Preparation of Technical and 
          Business Proposals.

Sec. 452.215-72 Amendments to Proposals.

Sec. 452.215-73 Post Award Conference.

Sec. 452.216-70 Award Fee.

Sec. 452.216-71 Base Fee and Award Fee Proposal.

Sec. 452.216-72 Evaluation Quantities--Indefinite-Delivery Contract.

Sec. 452.216-73 Minimum and Maximum Contract Amounts.

Sec. 452.216-74 Ceiling Price.

Sec. 452.216-75 Letter Contract.

Sec. 452.219-70 Size Standard and NAICS Code Information.

Sec. 452.224-70 Confidentiality of Information.

Sec. 452.226-70--452.226-72 [Reserved]

Sec. 452.228-70 Alternative Forms of Security.

Sec. 452.228-71 Insurance Coverage.

Sec. 452.232-70 Reimbursement for Bond Premiums--Fixed-Price 
          Construction Contracts.

Sec. 452.236-70 Additive or Deductive Items.

Sec. 452.236-71 Prohibition Against the Use of Lead-Based Paint.

Sec. 452.236-72 Use of Premises.

Sec. 452.236-73 Archaeological or Historic Sites.

Sec. 452.236-74 Control of Erosion, Sedimentation, and Pollution.

Sec. 452.236-75 Maximum Workweek--Construction Schedule.

Sec. 452.236-76 Samples and Certificates.

Sec. 452.236-77 Emergency Response.

Sec. 452.236-78 [Reserved]

Sec. 452.236-79 Opted Timber Sale Road Requirements.

Sec. 452.236-80 Firms Ineligible for Award--Construction.

Sec. 452.237-70 Loss, Damage, Destruction or Repair.

Sec. 452.237-71 Pre-Bid/Pre-Proposal Conference.

Sec. 452.237-73 Equipment Inspection Visit.

Sec. 452.237-74 Key Personnel.

Sec. 452.237-75 Restrictions Against Disclosure.

Sec. 452.237-76 Progress Reporting.

Sec. 452.237-78 Contracts with Consulting Firms for Services.

Sec. 452.246-70 Inspection and Acceptance.

Sec. 452.247-70 Delivery Location.

Sec. 452.247-71 Marking Deliverables.

Sec. 452.247-72 Packing for Domestic Shipment.

Sec. 452.247-73 Packing for Overseas Shipment.

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

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

              Subpart 452.2_Texts of Provisions and Clauses



Sec. 452.204-70  Inquiries.

    As prescribed in 404.7001, insert the following provision:

                          Inquiries (FEB 1988)

    Inquiries and all correspondence concerning this solicitation should 
be submitted in writing to the Contracting Officer. Offerors should 
contact only the Contracting Officer issuing the solicitation about any 
aspect of this requirement prior to contract award.

                           (End of provision)



Sec. 452.211-70  Brand Name or Equal.

    As prescribed in 411.171, insert the following provision:

                     Brand Name or Equal (NOV 1996)

    (As used in this provision, the term ``brand name'' includes 
identification of products by make and model.)
    (a) If items called for by this solicitation have been identified by 
a ``brand name or equal'' description, such identification is intended 
to be descriptive, but not restrictive, and is to indicate the quality 
and characteristics of products that will be satisfactory. Offers of 
``equal'' products (including products of the brand name manufacturer 
other than the one described by brand name) will be considered for award 
if such products are clearly identified in the offer (see clause 
452.211-71) and are determined by the Contracting Officer to meet fully 
the salient characteristics requirements listed in the solicitation.
    (b) Unless the offeror clearly indicates in its offer that it is 
offering an ``equal'' product, the offeror shall be considered as 
offering the brand name product(s) referenced in the solicitation.
    (c)(1) If the offeror proposes to furnish an ``equal'' product or 
products, the brand

[[Page 192]]

name(s), if any, and any other required information about the product(s) 
to be furnished shall be inserted in the space provided in the 
solicitation. The evaluation of offers and the determination as to the 
equality of the product(s) offered shall be the responsibility of the 
Government and will be based on information furnished by the offeror or 
identified in its offer as well as other information reasonably 
available to the contracting activity. Caution to offerors: The 
contracting activity is not responsible for locating or securing any 
information which is not identified in the offer and is not reasonably 
available to the contracting activity. Accordingly, to assure that 
sufficient information is available, the offeror must furnish as a part 
of its offer all descriptive material (such as cuts, illustrations, 
drawings, or other information) necessary for the contracting activity 
to (i) determine whether the product offered meets the salient 
characteristics requirement of the solicitation, and (ii) establish 
exactly what the offeror proposes to furnish and what the Government 
would be binding itself to purchase by making an award. The information 
furnished may include specific reference to information previously 
furnished or to information otherwise available to the contracting 
activity.
    (2) If an offeror proposes to modify a product so as to make it 
conform to the requirements of the solicitation, the offer shall include 
(i) a clear description of such proposed modifications and (ii) clearly 
marked descriptive material to show the proposed modifications.

                           (End of provision)

[61 FR 53646, Oct. 15, 1996. Redesignated at 63 FR 26996, May 15, 1998, 
as amended at 70 FR 50, Jan. 3, 2005]



Sec. 452.211-71  Equal Products Offered.

    As prescribed in 411.171, insert the following or substantially the 
same clause in solicitations seeking offers on a ``brand name or equal'' 
basis to allow offerors the opportunity to clearly identify the 
``equal'' item being offered, and to illustrate how that item meets the 
salient characteristics requirements of the Government.

                    Equal Products Offered (NOV 1996)

    (a) Offerors proposing to furnish an ``equal'' product, in 
accordance with the ``Brand Name or Equal'' provision of this 
solicitation, shall provide the following information for each offered 
``equal'' product:
Contract Line Item Number (if any):_____________________________________
Brand Name or Equal Product identified by the Government in this 
solicitation:___________________________________________________________
Offered Product Name:___________________________________________________
Catalog Description or part number:_____________________________________
________________________________________________________________________
Manufacturer's Name:____________________________________________________
Manufacturer's Address:_________________________________________________
________________________________________________________________________
________________________________________________________________________
    (b) Offerors are responsible for submitting all additional 
information on the above product necessary for the Contracting Officer 
to determine whether the product offered meets the ``brand name or 
equal'' product's salient characteristics listed in the solicitation.

                             (End of clause)

[61 FR 53646, Oct. 15, 1996. Redesignated at 63 FR 26996, May 15, 1998.]



Sec. 452.211-72  Statement of Work/Specifications.

    As prescribed in 411.171, insert the following clause:

               Statement of Work/Specifications (FEB 1988)

    The Contractor shall furnish the necessary personnel, material, 
equipment, services and facilities (except as otherwise specified), to 
perform the Statement of Work/Specifications referenced in Section J.

                             (End of clause)

[61 FR 53646, Oct. 15, 1996. Redesignated at 63 FR 26996, May 15, 1998.]



Sec. 452.211-73  Attachments to Statement of Work/Specifications.

    As prescribed in 411.171, insert the following clause:

       Attachments to Statement of Work/Specifications (FEB 1988)

    The attachments to the Statement of Work/Specifications listed in 
Section J are hereby made part of this solicitation and any resultant 
contract.

                             (End of clause)

[61 FR 53646, Oct. 15, 1996. Redesignated at 63 FR 26996, May 15, 1998.]



Sec. 452.211-74  Period of Performance.

    As prescribed in 411.404(a), insert the following clause:

                    Period of Performance (FEB 1988)

    The period of performance of this contract is from ------ through --
----.*

[[Page 193]]

                             (End of clause)

    * Contracting Officer shall insert the appropriate dates.

[61 FR 53646, Oct. 15, 1996. Redesignated at 63 FR 26996, May 15, 1998.]



Sec. 452.211-75  Effective Period of the Contract.

    As prescribed in 411.404(b), insert the following clause:

               Effective Period of the Contract (FEB 1988)

    The effective period of this contract is from ------ through ----
--.*

                             (End of clause)

    * Contracting Officer shall insert the appropriate dates.

[61 FR 53646, Oct. 15, 1996. Redesignated at 63 FR 26996, May 15, 1998.]



Sec. 452.214-70  Award by Lot.

    As prescribed in 414.201-6, insert a provision substantially as 
follows:

                         Award by Lot (NOV 1996)

    Subject to the Section L provision FAR 52.214-10, ``Contract Award--
Sealed Bidding,'' award will generally be made to a single bidder on 
each entire lot. However, the Government reserves the right to award by 
item within any lot when the contracting officer determines that it is 
advantageous to the Government.

                           (End of provision)



Sec. 452.215-71  Instructions for the Preparation of Technical and 
          Business Proposals.

    As prescribed in 415.209(a), insert a provision substantially as 
follows:

  Instructions for the Preparation of Technical and Business Proposals 
                               (SEP 1999)

    (a) General Instructions. Proposals submitted in response to this 
solicitation shall be furnished in the following format with the numbers 
of copies as specified below.
    (1) The proposal must include a technical proposal and business 
proposal. Each of the parts shall be separate and complete so that 
evaluation of one may be accomplished independently from evaluation of 
the other. The technical proposal must not contain reference to cost; 
however, resource information (such as data concerning labor hours and 
categories, materials, subcontracts, etc.) must be contained in the 
technical proposal so that the contractor's understanding of the 
statement of work may be evaluated.
    (2) Offerors may, at their discretion, submit alternate proposals or 
proposals which deviate from the requirement; provided, that an offeror 
also submit a proposal for performance of the work as specified in the 
statement of work. Any ``alternate'' proposal may be considered if 
overall performance would be improved or not compromised, and if it is 
in the best interest of the Government. Alternate proposals, or 
deviations from any requirement of this RFP, must be clearly identified.
    (3) The Government will evaluate proposals in accordance with the 
evaluation criteria set forth in Section M of this RFP.
    (4) Offerors shall submit their proposal(s) in the following format 
and the quantities specified:
    (a) ------* copies of the completed, signed offer (Sections A 
through K of the solicitation package)
    (b) ------* copies of the technical proposal
    (c) ------* copies of the business/cost proposal
    (b) Technical Proposal Instructions. The technical proposal will be 
used to make an evaluation and arrive at a determination as to whether 
the proposal will meet the requirements of the Government. Therefore, 
the technical proposal must present sufficient information to reflect a 
thorough understanding of the requirements and a detailed, description 
of the techniques, procedures and program for achieving the objectives 
of the specifications/statement of work. Proposals which merely 
paraphrase the requirements of the Government's specifications/ 
statement of work, or use such phrases as ``will comply'' or ``standard 
techniques will be employed'' will be considered unacceptable and will 
not be considered further. As a minimum, the proposal must clearly 
provide the following:
    (Contracting Officer shall identify in this section the minimum 
information required to evaluate each technical evaluation factor listed 
in Section M.)
    (c) Business Proposal Instructions.
    (1) Cost Proposal.
    In addition to any other requirements for cost/pricing information 
required in clause FAR 52.215-20, Requirements for Cost or Pricing Data 
or Information Other Than Cost or Pricing Data (OCT 1997), the following 
is required:
    (Contracting Officer shall identify additional information required 
if appropriate.)
    (2) Business Proposal.
    (a) Furnish financial statements for the last two years, including 
an interim statement for the current year, unless previously provided to 
the office issuing the RFP, in which case a statement as to when and 
where this information was provided may be furnished instead.

[[Page 194]]

    (b) Specify the financial capacity, working capital and other 
resources available to perform the contract without assistance from any 
outside source.
    (c) Provide the name, location, and intercompany pricing policy for 
other divisions, subsidiaries, parent company, or affiliated companies 
that will perform work or furnish materials under this contract.

                           (End of provision)

    *Contracting officer shall insert number of copies required.

[61 FR 53646, Oct. 15, 1996, as amended at 64 FR 52675, Sept. 30, 1999; 
70 FR 50, Jan. 3, 2005]



Sec. 452.215-72  Amendments to Proposals.

    As prescribed in 415.209(b), insert the following provision:

                   Amendments to Proposals (FEB 1988)

    Any changes to a proposal made by the offeror after its initial 
submittal shall be accomplished by replacement pages. Changes from the 
original page shall be indicated on the outside margin by vertical lines 
adjacent to the change. The offeror shall include the date of the 
amendment on the lower right corner of the changed pages.

                           (End of provision)

[61 FR 53646, Oct. 15, 1996, as amended at 64 FR 52675, Sept. 30, 1999]



Sec. 452.215-73  Post Award Conference.

    As prescribed in 415.570, insert a clause substantially as follows:

                    Post Award Conference (NOV 1996)

    A post award conference with the successful offeror is required. It 
will be scheduled within ------* days after the date of contract award. 
The conference will be held at: ------*.

                             (End of clause)

    * Contracting officer to insert number of days and location.

[61 FR 53646, Oct. 15, 1996, as amended at 64 FR 52675, Sept. 30, 1999]



Sec. 452.216-70  Award Fee.

    As prescribed in 416.405, insert a clause substantially as follows:

                          Award Fee (FEB 1988)

    The amount of award fee the Contractor earns, if any, is based on a 
subjective evaluation by the Government of the quality of the 
Contractor's performance in accordance with the award fee plan. The 
Government will determine the amount of award fee every ------* months 
beginning with ------*. The Fee Determination Official (FDO) will 
unilaterally determine the amount of award fee. The FDO's determination 
will be in writing to the Contractor and is not subject to the 
``Disputes'' clause. The Government may unilaterally change the award 
fee plan at any time and will provide such changes in writing to the 
Contractor prior to the beginning of the applicable evaluation period. 
The Contractor may submit a voucher for the earned award fee. Available 
award fee not earned during one period does not carry over to subsequent 
periods.

                             (End of clause)

    * Contracting Officer shall insert appropriate number of months.
    ** Contracting Officer shall insert appropriate date.



Sec. 452.216-71  Base Fee and Award Fee Proposal.

    As prescribed in 416.470, insert the following provision:

                 Base Fee and Award Proposal (FEB 1988)

    For the purpose of this solicitation, offerors shall propose a base 
fee of ------* percent of the total estimated cost proposed. The award 
fee shall not exceed ------* percent of the total estimated cost.

                           (End of provision)

    * Contracting Officer shall insert appropriate percentages.



Sec. 452.216-72  Evaluation Quantities--Indefinite-Delivery Contract.

    As prescribed in 416.506(a), insert a provision substantially as 
follows:

     Evaluation Quantities--Indefinite-Delivery Contract (FEB 1988)

    To evaluate offers for award purposes, the Government will apply the 
offeror's proposed fixed-prices/rates to the estimated quantities 
included in the solicitation, and will add other direct costs if 
applicable.

                           (End of provision)



Sec. 452.216-73  Minimum and Maximum Contract Amounts.

    As prescribed in 416.506(b), insert the following clause:

[[Page 195]]

             Minimum and Maximum Contract Amounts (FEB 1988)

    During the period specified in FAR clause 52.216-18, ORDERING, the 
Government shall place orders totaling a minimum of ------*, but not in 
excess of ------*.

                             (End of clause)

    * Contracting Officer shall insert appropriate quantity or dollar 
amounts.



Sec. 452.216-74  Ceiling Price.

    As prescribed in 416.670, insert the following clause:

                        Ceiling Price (FEB 1988)

    The ceiling price of this contract is $------*. The Contractor shall 
not make expenditures or incur obligations in the performance of this 
contract which exceed the ceiling price specified herein, except at the 
Contractor's own risk.

                             (End of clause)

    *Contracting Officer shall insert appropriate dollar amount.



Sec. 452.216-75  Letter Contract.

    As prescribed in 416.603-4, insert the following clause:

                       Letter Contract (FEB 1988)

    This contract replaces letter contract No. ------* dated ------* and 
all amendments thereto.

                             (End of clause)

    * Contracting Officer shall insert number and date.



Sec. 452.219-70  Size Standard and NAICS Code Information.

    As prescribed in 419.508, insert the following provision:

           Size Standard and NAICS Code Information (SEP 2001)

    The North American Industrial Classification System Code(s) and 
business size standard(s) describing the products and/or services to be 
acquired under this solicitation are listed below:

Contract line item(s): ------* NAICS Code ------* Size Standard ------*

                           (End of provision)

    * Contracting Officer shall insert the appropriate data for each 
contract line item in the solicitation. The data entry line may be 
duplicated as required to describe all of the contract line items or 
sub-items.

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



Sec. 452.224-70  Confidentiality of Information.

    As prescribed in 424.104, insert a clause substantially as follows:

                Confidentiality of Information (FEB 1988)

    (a) Confidential information, as used in this clause, means--
    (1) information or data of a personal nature, proprietary about an 
individual, or (2) information or data submitted by or pertaining to an 
organization.
    (b) In addition to the types of confidential information described 
in (a)(1) and (2) above, information which might require special 
consideration with regard to the timing of its disclosure may derive 
from studies or research, during which public disclosure of primarily 
invalidated findings could create an erroneous conclusion which might 
threaten public health or safety if acted upon.
    (c) The Contracting Officer and the Contractor may, by mutual 
consent, identify elsewhere in this contract specific information and/or 
categories of information which the Government will furnish to the 
Contractor or that the Contractor is expected to generate which is 
confidential. Similarly, the Contracting Officer and the Contractor may, 
by mutual consent, identify such confidential information from time to 
time during the performance of the contract. Failure to agree will be 
settled pursuant to the ``Disputes'' clause.
    (d) If it is established that information to be utilized under this 
contract is subject to the Privacy Act, the Contractor will follow the 
rules and procedures of disclosure set forth in the Privacy Act of 1974, 
5 U.S.C. 552a, and implementing regulations and policies, with respect 
to systems of records determined to be subject to the Privacy Act.
    (e) Confidential information, as defined in (a)(1) and (2) above, 
shall not be disclosed without the prior written consent of the 
individual, institution or organization.
    (f) Written advance notice of at least 45 days will be provided to 
the Contracting Officer of the Contractor's intent to release findings 
of studies or research, which have the possibility of adverse effects on 
the public or the Federal agency, as described in (b) above. If the 
Contracting Officer does not pose any objections in writing within the 
45 day period, the Contractor may proceed with disclosure. Disagreements 
not resolved by the Contractor and Contracting Officer will be settled 
pursuant to the ``Disputes'' clause.

[[Page 196]]

    (g) Whenever the Contractor is uncertain with regard to the proper 
handling of material under the contract, or if the material in question 
is subject to the Privacy Act or is confidential information subject to 
the provisions of this clause, the Contractor shall obtain a written 
determination from the Contracting Officer prior to any release, 
disclosure, dissemination, or publication.
    (h) The provisions of paragraph (e) of this clause shall not apply 
when the information is subject to conflicting or overlapping provisions 
in other Federal, State or local laws.

                             (End of clause)



Sec. 452.226-70--452.226-72  [Reserved]



Sec. 452.228-70  Alternative Forms of Security.

    As prescribed in 428.204-2, insert the following provision:

                Alternative Forms of Security (NOV 1996)

    If furnished as security, money orders, drafts, cashiers checks, or 
certified checks shall be drawn payable to: ------*.

                           (End of provision)

    * Contracting Officer shall insert the name of the USDA contracting 
activity.



Sec. 452.228-71  Insurance Coverage.

    As prescribed in 428.310, insert the following clause:

                      Insurance Coverage (NOV 1996)

    Pursuant to FAR clause 52.228-5, Insurance-Work on a Government 
Installation, the Contractor will be required to present evidence to 
show, as a minimum, the amounts of insurance coverage indicated below:
    (a) Workers Compensation and Employer's Liability. The Contractor is 
required to comply with applicable Federal and State workers' 
compensation and occupational disease statutes. If occupational diseases 
are not compensable under those statutes, they shall be covered under 
the employer's liability section of the insurance policy, except when 
contract operations are so commingled with a Contractor's commercial 
operations that it would not be practical to require this coverage. 
Employer's liability coverage of at least $100,000 shall be required, 
except in States with exclusive or monopolistic funds that do not permit 
worker's compensation to be written by private carriers.
    (b) General Liability. The Contractor shall have bodily injury 
liability insurance coverage written on a comprehensive form of policy 
of at least $500,000 per occurrence.
    (c) Automobile Liability. The Contractor shall have automobile 
liability insurance written on a comprehensive form of policy. The 
policy shall provide for bodily injury and property damage liability 
covering the operation of all automobiles used in connection with 
performing the contract. Policies covering automobiles operated in the 
United States shall provide coverage of at least $200,000 per person and 
$500,000 per occurrence for bodily injury and $20,000 per occurrence for 
property damage or loss.
    (d) Aircraft Public and Passenger Liability. When aircraft are used 
in connection with performing the contract, the Contractor shall have 
aircraft public and passenger liability insurance. Coverage shall be at 
least $200,000 per person and $500,000 per occurrence for bodily injury, 
other than passenger injury. Coverage for passenger injury shall be at 
least $200,000 multiplied by the number of seats or passengers, 
whichever is greater.

                             (End of clause)

    Alternate I (NOV 1996). As prescribed in 428.310, substitute the 
following paragraph (b), when additionally the contractor must have 
property damage liability coverage:

    (b) General Liability. (1) The Contractor shall have bodily injury 
liability coverage written on a comprehensive form of policy of at least 
$500,000 per occurrence.
    (2) The Contractor shall have property damage liability insurance 
shall be required in the amount of ------* per occurrence.
    * Contracting Officer shall insert amount required.



Sec. 452.232-70  Reimbursement for Bond Premiums--Fixed-Price 
          Construction Contracts.

    As prescribed in 432.111, insert the following clause:

Reimbursement for Bond Premiums--Fixed-Price Construction Contracts (NOV 
                                  1996)

    The Contract Price includes the total amount for premiums that the 
Contractor attributes to the furnishing of performance and payment bonds 
required by the contract. Reimbursement for bond premiums under the 
clause at FAR 52.232-5, Payments Under Fixed-Price Construction, shall 
not cover any amount therefor not included in the contract price.

                             (End of clause)

[61 FR 53646, Oct. 15, 1996. Redesignated at 63 FR 26996, May 15, 1998, 
as amended at 70 FR 50, Jan. 3, 2005]

[[Page 197]]



Sec. 452.236-70  Additive or Deductive Items.

    As prescribed in 436.205, insert the following provision:

                 Additive or Deductive Items (FEB 1988)

    The low bidder for purposes of award shall be the conforming 
responsible bidder offering the low aggregate amount for the first or 
base bid item, plus or minus (in the order of priority listed in the 
schedule) those additive or deductive bid items providing the most 
features of the work within the funds determined by the government to be 
available before bids are opened. If addition of another bid item in the 
listed order of priority would make the award exceed such funds for all 
bidders, it shall be skipped and the next subsequent additive bid item 
in a lower amount shall be added if award therein can be made within 
such funds. For example, when the amount available is $100,000 and a 
bidder's base bid and four successive additives are $85,000, $10,000, 
$8,000, $6,000, and $4,000, the aggregate amount of the bid for purposes 
of award would be $99,000 for the base bid plus the first and fourth 
additives, the second and third additives being skipped because of each 
of them would cause the aggregate bid to exceed $100,000. In any case 
all bids shall be evaluated on the basis of the same additive or 
deductive bid items, determined as above provided. The listed order of 
priority need be followed only for determining the low bidder. After 
determination of the low bidder as stated, award in the best interests 
of the Government may be made on the selected first or base bid item and 
any combination of additive or deductive items for which funds are 
determined to be available at the time of the award, provided that award 
on such combination of bid items does not exceed the amount offered by 
any other conforming responsible bidder for the same combination of bid 
items.

                             (End of clause)



Sec. 452.236-71  Prohibition Against the Use of Lead-Based Paint.

    As prescribed in 436.571, insert the following clause:

       Prohibition Against the Use of Lead-Based Paint (NOV 1996)

    Neither the Contractor nor any subcontractor performing under this 
contract shall use paints containing more then 0.06 of 1 percent lead by 
weight (calculated as lead metal) in the total nonvolatile content of 
the paint, or the equivalent measure of lead in the dried film of paint 
already applied, or both.

                             (End of clause)



Sec. 452.236-72  Use of Premises.

    As prescribed in 436.572, insert the following clause:

                       Use of Premises (NOV 1996)

    (a) Before any camp, quarry, borrow pit, storage, detour, or bypass 
site, other than shown on the drawings, is opened or operated on USDA 
land or lands administered by the USDA, the Contractor shall obtain 
written permission from the Contracting Officer. A camp is interpreted 
to include a campsite or trailer parking area of any employee working on 
the project for the Contractor.
    (b) Unless excepted elsewhere in the contract, the Contractor shall 
(i) provide and maintain sanitation facilities for the work force at the 
site and (ii) dispose of solid waste in accordance with applicable 
Federal, State and local regulations.

                             (End of clause)



Sec. 452.236-73  Archaeological or Historic Sites.

    As prescribed in 436.573, insert the following clause:

               Archaeological or Historic Sites (FEB 1988)

    If a previously unidentified archaeological or historic site(s) is 
encountered, the Contractor shall discontinue work in the general area 
of the site(s) and notify the Contracting Officer immediately.

                             (End of clause)



Sec. 452.236-74  Control of Erosion, Sedimentation, and Pollution.

    As prescribed in 436.574, insert the following clause:

       Control of Erosion, Sedimentation, and Pollution (NOV 1996)

    (a) Operations shall be scheduled and conducted to minimize erosion 
of soils and to prevent silting and muddying of streams, rivers, 
irrigation systems, and impoundments (lakes, reservoirs, etc.).
    (b) Pollutants such as fuels, lubricants, bitumens, raw sewage, and 
other harmful materials shall not be discharged on the ground; into or 
nearby rivers, streams, or impoundments; or into natural or man-made 
channels. Wash water or waste from concrete or aggregate operations 
shall not be allowed to enter live streams prior to treatment by 
filtration, settling, or other means sufficient to reduce the sediment 
content to not more than that of the stream into which it is discharged.

[[Page 198]]

    (c) Mechanized equipment shall not be operated in flowing streams 
without written approval by the Contracting Officer.

                             (End of clause)



Sec. 452.236-75  Maximum Workweek--Construction Schedule.

    As prescribed in 436.575, insert the following clause:

           Maximum Workweek--Construction Schedule (NOV 1996)

    Within ---- calendar days after receipt of a written request from 
the Contracting Officer, the Contractor must submit the following in 
writing for approval:
    (a) A schedule as required by FAR clause 52.236-15, Schedules for 
Construction Contracts, and
    (b) The hours (including the daily starting and stopping times) and 
days of the week the Contractor proposes to carry out the work.
    The maximum workweek that will be approved is ----*.

                             (End of clause)

    * Contracting Officer shall insert appropriate number of days and 
hours and/or days.



Sec. 452.236-76  Samples and Certificates.

    As prescribed in 436.576, insert the following clause:

                   Samples and Certificates (FEB 1988)

    When required by the specifications or the Contracting Officer, 
samples, certificates, and test data shall be submitted after award of 
the contract, prepaid, in time for proper action by the Contracting 
Officer or his/her designated representative. Certificates and test data 
shall be submitted in triplicate to show compliance with materials and 
construction specified in the contract performance requirements.
    Samples shall be submitted in duplicate by the Contractor, except as 
otherwise specified, to show compliance with the contract requirements. 
Materials or equipment for which samples, certifications or test data 
are required shall not be used in the work until approved in writing by 
the Contracting Officer.

                             (End of clause)



Sec. 452.236-77  Emergency Response.

    As prescribed in 436.577, the following clause may be used in Forest 
Service construction contracts:

                      Emergency Response (NOV 1996)

    (a) Contractor's Responsibility for Fire Fighting. (1) The 
Contractor, under the provisions of FAR clause 52.236-9, Protection of 
Existing Vegetation, Structures, Equipment, Utilities, and Improvements, 
shall immediately extinguish all fires on the work site other than those 
fires in use as a part of the work.
    (2) The Contractor may be held liable for all damages and for all 
costs incurred by the Government for labor, subsistence, equipment, 
supplies, and transportation deemed necessary to control or suppress a 
fire set or caused by the Contractor or the Contractor's agents or 
employees.
    (b) Contractor's Responsibility for Notification in Case of Fire. 
The Contractor shall immediately notify the Government of any fires 
sighted on or in the vicinity of the work site.
    (c) Contractor's Responsibility for Responding to Emergencies. When 
directed by the Contracting Officer, the Contractor shall allow the 
Government to temporarily use employees and equipment from the work site 
for emergency work (anticipated to be restricted to fire fighting). An 
equitable adjustment for the temporary use of employees and equipment 
will be made under the Changes clause, FAR 52.243-4.

                             (End of clause)



Sec. 452.236-78  [Reserved]



Sec. 452.236-79  Opted Timber Sale Road Requirements.

    As prescribed in 436.579, insert the following clause:

             Opted Timber Sale Road Requirements (NOV 1996)

    This contract is for the construction of timber sale road(s) which a 
timber purchaser has opted to have the Government construct. The 
Government is obligated to make these roads available to the timber 
purchaser by ------*. Failure to make these roads available by this date 
could result in Government liability for delay to the timber purchaser 
for which the Contractor might become liable should the Contractor fail 
to complete this contract within the specified and allowed contract 
time.

                             (End of clause)

    * Contracting Officer shall insert appropriate date.



Sec. 452.236-80  Firms Ineligible for Award--Construction.

    As prescribed in 436.670, insert the following clause:

[[Page 199]]

           Firms Ineligible for Award--Construction (NOV 1996)

    The firm(s) and its subsidiaries or affiliates signatory to this 
contract shall be ineligible for award of any construction contract 
resulting from the design work performed under this contract.

                             (End of clause)



Sec. 452.237-70  Loss, Damage, Destruction or Repair.

    (a) As prescribed in 437.110(a), insert a clause substantially as 
follows:

             Loss, Damage, Destruction or Repair (FEB 1988)

    (a) For equipment furnished under this contract without operator, 
the Government will assume liability for any loss, damage or destruction 
of such equipment, not to exceed a total of $------* except that no 
reimbursement will be made for loss, damage or destruction due to (1) 
ordinary wear or tear, (2) mechanical failure, or (3) the fault or 
negligence of the Contractor or the Contractor's agents or employees.
    (b) For equipment furnished under this contract with operator, the 
Government shall not be liable for any loss, damage or destruction of 
such equipment, except for loss, damage or destruction resulting from 
the negligent or wrongful act(s) of Government employee(s) while acting 
within the scope of their employment.
    (c) All repairs to equipment furnished under this contract shall be 
made by the Contractor and reimbursement, if any, shall be determined in 
accordance with (a) or (b) above. Repairs shall be made promptly and 
equipment returned to use within ------** hours. In lieu of repairing 
equipment, the Contractor may furnish similar replacement equipment 
within the time specified. The Contractor may authorize the Government 
to make repairs upon the request of the Contracting Officer. In such 
case, the Contractor will be billed for labor and parts costs.

                             (End of clause)

    * Contracting Officer shall insert amount available in current funds 
to cover potential liability.
    ** Contracting Officer shall insert appropriate number of hours.



Sec. 452.237-71  Pre-Bid/Pre-Proposal Conference.

    As prescribed in 437.110(b), insert a provision substantially as 
follows:

               Pre-Bid/Pre-Proposal Conference (FEB 1988)

    (a) The Government is planning a pre-bid/pre-proposal conference, 
during which potential offerors may obtain a better understanding of the 
work required.
    (b) Offerors are encouraged to submit all questions in writing at 
least five (5) days prior to the conference. Questions will be 
considered at any time prior to or during the conference; however, 
offerors will be asked to confirm verbal questions in writing. 
Subsequent to the conference, an amendment to the solicitation 
containing an abstract of the questions and answers, and a list of 
attendees, will be disseminated.
    (c) In order to facilitate conference preparations, it is requested 
that the person named on the Standard Form 33 of this solicitation be 
contacted and advised of the number of persons who will attend.
    (d) The Government assumes no responsibility for any expense 
incurred by an offeror prior to contract award.
    (e) Offerors are cautioned that, notwithstanding any remarks or 
clarifications given at the conference, all terms and conditions of the 
solicitation remain unchanged unless they are changed by amendment to 
the solicitation. If the answers to conference questions, or any 
solicitation amendment, create ambiguities, it is the responsibility of 
the offeror to seek clarification prior to submitting an offer.
    (f) The conference will be held:

Date:___________________________________________________________________
Time:___________________________________________________________________
Location:_______________________________________________________________

                             (End of clause)



Sec. 452.237-73  Equipment Inspection Visit.

    As prescribed in 437.110(c), insert the following provision:

                  Equipment Inspection Visit (FEB 1988)

    Offerors are urged and expected to inspect the equipment on which 
maintenance or repairs are to be performed and to satisfy themselves 
regarding all conditions that may affect the cost of contract 
performance, to the extent that the information is reasonably 
obtainable. In no event shall failure to inspect the equipment 
constitute grounds for a claim after contract award.
    Offerors are invited to inspect the ------* at ------* by 
telephoning ------* on ------* for an appointment.

                             (End of clause)

    * Contracting Officer shall insert appropriate data.

[[Page 200]]



Sec. 452.237-74  Key Personnel.

    As prescribed in 437.110(d), insert a clause substantially as 
follows:

                        Key Personnel (FEB 1988)

    (a) The Contractor shall assign to this contract the following key 
personnel: ----------
    (b) During the first ninety (90) days of performance, the Contractor 
shall make no substitutions of key personnel unless the substitution is 
necessitated by illness, death, or termination of employment. The 
Contractor shall notify the Contracting Officer within 15 calendar days 
after the occurrence of any of these events and provide the information 
required by paragraph (c) below. After the initial 90-day period, the 
Contractor shall submit the information required by paragraph (c) to the 
Contracting Officer at least 15 days prior to making any permanent 
substitutions.
    (c) The Contractor shall provide a detailed explanation of the 
circumstances necessitating the proposed substitutions, complete resumes 
for the proposed substitutes, and any additional information requested 
by the Contracting Officer. Proposed substitutes should have comparable 
qualifications to those of the persons being replaced. The Contracting 
Officer will notify the Contractor within 15 calendar days after receipt 
of all required information of the decision on substitutions. The 
contract will be modified to reflect any approved changes of key 
personnel.

                             (End of clause)



Sec. 452.237-75  Restrictions Against Disclosure.

    As prescribed in 437.110(e), insert a clause substantially as 
follows:

               Restrictions Against Disclosure (FEB 1988)

    (a) The Contractor agrees, in the performance of this contract, to 
keep all information contained in source documents or other media 
furnished by the Government in the strictest confidence. The Contractor 
also agrees not to publish or otherwise divulge such information in 
whole or in part in any manner or form, or to authorize or permit others 
to do so, taking such reasonable measures as are necessary to restrict 
access to such information while in the Contractor's possession, to 
those employees needing such information to perform the work provided 
herein, i.e., on a ``need to know'' basis. The Contractor agrees to 
immediately notify in writing, the Contracting Officer, named herein, in 
the event that the Contractor determines or has reason to suspect a 
breach of this requirement.
    (b) The Contractor agrees not to disclose any information concerning 
the work under this contract to any persons or individual unless prior 
written approval is obtained from the Contracting Officer. The 
Contractor agrees to insert the substance of this clause in any 
consultant agreement or subcontract hereunder.

                             (End of clause)



Sec. 452.237-76  Progress Reporting.

    As prescribed in 437.270(a), insert a clause substantially as 
follows:

                      Progress Reporting (FEB 1988)

    The Contractor shall submit a progress report ------*, covering work 
accomplished during that period of the contract performance. The 
progress report shall be brief and factual and shall be prepared in 
accordance with the following format:
    (a) A cover page containing:
    (1) Contract number and title;
    (2) Type of report, sequence number of report, and period of 
performance being reported;
    (3) Contractor's name and address;
    (4) Author(s); and
    (5) Date of report.
    (b) Section I--An introduction covering the purpose and scope of the 
contract effort. This shall be limited to one paragraph in all but the 
first and final month's narrative.
    (c) Section II--A description of overall progress plus a separate 
description of each task or other logical segment of work on which 
effort was expended during the report period. The description shall 
include pertinent data and/or graphs in sufficient detail to explain any 
significant results achieved.
    (d) Section III--A description of current technical or substantive 
performance, and any problem(s) which may impede performance along with 
proposed corrective action.
    (e) Section IV--A planning schedule shall be included with the first 
progress report for all assigned tasks required under the contract, 
along with the estimated starting and completion dates for each task. 
The planning schedule shall be updated and submitted with each 
subsequent technical progress report, including an explanation of any 
difference between actual progress and planned progress, why the 
differences have occurred, and--if behind planned progress--what 
corrective steps are planned.
    (f) Section V--If applicable, financial information shall be 
submitted for each major task or line item cost.
    Data shall include:
    (1) The total estimated cost budgeted (fee excluded).
    (2) The estimated cost expended during the current reporting period.

[[Page 201]]

    (3) Identification of direct labor hours of prime contractor and 
subcontractor(s) and/or consultant(s), if applicable.
    (4) Total project to-date expenditures.
    (5) Total remaining funds.

                             (End of clause)

    * Contracting Officer shall insert frequency of reporting 
requirement.



Sec. 452.237-78  Contracts with Consulting Firms for Services.

    As prescribed in 437.270(b), insert a clause substantially as 
follows:

         Contracts with Consulting Firms for Services (FEB 1988)

    Offerors are specifically cautioned that any firm(s) receiving a 
contract award to provide the services described herein will be 
prohibited from competing for or receiving a follow-on contract to 
perform ------.*

                             (End of clause)

    * Contracting Officer shall insert the appropriate information.



Sec. 452.246-70  Inspection and Acceptance.

    As prescribed in 446.370, insert the following clause:

                  Inspection and Acceptance (FEB 1988)

    (a) The Contracting Officer or the Contracting Officer's duly 
authorized representative will inspect and accept the supplies and/or 
services to be provided under this contract.
    (b) Inspection and acceptance will be performed at: ------.*

                             (End of clause)

    * Contracting Officer shall insert appropriate identifying data.
    Alternate I (FEB 1988). As prescribed in 446.370, substitute a 
paragraph (b) and add a paragraph (c):

    (b) Inspection will be performed at: ------.*
    (c) Acceptance will be performed at: ------.*

                             (End of clause)



Sec. 452.247-70  Delivery Location.

    As prescribed in 447.302, insert a clause substantially as follows:

                      Delivery Location (FEB 1988)

    Shipment of deliverable items, other than reports, shall be to: ----
--.*

                             (End of clause)

    * Contracting Officer shall insert appropriate identifying data.



Sec. 452.247-71  Marking Deliverables.

    As prescribed in 447.305-10(a), insert a clause substantially as 
follows:

                     Marking Deliverables (FEB 1988)

    (a) The contract number shall be placed on or adjacent to all 
exterior mailing or shipping labels of deliverable items called for by 
the contract.
    (b) Mark deliverables, except reports, for: ------.*

                             (End of clause)

    * Contracting Officer shall insert the appropriate information.



Sec. 452.247-72  Packing for Domestic Shipment.

    As prescribed in 447.305-10(b), insert the following clause:

                Packing for Domestic Shipment (FEB 1988)

    Material shall be packed for shipment in such a manner that will 
insure acceptance by common carriers and safe delivery at destination. 
Containers and closures shall comply with the Interstate Commerce 
Commission regulations, Uniform Freight Classification Rules, or 
regulations of other carriers as applicable to the mode of 
transportation.

                             (End of clause)



Sec. 452.247-73  Packing for Overseas Shipment.

    As prescribed in 447.305-10(c), insert the following clause:

                Packing for Overseas Shipment (FEB 1988)

    Supplies shall be packed for overseas shipment in accordance with 
the best commercial export practice suitable for water movement to 
arrive undamaged at ultimate destination.

                             (End of clause)

                             PART 453_FORMS

Sec.

Sec. 453.000 Scope of part.

                          Subpart 453.1_General


Sec. 453.103 Exceptions.

Sec. 453.108 Recommendations concerning forms.

[[Page 202]]

                   Subpart 453.2_Prescription of Forms


Sec. 453.200 Scope of subpart.

Sec. 453.213 Simplified Acquisition and other simplified purchase 
          procedures (AD-838).

Sec. 453.270 Request for contract action (AD-700).

                  Subpart 453.3_Illustrations of Forms


Sec. 453.300 Scope of subpart.

Sec. 453.303 Agency forms.

Sec. 453.303-700 Procurement Request (AD-700).

Sec. 453.303-838 Purchase Order (AD-838).

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

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



Sec. 453.000  Scope of part.

    This part:
    (a) Prescribes USDA (AD) forms for use in acquisition,
    (b) Contains requirements and information generally applicable to AD 
forms and forms prescribed by FAR part 53, and
    (c) Illustrates AD forms.

                          Subpart 453.1_General



Sec. 453.103  Exceptions.

    (a) The contracting officer shall submit a request for exceptions to 
forms prescribed in FAR part 53 through the head of the contracting 
activity (HCA) to the Senior Procurement Executive (SPE) for referral to 
the GSA.
    (b) Requests for exceptions to AD forms prescribed in part 453 shall 
be handled as individual or class deviations, as appropriate (see 
subpart 401.4).



Sec. 453.108  Recommendations concerning forms.

    Contracting officers shall submit recommendations for new forms or 
to revise, eliminate, or consolidate forms prescribed by FAR part 53 and 
part 453 through the HCA to the SPE.

                   Subpart 453.2_Prescription of Forms



Sec. 453.200  Scope of subpart.

    This subpart prescribes USDA (AD) forms for use in acquisition. 
Consistent with the approach used in FAR subpart 53.2, this subpart is 
arranged by subject matter, in the same order as, and keyed to, the 
parts of the AGAR in which the form usage requirements are addressed.



Sec. 453.213  Simplified Acquisition and other simplified purchase 
          procedures (AD-838).

    Form AD-838, Purchase Order, is prescribed for use as a Simplified 
Acquisition Procedure/delivery order/task order document in lieu of OF 
347 and OF 348, except that use of the OF 347 and OF 348 is authorized 
when utilizing the USDA Integrated Acquisition System (See 413.307).

[70 FR 50, Jan. 3, 2005]



Sec. 453.270  Request for contract action (AD-700).

    Form AD-700, Procurement Request, may be used as a contract 
requisition document by contracting activities in USDA.

                  Subpart 453.3_Illustrations of Forms



Sec. 453.300  Scope of subpart.

    This subpart contains illustrations of USDA (AD) forms for use in 
acquisitions. Forms are not illustrated in the Federal Register or Code 
of Federal Regulations. Individual copies may be obtained from any USDA 
contracting activity or the office of the SPE.



Sec. 453.303  Agency forms.



Sec. 453.303-700  Procurement Request (AD-700).



Sec. 453.303-838  Purchase Order (AD-838).

[[Page 203]]

                  SUBCHAPTER I_FOOD ASSISTANCE PROGRAMS

                     PART 470_COMMODITY ACQUISITIONS

Sec.

Sec. 470.000 Scope of part.

Sec. 470.101 Definitions.

Sec. 470.102 Policy.

Sec. 470.103 United States origin of agricultural products.

Sec. 470.200 [Reserved]

Sec. 470.201 Acquisition of commodities and freight shipment for Foreign 
          Agricultural Service programs.

Sec. 470.202 Acquisition of commodities for United States Agency for 
          International Development (USAID) programs.

Sec. 470.203 Cargo preference.

    Authority: 5 U.S.C. 301; 7 U.S.C. 1691 through 1726b; 1731 through 
1736g-3; 1736o; 1736o-1; 40 U.S.C. 121(c); 46 U.S.C. 53305, 55314 and 
55316.

    Source: 74 FR 13079, Mar. 26, 2009, unless otherwise noted.



Sec. 470.000  Scope of part.

    This part sets forth the policies, procedures and requirements 
governing the procurement of agricultural commodities by the Department 
of Agriculture for use:
    (a) Under any domestic feeding and assistance program administered 
by the Food and Nutrition Service; and
    (b) Under Title II of the Food for Peace Act (7 U.S.C. 1721 et 
seq.); the Food for Progress Act of 1985; the McGovern-Dole 
International Food for Education and Child Nutrition Program; and any 
other international food assistance program.



Sec. 470.101  Definitions.

    The following definitions are applicable to this part:
    Commingled product means grains, oilseeds, rice, pulses, other 
similar commodities and the products of such commodities, when such 
commodity or product is normally stored on a commingled basis in such a 
manner that the commodity or product produced in the United States 
cannot be readily distinguished from a commodity or product not produced 
in the United States.
    Department means the Department of Agriculture.
    Food and Nutrition Service means such agency located within the 
Department of Agriculture.
    Foreign Agriculture Service means such agency located within the 
Department of Agriculture.
    Free alongside ship (f.a.s.) (* * * named port of shipment) means a 
term of sale which means the seller fulfills its obligation to deliver 
when the goods have been placed alongside the vessel on the quay or in 
lighters at the named port of shipment. The buyer bears all costs and 
risks of loss of or damage to the goods from that moment.
    Free carrier (FCA) (* * * named place) means a term of sale which 
means the seller fulfills its obligation when the seller has handed over 
the goods, cleared for export, into the charge of the carrier named by 
the buyer at the named place or point. If no precise point is indicated 
by the buyer, the seller may choose, within the place or range 
stipulated, where the carrier should take the goods into their charge.
    Grantee organization means an organization which will receive 
commodities from the United States Agency for International Development 
under Title II of the Food for Peace Act (7 U.S.C. 1721 et seq.) or from 
the Foreign Agricultural Service under the Food for Progress Act of 
1985; the McGovern-Dole International Food for Education and Child 
Nutrition Program; and any other international food assistance program.
    Ingredient means spices, vitamins, micronutrients, desiccants, and 
preservatives when added to an agricultural commodity product.
    Last contract lay day means the last day specified in an ocean 
freight contract by which the carriage of goods must start for contract 
performance.
    Lowest landed cost means, as authorized by 46 U.S.C. 55314(c), with 
respect to an agricultural product acquired under this part the lowest 
aggregate cost for the acquisition of such product and the shipment of 
such product to a foreign destination.
    Multi-port voyage charter means the charter of an ocean carrier in 
which

[[Page 204]]

the carrier will stop at two or more ports to discharge cargo.



Sec. 470.102  Policy.

    (a) Policy. It is the policy of the Department to follow the 
policies and procedures set forth in the Federal Acquisition Regulation 
(FAR) as supplemented by the Agriculture Acquisition Regulation, 
including this part, in the procurement of agricultural commodities and 
products of agricultural commodities that are used in domestic feeding 
and international feeding and development programs.
    (b) Electronic submission. To the maximum extent possible, the use 
of electronic submission of solicitation-related documents shall be used 
with respect to the acquisition of agricultural commodities and related 
freight; however, to the extent that a solicitation allows for the 
submission of written information in addition to information in an 
electronic format and there is a discrepancy in such submissions, the 
information submitted in a written format shall prevail unless the 
electronic submission states that a specific existing written term is 
superseded by the electronic submission.
    (c) Freight. With respect to the acquisition of freight for the 
shipment of agricultural commodities and products of agricultural 
commodities, the provisions of the FAR, including part 47, shall be 
utilized and various types of services to be obtained may include multi-
trip voyage charters.



Sec. 470.103  United States origin of agricultural products.

    (a) Products of United States origin. As provided by 7 U.S.C. 
1732(2) and 1736o-1(a) commodities and the products of agricultural 
commodities acquired for use in international feeding and development 
programs shall be products of United States origin. A product shall not 
be considered to be a product of the United States if it contains any 
ingredient that is not produced in the United States if that ingredient 
is:
    (1) Produced in the United States; and
    (2) Commercially available in the United States at fair and 
reasonable prices from domestic sources.
    (b) Use by the Food and Nutrition Service. Commodities and the 
products of agricultural commodities acquired for use by the Food and 
Nutrition Service shall be a product of the United States, except as may 
otherwise be required by law, and shall be considered to be such a 
product if it is grown, processed, and otherwise prepared for sale or 
distribution exclusively in the United States except with respect to 
ingredients. Ingredients from non-domestic sources will be allowed to be 
utilized as a United States product if such ingredients are not 
otherwise:
    (1) Produced in the United States; and
    (2) Commercially available in the United States at fair and 
reasonable prices from domestic sources.
    (c) Commingled product. (1) Except as provided in paragraph (c)(2) 
of this section, a commingled product shall be considered to be a 
product of the United States if the offeror can establish that the 
offeror has in inventory at the time the contract for the commodity or 
product is awarded to the offeror, or obtains during the contract 
performance period specified in the solicitation, or a combination 
thereof, a sufficient quantity of the commodity or product that was 
produced in the United States to fulfill the contract being awarded, and 
all unfulfilled contracts that the offeror entered into to provide such 
commingled product to the United States.
    (2) To the extent the Department has determined a commodity is one 
that is generally commingled, but is also one which can be readily 
stored on an identity preserved basis with respect to its country of 
origin, the Department may require that the commodity procured by the 
Department shall be of 100 percent United States origin.
    (d) Product derived from animals. With respect to the procurement of 
products derived from animals, the solicitation will set forth any 
specific requirement that is applicable to the country in which the 
animal was bred, raised, slaughtered or further processed.

[[Page 205]]



Sec. 470.200  [Reserved]



Sec. 470.201  Acquisition of commodities and freight shipment for 
          Foreign Agricultural Service programs.

    (a) Lowest landed cost and delivery considerations. (1) Except as 
provided in paragraphs (a)(3) and (4) of this section, in contracts for 
the Foreign Agricultural Service for commodities and related freight 
shipment for delivery to foreign destinations, the contracting officer 
shall consider the lowest landed cost of delivering the commodity to the 
intended destination. This lowest landed cost determination will be 
calculated on the basis of rates and service for that portion of the 
commodities being purchased that is determined is necessary and 
practicable to meet 46 U.S.C. 55314(c)(3) and cargo preference 
requirements and on an overall (foreign and U.S. flag) basis for the 
remaining portion of the commodities being procured and the additional 
factors set forth in this section. Accordingly, the solicitations issued 
with respect to a commodity procurement or a related freight procurement 
will specify that in the event an offer submitted by a party is the 
lowest offered price, the contracting officer reserves the right to 
reject such offer if the acceptance of another offer for the commodity 
or related freight, when combined with other offers for commodities or 
related freight, results in a lower landed cost to the Department.
    (2) The Department may contact any port prior to award to determine 
the port's cargo handling capabilities, including the adequacy of the 
port to receive, accumulate, handle, store, and protect the cargo. 
Factors considered in this determination may include, but not be limited 
to, the adequacy of building structures, proper ventilation, freedom 
from insects and rodents, cleanliness, and overall good housekeeping and 
warehousing practices. The Department may consider the use of another 
coastal range or port if a situation exists at a port that may adversely 
affect the ability of the Department to have the commodity delivered in 
a safe and timely manner. Such situations include:
    (i) A port is congested;
    (ii) Port facilities are overloaded;
    (iii) A vessel would not be able to dock and load cargo without 
delay;
    (iv) Labor disputes or lack of labor may prohibit the loading of the 
cargo onboard a vessel in a timely manner; or
    (v) Other similar situation that may adversely affect the ability of 
the Department to have the commodity delivered in a timely manner.
    (3) Use of other than lowest landed cost. In order to ensure that 
commodities are delivered in a timely fashion to foreign destinations 
and without damage, the contracting officer may award an acquisition 
without regard to the lowest land cost process set forth in paragraph 
(a)(1) of this section if:
    (i) The solicitation specifies that the lowest land cost process 
will not be followed in the completion of the contract; or
    (ii) After issuance of the solicitation, it is determined that:
    (A) Internal strife at the foreign destination or urgent 
humanitarian conditions threatens the lives of persons at the foreign 
destination;
    (B) A specific port's cargo handling capabilities (including the 
adequacy of the port to receive, accumulate, handle, store, and protect 
commodities) and other similar factors may adversely affect the delivery 
of such commodities through damage or untimely delivery. Such similar 
factors include, but are not limited to: port congestion; overloaded 
facilities at the port; vessels not being able to dock and load cargo 
without delay due to conditions at the port; labor disputes or lack of 
labor may prohibit the loading of the cargo onboard a vessel in a timely 
manner; and the existence of inadequate or unsanitary warehouse and 
other supporting facilities;
    (C) The total transit time of a carrier, as it relates to a final 
delivery date at the foreign destination may impair the timely delivery 
of the commodity;
    (D) Other similar situations arise that materially affect the 
administration of the program for which the commodity or freight is 
being procured; or
    (E) The contracting officer determines that extenuating 
circumstances preclude awards on the basis of lowest-landed cost, or 
that efficiency and cost-savings justify use of types of ocean

[[Page 206]]

service that would not involve an analysis of freight. However, in all 
such cases, commodities would be transported in compliance with cargo 
preference requirements. Examples of extenuating circumstances are 
events such as internal strife at the foreign destination or urgent 
humanitarian conditions threatening the lives of persons at the foreign 
destination. Other types of services may include, but are not limited 
to, multi-trip voyage charters, indefinite delivery/indefinite quantity 
(IDIQ), delivery cost and freight (C & F), delivery cost insurance and 
freight (CIF), and indexed ocean freight costs.
    (4) If a contracting officer determines that action may be 
appropriate under paragraph (a)(3) of this section, prior to the 
acceptance of any applicable offer, the contracting officer will provide 
to the Head of Contracting Activity Designee a written request to obtain 
commodities and freight in a manner other than on a lowest landed cost 
basis consistent with Title 48 Code of Federal Regulations. This request 
shall include a statement of the reasons for not using lowest landed 
cost basis. The Head of the Contracting Activity Designee, or the 
designee one level above the contracting officer, may either accept or 
reject this request and shall document this determination.
    (b) Multiple offers or delivery points. If more than one offer for 
the sale of commodities is received or more than one delivery point has 
been designated in such offers, in order to achieve a combination of a 
freight rate and commodity award that produces the lowest landed cost 
for the delivery of the commodity to the foreign destination, the 
contracting officer shall evaluate offers submitted on a delivery point 
by delivery point basis; however, consideration shall be given to 
prioritized ocean transport service in determining lowest landed cost.
    (c) Freight shipping and rates. (1) In determining the lowest-landed 
cost, the Department shall use the freight rates offered in response to 
solicitations issued by the Department or, if applicable, the grantee 
organization.
    (2) Freight rates offered must be submitted as specified in the 
solicitation issued by the Department or, if applicable, the grantee 
organization. Any such solicitation issued by a grantee organization 
must contain the following elements:
    (i) If directed by the Department, include a closing time for the 
receipt of written freight offers and state that late written freight 
offers will not be considered;
    (ii) Provide that freight offers are required to have a canceling 
date no later than the last contract lay day specified in the 
solicitation;
    (iii) Provide the same deadline for receipt of written freight 
offers from both U.S. flag vessel and non-U.S. flag vessels; and
    (iv) Be received and opened prior to any related offer for 
acquisition of commodities to be shipped.
    (3) The Department may require organizations that will receive 
commodities from the Department to submit information relating to the 
capacity of a U.S. port, or, if applicable, a terminal, prior to the 
acquisition of such commodities or freight.
    (d) Freight rate notification. If the Department is not the party 
procuring freight with respect to a shipment of an agricultural 
commodity for delivery to a foreign destination, the organization that 
will receive commodities from the Department, or its shipping agent, 
shall be notified by the Department of the vessel freight rate used in 
determining the commodity contract award and the organization will be 
responsible for finalizing the charter or booking contract with the 
vessel representing the freight rate.



Sec. 470.202  Acquisition of commodities for United States Agency for 
          International Development (USAID) programs.

    (a) Lowest landed cost and delivery considerations. (1) Except as 
provided in paragraphs (a)(3) and (e)(2) of this section, with respect 
to the acquisition of agricultural commodities for delivery to foreign 
destinations and related freight to transport such commodities under 
Title II of Public Law 480, contracts will be entered into in a manner 
that will result in the lowest landed cost of such commodity delivery to 
the

[[Page 207]]

intended destination. This lowest landed cost determination shall be 
calculated on the basis of rates and service for that portion of the 
commodities being purchased that is determined is necessary and 
practicable to meet 46 U.S.C. 55314(c)(3) and cargo preference 
requirements and on an overall (foreign and U.S. flag) basis for the 
remaining portion of the commodities being procured and the additional 
factors set forth in this section. Accordingly, the solicitations issued 
with respect to a commodity procurement or a freight procurement will 
specify that in the event an offer submitted by a party is the lowest 
offered price, the contracting officer reserves the right to reject such 
offer if the acceptance of another offer for the commodity or freight, 
when combined with other offers for commodities or freight, results in a 
lower landed cost to USAID.
    (2) The Department may contact any port prior to award to determine 
the port's cargo handling capabilities, including the adequacy of the 
port to receive, accumulate, handle, store, and protect the cargo. 
Factors which will be considered in this determination will include, but 
not be limited to, the adequacy of building structures, proper 
ventilation, freedom from insects and rodents, cleanliness, and overall 
good housekeeping and warehousing practices. The Department may consider 
the use of another coastal range or port if a situation exists at a port 
that may adversely affect the ability of the Department to have the 
commodity delivered in a safe and/or timely manner. Such situations 
include:
    (i) A port is congested;
    (ii) Port facilities are overloaded;
    (iii) A vessel would not be able to dock and load cargo without 
delay;
    (iv) Labor disputes or lack of labor may prohibit the loading of the 
cargo onboard a vessel in a timely manner; or
    (v) Other similar situation that may adversely affect the ability of 
the Department to have the commodity delivered in a timely manner.
    (3) Use of other than lowest landed cost. In order to ensure that 
commodities are delivered in a timely fashion to foreign destinations 
and without damage, the Department may complete an acquisition without 
regard to the lowest land cost process set forth in paragraph (a)(1) of 
this section, if:
    (i) The solicitation specifies that the lowest land cost process 
will not be followed in the completion of the contract; or
    (ii) After issuance of the solicitation, it is determined that:
    (A) Internal strife at the foreign destination or urgent 
humanitarian conditions threatens the lives of persons at the foreign 
destination;
    (B) A specific port's cargo handling capabilities (including the 
adequacy of the port to receive, accumulate, handle, store, and protect 
commodities) and other similar factors will adversely affect the 
delivery of such commodities without damage or in a timely manner. Such 
similar factors include, but are not limited to: port congestion; 
overloaded facilities at the port; vessels would not be able to dock and 
load cargo without delay; labor disputes or lack of labor may prohibit 
the loading of the cargo onboard a vessel in a timely manner; and the 
existence of inadequate or unsanitary warehouse and other supporting 
facilities;
    (C) The total transit time of a carrier, as it relates to a final 
delivery date at the foreign destination may impair the ability of the 
Department to achieve timely delivery of the commodity; or
    (D) Other similar situations arise that materially affect the 
administration of the program for which the commodity or freight is 
being procured.
    (4) If the contracting officer determines that action may be 
appropriate under paragraph (a)(3) of this section, prior to the 
acceptance of any applicable offer, the contracting officer shall 
provide to the head of contracting activity designee and to USAID, a 
written request to obtain commodities and freight in a manner other than 
on a lowest landed cost basis. This request shall include a statement of 
the reasons for not using lowest landed cost basis. The head of 
contracting authority designee, or one level above the contracting 
officer, with the concurrence of USAID, shall, on an expedited basis, 
either accept or reject this request and shall document this 
determination in writing and provide a copy to USAID.

[[Page 208]]

    (b) Freight shipping and rates. (1) In determining lowest-landed 
cost as specified in paragraph (a) of this section, the Department shall 
use vessel rates offered in response to solicitations issued by USAID or 
grantee organizations receiving commodities under 7 U.S.C. 1731 et seq.
    (2) USAID may require, or direct a grantee organization to require, 
an ocean carrier to submit offers electronically through a Web-based 
system maintained by the Department. If electronic submissions are 
required, the Department may, at its discretion, accept corrections to 
such submissions that are submitted in a written form other than by use 
of such Web-based system.
    (c) Delivery date. The contracting officer shall consider total 
transit time, as it relates to a final delivery date, in order to 
satisfy Public Law 480 Title II program requirements.
    (d) Delivery points. (1) Commodities offered for delivery free 
alongside ship Great Lakes port range or intermodal bridge-point Great 
Lakes port range that represent the overall (foreign and U.S. flag) 
lowest landed cost will be awarded on a lowest landed cost basis. 
Tonnage allocated on this basis will not be reevaluated on a lowest 
landed cost U.S.-flag basis unless the contracting officer determines 
that 25 percent of the total annual tonnage of bagged, processed, or 
fortified commodities furnished under 7 U.S.C. 1731 et seq. has been, or 
will be, transported from the Great Lakes port range during that fiscal 
year.
    (2) The contracting officer shall consider commodity offers as 
offers for delivery ``intermodal bridge-point Great Lakes port range'' 
only if:
    (i) The offer specifies delivery at a marine cargo-handling facility 
that is capable of loading ocean going vessels at a Great Lakes port, as 
well as loading ocean going conveyances such as barges and container 
vans, and
    (ii) The commodities will be moved from one transportation 
conveyance to another at such a facility.
    (e) Multiple awards or delivery points. (1) If more than one offer 
for the sale of commodities is received or more than one delivery point 
has been designated in such offers, in order to achieve a combination of 
a freight rate and commodity award that produces the lowest landed cost 
for the delivery of the commodity to the foreign destination, the 
contracting officer shall evaluate offers submitted on a delivery point 
by delivery point basis; however, consideration shall be given to 
prioritized ocean transport service in determining lowest landed cost.
    (2) The contracting officer may determine that extenuating 
circumstances preclude awards on the basis of lowest landed cost. 
However, in all such cases, commodities may be transported in compliance 
with cargo preference requirements as determined by USAID.
    (3) The contracting officer shall notify USAID or, if applicable, 
the grantee organization, that its shipping agent will be notified of 
the vessel freight rate used in determining the commodity contract 
award. The grantee organization or USAID will be responsible for 
finalizing the charter or booking contract with the vessel representing 
the freight rate so used.



Sec. 470.203  Cargo preference.

    An agency having responsibility under this subpart shall administer 
its programs, with respect to this subpart, in accordance with 
regulations prescribed by the Secretary of Transportation.

[[Page 209]]



               CHAPTER 5--GENERAL SERVICES ADMINISTRATION




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

                          SUBCHAPTER A--GENERAL
Part                                                                Page
501             General Services Administration Acquisition 
                    Regulation System.......................         211
502             Definitions of words and terms..............         213
503             Improper business practices and personal 
                    conflicts of interest...................         214
504             Administrative matters......................         216
           SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
505

[Reserved]

509             Contractor qualifications...................         220
511             Describing agency needs.....................         223
512             Acquisition of commercial items.............         227
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
513

[Reserved]

514             Sealed bidding..............................         228
515             Contracting by negotiation..................         233
516             Types of contracts..........................         239
517             Special contracting methods.................         240
                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
519             Small business programs.....................         242
522             Application of labor laws to Government 
                    acquisitions............................         248
523             Environment, conservation, occupational 
                    safety and drug-free workplace..........         250
525             Foreign acquisition.........................         250
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
527             Patents, data, and copyrights...............         251
528             Bonds and insurance.........................         251
529             Taxes.......................................         251
532             Contract financing..........................         252

[[Page 210]]

533             Protests, disputes, and appeals.............         254
             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
536             Construction and architect-engineer 
                    contracts...............................         256
537             Service contracting.........................         260
538             Federal supply schedule contracting.........         261
539             Acquisition of information technology.......         267
                    SUBCHAPTER G--CONTRACT MANAGEMENT
541             Acquisition of utility services.............         269
542             Contract administration and audit services..         269
543             Contract modifications......................         269
546             Quality assurance...........................         269
547

[Reserved]

549             Termination of contracts....................         270
                     SUBCHAPTER H--CLAUSES AND FORMS
552             Solicitation provisions and contract clauses         271
553             Forms.......................................         333
               SUBCHAPTER I--SPECIAL CONTRACTING PROGRAMS
570             Acquiring leasehold interests in real 
                    property................................         335

[[Page 211]]

                          SUBCHAPTER A_GENERAL

 PART 501_GENERAL SERVICES ADMINISTRATION ACQUISITION REGULATION SYSTEM

               Subpart 501.1_Purpose, Authority, Issuance

Sec.

Sec. 501.101 Purpose.

Sec. 501.103 Authority.

Sec. 501.104 Applicability.

Sec. 501.105 Issuance.

Sec. 501.105-1 Publication and code arrangement.

Sec. 501.105-2 Arrangement of regulations.

Sec. 501.105-3 Copies.

Sec. 501.106 OMB approval under the Paperwork Reduction Act.

             Subpart 501.4_Deviations From the FAR and GSAR


Sec. 501.402 Policy.

Sec. 501.403 Individual deviations.

Sec. 501.404 Class deviations.

Sec. 501.404-70 Contract action.

Sec. 501.404-71 Deviations to the nonregulatory GSAM.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37203, July 9, 1999, unless otherwise noted.

               Subpart 501.1_Purpose, Authority, Issuance



Sec. 501.101  Purpose.

    (a) The General Services Acquisition Regulation (GSAR) contains 
agency acquisition policies and practices, contract clauses, 
solicitation provisions, and forms that control the relationship between 
GSA and contractors and prospective contractors.
    (b) GSAR address rules directly to you, the contracting officer, 
unless otherwise indicated.



Sec. 501.103  Authority.

    GSA's Senior Procurement Executive issues the GSAR under the 
authority of the Federal Property and Administrative Services Act of 
1949, as amended.



Sec. 501.104  Applicability.

    (a) General. The GSAR applies to contracts for suppliers or 
services, including construction.
    (b) Acquisition of leasehold interests in real property. Part 570 
establishes rules for the acquisition of leasehold interests in real 
property. Other provisions of 48 CFR chapter 5 (GSAR) do not apply to 
leases of real property unless specifically cross-reference in part 570.
    (c) Relationship to state. Some GSAR rules implement and interpret 
laws and other authorities affecting procurement. A GSAR rule 
specifically directed by statute has the force and effect of law.
    (d) GSAR/FAR Relationship. The GSAR may deviate from the Federal 
Acquisition Regulation (FAR) if authorized. If the GSAR does not 
implement the FAR, the FAR alone governs.



Sec. 501.105  Issuance.



Sec. 501.105-1  Publication and code arrangement.

    The GSAR is published in the following sources:
    (a) Daily issue of the Federal Register.
    (b) Annual Code of Federal Regulations (CFR), as Chapter 5 of Title 
48.
    (c) GSA Acquisition Manual distributed within GSA.
    (d) GSA Home Page at http://www/gas.gov. Click on either 
``Government Agencies'' or on ``Business and Industry,'' the click on 
``Acquisition.''



Sec. 501.105-2  Arrangement of regulations.

    (a) The GSAR numbers and captions policies and procedures to 
correspond to how they appear in the FAR, e.g., 1.104 in the FAR is 
501.104 in the GSAR.
    (b) GSAR rules not implementing the FAR have numbers beginning with 
70, e.g., part 570, subsection 515.209-70.
    (c) The GSAR may have gaps in its numbering scheme because a FAR 
rule may not require GSAR implementation.



Sec. 501.105-3  Copies.

    The GSAR in CFR form may be purchased from: Superintendent of 
Documents, Government Printing Office, Washington, DC 20402.

[[Page 212]]



Sec. 501.106  OMB approval under the Paperwork Reduction Act.

------------------------------------------------------------------------
               GSAR Reference                      OMB Control No.
------------------------------------------------------------------------
509.105-1(a)...............................  3090-0007
511.140-70.................................  3090-0203
511.204(c).................................  3090-0246
514.201-1(a)...............................  3090-0163
514.201-7(a)...............................  3090-0200
516.203-4(a)(1)............................  3090-0243
516.506....................................  3090-0248
519.70.....................................  3090-0286
519.708(b).................................  3090-0252
522.406-6..................................  1215-0149
523.370....................................  3090-0205
532.111(c).................................  3090-0080
532.905-70.................................  9000-0102
532.905-71.................................  3090-0080
537.110(a).................................  3090-0197
537.110(b).................................  3090-0006
538.273(a)(1)..............................  3090-0250
538.273(a)(3)..............................  3090-0262
538.273(b)(1)..............................  3090-0121
542.1107...................................  3090-0027
546.307-70.................................  3090-0027
546.302-71.................................  3090-0027
552.211-77.................................  3090-0246
552.214-71.................................  3090-0200
552.216-70.................................  3090-0243
552.216-72.................................  3090-0248
552.216-73.................................  3090-0248
552.219-72.................................  3090-0252
552.219-75.................................  3090-0286
552.219-76.................................  3090-0286
552.223-72.................................  3090-0205
552.232-72.................................  3090-0080
552.237-70.................................  3090-0197
552.237-71.................................  3090-0006
552.238-70.................................  3090-0250
552.238-72.................................  3090-0262
552.238-74.................................  3090-0121, 3090-0250
552.239-71.................................  3090-0294
552.242-70.................................  3090-0027
552.246-70.................................  3090-0027
552.246-71.................................  3090-0027
GSA-72-A...................................  3090-0121
GSA-527....................................  3090-0007
GSA-618-D..................................  1215-0149
GSA-1142...................................  3090-0080
GSA-1364...................................  3090-0086
GSA-1678...................................  3090-0027
GSA-2419...................................  9000-0102
570.802(c).................................  3090-0086
570.802(d).................................  3090-0086
------------------------------------------------------------------------


[64 FR 37203, July 9, 1999, as amended at 65 FR 41378, July 5, 2000; 68 
FR 41288, July 11, 2003; 74 FR 21273, May 7, 2009; 74 FR 41063, Aug. 14, 
2009; 74 FR 47738, Sept. 17, 2009; 74 FR 66253, Dec. 15, 2009; 76 FR 
30845, May 27, 2011; 77 FR 750, Jan. 6, 2012]

    Editorial Note: At 74 FR 66253, Dec. 15, 2009, the table in Sec. 
501.106 was amended by removing the GSAR reference number ``511.104-70'' 
and its corresponding OMB Control Number ``3090-0203''; however, the 
amendment could not be done because this reference number is not found 
in the table.

             Subpart 501.4_Deviations From the FAR and GSAR



Sec. 501.402  Policy.

    Uniformity is a goal of GSA's Acquisition Regulation System. Despite 
this desire for uniformity, a contracting activity may take any of the 
following actions:
    (a) Develop and test new procedures and techniques.
    (b) Adopt alternate procedures in the public interest for unique 
programmatic or managerial requirements
    (c) Deviate from a regulatory provision implementing a statutory 
requirement provided the deviation does not violate the underlying 
statute. Deviations must not be used to defeat the FAR and GSAR approval 
requirements.



Sec. 501.403  Individual deviations.

    (a) An individual deviation affects only one contract action.
    (1) The Head of the Contracting Activity (HCA) must approve an 
individual deviation to the FAR. The authority to grant an individual 
deviation may not be re-delegated. A copy of the deviation must be 
provided to GSA's Senior Procurement Executive (SPE).
    (2) An individual deviation to the GSAR must be approved by the HCA. 
The authority to grant an individual deviation may be re-delegated to 
the Contracting Director.
    (b) If GSA delegates authority to another agency and requires 
compliance with the GSAR as a condition of the delegation, the 
Contracting Director in the agency receiving the delegation may approve 
individual deviations from the GSAR unless the agency head receiving the 
delegation designates another official.
    (c) Send a copy of each deviation to GSA's SPE (V).

[64 FR 37203, July 9, 1999, as amended at 70 FR 15779, Mar. 29, 2005]



Sec. 501.404  Class deviations.

    (a) A class deviation affects more than one contract action. A 
deviation for any solicitation that will result in multiple awards or 
any solicitation under the multiple award Federal Supply Schedule 
program is considered to

[[Page 213]]

be a class deviation. Each award under such a solicitation is considered 
an individual contract action.
    (1) A class deviation to the FAR must be forwarded by the cognizant 
HCA to GSA's SPE for approval. Prior to approving a class deviation to 
the FAR, the SPE will consult with the Chairman of the Civilian Agency 
Acquisition Council (CAAC) in accordance with FAR 1.404(a)(1).
    (2) A class deviation to the GSAR must be forwarded by the cognizant 
HCA to GSA's SPE for approval.
    (3) When an HCA knows that a proposed class deviation will be 
required on a permanent basis, the HCA should propose or recommend an 
appropriate FAR and/or GSAR revision.
    (b) If GSA delegates authority to another agency and requires 
compliance with the GSAR as a condition of the delegation, the HCA in 
the agency receiving the delegation may approve class deviations from 
the GSAR unless the agency head receiving the delegation designates 
another official.
    (c) Send a copy of each deviation to GSA's SPE (V).
    (d) A request for class deviations must be supported by statements 
that fully describe the need for and the nature of the deviation.
    (e) Class deviations from the GSAR:
    (1) Expire in 12 months if not extended.
    (2) May be rescinded earlier by GSA's SPE or by officials designated 
under paragraph (a) of this section without prejudice to any action 
taken previously.

[64 FR 37203, July 9, 1999, as amended at 70 FR 15780, Mar. 29, 2005]



Sec. 501.404-70  Contract action.

    Contract action. A contract action, for the purpose of determining 
whether an individual or class deviation is appropriate, has the same 
meaning as that used for reporting contract actions to Federal 
Procurement Data System--Next Generation (FPDS-NG). A contract action 
includes, but is not limited to, any of the following:
    (a) Initial letter contract.
    (b) Definitive contract superseding letter contract.
    (c) New definitive contract.
    (d) Purchase order/BPA calls using simplified acquisition 
procedures.
    (e) Orders under single award indefinite delivery contracts.
    (f) Orders under BOA.
    (g) Order/modification under Federal schedule contract.
    (h) Modification.
    (i) Termination for Default.
    (j) Termination for Convenience.
    (k) Order under multiple award contract.
    (l) Initial load of Federal schedule contract.

[70 FR 15780, Mar. 29, 2005]



Sec. 501.404-71  Deviations to the nonregulatory GSAM.

    Handle individual and class deviations to the nonregulatory 
(unshaded) part of the GSAM as stated in 501.403 and 501.404.

[70 FR 15780, Mar. 29, 2005]

                 PART 502_DEFINITIONS OF WORDS AND TERMS

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

    Source: 64 FR 37204, July 9, 1999, unless otherwise noted.

                        Subpart 502.1_Definitions



Sec. 502.101  Definitions.

    Agency competition advocate means the GSA Competition Advocate in 
the Office of the Chief Acquisition Officer.
    Assigned counsel means the attorney employed by the Office of 
General Counsel (including offices of Regional Counsel) assigned to 
provide legal review or assistance.
    Contracting activity competition advocate means the individual 
designated in writing by the Head of the Contracting Activity (HCA). 
This authority may not be redelegated. The HCA must ensure that the 
designated competition advocate is not assigned any duty or 
responsibility that is inconsistent with the advocacy function. The 
identity of the designated official shall be communicated to procuring 
staff and the Senior Procurement Executive.
    Contracting director means:
    (a) Except in the Federal Acquisition Service (FAS), a director of a 
Central

[[Page 214]]

Office or Regional office Division responsible for performing 
contracting or contract administration functions.
    (b) In FAS Central Office--
    (1) The Assistant Commissioner for Assisted Acquisition Services or 
designee;
    (2) The Assistant Commissioner for General Supplies and Services or 
designee;
    (3) The Assistant Commissioner for Integrated Technology Services or 
designee;
    (4) The Assistant Commissioner for Travel, Motor Vehicle and Card 
Services or designee; and
    (5) The Assistant Commissioner for Acquisition Management or 
designee for support offices with contracting functions.
    (c) In FAS Regions, the Assistant Regional Commissioner or designee.
    Contracting officer's representative (COR), contracting officer's 
technical representative (COTR), or contract administrator means a 
Government employee designated in writing by the contracting officer to 
perform specific limited activities for the contracting officer, such as 
contract administration.
    Debarring official or ``suspending official'' means the Senior 
Procurement Executive or a designee.
    Head of the contracting activity means the Deputy Chief Acquisition 
Officer; Commissioners of the Federal Acquisition Service (FAS) or 
Public Buildings Service (PBS); or Regional Commissioners. The Deputy 
Chief Acquisition Officer serves as the HCA for Central Office 
contracting activities outside of FAS and PBS.
    Senior procurement executive means the Deputy Chief Acquisition 
Officer.
    Senior program official means a person reporting to, and designated 
by, the HCA to have overall program responsibility for determining how 
the agency will meet its needs. The official should have a position of 
authority over the participating offices. Examples include Assistant 
Regional Commissioners or Deputy Commissioners.

[74 FR 39564, Aug. 7, 2009]

 PART 503_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

                        Subpart 503.1_Safeguards

Sec.

Sec. 503.104 Procurement integrity.

       Subpart 503.2_Contractor Gratuities to Government Personnel


Sec. 503.204 Treatment of violations.

Subpart 503.4--Contingent Fees [Reserved]

             Subpart 503.5_Other Improper Business Practices


Sec. 503.570 Advertising.

Sec. 503.570-1 Policy.

Sec. 503.570-2 Contract clause.

             Subpart 503.7_Voiding and Rescinding Contracts


Sec. 503.703 Authority.

      Subpart 503.10_Contractor Code of Business Ethics and Conduct


Sec. 503.1004 Contract clauses.

    Authority: 40 U.S.C. 121(c).

    Source: At 64 FR 37204, July 9, 1999, unless otherwise noted.

                        Subpart 503.1_Safeguards



Sec. 503.104  Procurement integrity.

       Subpart 503.2_Contractor Gratuities to Government Personnel



Sec. 503.204  Treatment of violations.

    (a) The Senior Procurement Executive, or designee, makes 
determinations under FAR 3.204.
    The Senior Procurement Executive, or designee, takes all the 
following actions:
    (1) Coordinates with legal counsel;
    (2) Initiates proceedings under FAR 3.204(a) by notifying the 
contractor that GSA is considering action against the contractor for a 
violation of the Gratuities clause. Notice is sent by a certified letter 
to the last known address of the party, its counsel, or agent for 
service of process. In the case of a


[[Page 215]]

business, notice is sent to any partner, principal officer, director, 
owner or co-owner; and
    (3) Presumes receipt if no return receipt is received within 10 
calendar days after mailing the notice.
    (b) The contractor has 30 calendar days to exercise its rights under 
FAR 3.204(b), unless the Senior Procurement Executive, or designee, 
grants an extension.
    (c) If there is a dispute of fact material to making a 
determination, the Senior Procurement Executive, or designee, may refer 
the matter to an agency fact-finding official, designated by the 
Suspension and Debarment Official, in accordance with GSAR 509.403. 
Referrals for fact-finding are not made in cases arising from a 
conviction or indictment as defined in FAR 9.403. If a referral is made, 
the fact-finding official takes all the following actions:
    (1) Gives the contractor an opportunity to dispute material facts 
relating to the determinations under FAR 3.204(a)(1) and (2);
    (2) Conducts proceedings under rules consistent with FAR 3.204(b);
    (3) Schedules a hearing within 20 calendar days of receipt of the 
referral. The contractor or GSA may request an extension for good cause; 
and
    (4) Delivers to the Senior Procurement Executive, or designee, 
written findings of fact (together with a transcription of the 
proceedings, if made) within 20 calendar days after the hearing record 
closes. The findings must resolve any material disputes of fact by a 
preponderance of the evidence.
    (d) The Senior Procurement Executive, or designee, may reject the 
findings of the fact-finding official only if the findings are clearly 
erroneous or arbitrary and capricious.
    (e) In cases arising from conviction or indictment, or in which 
there are no disputes of material fact, the Senior Procurement 
Executive, or designee, conducts the hearing required by FAR 3.204(b).
    (f) If the Gratuities clause was violated, the contractor may 
present evidence of mitigating factors to the Senior Procurement 
Executive, or designee, in accordance with FAR 3.204(b) either orally or 
in writing, consistent with a schedule the Senior Procurement Executive, 
or designee, establishes. The Senior Procurement Executive, or designee, 
exercises the Government's rights under FAR 3.204(c) only after 
considering mitigating factors.

[64 FR 37204, July 9, 1999, as amended at 74 FR 51511, Oct. 7, 2009]

Subpart 503.4--Contingent Fees [Reserved]

             Subpart 503.5_Other Improper Business Practices



Sec. 503.570  Advertising.



Sec. 503.570-1  Policy.

    GSA policy precludes contractors from making references to GSA 
contracts in commercial advertising in a manner that states or implies 
the Government approves or endorses the product or service or considers 
it superior to other products or services. The intent of this policy is 
to prevent the appearance of Government bias toward any product or 
service.

[64 FR 37204, July 9, 1999, as amended at 74 FR 51511, Oct. 7, 2009]



Sec. 503.570-2  Contract clause.

    Insert the clause at 552.203-71, Restriction on Advertising, in 
solicitations and contracts, including acquisitions of leasehold 
interests in real property, if the contract amount is expected to exceed 
the simplified acquisition threshold.

             Subpart 503.7_Voiding and Rescinding Contracts



Sec. 503.703  Authority.

    Pursuant to FAR 3.703 and 3.705(b), the authority to void or rescind 
contracts resides with the Senior Procurement Executive.

[74 FR 51512, Oct. 7, 2009]

      Subpart 503.10_Contractor Code of Business Ethics and Conduct



Sec. 503.1004  Contract clauses.

    (a) The FAR threshold for the clause at 52.203-14, Display of 
Hotline Poster(s), is $5,000,000. However, GSA has exercised the 
authority provided at

[[Page 216]]

FAR 3.1004(b)(1)(i) to establish a lower threshold, $1,000,000, for 
inclusion of the clause when the contract or order is funded with 
disaster assistance funds.
    (b) The information required to be inserted in the clause at FAR 
52.203-14, Display of Hotline Poster(s), is as follows:
    (1) Poster: GSA Office of Inspector General ``FRAUDNET HOTLINE''; 
and
    (2) Obtain from: Contracting Officer.

[74 FR 51512, Oct. 7, 2009]

                     PART 504_ADMINISTRATIVE MATTERS

    Subpart 504.4_Safeguarding Classified Information Within Industry

Sec.

Sec. 504.402 General.

Sec. 504.475 Return of classified information.

            Subpart 504.5_Electronic Commerce in Contracting


Sec. 504.500 [Reserved]

Sec. 504.502 Policy.

Sec. 504.570 [Reserved]

                    Subpart 504.6_Contract Reporting


Sec. 504.604 Responsibilities.

Sec. 504.605-70 Federal Procurement Data System--Public access to data.

             Subpart 504.11_Central Contractor Registration


Sec. 504.1103 Procedures.

  Subpart 504.13_Personal Identity Verification of Contractor Personnel


Sec. 504.1301 Policy.

Sec. 504.1303 Contract clause.

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

    Source: 64 FR 37205, July 9, 1999, unless otherwise noted.

    Subpart 504.4_Safeguarding Classified Information Within Industry



Sec. 504.402  General.

    (a) This subpart prescribes procedures for safeguarding classified 
information required to be disclosed to contractors in connection with 
the solicitation of offers, and the award, performance, and termination 
of contracts.
    (b) As used in this subpart, the term ``Contractor(s)'' means 
prospective contractors, subcontractors, vendors, and suppliers.

[77 FR 59792, Oct. 1, 2012]



Sec. 504.475  Return of classified information.

    (a) Contracting officers must recover classified information, unless 
it has been destroyed as provided in Section 7 of Chapter 5 of the 
National Industrial Security Program Operating Manual (NISPOM). 
Information on NISPOM can be found at http://www.fas.org/sgp/library/
nispom.htm.
    (b) Contracting officers must ensure that classified information 
provided by the government is returned immediately after any of the 
following events:
    (1) Bid opening or closing date for receipt of proposals by non-
responding offerors.
    (2) Contract award by unsuccessful offerors.
    (3) Termination or completion of the contract.
    (4) Notification that authorization to release classified 
information has been withdrawn.
    (5) Notification that a facility:
    (i) Does not have adequate means to safeguard classified 
information; or
    (ii) Has had its security clearance revoked or inactivated.
    (6) Whenever otherwise instructed by the authority responsible for 
the security classification.
    (c) The Government agency that provided classified information to a 
GSA contractor is responsible for the return of the information.

[77 FR 59792, Oct. 1, 2012]

            Subpart 504.5_Electronic Commerce in Contracting



Sec. 504.500  [Reserved]



Sec. 504.502  Policy.

    Use of electronic signatures is encouraged and can be used to sign 
and route documents in GSA's IT systems to contractually obligate funds. 
The

[[Page 217]]

method of authentication used for electronic signatures shall be 
consistent with the level (1-4) determined from the e-authentication 
risk assessment in accordance with OMB M-04-04, E-authentication 
Guidance for Federal Agencies, and the respective technology safeguards 
applicable to that level or risk from National Institute of Standards 
and Technology 800-63, Electronic Authentication Guideline.

[77 FR 59792, Oct. 1, 2012]



Sec. 504.570  [Reserved]

                    Subpart 504.6_Contract Reporting



Sec. 504.604  Responsibilities.

    (a) The Senior Procurement Executive (SPE), in coordination with the 
HCA, shall establish necessary policies to ensure the accurate and 
timely input of data into FPDS. At a minimum, the SPE and the HCA shall 
ensure that the following procedures are implemented.
    (1) Contract writing systems capable of reporting directly into FPDS 
shall be configured to do so as a condition of making an award.
    (2) To ensure the accuracy of data entered, reports of actions 
awarded shall be routinely generated from the contract writing system, 
examined and compared to data contained in FPDS to assure that those 
actions have been reported accurately to FPDS.
    (3) Organizations without a contract writing system shall report the 
data using the FPDS web portal interface not later than 14 days after an 
award is made. To ensure data entry and accuracy, logs of contract 
actions shall be regularly reviewed and compared to data entries in 
FPDS.
    (4) HCAs shall also verify and validate accuracy of the data and 
ensure contract awards have been entered into FPDS within the 
appropriate time frames.
    (b) Contracting officers are the individuals primarily responsible 
for the accuracy of data submitted to FPDS as well as the submission and 
accuracy of the individual contract action report (CAR).
    (c) The contracting officer shall, at a minimum, take the following 
steps necessary to verify the accuracy of the CAR:
    (1) In the case of a contract writing system, review the CAR 
information for accuracy and completeness prior to submission to FPDS 
and prior to the release of the contract award.
    (2) In the absence of a Contract Writing System, ensure that the CAR 
information is submitted to FPDS within 14 days after contract award.
    (3) To further assure accurate contract data, consider including a 
copy of the CAR with award documents sent to the contractor for the 
contractor's knowledge review and information.
    (d) The Chief Acquisition Officer (CAO) shall periodically 
statistically sample the GSA FPDS file and provide a list of 
transactions to the contracting activities for certification.
    (1) The review process should include procedures, comparisons of 
contract file data to FPDS data entries, and comparisons of printouts of 
FPDS data to their contract writing system data for accuracy.
    (2) The verification and validation shall be conducted by an 
organization or person that did not award the contracts being reviewed. 
HCAs may institute any appropriate process that complies with this 
requirement.
    (3) HCAs shall provide certifications of the accuracy, timeliness 
and validity of their FPDS data on a quarterly basis to the CAO based on 
the list of transactions provided to HCAs under paragraph (d) of this 
section. Certifications to the CAO shall include a description of the 
means used to verify the accuracy and completeness of the data and a 
statement that all discrepancies found have been corrected.
    (e) The CAO will provide the annual certification of GSA's FPDS data 
to OMB required by FAR 4.604(c). This certification will be based on the 
Regional and Heads of Services and Staff Offices' reviews and 
certifications and the CAO's review. Certifications are due not later 
than 15 working days after the end of the quarter.

[77 FR 59792, Oct. 1, 2012, as amended at 77 FR 69768, Nov. 21, 2012]

[[Page 218]]



Sec. 504.605-70  Federal Procurement Data System--Public access to data.

    (a) The FPDS database. The General Services Administration awarded a 
contract for creation and operation of the Federal Procurement Data 
System (FPDS) database. That database includes information reported by 
departments and agencies as required by FAR subpart 4.6. One of the 
primary purposes of the FPDS database is to provide information on 
Government procurement to the public.
    (b) Fee for direct hook-up. To the extent that a member of the 
public requests establishment of real-time integration of reporting 
services to run reports from another application, a one-time charge of 
$2,500 for the original integration must be paid by the requestor. This 
one-time charge covers the setup and certification required for an 
integrator to access the FPDS database and for technical assistance to 
help integrators use the web services. The fee will be paid to the FPDS 
contractor and credited to invoices submitted to GSA by the FPDS 
contractor.

[69 FR 77662, Dec. 28, 2004. Redesignated and amended at 77 FR 59792, 
Oct. 1, 2012]

             Subpart 504.11_Central Contractor Registration



Sec. 504.1103  Procedures.

    In addition to the requirements found in FAR 4.1103, prior to 
awarding a contractual instrument the contracting officer must--
    (1) Verify that the prospective contractor's legal business name, 
Doing-Business-As (DBA) name (if any), physical street address, and Data 
Universal Number System (DUNS) number or DUNS+4 number, as found in the 
CCR, match the information that will be included in the contract, order, 
or agreement resulting from the vendor's quote or proposal. Correct any 
mismatches by having the vendor amend the information in the CCR and/or 
the quote or proposal. The CCR information can be accessed through GSA's 
CCR repository (contact the GSA Systems Programming Branch for 
instructions, a user ID, and password).
    (2) Ensure that the contractor's address code exists in Pegasys and 
that it is CCR enabled with the contractor's DUNS or DUNS+4 number. This 
can be done by searching Pegasys records using the contractor's Taxpayer 
Identification Number (TIN). If no code exists, request that a new 
address code be established by the Finance Center for CCR compliance.
    (3) Ensure that the contractor's identifying information is 
correctly placed on the contractual instrument, using special care to 
ensure that the legal name and ``remit to'' name match exactly. (Note: 
Lockbox names or numbers should not be used to replace the contractor's 
name in the remittance block on the contractual instrument.)
    (4) Unless one of the exceptions to registration in CCR applies (see 
FAR 4.1102(a)), the contracting officer must not award a contract to a 
prospective contractor who is not registered in CCR. If no exceptions 
are applicable, and the needs of the requiring activity allows for a 
delay in award, see FAR 4.1103(b)(1).

[77 FR 59792, Oct. 1, 2012]

  Subpart 504.13_Personal Identity Verification of Contractor Personnel

    Source: 77 FR 59793, Oct. 1, 2012, unless otherwise noted.



Sec. 504.1301  Policy.

    Contracting officers must follow the procedures contained in CIO 
P2181.1--GSA HSPD-12 Personal Identity Verification and Credentialing 
Handbook, which may be obtained from the CIO Office of Enterprise 
Solutions, to ensure compliance with Homeland Security Presidential 
Directive-12 (HSPD-12) ``Policy for a Common Identification Standard for 
Federal Employees and Contractors,'' Office of Management and Budget 
Memorandum M-05-24, and Department of Commerce FIPS PUB 201.



Sec. 504.1303  Contract clause.

    Insert the clause at 552.204-9, Personal Identity Verification 
Requirements, in solicitations and contracts when it is determined that 
contractor

[[Page 219]]

employees will require access to federally controlled facilities or 
information systems to perform contract requirements.

[[Page 220]]

            SUBCHAPTER B_COMPETITION AND ACQUISITION PLANNING

                           PART 505 [RESERVED]

                   PART 509_CONTRACTOR QUALIFICATIONS

            Subpart 509.1_Responsible Prospective Contractors

Sec.

Sec. 509.105 Procedures.

Sec. 509.105-1 Obtaining information.

Sec. 509.105-2 Determinations and documentation.

Sec. 509.106-2 Requests for preaward surveys.

Subpart 509.2 [Reserved]

            Subpart 509.3_First Article Testing and Approval


Sec. 509.306 Solicitation requirements.

Sec. 509.308-1 Testing performed by the contractor.

Sec. 509.308-2 Testing performed by the Government.

         Subpart 509.4_Debarment, Suspension, and Ineligibility


Sec. 509.401 Applicability.

Sec. 509.403 Definitions.

Sec. 509.405 Effect of listing.

Sec. 509.405-1 Continuation of current contracts.

Sec. 509.405-2 Restrictions on subcontracting.

Sec. 509.406 Debarment.

Sec. 509.406-1 General.

Sec. 509.406-3 Procedures.

Sec. 509.407 Suspension.

Sec. 509.407-1 General.

Sec. 509.407-3 Procedures.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37207, July 9, 1999, unless otherwise noted.

            Subpart 509.1_Responsible Prospective Contractors



Sec. 509.105  Procedures.



Sec. 509.105-1  Obtaining information.

    (a) From a prospective contractor. FAR 9.105-1 lists a number of 
sources of information that a contracting officer may utilize before 
making a determination of responsibility. The contracting officer may 
request information directly from a prospective contractor using GSA 
Form 527, Contractor's Qualifications and Financial Information, but 
only after exhausting other available sources of information.
    (b) From Government personnel. The contracting officer may solicit 
and consider information from any appropriate activities, e.g., legal 
counsel, quality control, contract management, credit and finance, and 
auditors before determining that an offeror is responsible.

[74 FR 12732, Mar. 25, 2009]



Sec. 509.105-2  Determinations and documentation.

    (a) The contracting officer shall provide written notification to a 
prospective contractor determined not responsible. Include the basis for 
the determination. Notification provides the prospective contractor with 
the opportunity to correct any problem for future solicitations.
    (b) Due to the potential for de facto debarment, the contracting 
officer shall avoid making repeated determinations of nonresponsibility 
based on the same past performance information.
    (c) To provide for timely consideration of the need to institute 
action to debar a contractor, the contracting officer shall submit a 
copy of each nonresponsibility determination, other than those based on 
capacity or financial capability, to the Suspension and Debarment 
Official in the Office of the Chief Acquisition Officer.

[74 FR 12732, Mar. 25, 2009]



Sec. 509.106-2  Requests for preaward surveys.

    Federal Supply Service (FSS). Contracting activities in FSS may use 
GSA Form 353, Performance Evaluation & Facilities Report, in lieu of SF 
1403 through 1406. Complete Section I in accordance with instructions in 
553.370-353-I.

Subpart 509.2 [Reserved]

[[Page 221]]

            Subpart 509.3_First Article Testing and Approval



Sec. 509.306  Solicitation requirements.

    The clauses at FAR 52.209-3 and 52.209-4 do not cover all the 
solicitation requirements described in FAR 9.306. If a solicitation 
contains a testing and approval requirement, the contracting officer 
must address the requirements in FAR 9.306(d) and (f) through (j) in the 
solicitation's Section H, special contract requirements.

[74 FR 12732, Mar. 25, 2009]



Sec. 509.308-1  Testing performed by the contractor.

    In FSS solicitations and contracts that will require the contractor 
to perform testing, insert 552.209-72, Supplemental Requirements for 
First Article Approval--Contractor Testing, and FAR 52.209-3, Alternate 
I.



Sec. 509.308-2  Testing performed by the Government.

    In FSS solicitations and contracts that will have the Government 
responsible for first article testing, insert 552.209.73, Supplemental 
Requirements for First Article Approval--Government Testing, and FAR 
52.209-4, Alternate I.

         Subpart 509.4_Debarment, Suspension, and Ineligibility



Sec. 509.401  Applicability.

    This subpart applies to all the following:
    (a) Acquisitions of personal property, nonpersonal services, 
construction, and space in buildings.
    (b) Acquisition of transportation services (Federal Management 
Regulation (FMR) Parts 102-117 and 102-118 (41 CFR parts 102-117 and 
102-118)).
    (c) Contracts for disposal of personal property (FMR Parts 102-36 
through 102-38 (41 CFR parts 102-36 through 102-38)).
    (d) Covered transactions as defined by 41 CFR part 105-68.

[74 FR 12732, Mar. 25, 2009]



Sec. 509.403  Definitions.

    Debarring official means the Suspension and Debarment Official 
within the Office of the Chief Acquisition Officer.
    Fact-finding official, means the Suspension and Debarment Official 
or a designee.
    Notice means a letter sent by certified mail, return receipt 
requested, to the last known address of a party, its counsel, or agent 
for service of process. In the case of a business, such notice may be 
sent to any partner, principal officer, director, owner or co-owner, or 
joint venturer. If no return receipt is received within 10 calendar days 
of mailing, receipt will then be presumed.
    Suspending official means the Suspension and Debarment Official 
within the Office of the Chief Acquisition Officer.

[64 FR 37207, July 9, 1999, as amended at 74 FR 12732, Mar. 25, 2009]



Sec. 509.405  Effect of listing.



Sec. 509.405-1  Continuation of current contracts.

    (a) When a contractor appears on the current EPLS, consider 
terminating a contract under any of the following circumstances:
    (1) Any circumstances giving rise to the debarment or suspension 
also constitute a default in the contractor's performance of the 
contract.
    (2) The contractor presents a significant risk to the Government in 
completing the contract.
    (3) The conduct that provides the cause of the suspension, proposed 
debarment, or debarment involved a GSA contract.
    (b) Before terminating a contract when a contractor appears on the 
current EPLS, consider the following factors:
    (1) Seriousness of the cause for debarment or suspension.
    (2) Extent of contract performance.
    (3) Potential costs of termination and reprocurement.
    (4) Need for or urgency of the requirement, contract coverage, and 
the impact of delay for reprocurement.
    (5) Availability of other safeguards to protect the Government's 
interest until completion of the contract.
    (6) Availability of alternate competitive sources to meet the 
requirement

[[Page 222]]

(e.g., other multiple award contracts, readily available commercial 
items.)
    (c) The responsibilities of the agency head under FAR 9.405-1 are 
delegated to the GSA Suspension and Debarment Official.

[74 FR 12732, Mar. 25, 2009]



Sec. 509.405-2  Restrictions on subcontracting.

    The responsibilities of the agency head under FAR 9.405-2(a) are 
delegated to the GSA Suspension and Debarment Official.

[74 FR 12732, Mar. 25, 2009]



Sec. 509.406  Debarment.



Sec. 509.406-1  General.

    The Suspension and Debarment Official is the designee under FAR 
9.406-1(c).

[74 FR 12733, Mar. 25, 2009]



Sec. 509.406-3  Procedures.

    (a) Investigation and referral. (1) Refer to the Suspension and 
Debarment Official matters involving serious contract improprieties or 
performance deficiencies. Performance deficiencies that continue over a 
period of time or apply to more than one contract may warrant debarment 
consideration.
    (2) Refer possible criminal or fraudulent activities to the Office 
of the Inspector General (OIG). See 5 CFR 6701.107, Reporting Waste, 
Fraud, Abuse, and Corruption. If, after investigation, the OIG believes 
a cause for debarment exists, it will refer the matter to the Suspension 
and Debarment Official for consideration of debarment action.
    (b) Reports. Include in referrals to the Suspension and Debarment 
Official a report that contains at least the following:
    (1) The recommendation and supporting rationale.
    (2) A list of parties to be considered for possible debarment, 
including the contractor, principals, and affiliates. Include last known 
home and business addresses, zip codes, and DUNS Numbers.
    (3) A statement of facts.
    (4) Copies of documentary evidence and a list of witnesses. Include 
addresses and telephone numbers. Determine their availability to appear 
at a fact-finding proceeding and identify the subject matter of their 
testimony.
    (5) GSA's acquisition history with the contractor. Include recent 
experience, copies of the pertinent contracts, and an explanation of 
impact debarment would have on GSA programs. OIG referrals do not 
require this explanation; the Suspension and Debarment Official will 
obtain the information directly from the contracting activity(s).
    (6) A list of any known active or potential criminal investigations, 
criminal or civil proceedings, or administrative claims before the Board 
of Contract Appeals.
    (c) Review. The Suspension and Debarment Official will review the 
report, and after coordinating with assigned legal counsel--
    (1) Initiate debarment action;
    (2) Decline debarment action;
    (3) Request additional information; or
    (4) Refer the matter to the OIG for further investigation and 
development of a case file.
    (d) Decisionmaking process. (1) The Suspension and Debarment 
Official will provide:
    (i) Notice of declinations, proposed debarments, and decisions to 
the referring activity.
    (ii) Notice of proposed debarment to each party being considered for 
debarment.
    (iii) Decision notices to each party after considering information 
in the administrative record and information and argument submitted by 
the affected party or parties.
    (2) A party proposed for debarment:
    (i) Has 30 calendar days after receipt of the notice to respond to 
the Suspension and Debarment Official or the debarment becomes final.
    (ii) May request and receive a copy of the administrative record 
that was the basis for the proposed debarment. If information is 
withheld, the party will be notified and provided the reason.
    (iii) May request the opportunity to present information and 
argument in person to the Suspension and Debarment Official. The 
Suspension and Debarment Official will schedule an oral presentation 
within 20 calendar days of

[[Page 223]]

receipt of the request, unless a longer period of time is requested by 
the party. An oral presentation is informal and a transcript usually is 
not made. The party may supplement the oral presentation with written 
information and arguments.
    (iv) May identify to the Suspension and Debarment Official material 
facts in dispute and the bases. For an action other than one based on a 
conviction of civil judgment, a party may request review and a written 
finding by a fact-finding official.
    (3) Following a review of the record and, if needed, a presentation 
by the contractor in opposition to the proposed action, the Suspension 
and Debarment Official will determine whether there is a genuine dispute 
of material fact. If so, the Suspension and Debarment Official will 
initiate the fact-finding process. The fact-finding official will:
    (i) Establish a date for a fact-finding proceeding, normally to be 
held within 45 days of the determination of who will function as the 
fact-finding official.
    (ii) Grant extensions for good cause.
    (iii) Provide notice of the scheduled hearing.
    (iv) Provide the parties with a schedule for exchange of documents 
and witness lists.
    (v) Develop an official transcript of the fact-finding proceeding.
    (vi) Provide the Government's representative and the contractor with 
an opportunity to present evidence relevant to the facts at issue. The 
contractor may appear in person or through a representative.
    (vii) Conduct hearings under rules consistent with FAR 9.406-3 
pertaining to fact finding. Neither the Federal Rules of Evidence nor 
the Federal Rules of Civil Procedure govern fact finding. Hearsay 
evidence may be presented and will be given appropriate weight by the 
fact-finding official.
    (viii) Provide for witness testimony. Witnesses may testify in 
person. Witnesses are subject to cross examination.
    (ix) Prepare written findings of fact based on a preponderance of 
the evidence and submit them to both the Suspension and Debarment 
Official and the contractor within 20 calendar days following the 
conclusion of the fact-finding proceeding.

[64 FR 37207, July 9, 1999, as amended at 74 FR 12733, Mar. 25, 2009]



Sec. 509.407  Suspension.



Sec. 509.407-1  General.

    The Suspension and Debarment Official is the designee under FAR 
9.407-1(d).

[64 FR 37207, July 9, 1999, as amended at 74 FR 12733, Mar. 25, 2009]



Sec. 509.407-3  Procedures.

    (a) General. The procedures in 509.406-3 apply to suspension actions 
except as noted in paragraph (b) of this section.
    (b) Fact-finding. (1) Fact-finding will not be conducted in an 
action:
    (i) Based on an indictment.
    (ii) When the Suspension and Debarment Official finds no genuine 
dispute of material facts.
    (2) If the action is not based on an indictment, the Suspension and 
Debarment Official must coordinate with the Department of Justice or 
state prosecutorial authority through OIG. Based on the advice received, 
the Suspension and Debarment Official will determine if fact-finding 
would impair substantial interests of the Federal or state Government. 
In an action not based on an indictment, a suspended party may:
    (i) Identify to the Suspension and Debarment Official material facts 
in dispute and the bases.
    (ii) Request review and a written finding by a fact-finding official 
to resolve genuine disputes of material fact. For procedures involving a 
genuine dispute of material fact, see 509.406-3(d)(3).

[64 FR 37207, July 9, 1999, as amended at 74 FR 12733, Mar. 25, 2009]

                    PART 511_DESCRIBING AGENCY NEEDS

       Subpart 511.2_Using and Maintaining Requirements Documents

Sec.

Sec. 511.204 Solicitation provisions and contract clauses.

[[Page 224]]

             Subpart 511.4_Delivery or Performance Schedules


Sec. 511.404 Contract clauses.

                Subpart 511.6_Priorities and Allocations


Sec. 511.600 Scope of subpart.

Sec. 511.601 [Reserved]

Sec. 511.602 General.

Sec. 511.603 Procedures.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37209, July 9, 1999, unless otherwise noted.

       Subpart 511.2_Using and Maintaining Requirements Documents



Sec. 511.204  Solicitation provisions and contract clauses.

    (a) Federal specifications. The contracting officer shall insert the 
clause at 552.211-72, Reference to Specifications in Drawings, in 
solicitations and contracts citing Federal or agency specifications that 
contain drawings.
    (b) Supply contracts that exceed the simplified acquisition 
threshold. (1) The contracting officer shall include the clause at 
552.211-73, Marking, in solicitations and contracts for supplies when 
deliveries may be made to both civilian and military activities and the 
contract amount is expected to exceed the simplified acquisition 
threshold.
    (2) The contracting officer shall include the clause at 552.211-75, 
Preservation, Packaging, and Packing, in solicitations and contracts for 
supplies expected to exceed the simplified acquisition threshold. The 
contracting officer may also include the clause in contracts estimated 
to be at or below the simplified acquisition threshold when appropriate. 
The contracting officer shall use Alternate I in solicitations and 
contracts for--
    (i) Federal Supply Schedule 70 and the Consolidated Products and 
Services Schedule containing information technology Special Item 
Numbers; or
    (ii) Federal Supply Schedules for recovery purchasing (see 
538.7102).
    (3) The contracting officer shall insert a clause substantially the 
same as the clause at 552.211-76, Charges for Packaging, Packing, and 
Marking, in solicitations and contracts for supplies to be delivered to 
GSA distribution centers.
    (4) The contracting officer shall include the clause 552.211-85, 
Consistent Pack and Package Requirements, in solicitations and contracts 
for supplies when deliveries may be made to both civilian and military 
activities and the contract amount is expected to exceed the simplified 
acquisition threshold.
    (5) The contracting officer shall include the clause 552.211-86, 
Maximum Weight Per Shipping Container, in solicitations and contracts 
for supplies when deliveries may be made to both civilian and military 
activities and the contract amount is expected to exceed the simplified 
acquisition threshold.
    (6) The contracting officer shall include the clause 552.211-87, 
Export Packing, in solicitations and contracts for supplies when 
deliveries may be made to both civilian and military activities and the 
contract amount is expected to exceed the simplified acquisition 
threshold.
    (7) The contracting officer shall include the clause 552.211-88, 
Vehicle Export Preparation, in solicitations and contracts for supplies 
when deliveries may be made to both civilian and military activities and 
the contract amount is expected to exceed the simplified acquisition 
threshold.
    (8) The contracting officer shall include the clause at 552.211-89, 
Non-Manufactured Wood Packaging Material for Export, in solicitations 
and contracts for supplies when deliveries may be made to both civilian 
and military activities overseas and the contract amount is expected to 
exceed the simplified acquisition threshold.
    (9) The contracting officer shall include the clause 552.211-90, 
Small Parts, in solicitations and contracts for supplies when deliveries 
may be made to both civilian and military activities and the contract 
amount is expected to exceed the simplified acquisition threshold.
    (10) The contracting officer shall include the clause 552.211-91, 
Vehicle Decals, Stickers, and Data Plates, in solicitations and 
contracts for supplies when deliveries may be made to both civilian and 
military activities and the contract amount is expected to exceed the 
simplified acquisition threshold.

[[Page 225]]

    (11) The contracting officer shall include the clause 552.211-92, 
Radio Frequency Identification (RFID) using Passive Tags, in 
solicitations and contracts for supplies when deliveries may be made to 
military activities and the contract amount is expected to exceed the 
simplified acquisition threshold.
    (12) The contracting officer shall include the clause 552.211-93, 
Unique Item Identification (UID), in solicitations and contracts for 
supplies when deliveries may be made to military activities and a single 
item exceeds $5,000.00 in cost.
    (c) Supply contracts. The contracting officer shall include the 
clause at 552.211-77, Packing List, in solicitations and contracts for 
supplies, including purchases over the micropurchase threshold. Use 
Alternate I in solicitations and contracts for--
    (1) FSS Schedule 70 and the Consolidated Products and Services 
Schedule containing information technology Special Item Numbers; or
    (2) Federal Supply Schedules for recovery purchasing (see 538.7102).

[74 FR 66253, Dec. 15, 2009]

             Subpart 511.4_Delivery or Performance Schedules



Sec. 511.404  Contract clauses.

    In supply contracts, the contracting officer shall use the clauses 
as specified in this section.
    (a) Shelf-life items. The contracting officer shall use the 
following clauses in solicitations and contracts that require delivery 
of shelf-life items within a specified number of months from the date of 
manufacture or production:
    (1) The contracting officer shall insert 552.211-79, Acceptable Age 
of Supplies, if the required shelf-life period is 12 months or less, and 
lengthy acceptance testing may be involved. For items having a limited 
shelf-life, substitute Alternate I when required by the director of the 
portfolio concerned.
    (2) The contracting officer shall insert 552.211-80, Age on 
Delivery, if the required shelf-life period is more than 12 months, or 
when source inspection can be performed within a short time period.
    (b) Stock replenishment contracts. The contracting officer shall 
insert 552.211-81, Time of Shipment, in solicitations and stock 
replenishment contracts that do not include the Availability for 
Inspection, Testing, and Shipment/Delivery clause at 552.211-83 and 
require shipment within 45 calendar days after receipt of the order. If 
shipment is required in more than 45 days, the contracting officer shall 
use Alternate I.
    (c) Indeterminate testing time. The contracting officer shall insert 
552.211-83, Availability for Inspection, Testing, and Shipment/Delivery, 
in solicitations and contracts that provide for source inspection by 
Government personnel and that require lengthy testing for which time 
frames cannot be determined in advance. If the contract is for stock 
items, the contracting officer shall use Alternate I.
    (d) The contracting officer shall insert the clause at 552.211-94, 
Time of Delivery, in solicitations and contracts for supplies for the 
Stock Program when neither of the FAR delivery clauses (FAR 52.211-8 or 
52.211-9) is suitable.

[74 FR 66253, Dec. 15, 2009]

                Subpart 511.6_Priorities and Allocations

    Source: 69 FR 55934, Sept. 16, 2004, unless otherwise noted.



Sec. 511.600  Scope of subpart.

    Pursuant to the Defense Priorities and Allocations System (DPAS) 
Delegation 3, the Department of Commerce (DOC) has delegated to GSA the 
authority to use the DPAS under certain conditions. DPAS Delegation 3 
restricts use of DPAS authority to GSA supply system procurement in 
support of the Department of Defense (DoD), Department of Energy (DoE), 
and Federal Emergency Management Agency (FEMA) approved programs.

[74 FR 66254, Dec. 15, 2009]

[[Page 226]]



Sec. 511.601  [Reserved]



Sec. 511.602  General.

    (a) The purpose of the DPAS is to assure the timely availability of 
industrial resources to meet current national defense, energy, and civil 
emergency preparedness program requirements and to provide an operating 
system to support rapid industrial response in a national emergency. The 
primary statutory authority for the DPAS is Title I of the Defense 
Production Act of 1950, as amended, with additional authority from the 
Selective Service Act of 1948 and the Robert T. Stafford Disaster Relief 
and Emergency Assistance Act. Executive Orders 12919 and 12742 delegate 
to the DOC authority to administer the DPAS. Within the DOC, the Office 
of Strategic Industries and Economic Security (SIES) is assigned 
responsibility for DPAS implementation, administration, and compliance.
    (b) The DPAS is published in the Code of Federal Regulations at 15 
CFR part 700. This regulation provides an overview, a detailed 
explanation of operations and procedures, and other implementing 
guidance, including information on special priorities assistance and 
compliance.
    (c) Orders placed under DPAS are ``rated orders.'' Rated orders must 
receive preferential treatment only as necessary to meet delivery 
requirements. Rated orders are identified by a rating symbol of either 
``DX'' or ``DO'' followed by a program identification symbol. All ``DO'' 
rated orders have equal priority with each other and take preference 
over unrated orders. All ``DX'' rated orders have equal priority with 
each other and take preference over ``DO'' rated orders and unrated 
orders. A program identification symbol indicates which approved program 
is supported by the rated order.
    (d) The authority delegated to GSA shall not be used to support the 
procurement of any items that--
    (1) Are commonly available in commercial markets for general 
consumption;
    (2) Do not require major modification when purchased for approved 
program use;
    (3) Are readily available in sufficient quantity so as to cause no 
delay in meeting approved program requirements; or
    (4) Are to be used primarily for administrative purposes (including 
Federal Supply Classification (FSC) classes, groups, or items), such as 
for personnel or financial management. The Commissioner, FAS, shall 
issue additional guidance, as may be necessary, to ensure effective 
implementation of its delegated DPAS authority.

[74 FR 66254, Dec. 15, 2009]



Sec. 511.603  Procedures.

    (a) A DPAS rating may be placed against an entire contract at time 
of award or an individual order issued under an existing, otherwise 
unrated, contract. FAR 11.604 requires contracting officers to 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 or order to be awarded will be a rated 
order and to insert the clause at 52.211-15, Defense Priority and 
Allocation Requirements, in contracts that are rated orders.
    (b) In addition to the FAR provision and clause referenced in 
paragraph (a) of this section, the contract or order must include the 
following (see 15 CFR 700.12):
    (1) The appropriate priority rating symbol (i.e., either ``DO'' or 
``DX'') along with the program identification symbol. When GSA 
contracting officers place DO rated orders, they must use program 
identification symbol ``K1''. When placing a DX-rated order for other 
agencies, GSA contracting officers must use the requesting agency 
program identification symbol from the DoD Master Urgency List and may 
only do so when GSA is acting as the procuring agent for DoD or DoE and 
has received a ``DX'' rated contract or order from either department.
    (2) A required delivery date. The words ``as soon as possible'' or 
``immediately'' do not constitute a required delivery date. Use of 
either a specific date or a specified number of days ARO (after receipt 
of order) is acceptable.

[[Page 227]]

    (3) The written signature on a manually placed order, or the digital 
signature or name on an electronically placed order of an individual 
authorized to place rated orders.
    (4) A statement that reads substantially as follows: ``This is a 
rated order certified for national defense use, and you are required to 
follow all the provisions of the Defense Priorities and Allocations 
System regulation (15 CFR part 700)''.
    (c) Multiple and Single Award Schedule contracts are not rated at 
time of award.

[74 FR 66254, Dec. 15, 2009]

                PART 512_ACQUISITION OF COMMERCIAL ITEMS

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

   Subpart 512.3_Solicitation Provisions and Contract Clauses for the 
                     Acquisition of Commercial Items



Sec. 512.301  Solicitation provisions and contract clauses for the 
          acquisition of commercial items.

    (a) Solicitation provisions and clauses. Insert these provisions or 
clauses in solicitations or solicitations and contracts, respectively, 
in accordance with the instructions provided:
    (1) 552.212-71, Contract Terms and Conditions Applicable to GSA 
Acquisition of Commercial Items, when listed clauses apply. The clause 
provides for incorporation by reference of terms and conditions which 
are, to the maximum extent practicable, consistent with customary 
commercial practice. If necessary, tailor this clause.
    (2) 552.212-72, Contract Terms and Conditions Required to Implement 
Statutes or Executive Orders Applicable to GSA Acquisitions of 
Commercial Items, when listed clauses apply. The clause provides for the 
incorporation by reference of terms and conditions required to implement 
provisions of law or executive orders that apply to commercial item 
acquisitions.
    (b) Discretionary use of GSAR provisions and clauses. Consistent 
with the limitations contained in FAR 12.302(c), include in 
solicitations and contracts by addendum other GSAR provisions and 
clauses.
    (c) Use of additional provisions and clauses. The Senior Procurement 
Executive must approve the use of a provision or clause that is either 
not:
    (1) Prescribed in the FAR or GSAR for use in contracts for 
commercial items.
    (2) Consistent with customary commercial practice.
    (d) In solicitations issued in conjunction with the policy and 
procedures in FAR part 14, Sealed Bidding; or FAR part 15, Contracting 
by Negotiation, include the two notices in paragraphs (d)(1) and (d)(2) 
of this section, except that acquisitions of leasehold interests in real 
property, must include only the notice in paragraph (d)(1) of this 
section.
    (1) The information collection requirements contained in this 
solicitation/contract are either required by regulation or approved by 
the Office of Management and Budget pursuant to the Paperwork Reduction 
Act and assigned OMB Control No. 3090-0163.
    (2) The General Services Administration's hours of operation are 8 
a.m. to 4:30 p.m. Requests for preaward debriefings postmarked or 
otherwise submitted after 4:30 p.m. will be considered submitted the 
following business day. Requests for postaward debriefings delivered 
after 4:30 p.m. will be considered received and filed the following 
business day.

[75 FR 5242, Feb. 2, 2010]

[[Page 228]]

           SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES

                           PART 513 [RESERVED]

                         PART 514_SEALED BIDDING

                   Subpart 514.2_Solicitation of Bids

Sec.

Sec. 514.201 Preparation of invitations for bids.

Sec. 514.201-1 Uniform contract format.

Sec. 514.201-2 Part I--The Schedule.

Sec. 514.201-6 Solicitation provisions.

Sec. 514.201-7 Contract clauses.

Sec. 514.202 General rules for solicitation of bids.

Sec. 514.202-4 Bid samples.

Sec. 514.202-5 Descriptive literature.

Sec. 514.203-1 Transmittal to prospective bidders.

Sec. 514.270 Aggregate awards.

Sec. 514.270-1 Definition.

Sec. 514.270-2 Guidelines for use.

Sec. 514.270-3 Evaluation factors for award.

Sec. 514.270-4 Grouping line items for aggregate award.

Sec. 514.270-5 Evaluation methodologies for aggregate awards.

Sec. 514.270-6 Guidelines for using the weight factors method.

Sec. 514.270-7 Guidelines for using the price list method.

           Subpart 514.4_Opening of Bids and Award of Contract


Sec. 514.407 Mistakes in bids.

Sec. 514.407-3 Other mistakes disclosed before award.

Sec. 514.407-4 Mistakes after award.

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

    Source: 64 FR 37211, July 9, 1999, unless otherwise noted.

                   Subpart 514.2_Solicitation of Bids



Sec. 514.201  Preparation of invitations for bids.



Sec. 514.201-1  Uniform contract format.

    Include the following notice in each solicitation:

    The information collection requirements contained in this 
solicitation/contract, are either required by regulation or approved by 
the Office of Management and Budget pursuant to the Paperwork Reduction 
Act and assigned OMB Control No. 3090-0162.



Sec. 514.201-2  Part I--The Schedule.

    (a) When using Standard Form 33, Solicitation, Offer and Award, 
include the following cautionary notice:
    ``Notice to Bidders--Use Item 13 of the Standard Form 33, 
Solicitation, Offer and Award, to offer prompt payment discounts. The 
Prompt Payment clause of this solicitation sets forth payment terms. Do 
not insert any statement in Item 13 that requires payment sooner than 
the time stipulated in the Prompt Payment clause (See FAR 52.232-25, 
52.232-26, or 52.232-27, as applicable). EXAMPLE: If you insert ``NET 
20'' in Item 13, GSA will reject your bid as nonresponsive because the 
entry contradicts the 30 day payment terms specified in the Prompt 
Payment clause.''
    (b) When using other authorized forms (e.g., Standard Form 1447, 
Solicitation/Contract; Standard Form 1449, Solicitation/Contract/Order 
for Commercial Items), include the notice in paragraph (a) of this 
section. Change the reference to the form number, form title, and item 
number accordingly.

[74 FR 47738, Sept. 17, 2009]



Sec. 514.201-6  Solicitation provisions.

    When considering all or none bids, insert the provision at 552.214-
70, ``All or None'' Bids, in the solicitation.

[74 FR 47739, Sept. 17, 2009]



Sec. 514.201-7  Contract clauses.

    Stock replenishment contracts. For some stock replenishment 
contracts, individual contractors may be unable to furnish the 
Government's monthly requirements. The contracting officer may determine 
that progressive awards will be more expedient. In such cases, insert a 
clause substantially the same as the clause at 552.214-71, Progressive 
Awards and Monthly Quantity Allocations, in the solicitation and 
contract.

[74 FR 47739, Sept. 17, 2009]

[[Page 229]]



Sec. 514.202  General rules for solicitation of bids.



Sec. 514.202-4  Bid samples.

    (a) Requirements for samples in invitations for bids. (1) When bid 
samples are required, the contracting officer shall require bidders to 
submit samples produced by the manufacturer whose products will be 
supplied under the contract.
    (2) The FAR limits use of bid samples to cases where the contracting 
officer cannot describe some characteristics of a product adequately in 
the specification or purchase description. This usually applies to 
subjective characteristics. The contracting officer may determine that 
there is a need to examine objective characteristics of bid samples to 
determine the responsiveness of a bid. The contracting officer should 
base the determination on past experience or other valid considerations. 
In the solicitation, separately list ``Subjective Characteristics'' and 
``Objective Characteristics''.
    (3) A provision appears at 552.214-72, Bid Sample Requirements. This 
provision may be modified to fit the circumstances of a procurement.
    (b) Handling bid samples. (1) Samples from accepted bids must be 
retained for the period of contract performance. If there are no 
outstanding claims regarding the contract, the contracting officer may 
authorize disposal of the samples at the end of the contract term 
following the bidder's instructions.
    (2) If the contracting officer anticipates a claim regarding the 
contract, the contracting officer shall require that the bid samples be 
retained until the claim is resolved.
    (3) The contracting officer shall require that samples from 
unsuccessful bids be retained until award. After award, these samples 
may be disposed of following the bidder's instructions.

[74 FR 47739, Sept. 17, 2009]



Sec. 514.202-5  Descriptive literature.

    Requirements for Invitations for bids. When using brand name or 
equal purchase descriptions, the provision at FAR 52.211-6 satisfies the 
requirement for descriptive literature.

[74 FR 47739, Sept. 17, 2009]



Sec. 514.203-1  Transmittal to prospective bidders.

    Prospective bidders, as used in FAR 14.203-1, include both the 
following:
    (a) The incumbent contractor, except when its written response to 
the notice of contract action under FAR subpart 5.2 states a negative 
interest.
    (b) Bidders that responded to recent solicitations for the same or 
similar items.



Sec. 514.270  Aggregate awards.



Sec. 514.270-1  Definition.

    Aggregate award means an arrangement whereby two or more separately-
priced line items are combined for award to that bidder whose bid will 
result in the lowest overall cost to the Government for the line items 
as a group. The individual price for each item does not have to be the 
lowest bid received. (See also the definition of a ``line item'' in FAR 
3.302.)



Sec. 514.270-2  Guidelines for use.

    (a) GSA usually solicits prices and reserves the right to make award 
for individual line items. In some cases it serves GSA's best interest 
to combine two or more line items for an aggregate award. Such cases 
include when:
    (1) Users desire uniformity of design, style, and finish (e.g., 
suites of household furniture).
    (2) The articles will be assembled and used as a unit, and different 
manufacturers' components may not be interchangeable.
    (3) Users have high demand for certain articles, but demand for 
related articles is insufficient to attract competitive bids (e.g., 
various sized of socket wrenches). Awarding the low-demand articles in 
conjunction with the high-demand articles may encourage competition.
    (4) Awarding the low-demand articles in conjunction with the high-
demand articles may encourage competition.
    (5) One location (delivery point) has a large requirement, and 
another location has a requirement too small to individually attract 
competitive bids.

[[Page 230]]

    (6) Awarding and administering numerous small contracts for similar 
articles or services is impractical.
    (b) Before deciding to combine items for aggregate award, the 
contracting officer should consider the following factors:
    (1) The capability of bidders to furnish the types and quantities of 
supplies or services in the aggregate.
    (2) How grouping delivery points will affect bidders.
    (3) Which combinations will accurately project the lowest overall 
cost to the Government.
    (c) The contracting officer should not use an aggregate award if it 
will significantly restrict the number of eligible bidders.

[64 FR 37211, July 9, 1999, as amended at 74 FR 47739, Sept. 17, 2009]



Sec. 514.270-3  Evaluation factors for award.

    The solicitation should clearly state the basis for evaluating bids 
for aggregate award, require bidders to submit a price on each item 
within the group or a percentage to be added or subtracted from a list 
price, and advise bidders that failure to submit prices as required 
within a group makes a bid ineligible for award for that group.

[74 FR 47739, Sept. 17, 2009]



Sec. 514.270-4  Grouping line items for aggregate award.

    (a) Supplies and services. This subsection applies to acquisitions 
of supplies and services.
    (b) Effect on compeition. Provide for full and open competition when 
grouping items for award. Grouping items for award may preclude a 
significant of firms from bidding. This occurs if firms are unable to 
provide all the types or quanities of supplies or services, or make 
deliveries to the various delivery points included in the prospective 
aggregate group.
    (c) Grouping different articles. Include only related articles in an 
aggregate group. Related articles are those normally manufactured or 
produced by a majority of prospective bidders. Grouping unrelated 
articles often restricts competition unnecessarily.
    (d) Grouping geographic locations or delivery points. Consider the 
following guidelines before deciding to group different geographic 
locations or delivery points:
    (1) A delivery point may have sufficient requirements so that 
individual shipments involve economic production runs and carload or 
truckload quanities. In this case, list it as a separate line item.
    (2) The types of bidders (i.e., small or large firms, manufacturers 
or distributors, etc.) who responded to previous solicitations can 
provide important information. For example, if previous bidders are 
distributors with franchises in certain territories, grouping different 
territories could tend to restrict competition.
    (3) Transportation costs can affect competition and pricing. They 
may constitute a significant portion of the total delivered cost. Obtain 
the advice and assistance of transportation specialists before grouping 
geographic locations or delivery points. Depending upon the supplies 
being acquired:
    (i) Grouping widespread geographic locations or delivery points may 
reduce competition or result in higher prices. It can cause the loss of 
``area pricing'' advantages provided by a supplier with a single 
production point.
    (ii) Conversely, for many small commercial items (hand tools, locks, 
etc.), manufacturers may quote the same price for delivery anywhere in 
the U.S.
    (iii) Tariff boundaries can also affect how manufacturers price 
deliveries to different areas.

[64 FR 37211, July 9, 1999, as amended at 74 FR 47739, Sept. 17, 2009]



Sec. 514.270-5  Evaluation methodologies for aggregate awards.

    (a) Definite quantity contracts without options. For definite 
quantity contracts without options, the evaluated bid price is the total 
bid price, as adjusted for any price-related factors identified in the 
solicitation. This reflects the actual cost to the Government and will 
identify the most advantageous bid.
    (b) Indefinite quantity contracts, requirements contracts, and 
options. Indefinite quantity and requirements contracts use estimated 
quantities. Options involve the probability of whether and when the 
options will be exercised. These situations may result in

[[Page 231]]

unbalanced bids (see FAR 15.404-1(g)), leading to inaccurate evaluation 
of the projected cost and award to other than the most advantageous bid. 
To avoid unbalanced bids, GSA has two preferred methods for evaluating 
bids for aggregate awards: weight factors and price list.
    (1) Weight factors method. Assign a weight to each item in a group. 
The weight is based on the portion of quantities that item represents. 
To evaluate bids, multiply each unit price by its weight factor, then 
total the results.
    (2) Price list method. Establish prices for bidders to use as a base 
for preparing their bids. Prepare a list that identifies a base price 
for each item in a group. Bidders bid a percentage factor to add to or 
subtract from the base price.



Sec. 514.270-6  Guidelines for using the weight factors method.

    (a) Use the weight factors method when there are reliable estimates 
for the quantities needed in an acquisition. Reliable estimates of 
quantities form the foundation for:
    (1) Accurate evaluation of the projected cost of each bid.
    (2) An appropriate determination of which bid is most advantageous 
to the Government for the aggregate group.
    (b) Assign a weight factor to each item in a group. Develop the 
weight factor by calculating the portion of the total quantity in a 
defined group that each item represents.
    (c) To evaluate bid prices, first multiply the price bid for each 
item (unit price X quantity) by its weight factor. Then, add the 
subtotals together to project the cost for the aggregate group.
    (d) Estimated quantities may be reduced to smaller numbers by a 
common denominator. This may help facilitate the computations involved 
in evaluating bids.
    (e) Consider all price-related factors identified in the 
solicitation. Award to the responsive and responsible bidder with the 
lowest evaluated overall cost to the Government for the aggregate group. 
This represents the most advantageous bid.

[64 FR 37211, July 9, 1999, as amended at 74 FR 47739, Sept. 17, 2009]



Sec. 514.270-7  Guidelines for using the price list method.

    (a) General. The price list method helps avoid unbalanced bidding 
when making aggregate awards, but lack accurate estimates of anticipated 
quantities. This method establishes base prices for bidders to use in 
preparing their bids.
    (b) Solicitation requirements. When using the price list method, in 
the solicitation:
    (1) Include the price list.
    (2) Include an estimate of requirements.
    (3) Require the bidder to express its price as ``net'' or as a 
percentage added to or subtracted from the list prices for each group. 
Require the bidder to quote only one percentage factor for each group. 
This means that the bidder provides one percentage factor that applies 
to every item in a group; not a separate percentage for each item. 
``Net'' indicates the bidder chooses to submit the list prices as its 
bid.
    (4) Identify the percentage factor in paragraph (b)(3) of this 
section as a price related evaluation factor.
    (c) Developing list prices. Price lists may be developed using one 
or more of the following sources:
    (1) Industry published prices.
    (2) Industry surveys.
    (3) Government cost estimates based on knowledge of the supplies or 
services and previous contract prices.
    (d) First time use for an item or service. The first time the 
contracting officer uses list prices for an item or service, give 
prospective bidders an opportunity to review the proposed list. Also 
provide information on how GSA will use the list prices. This 
information may be provided in a draft solicitation.
    (e) Balanced prices. Ensure that the list prices for the grouped 
items bear a reasonable and balanced relationship to one another. Prices 
may be used from previous awards made using the weight factors method to 
develop price lists. Review those prices first to ensure they did not 
result from unbalanced bidding.
    (f) Evaluation and award. Consider all price-related factors 
identified in the solicitation. Award to the responsive and responsible 
bidder whose percentage factor produces the most favorable

[[Page 232]]

price to the Government. This represents the most advantageous bid.
    (g) Example. The following illustrates a bidding schedule 
arrangement for a group of items for aggregate award under the price 
list method:

 Drills, Twist, High Speed, Under Federal Specification (No. and Date), and Amendment (No. and Date), Amendment
                      (No. and Date) Wire Gauge Sizes, Straight Shank, Short Length, Type C
----------------------------------------------------------------------------------------------------------------
     Item No.        National Stock No.       Drill size       Est. quantity         Unit           List price
----------------------------------------------------------------------------------------------------------------
                                           Group 1 (Items 1 through 5)
----------------------------------------------------------------------------------------------------------------
1.................      5133-00-189-9246  1.................           2,800  Pkg...............          $11.16
2.................      5133-00-189-9247  2.................           2,400  Pkg...............           11.16
3.................      5133-00-189-9248  3.................           2,800  Pkg...............           10.44
4.................      5133-00-189-9249  4.................           1,600  Pkg...............           10.80
5.................      5133-00-189-9250  5.................           2,000  Pkg...............           10.80
----------------------------------------------------------------------------------------------------------------

    The bid on each item above is the list price shown minus/plus ---- 
percent. (Bidder, insert ``net'' or a single percentage amount in the 
blank space and cross out minus or plus, as appropriate.)
    (h) Special considerations for contracts for store stock items. Show 
estimated quantities only if estimates of demand for each item within a 
group can be derived from Government records or verified contractor 
sales reports. Use only current estimates. If the Government's needs 
cannot be estimated, the solicitation may include past orders. (See CG 
Decision, B-209037, 82-2 CPD para 323 (1982).)
    (i) Special considerations for repair and alteration contracts. In 
the solicitation:
    (1) List the estimated quantities for work to be performed during 
both normal working hours and outside of normal working hours.
    (2) State the percent of work anticipated to be performed during 
normal working hours.
    (3) List the unit prices for work to be performed during both normal 
working hours and outside of normal working hours.
    (4) Define ``normal'' in terms of hours and days of the week.
    (5) Advise bidders of the previous year's total expenditures or 
portions of that total attributable to the listed items.
    (6) If providing quantity estimates, state that the estimates are 
for information only and do not constitute guarantees or commitments to 
order items under the contract.
    (7) Solicit two percentage factors for the line item unit prices 
listed: one for the unit prices for work performed during normal working 
hours and the second for the unit prices for work performed outside of 
normal working hours.
    (8) When the solicitation further groups unit prices by trade or 
business category, multiple percentages may be required.
    (9) For the evaluated bid price, add together the following 
percentages:
    (i) The percentage of work performed during normal work hours 
multiplied by the total estimate adjusted by the bidder's percentage 
factor for that portion of the work, plus
    (ii) The percentage of work performed during other than normal 
working hours multiplied by the total estimate adjusted by the bidder's 
percentage factor for that portion of the work.
    (10) Consider other price-related factors identified in the 
solicitation. Make award to the responsible and responsive bidder 
submitting the lowest overall evaluated bid price for the aggregate 
group. This represents the most advantageous bid.

[64 FR 37211, July 9, 1999, as amended at 74 FR 47739, Sept. 17, 2009]

[[Page 233]]

           Subpart 514.4_Opening of Bids and Award of Contract



Sec. 514.407  Mistakes in bids.



Sec. 514.407-3  Other mistakes disclosed before award.

    Delegation of authority by head of the agency. Under FAR 14.407-
3(e), contracting directors (see 502.101) are authorized, without power 
of redelegation, to make:
    (a) The determinations regarding corrections and withdrawals under 
FAR 14.407-3(a), (b), and (c); and
    (b) The corollary determinations not to permit withdrawal or 
correction under FAR 14.407-3(d).

[74 FR 47740, Sept. 17, 2009]



Sec. 514.407-4  Mistakes after award.

    The contracting director and assigned counsel are required to review 
and approve the contracting officer's determinations under FAR 14.407-
4(b) and (c).

[74 FR 47740, Sept. 17, 2009]

                   PART 515_CONTRACTING BY NEGOTIATION

   Subpart 515.2_Solicitation and Receipt of Proposals and Information

Sec.

Sec. 515.204 Contract format.

Sec. 515.204-1 Uniform contract format.

Sec. 515.205 Issuing solicitations.

Sec. 515.209 Solicitation provisions and contract clauses.

Sec. 515.209-70 Examination of records by GSA clause.

                     Subpart 515.3_Source Selection


Sec. 515.305 Proposal evaluation.

Sec. 515.305-70 Use of outside evaluators.

                     Subpart 515.4_Contract Pricing


Sec. 515.408 Solicitation provisions and contract clauses.

 Subpart 515.5_Preaward, Award, and Postaward Notifications, Protests, 
                              and Mistakes


Sec. 515.506 Postaward debriefing of offerors.

                      Subpart 515.70_Use of Samples


Sec. 515.7002 Procedures.

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

    Source: 64 FR 37214, July 9, 1999, unless otherwise noted.

   Subpart 515.2_Solicitation and Receipt of Proposals and Information



Sec. 515.204  Contract format.



Sec. 515.204-1  Uniform contract format.

    (a) The uniform contract format is not required for leases of real 
property.
    (b) Each solicitation and contract must include the two notices in 
paragraphs (b)(1) and (b)(2) of this section, except that acquisitions 
of interests in real property, must include only the notice in (b)(1):
    (1) ``The information collection requirements contained in this 
solicitation/contract are either required by regulation or approved by 
the Office of Management and Budget pursuant to the Paperwork Reduction 
Act and assigned OMB Control No. 3090-0163.''
    (2) ``GSA's hours of operation are 8:00 a.m. to 4:30 p.m. Requests 
for preaward debriefings postmarked or otherwise submitted after 4:30 
p.m. will be considered submitted the following business day. Requests 
for postaward debriefings delivered after 4:30 p.m. will be considered 
received and filed the following business day.''



Sec. 515.205  Issuing solicitations.

    Potential sources, as used in FAR 15.205, include both of the 
following:
    (a) The incumbent contractor, except when its written response to 
the notice of contract action under FAR subpart 5.2 states a negative 
interest.
    (b) Offerors that responded to recent solicitations for the same or 
similar items.



Sec. 515.209  Solicitation provisions and contract clauses.



Sec. 515.209-70  Examination of records by GSA clause.

             Clause for Other Than Multiple Award Schedules

    (a) For other than multiple award schedule (MAS) contracts, insert 
the clause at 552.215-70, Examination of Records by GSA, in 
solicitations and

[[Page 234]]

contracts over $100,000, including acquisitions of leasehold interests 
in real property, that meet any of the following conditions:
    (1) Involve the use or disposition of Government-furnished property.
    (2) Provide for advance payments, progress payments based on cost, 
or guaranteed loan.
    (3) Contain a price warranty or price reduction clause.
    (4) Involve income to the Government where income is based on 
operations under the control of the contractor.
    (5) Include an economic price adjustment clause where the adjustment 
is not based solely on an established, third party index.
    (6) Are requirements, indefinite-quantity, or letter type contracts 
as defined in FAR part 6.
    (7) Are subject to adjustment based on a negotiated cost escalation 
base.
    (8) Contain the provision of FAR 52.223-4, Recovered Material 
Certification.
    (b) You may modify the clause at 552.215-70 to define the specific 
area of audit (e.g., the use or disposition of Government-furnished 
property, compliance with the price reduction clause). Counsel and the 
Assistant Inspector General--Auditing or Regional Inspector General--
Auditing, as appropriate, must concur in any modifications to the 
clause.

                   Clause for Multiple Award Schedules

    (c) Insert the clause at 552.215-71, Examination of Records by GSA 
(Multiple Award Schedule), in solicitations and contracts for MAS 
contracts.
    (d) With the Senior Procurement's Executive approval, you may modify 
the clause at 552.215-71 to provide for post-award access to and the 
right to examine records to verify that the pre-award/modification 
pricing, sales or other data related to the supplies or services offered 
under the contract which formed the basis for the award/modification was 
accurate, current, and complete. The following procedures apply:
    (1) Such a modification of the clause must provide for the right of 
access to expire 2 years after award or modification.
    (2) Before modifying the clause, you must make a determination that 
absent such access there is a likelihood of significant harm to the 
Government and submit it to the Senior Procurement Executive for 
approval.
    (3) The determinations under paragraph (d)(2) of this section must 
be made on a schedule-by-schedule basis.

                     Subpart 515.3_Source Selection



Sec. 515.305  Proposal evaluation.

    (a) Restrictions placed on a proposal by the submitter. If you 
receive a proposal with more restrictive conditions than those in the 
provision at FAR 52.215-1(e), ask whether the submitter is willing to 
accept the conditions of the paragraph at FAR 52.215-1(e). If the 
submitter refuses, consult with legal counsel on whether to accept the 
proposal as marked or return it.
    (b) Actions before releasing proposal. Before releasing any proposal 
to an evaluator you must take all the following actions:
    (1) Obtain the signed original ``Conflict of Interest Acknowledgment 
and Nondisclosure Agreement'' from each Government and nongovernment 
individual serving as an evaluator. Use the Acknowledgment/Agreement in 
Figure 515.3-1.
    (i) For employees of other Executive agencies, replace the reference 
in paragraph (c) of the Acknowledgement/Agreement to GSA's supplemental 
standards with a reference to the applicable agency.
    (ii) for nongovernment evaluators, substitute paragraph (c) of the 
Acknowledgement/Agreement with the following language and delete 
paragraph (h):

    (c) I have read and understand the requirements of subsection 27(a) 
and 27(b) of the Office of Federal Procurement Policy Act (41 U.S.C. 
423).

    (2) Attach to each proposal a cover page bearing the following 
notice:

                Government Notice for Handling Proposals

    To anyone receiving this proposal or proposal abstract:
    (1) This proposal must be used and disclosed for evaluation purposes 
only.

[[Page 235]]

    (2) You must apply a copy of this Government notice to any 
reproduction or abstract of this proposal.
    (3) You must comply strictly with any authorized restrictive notices 
which the submitter places on this proposal.
    (4) You must not disclose this proposal outside the Government for 
evaluation purposes except to the extent authorized by, and in 
accordance with, the procedures in 48 CFR 515.305-71.



Sec. 515.305-70  Use of outside evaluators.

    (a) Conditions. To use outside evaluators, you must meet the 
restrictions in FAR 37.203 and 537.2.
    (b) Limitations on disclosing proposal information. You may disclose 
proposal information outside the Government before the Government's 
decision as to contract award only to the extent authorized in this 
section. Disclosure and handling must comply with FAR 3.1 and 503.1.
    (c) Solicitation notice. Include in the solicitation a notice 
substantially as follows:

                    Notice About Releasing Proposals

    (1) The Government intends to disclose proposals received in 
response to this solicitation to nongovernment evaluators.
    (2) Each evaluator will sign and provide to GSA a ``Conflict of 
Interest Acknowledgment and Nondisclosure Agreement.''

 Figure 515.3-1--Conflict of Interest Acknowledgment and Nondisclosure 
                                Agreement

     Conflict of Interest Acknowledgment and Nondisclosure Agreement

    For proposals submitted in response to GAS solicitation no. --------
, I agree to the following:
    (a) To the best of my knowledge and belief, no conflict of interest 
exists that may either:
    (1) Diminish my capacity to impartially review the proposals 
submitted.
    (2) Or result in a biased opinion or unfair advantage.
    (b) In making the above statement, I have considered all the 
following factors that might place me in a position of conflict, real or 
apparent, with the evaluation proceedings:
    (1) All my stocks, bonds, other outstanding financial interests or 
commitments.
    (2) All my employment arrangements (past, present, and under 
consideration).
    (3) As far as I know, all financial interests and employment 
arrangements of my spouse, minor children, and other members of my 
immediate household.
    (c) I have read and understand the requirements of the Standards of 
Ethical Conduct for Employees of the Executive Branch (5 CFR Part 2635) 
and Supplemental Standards of Ethical Conduct for Employees of the 
General Service Administration (5 CFR Part 6701).
    (d) I have a continuing obligation to disclose any circumstances 
that may create an actual or apparent conflict of interest. If I learn 
of any such conflict, I will report it immediately to the Contracting 
Officer. I will perform no more duties related to evaluating proposals 
until I receive instructions on the matter.
    (e) I will use proposal information for evaluation purposes only. I 
understand that any authorized restriction on disclosure placed on the 
proposal by the prospective contractor, prospective subcontractor, or 
the Government applies to any reproduction or abstracted information of 
the proposal.
    (f) I will use my best efforts to safeguard proposal information 
physically. I will not disclose the contents of, nor release any 
information about, the proposals to anyone other than:
    (1) The Source Selection Evaluation Board or other panel assembled 
to evaluate proposals submitted in response to the solicitation 
identified above.
    (2) Other individuals designed by the contracting Officer.
    (g) After completing evaluation, I will return to the Government all 
copies of the proposals and any abstracts.
    (h) GSA Appropriations Act restriction: These restrictions are 
consistent with and do not supersede, conflict with or otherwise alter 
the employee obligations, rights, or liabilities created by Executive 
Order No. 12958; section 7211 of title 5, United States Code (governing 
disclosure of Congress); section 1034 of title 10, United States Code, 
as amended by the Military Whistleblower Protection Act (governing 
disclosure to Congress by members of the military); section 2302(b)(8) 
of title 5, United States Codes, as amended by the Whistleblower 
Protection Act (governing disclosures of illegality, waste, fraud, abuse 
or public health or safety threats); the Intelligence Identities 
Protection Act of 1982 (50 U.S.C. 421 et seq.) (governing disclosures 
that could expose confidential Government agents); and the statutes 
which protect against disclosure that may compromise the national 
security, including sections 641, 793, 794, 798, and 952 of title 18, 
United States Code, and section 4(b) of the Subversive Activities Act of 
1950 (50 U.S.C. 783(b). The definitions, requirements, obligations, 
rights, sanctions, and liabilities created by said Executive order and 
listed statutes are incorporated into this agreement and are 
controlling.

[[Page 236]]

________________________________________________________________________
(Enter name of evaluator and organization)
________________________________________________________________________
Date

                     Subpart 515.4_Contract Pricing



Sec. 515.408  Solicitation provisions and contract clauses.

      MAS Requests for Information Other Than Cost or Pricing Data

    (a) You should use Alternative IV of the FAR provision at 52.215-20, 
Requirements for Cost or Pricing Data or Information Other than Cost or 
Pricing Data, for MAS contracts to provide the format for submission of 
information other than cost or pricing data for MAS contracts. To 
provide uniformity in request under the MAS program, you should insert 
the following in paragraph (b) of the provision:
    (1) An offer prepared and submitted in accordance with the clause at 
552.212-70, Preparation of Offer (Multuiple Award Schedule).
    (2) Commercial sales practices. The Offeror shall submit information 
in the format provided in this solicitation in accordance with the 
instructions at Figure 515.4 of the GSA Acquisition Regulation (48 CFR 
515-2), or submit information in the Offeror's own format.
    (3) Any additional supporting information requested by the 
Contracting Officer. The Contracting Officer may require additional 
supporting information, but only to the extent necessary to determine 
whether the price(s) offered is fair and reasonable.
    (4) By submission of an offer in response to this solicitation, the 
Offeror grants the Contracting Officer or an authorized representative 
the right to examine, at any time before initial award, books, records, 
documents, papers, and other directly pertinent records to verify the 
pricing, sales and other data related to the supplies or services 
proposed in order to determine the reasonableness of price(s). Access 
does not extend to Offeror's cost or profit information of other data 
relevant solely to the Offeror's determination of the prices to be 
offered in the catalog or marketplace.
    (b) Insert the following format for commercial sales practices in 
the exhibits or attachments section of the solicitation and resulting 
contract (see FAR 12.303).

                    Commercial Sales Practices Format

Name of Offeror ---------- SIN(s) ------

    Note: Please refer to Clause 552.212-70, Preparation of Offer 
(Multiple Award Schedule), for additional information concerning your 
offer. Provide the following information for each SIN (or group of SINs 
or SubSIN for which information is the same).

    (1) Provide the dollar value of sales to the general public at or 
based on an established catalog or market price during the previous 12-
month period or the offerors last fiscal year: $--------. State 
beginning and ending of the 12 month period. Beginning -------- ending 
--------. In the event that a dollar value is not an appropriate measure 
of the sales, provide and describe your own measure of the sales of the 
item(s).
    (2) Show your total projected annual sales to the Government under 
this contract for the contract term, excluding options, for each SIN 
offered. If you currently hold a Federal Supply Schedule contract for 
the SIN the total projected annual sales should be based on your 
mostrecent 12 months of sales under that contract.

SIN ------------ $------------
SIN ------------ $------------
SIN ------------ $------------

    (3) Based on your written discounting policies (standard commercial 
sales practices in the event you do not have written discounting 
policies), are the discounts and any concessions which you offer the 
Government equal to or better than your best price (discount and 
concessions in any combination) offered to any customer acquiring the 
same items regardless of quantity or terms and conditions? YES---- NO--
-- (See definition of ``concession'' and ``discount'' in 552.212-70.)
    (4)(a) Based on your written discounting policies (standard 
commercial sales practices in the event you do not have written 
discounting policies), provide information as requested for each SIN (or 
group of SINs for which the information is the same) in accordance with 
the instructions at Figure 515.4, which is provided in this solicitation 
for your convenience. The information should be provided in the chart 
below or in an equivalent format developed by the offeror. Rows should 
be added to accommodate as many customers as required.

----------------------------------------------------------------------------------------------------------------
                                                      Column 3 Quantity/                           Column 5
        Column 1 Customer          Column 2 Discount        Volume         Column 4 FOB Term      Concessions
----------------------------------------------------------------------------------------------------------------
 
 
 
----------------------------------------------------------------------------------------------------------------


[[Page 237]]

    (b) Do any deviations from your written policies or standard 
commercial sales practices disclosed in the above chart ever result in 
better discounts (lower prices) or concessions than indicated? YES-- 
NO--. If YES, explain deviations in accordance with the instructions at 
Figure 515.4, which is provided in this solicitation for your 
convenience.
    (5) If you are a dealer/reseller without significant sales to the 
general public, you should provide manufacturers' information required 
by paragraphs (1) through (4) above for each item/SINoffered, if the 
manufacturer's sales under any resulting contract are expected to exceed 
$500,000. You must also obtain written authorization from the 
manufacturer(s) for Government access, at any time before award or 
before agreeing to a modification, to the manufacturer's sales records 
for the purpose of verifying the information submitted by the 
manufacturer. The information is required in order to enable the 
Government to make a determination that the offered price is fair and 
reasonable. To expedite the review and processing of offers, you should 
advise the manufacturer(s) of this requirement. The contracting officer 
may require the information be submitted on electronic media with 
commercially available spreadsheet(s). The information may be provided 
by the manufacturer directly to the Government. If the manufacturer's 
item(s) is being offered by multiple dealers/resellers, only one copy of 
the requested information should be submitted to the Government. In 
addition, you must submit the following information along with a listing 
of contact information regarding each of the manufacturers whose 
products and/or services are included in the offer (include the 
manufacturer's name, address, the manufacturer's contact point, 
telephone number, and FAX number) for each model offered by SIN:
    (a) Manufacturer's Name.
    (b) Manufacturer's Part Number.
    (c) Dealer's/Reseller's Part Number.
    (d) Product Description.
    (e) Manufacturer's List Price.
    (f) Dealer's/Reseller's percentage discount from list price or net 
prices.

                             (End of format)

    (c) Include the instructions for completing the commercial sales 
practices format in Figure 515.4 in solicitations issued under the MAS 
program.

    Figure 515.4--Instructions for Commercial Sales Practices Format

    If you responded ``yes'' to question (3), on the Commercial Sales 
Practices Format in paragraph (b) of this section, complete the chart in 
question (4)(a) for the customer(s) who receive your best discount. If 
you responded ``no'', complete the chart in question (4)(a) showing your 
written policies or standard sales practices for all customers or 
customer categories to whom you sell at a price (discounts and 
concessions in combination) that is equal to or better than the price(s) 
offered to the Government under this solicitation or with which the 
Offeror has a current agreement to sell at a discount which equals or 
exceeds the discount(s) offered under this solicitation. Such agreement 
shall be in effect on the date the offer is submitted or contain an 
effective date during the proposed multiple award schedule contract 
period. If your offer is lower than your price to other customers or 
customers categories, you will be aligned with the customer or category 
of customer that receives your best price for purposes of the Price 
Reductions clause at 552.238-75. The Government expects you to provide 
information required by the format in accordance with these instructions 
that is, to the best of your knowledge and belief, current, accurate, 
and complete as of 14 calendar days prior to its submission. You must 
also disclose any changes in your price list(s), discounts and/or 
discounting policies which occur after the offer is submitted, but 
before the close of negotiations. If your discount practices vary by 
model or product line, the discount information should be by model or 
product line as appropriate. You may limit the number of models or 
product lines reported to those which exceed 75% of actual historical 
Government sales (commercial sales may be substituted if Government 
sales are unavailable) value of the special item number (SIN).

   Column 1--Identify the Applicable Customer or Category of Customer

    A ``customer'' is any entity, except the Federal Government, which 
acquires supplies or services from the Offeror. The term customer 
includes, but is not limited to original equipment manufacturers, value 
added resellers, state and local Governments, distributors, educational 
institutions (an elementary, junior high, or degree granting school 
which maintains a regular faculty and established curriculum and an 
organized body of students), dealers, national accounts, and end users. 
In any instance where the Offeror is asked to disclose information for a 
customer, the Offeror may disclose information by category of customer 
if the Offeror's discount policies or practices are the same for all 
customers in the category. (Use a separate line for each customer or 
category of customer.)

                     Column 2--Identify the Discount

    The term ``discount'' is as defined in solicitation clause 552.212-
70, Preparation of Offer (Multiple Award Schedule). Indicate the best 
discount (based on your written discounting policies or standard 
commercial discounting

[[Page 238]]

practices if you do not have written discounting policies) at which you 
sell to the customer or category of customer identified in column 1, 
without regard to quantity; terms and conditions of the agreements under 
which the discounts are given; and whether the agreements are written or 
oral. Net prices or discounts off of other price lists should be 
expressed as percentage discounts from the price list which is the basis 
of your offer. If the discount disclosed is a combination of various 
discounts (prompt payment, quantity, etc.), the percentage should be 
broken out for each type of discount. If the price lists which are the 
basis of the discounts given to the customers identified in the chart 
are different than the price list submitted upon which your offer is 
based, identify the type or title and date of each price list. The 
contracting officer may require submission of these price lists. To 
expedite evaluation, offerors may provide these price lists at the time 
of submission.

           Column 3--Identify the Quantity or Volume of Sales

    Insert the minimum quantity or sales volume which the identified 
customer or category of customer must either purchase/order, per order 
or within a specified period, to earn a discount indicate the time 
period.

  Column 4--Indicate the FOB Delivery Term for Each Identified Customer

    See FAR 47.3 for an explanation of FOB delivery terms.

  Column 5--Indicate Concessions Regardless of Quantity Granted to the 
               Identified Customer or Category of Customer

    Concessions are defined in solicitation clause 552.12-70, 
Preparation of Offers (Multiple Award Schedule). If the space provided 
is inadequate, the disclosure should be made on a separate sheet by 
reference.
    If you respond ``yes'' to question 4(b) in the Commercial Sales 
Practices Format, provide an explanation of the circumstances under 
which you deviate from your written policies or standard commercial 
sales practices disclosed in the chart on the Commercial Sales Practices 
Format and explain how often they occur. Your explanation should include 
a discussion of situations that lead to deviations from standard 
practice, an explanation of how often they occur, and the controls you 
employ to assure the integrity of your pricing. Examples of typical 
deviations may include, but are not limited to, one time goodwill 
discounts to charity organizations or to compensate an otherwise 
disgruntled customer; a limited sale of obsolete or damaged goods; the 
sale of sample goods to a new customer, or the sales of prototype goods 
for testing purposes.
    If deviations from your written policies or standard commercial 
sales practices disclosed in the chart on the Commercial Sales Practices 
Format are so significant and/or frequent that the Contracting Officer 
cannot establish whether the price(s) offered is fair and reasonable, 
then you may be asked to provide additional information. The Contracting 
Officer may ask for information to demonstrate that you have made 
substantial sales of the item(s) in the commercial market consistent 
with the information reflected on the chart on the Commercial Sales 
Practices Format, a description of the conditions surrounding those 
sales deviations, or other information that may be necessary in order 
for the Contracting Officer to determine whether your offered price(s) 
is fair and reasonable. In cases where additional information is 
requested the Contracting Officer will target the request in order to 
limit the submission of data to that needed to establish the 
reasonableness of the offered price.

                             (End of figure)

    (d) Insert the clause at 552.215-72, Price Adjustment--Failure to 
Provide Accurate Information, in solicitations and contracts under the 
MAS program.
    (e) You should use Alternate IV of FAR 52.215-21, Requirements for 
Cost or Pricing Data or Information Other Than Cost or Pricing Data--
Modifications, to provide for submission of information other than cost 
or pricing data for MAS contracts. To provide for uniformity in requests 
under the MAS program, you should insert the following in paragraph (b) 
of the clause:
    (1) Information required by the clause at 552.243-72, Modifications 
(Multiple Award Schedule).
    (2) Any additional supporting information requested by the 
Contracting Officer. The Contracting Officer may require additional 
supporting information, but only to the extent necessary to determine 
whether the price(s) offered is fair and reasonable.
    (3) By submitting a request for modification, the Contractor grants 
the Contracting Officer or an authorized representative the right to 
examine, at any time before agreeing to a modification, books, record, 
documents, papers, and other directly pertinent records to verify the 
pricing, sales and other data related to the supplies or services 
proposed in order to determine the reasonableness of price(s). Access 
does not extent to Contractor's cost or profit information or other data 
related solely to the Contractor's determination of the prices to be 
offered in the catalog or marketplace.

[64 FR 37214, July 9, 1999, as amended at 65 FR 11247, Mar. 2, 2000]

[[Page 239]]

 Subpart 515.5_Preaward, Award, and Postaward Notifications, Protests, 
                              and Mistakes



Sec. 515.506  Postaward debriefing of offerors.

    For purposes of determining the date of receipt of a request for a 
post award debriefing, GSA's hours of operation are 8:00 a.m. to 4:30 
p.m. Request received after 4:30 p.m. will be considered received the 
following business day.

                      Subpart 515.70_Use of Samples



Sec. 515.7002  Procedures.

    (a) Unsolicited samples. The reference to FAR 14.404-2(d) in FAR 
14.202-4(g) does not apply.

    However, qualifications in the proposal that are at variance with 
the Government's requirements, constitute deficiencies. Resolve these as 
provided in FAR 15.306.

    (b) Solicitation requirements. (1) Use the clause at FR 52.214-20. 
The second sentence in paragraph (c) of the clause does not apply. 
Substitute a sentence substantially as follows:

    Failure of the bid samples to conform to all the required 
characteristics listed in the solicitation constitutes a deficiency in 
the proposal (see FAR 15.306).

    (2) In addition to listing subjective characteristics that you 
cannot adequately describe in the specification, you may list and 
evaluate objective characteristics. To include objective 
characteristics, you must determine that examination of such 
characteristics is essential to the acquisition of any acceptable 
product. Base your determination on past experience or other valid 
considerations.
    (c) FAR 52.215-1(c)(3) applies to samples received after the time 
set for receipt of offers.

                       PART 516_TYPES OF CONTRACTS

                   Subpart 516.2_Fixed Price Contracts

Sec.

Sec. 516.203-4 Contract clauses.

               Subpart 516.5_Indefinite-Delivery Contracts


Sec. 516.506 Solicitation provisions and contract clauses.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37218, July 9, 1999, unless otherwise noted.

                   Subpart 516.2_Fixed Price Contracts



Sec. 516.203-4  Contract clauses.

    (a) Special Order Program Contracts. In multiyear solicitations and 
contracts, after making the determination required by FAR 16.203-3, use 
552.216-71, Economic Price Adjustment Special Order Program Contracts, 
or a clause prepared as authorized in paragraph (a)(3) of this 
subsection.
    (1) If the contract includes one or more options to extend the term 
of the contract, use the clause with its Alternate I or a clause 
substantially the same as 552.216-71 with its Alternate I suitably 
modified.
    (2) In a contract requiring a minimum adjustment before the price 
adjustment mechanism is effectuated, use the basic clause with Alternate 
II or with Alternate I and Alternate II.
    (3) If the Producer Price Index is not an appropriate indicator for 
price adjustment, modify the clause to use an alternate indicator for 
adjusting prices. Similarly, if other aspects of 552.216-71 are not 
appropriate, use an alternate clause following established procedures.
    (b) Adjustments based on cost indexes of labor or material. (1) If 
the contracting officer decides to provide for adjustments based on cost 
indexes of labor or material, prepare a clause that defines each of the 
following elements:
    (i) The type of labor and/or material subject to adjustment;
    (ii) The labor rates, including any fringe benefits and/or unit 
prices of materials that may be increased or decreased;
    (iii) The index(es) that will be used to measure changes in price 
levels and the base period or reference point from which changes will be 
measured; and
    (iv) The period during which the price(s) will be subject to 
adjustment.

[[Page 240]]

    (2) The contracting director must approve use of this clause.

[75 FR 41095, July 15, 2010]

               Subpart 516.5_Indefinite-Delivery Contracts



Sec. 516.506  Solicitation provisions and contract clauses.

    (a) In solicitations and contracts for Special Order Program items, 
when the contract authorizes FAS and other activities to issue delivery 
or task orders, insert the clause at 552.216-72, Placement of Orders. If 
only FAS will issue delivery or task orders, insert the clause with its 
Alternate I.
    (b) In solicitations and contracts for GSA awarded ID/IQ contracts, 
insert clause 552.216-74, Task-Order and Delivery-Order Ombudsman.
    (c) If the clause at 552.216-72 is prescribed, insert the provision 
at 552.216-73, Ordering Information, in solicitations for Special Order 
Program items and in other FAS Program solicitations.

[75 FR 41096, July 15, 2010]

                  PART 517_SPECIAL CONTRACTING METHODS

                   Subpart 517.1_Multiyear Contracting

Sec.

Sec. 517.109 Contract clauses.

                          Subpart 517.2_Options


Sec. 17.200 Scope of subpart.

Sec. 17.202 Use of options.

Sec. 17.203 Solicitations.

Sec. 17.207 Exercise of options.

Sec. 17.208 Solicitation provisions and contract clauses.

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

    Source: 64 FR 37218, July 9, 1999, unless otherwise noted.

                   Subpart 517.1_Multiyear Contracting



Sec. 517.109  Contract clauses.

    Use of FAR 52.217-2, Cancellation Under Multi-year Contracts, is 
optional in multiyear contracts authorized by 40 U.S.C. 490(a)(14) for 
maintenance and repair of fixed equipment in federally-owned buildings 
and services and 40 U.S.C. 481(a)(3) for public utility services.

                          Subpart 517.2_Options



Sec. 517.200  Scope of subpart.

    (a) This subpart applies to all GSA contracts for supplies and 
services, including:
    (1) Services involving construction, alteration, or repair 
(including dredging, excavating, and painting) of buildings, bridges, 
roads, or other kinds of real property.
    (2) Architect-engineer services.
    (b) If a requirement in this subpart is inconsistent with FAR 17.2, 
this subpart takes precedence.



Sec. 517.202  Use of options.

    (a) Supplies or services. (1) You should use options when they meet 
one or more of the following objectives:
    (i) Reduce procurement lead time and associated costs.
    (ii) Ensure continuity of contract support.
    (iii) Improve overall contractor performance.
    (iv) Facilitate longer term contractual relationships with those 
contractors that continually meet or exceed quality performance 
expectations.
    (2) An option is normally in the Government's interest in the 
following circumstances:
    (i) You anticipate a need for additional supplies or services during 
the contract term.
    (ii) Multiyear contracting authority is not available or its use is 
inappropriate and you anticipate a need for additional supplies or 
services beyond the initial contract term.
    (iii) There is a need for continuity of supply or service support.
    (iv) Funds are not available for the entirety of the Government's 
needs, but are likely to become available during the contract term.
    (v) The initial contract will be used to evaluate the performance of 
an emerging small business.
    (3) Do not use an option if the market price is likely to change 
substantially and an economic price adjustment clause inadequately 
protects the Government's interest.

[[Page 241]]

    (b) Construction. For limitations on the use of options, see 536.213 
and 536.270.



Sec. 517.203  Solicitations.

    A solicitation that includes an option to extend should inform 
offerors that the contract could result in a long term contractual 
relationship subject to both of the following conditions:
    (a) Continuing need by GSA.
    (b) Level of contract performance that at least meets GSA's quality 
performance expectations.



Sec. 517.207  Exercise of options.

    Before exercising an option, you must:
    (a) Synopsize it unless you meet of the following conditions:
    (1) The option was evaluated as part of the original competition.
    (2) The contract action meets an exception in FAR 5.202.
    (b) Conclude that the contractor's performance under the contract 
met or exceeded the Government's expectation for quality performance, 
unless another circumstance justifies an extended contractual 
relationship.
    (c) Determine that the option price is fair and reasonable.



Sec. 517.208  Solicitation provisions and contract clauses.

    (a) For solicitations under FSS's Stock or Special Order Program, 
insert a provision substantially the same as the provision at 552.217-
70, Evaluation of Options, if both of the following conditions apply:
    (1) The solicitation contains an option to extend the term of the 
contract.
    (2) The contract will be fixed price and contain an economic price 
adjustment clause.
    (b) Insert the provision at 552.217-71, Notice Regarding Option(s), 
or a similar provision, in solicitations that include an option for 
increased quantities of supplies or services or an option to extend.

[[Page 242]]

                   SUBCHAPTER D_SOCIOECONOMIC PROGRAMS

                    PART 519_SMALL BUSINESS PROGRAMS

               Subpart 519.5_Set-Asides for Small Business

Sec.

Sec. 519.508 Soliciation provisions for contract clauses.

         Subpart 519.7_The Small Business Subcontracting Program


Sec. 519.708 Contract clauses.

Sec. 519.708-70 Solicitation provisions.

 Subpart 519.8_Contracting With the Small Business Administration (The 
                              8(a) Program)


Sec. 519.870 Direct 8(a) contracting.

Sec. 519.870-8 Contract clauses.

    Subpart 519.12_Small Disadvantaged Business Participation Program


Sec. 519.1202 Evaluation factor or subfactor.

Sec. 519.1202-2 Applicability.

         Subpart 519.70_GSA Mentor-Prot[eacute]g[eacute] Program


Sec. 519.7001 Scope of subpart.

Sec. 519.7002 Definitions.

Sec. 519.7003 General policy.

Sec. 519.7004 Incentives for prime contractors.

Sec. 519.7005 Measurement of program success.

Sec. 519.7006 Mentor firms.

Sec. 519.7007 Prot[eacute]g[eacute] firms.

Sec. 519.7008 Selection of prot[eacute]g[eacute] firms.

Sec. 519.7009 Application process.

Sec. 519.7010 Agreement contents.

Sec. 519.7011 Application review.

Sec. 519.7012 Developmental assistance.

Sec. 519.7013 Obligation.

Sec. 519.7014 Internal controls.

Sec. 519.7015 Reports.

Sec. 519.7016 Program review.

Sec. 519.7017 Contract clauses.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37219, July 9, 1999, unless otherwise noted.

               Subpart 519.5_Set-Asides for Small Business



Sec. 519.508  Solicitation provisions for contract clauses.

    Insert 552.219-70, Allocation of Orders--Partially Set-Asides Items, 
in solicitations and requirements type supply contracts that are 
partially set aside for small business.

         Subpart 519.7_The Small Business Subcontracting Program



Sec. 519.708  Contract clauses.



Sec. 519.708-70  Solicitation provisions.

    Insert the following provisions as directed:
    (a) 552.219-71, Notice to Offerors of Subcontracting Plan 
Requirements, on the cover page of solicitations containing the clause 
at FAR 52.219-9, Small Business Subcontracting Plan.
    (b) 552.219-72, Preparation, Submission, and Negotiations of 
Subcontracting Plans, in solicitations requiring submission of the 
subcontracting plan with initial offers.
    (c) 552.219-73, Goals for Subcontracting Plan as follows:
    (1) Use the basic provision in sealed bid solicitations containing 
FAR 52.219-9 if you are able to establish realistic target goals.
    (2) Use Alternate I in:
    (i) sealed bid solicitations if you cannot establish target goals.
    (ii) Negotiated solicitations that include FAR 52.219-9, but do not 
include 552.219-72.

 Subpart 519.8_Contracting With the Small Business Administration (The 
                              8(a) Program)



Sec. 519.870  Direct 8(a) contracting.



Sec. 519.870-8  Contract clauses.

    (a) Insert the following clauses in solicitations, contracts, and 
orders issued under the MOU:
    (1) Insert the clause at 552.219-74, Section 8(a) Direct Award.
    (2) Insert the clause at FAR 52.219-14, Limitation on 
Subcontracting.
    (3) Insert the clause at FAR 52.219-18, Notification of Competition 
Limited to Eligible 8(a) Concerns. Substitute the following paragraph 
for paragraph (c) of the clause. Add the word ``Deviation'' at the end 
of the clause title.


[[Page 243]]


    (c) Any award resulting from this solicitation will be made directly 
by the Contracting Officer to the successful 8(a) offeror selected 
through the evaluation criteria set forth in this solicitation.

    (b) Do not use the clauses at FAR 52.219-11, Special 8(a) Contract 
Conditions, FAR 52.219-12, Special 8(a) Subcontract Conditions, or FAR 
52.219-17, Section 8(a) Award.

[64 FR 37219, July 9, 1999, as amended at 77 FR 10666, Feb. 23, 2012]

    Subpart 519.12_Small Disadvantaged Business Participation Program



Sec. 519.1202  Evaluation factor or subfactor.



Sec. 519.1202-2  Applicability.

    In addition to the exception in FAR 19.1202-2, do not evaluate the 
extent of participation of SDB concerns in performance of multiple award 
schedule contracts when all fair and reasonable offers from responsible 
sources are accepted.

         Subpart 519.70_GSA Mentor-Prot[eacute]g[eacute] Program

    Source: 74 FR 41063, Aug. 14, 2009, unless otherwise noted.



Sec. 519.7001  Scope of subpart.

    The GSA Mentor-Prot[eacute]g[eacute] Program is designed to 
encourage and motivate GSA prime contractors to assist small businesses 
concerns, small disadvantaged businesses concerns, women-owned small 
businesses concerns, veteran-owned small business concerns, service-
disabled veteran-owned small businesses concerns, and HUBZone small 
businesses concerns, and enhance their capability of performing 
successfully on GSA contracts and subcontracts, foster the establishment 
of long-term business relationships between these small business 
entities and GSA prime contractors, and increase the overall number of 
small business entities that receive GSA contract and subcontract 
awards.



Sec. 519.7002  Definitions.

    The definitions of small business concern, small disadvantaged 
business concern, HUBZone small business concern, women-owned small 
business concern, veteran-owned small business concern, and service-
disabled veteran-owned small business concern are the same as found in 
FAR 2.101. Also see 13 CFR 121, 124, 125 and 126.
    (a) Mentor as used in the GSA Mentor-Prot[eacute]g[eacute] Program, 
is a prime contractor that elects, on a specific GSA contract, to 
promote and develop small business subcontractors by providing 
developmental assistance designed to enhance the business success of the 
prot[eacute]g[eacute].
    (b) Mentor-Prot[eacute]g[eacute] Program Manager means an employee 
in the Office of Small Business Utilization (OSBU) (E) designated by the 
Associate Administrator of OSBU to manage the Mentor-
Prot[eacute]g[eacute] Program.
    (c) Prot[eacute]g[eacute] as used in the GSA Mentor-
Prot[eacute]g[eacute] Program is a small business concern that is the 
recipient of developmental assistance pursuant to a mentor-
prot[eacute]g[eacute] arrangement on a specific GSA contract.



Sec. 519.7003  General policy.

    (a) A large business prime contractor that meets the requirements at 
section 519.7006, and is approved as a mentor firm by the Mentor-
Prot[eacute]g[eacute] Program Manager, may enter into an Agreement with 
a small business concern, small disadvantaged business concern, women-
owned small business concern, veteran-owned small business concern, 
service-disabled veteran-owned small business concern or HUBZone small 
business concern that meets the requirements for being a 
prot[eacute]g[eacute] (see 519.7007) in order to provide appropriate 
developmental assistance to enhance the capabilities of the 
prot[eacute]g[eacute] to perform successfully as a subcontractor and 
supplier.
    (b) A small business prime contractor that is capable of providing 
developmental assistance to prot[eacute]g[eacute]s, may also be approved 
as a mentor.
    (c) An active mentor-prot[eacute]g[eacute] arrangement requires the 
prot[eacute]g[eacute] to either be a current or newly selected 
subcontractor under the mentor's prime contract with GSA.

[[Page 244]]

    (d) A small business concern's status as a prot[eacute]g[eacute] 
under a GSA contract shall not have an effect on its ability to seek 
other prime contracts or subcontracts.
    (e) Potential Mentors may submit an application for admittance to 
the Mentor-Prot[eacute]g[eacute] Program at any time as long as the 
requirements at section 519.7006 are met.
    (f) The determination of affiliation is a function of the SBA.



Sec. 519.7004  Incentives for prime contractors.

    (a) Under the Small Business Act, 15 U.S.C. 637(d)(4)(E), the GSA is 
authorized to provide appropriate incentives to prime contractors in 
order to encourage subcontracting opportunities for small business 
concerns consistent with the efficient and economical performance of the 
contract. This authority is limited to negotiated procurements, 
including the GSA Multiple Award Schedule contracts and the GSA 
Governmentwide Acquisition Contracts. It does not include orders under 
any GSA contracts.
    (b) Costs incurred by a mentor to provide developmental assistance, 
as described in section 519.7012 to fulfill the terms of their 
agreement(s) with a prot[eacute]g[eacute] firm(s), are not reimbursable 
as a direct cost under a GSA contract. If GSA is the mentor's 
responsible audit agency under FAR 42.703-1, GSA will consider these 
costs in determining indirect cost rates. If GSA is not the responsible 
audit agency, mentors are encouraged to enter into an advance agreement 
with their responsible audit agency on the treatment of such costs when 
determining indirect cost rates.
    (c) In addition to paragraph (b) of this section, contracting 
officers may give mentors evaluation credit during the source selection 
process for subcontracts awarded under their subcontracting plans 
pursuant to their Mentor-Prot[eacute]g[eacute] Agreements. (See FAR 
15.101-1). Therefore:
    (1) Contracting officers may evaluate proposals with subcontracting 
plans containing Mentor-Prot[eacute]g[eacute] Agreements more favorably 
than proposals with subcontracting plans that do not include Mentor-
Prot[eacute]g[eacute] Agreements; and
    (2) Contracting officers may assess the prime contractor's 
compliance with the subcontracting plans submitted in previous contracts 
as a factor in evaluating past performance under certain circumstances 
(see FAR 15.304(c)(3) and 15.305(a)(2)(v)) and determining contractor 
responsibility FAR section 19.705-5(a)(1).
    (d) OSBU Mentoring Award. A non-monetary award may be presented 
annually to the mentoring firm providing the most effective 
developmental support of a prot[eacute]g[eacute]. The Mentor-
Prot[eacute]g[eacute] Program Manager will recommend an award winner to 
the Administrator of GSA.
    (e) OSBU Mentor-Prot[eacute]g[eacute] Annual Conference. At the 
conclusion of each year in the Mentor-Prot[eacute]g[eacute] Program, 
mentor firms will be invited to brief contracting officers, program 
leaders, office directors, and other guests on their experience and 
progress under the Program. Participation is voluntary.



Sec. 519.7005  Measurement of program success.

    The overall success of the GSA Mentor-Prot[eacute]g[eacute] Program 
encompassing all participating mentors and prot[eacute]g[eacute]s will 
be measured by the extent to which it results in:
    (a) An increase in the number, dollar value, and percentage of 
subcontracts awarded to prot[eacute]g[eacute]s by mentor firms under GSA 
contracts since the date of entry into the Program. The baseline that 
demonstrates an increase is determined by comparing the number and total 
dollar amount of subcontract awards made to the identified 
prot[eacute]g[eacute] firm(s) during the two preceding fiscal years (if 
any) that are listed in application;
    (b) An increase in the number and dollar value of contract and 
subcontract awards (including percentage of subcontract awards) to 
prot[eacute]g[eacute] firms since the date of the 
prot[eacute]g[eacute]'s entry into the Program (under GSA contracts and 
contracts awarded by other Federal agencies);
    (c) An increase in the number and dollar value of subcontracts 
awarded to a prot[eacute]g[eacute] firm by its mentor firm; and

[[Page 245]]

    (d) An increase in subcontracting with prot[eacute]g[eacute] firms 
in industry categories where they have not traditionally participated 
within the mentor firm's activity (i.e., the prot[eacute]g[eacute] is 
expanding its field of expertise or is increasing its opportunities in 
areas where it has not traditionally performed).
    (e) Assessments of the semi-annual reports submitted by the mentors 
and ``Lessons Learned'' evaluation submitted by the mentors and 
prot[eacute]g[eacute]s to the GSA Mentor-Prot[eacute]g[eacute] Program 
Manager.



Sec. 519.7006  Mentor firms.

    (a) Mentors must be:
    (1) A large business prime contractor that is currently performing 
under an approved subcontracting plan as required by FAR 19.7 - Small 
business mentors are exempted; or
    (2) A small business prime contractor that can provide developmental 
assistance to enhance the capabilities of prot[eacute]g[eacute]s to 
perform as contractors, subcontractors, and suppliers;
    (b) Must be eligible (not listed in the ``Excluded Parties List 
System'') for U.S. Government contracts and not excluded from the 
Mentor-Prot[eacute]g[eacute] Program under section 519.7014(b);
    (c) Must be able to provide developmental assistance that will 
enhance the ability of prot[eacute]g[eacute]s to perform as contractors 
and subcontractors; and
    (d) Must provide semi-annual reports detailing the assistance 
provided and the cost incurred in supporting prot[eacute]g[eacute]s.



Sec. 519.7007  Prot[eacute]g[eacute] firms.

    (a) For selection as a prot[eacute]g[eacute], a firm must be:
    (1) A small business concern, small disadvantaged business concern, 
veteran-owned small business concern, service-disabled veteran-owned 
small business concern, HUBZone small business concern, or women-owned 
small business concern;
    (2) Small for the NAICS code the prime contractor/mentor assigns to 
the subcontract; and
    (3) Eligible (not listed in the ``Excluded Parties List System'') 
for U.S. Government contracts and not excluded from the Mentor-
Prot[eacute]g[eacute] Program under section 519.7014(b).
    (b) A prot[eacute]g[eacute] firm may self-represent to a mentor firm 
that it meets the requirements set forth in paragraph (a) of this 
section. Mentors may check the Central Contractor Registration (CCR) at 
www.ccr.gov to verify that the self-representation of the potential 
prot[eacute]g[eacute] meets the specified small business and 
socioeconomic category eligibility requirements (see FAR 19.703(b) and 
(d)). HUBZone and small disadvantaged business status eligibility and 
documentation requirements are determined according to 13 CFR parts 124 
and 126.
    (c) A prot[eacute]g[eacute] firm must not have another formal, 
active mentor-prot[eacute]g[eacute] relationship under GSA's Mentor-
Prot[eacute]g[eacute] Program but may have an active mentor-
prot[eacute]g[eacute] relationship under another agency's program.



Sec. 519.7008  Selection of prot[eacute]g[eacute] firms.

    (a) Mentor firms will be solely responsible for selecting 
prot[eacute]g[eacute] firms. Mentors are encouraged to select from a 
broad base of small business concerns including small disadvantaged 
business concerns, women-owned small business concerns, veteran-owned 
small business concerns, service-disabled veteran-owned small business 
concerns, and HUBZone small business concerns. A prot[eacute]g[eacute] 
must be either a current subcontractor or a newly selected subcontractor 
for the prime contractor's GSA contract.
    (b) Mentor firms may have more than one prot[eacute]g[eacute]. GSA 
reserves the right to limit the number of prot[eacute]g[eacute]s 
participating under each mentor firm.
    (c) The selection of prot[eacute]g[eacute] firms by mentor firms is 
not protestable, except for a protest regarding the size or eligibility 
status of an entity selected by a mentor to be a prot[eacute]g[eacute]. 
Such protests shall be handled in accordance with FAR 19.703(b). The 
contracting officer shall notify the Office of Small Business 
Utilization (OSBU) of the protest.



Sec. 519.7009  Application process.

    (a) Prime contractors interested in becoming a mentor firm must 
apply in writing by submitting the GSA Form 3695 to the GSA Mentor-
Prot[eacute]g[eacute] Program Manager, at GSA Office of Small

[[Page 246]]

Business Utilization (E), Washington, DC 20405. The Application shall 
include the Mentor-Prot[eacute]g[eacute] Agreement and will be evaluated 
for approval based on the extent to which the company plans to provide 
developmental assistance.
    (b) The application must contain:
    (1) A statement that the mentor firm is currently performing under 
at least one active approved subcontracting plan (small business 
exempted) and the firm is eligible, as of the date of Application, for 
the award of Federal contracts;
    (2) The number of proposed prot[eacute]g[eacute] arrangements;
    (3) Data on all current GSA contracts, and subcontracts including 
the contract/subcontract number(s), type of contract(s), period of 
performance (including options), contract/subcontract value(s) including 
options, technical program effort(s) (program title), name of GSA 
Project Manager or Contracting Officer's Representative (including 
contact information), name of contracting officer(s) and contact 
information, and awarding GSA installation;
    (4) Data on total number and dollar value of subcontracts awarded 
under GSA prime contracts within the past 2 years and the number and 
dollar value of such subcontracts awarded to entities who are proposed 
prot[eacute]g[eacute]s;
    (5) Information on the proposed types of developmental assistance. 
For each proposed mentor-prot[eacute]g[eacute] relationship include 
information on the company's ability to provide developmental assistance 
to the identified prot[eacute]g[eacute] firm and how that assistance 
will potentially increase subcontracting opportunities for the 
prot[eacute]g[eacute] firm, including subcontracting opportunities in 
industry categories where these entities are not dominant in the 
company's current subcontractor base; and
    (6) Agreement information as listed in 519.7010.



Sec. 519.7010  Agreement contents.

    The contents of the Agreement must contain:
    (a) Names, addresses (including facsimile, e-mail, and homepage) and 
telephone numbers of mentor and prot[eacute]g[eacute] firms and the 
name, telephone number, and position title within both firms of the 
person who will oversee the Agreement.
    (b) An eligibility statement from the prot[eacute]g[eacute] stating 
that it is a small business, its primary NAICS code, and when applicable 
the type of small business (small disadvantaged business concern, 
HUBZone small business concern, women-owned small business concern, 
veteran-owned small business concern, or service-disabled veteran-owned 
small business concern).
    (c) A description of the type of developmental assistance that will 
be provided by the mentor firm to the prot[eacute]g[eacute] firm (see 
519.7012).
    (d) Milestones for providing the identified developmental 
assistance.
    (e) Factors to assess the prot[eacute]g[eacute] firm's developmental 
progress under the Program.
    (f) The anticipated dollar value and type of subcontracts that may 
be awarded to the prot[eacute]g[eacute] firm consistent with the extent 
and nature of mentor firm's business, and the period of time over which 
they may be awarded.
    (g) Program participation term: State the period of time over which 
the developmental assistance will be performed.
    (h) Mentor termination procedures: Describe the procedures 
applicable to the mentor firm when notifying the Prot[eacute]g[eacute] 
firm, in writing and at least 30 days in advance, of the mentor firm's 
intent to voluntarily withdraw its participation in the Program, or to 
terminate the Agreement.
    (i) Prot[eacute]g[eacute] termination procedures: Describe the 
procedures applicable to the prot[eacute]g[eacute] firm when notifying 
the mentor firm, in writing at least 30 days in advance, of the 
prot[eacute]g[eacute] firm's intent to terminate the Mentor-
Prot[eacute]g[eacute] Agreement.
    (j) Plan for accomplishing contract work should the Mentor-
Prot[eacute]g[eacute] Agreement be terminated or a party excluded under 
519.7014(b). The mentor's prime contract with GSA continues even if the 
Mentor-Prot[eacute]g[eacute] Agreement or the Mentor-
Prot[eacute]g[eacute] Program is discontinued.
    (k) The prot[eacute]g[eacute] must agree to provide input into the 
mentor firm's semi-annual reports (see 519.7015). The 
prot[eacute]g[eacute] must submit a ``Lessons Learned'' evaluation along 
with the

[[Page 247]]

mentor firm at the conclusion of the Mentor-Prot[eacute]g[eacute] 
agreement.
    (l) Other terms and conditions as specified by the Mentor-
Prot[eacute]g[eacute] Manager on a case-by-case basis.



Sec. 519.7011  Application review.

    (a) The Mentor-Prot[eacute]g[eacute] Program Manager will review the 
information specified in section 519.7009(b) and 519.7010 to establish 
the Mentor's and Prot[eacute]g[eacute]'s eligibility and to ensure all 
necessary information is included. If the application relates to a 
specific contract, then the Mentor-Prot[eacute]g[eacute] Program Manager 
will consult with the applicable contracting officer regarding the 
adequacy of the proposed Agreement, as appropriate. The Mentor-
Prot[eacute]g[eacute] Program Manager will complete its review no later 
than 30 days after receipt of the application. The contracting officer 
must provide feedback to the Program Manager no later than 10 days after 
receipt of the application.
    (b) After the Mentor-Prot[eacute]g[eacute] Program Manager completes 
its review and provides written approval, the Mentor may execute the 
Agreement and implement the developmental assistance as provided under 
the Agreement. The Mentor-Prot[eacute]g[eacute] Program Manager will 
provide a copy of the Mentor-Prot[eacute]g[eacute] Agreement to the GSA 
contracting officer for any GSA contracts affected by the Agreement.
    (c) The Agreement defines the relationship between the Mentor and 
the Prot[eacute]g[eacute] firms only. The Agreement itself does not 
create any privity of contract or contractual relationship between the 
Mentor and GSA nor the Prot[eacute]g[eacute] and GSA.
    (d) If the Agreement is disapproved, the Mentor may provide 
additional information for reconsideration. The Mentor-
Prot[eacute]g[eacute] Program Manager will complete the review of any 
supplemental information no later than 30 days after its receipt. Upon 
finding deficiencies that GSA considers correctable, the Mentor-
Prot[eacute]g[eacute] Program Manager will notify the Mentor and 
Prot[eacute]g[eacute] and request correction of the deficiencies to be 
provided within 15 days.



Sec. 519.7012  Developmental assistance.

    The forms of developmental assistance a mentor can provide to a 
prot[eacute]g[eacute] include:
    (a) Management guidance relating to--
    (1) Financial management;
    (2) Organizational management;
    (3) Overall business management/planning; and
    (4) Business development.
    (b) Engineering and other technical assistance.
    (c) Loans.
    (d) Rent-free use of facilities and/or equipment.
    (e) Temporary assignment of personnel to the prot[eacute]g[eacute] 
for purpose of training.
    (f) Any other types of developmental assistance approved by the GSA 
Mentor-Prot[eacute]g[eacute] Program Manager.



Sec. 519.7013  Obligation.

    (a) The mentor or prot[eacute]g[eacute] may terminate the Agreement 
in accordance with 519.7010. The mentor will notify the Mentor-
Prot[eacute]g[eacute] Program Manager and the contracting officer, in 
writing, at least 30 days in advance of the mentor firm's intent to 
voluntarily withdraw from the Program or to terminate the Agreement, or 
upon receipt of a prot[eacute]g[eacute]'s notice to withdraw from the 
Program.
    (b) Mentor and prot[eacute]g[eacute] firms will submit a ``Lessons 
Learned'' evaluation to the GSA Mentor-Prot[eacute]g[eacute] Program 
Manager at the conclusion or termination of each Mentor-
Prot[eacute]g[eacute] Agreement or withdrawal from the Mentor-
Prot[eacute]g[eacute] program.



Sec. 519.7014  Internal controls.

    (a) The GSA Mentor-Prot[eacute]g[eacute] Program Manager will manage 
the Program. Internal controls will be established by the Mentor-
Prot[eacute]g[eacute] Program Manager to achieve the stated Program 
objectives (by serving as checks and balances against undesired actions 
or consequences) such as:
    (1) Reviewing and evaluating mentor Applications for realism, 
validity and accuracy of provided information;
    (2) Monitoring each Mentor-Prot[eacute]g[eacute] Agreement by 
reviewing semi-annual progress reports submitted by mentors and 
prot[eacute]g[eacute]s on prot[eacute]g[eacute] development

[[Page 248]]

to measure prot[eacute]g[eacute] progress against the master plan 
contained in the approved Agreement;
    (3) Monitoring milestones in the Agreement (see 519.7010); and
    (4) Evaluating ``Lessons Learned'' submitted by the Mentor and the 
Prot[eacute]g[eacute] as required by section 519.7013 to improve the GSA 
Mentor-Prot[eacute]g[eacute] Program.
    (b)(1) GSA has the authority to exclude mentor or 
prot[eacute]g[eacute] firms from participating in the GSA Program.
    (2) GSA may rescind approval of an existing Mentor-
Prot[eacute]g[eacute] Agreement if it determines that such action is in 
GSA's best interest. The rescission shall be in writing and sent to the 
Mentor and prot[eacute]g[eacute] after approval by the Director of OSBU. 
Rescission of an Agreement does not change the terms of any subcontract 
between the Mentor and the Prot[eacute]g[eacute].
    (3) Exclusion from the Program does not constitute a termination of 
the subcontract between the mentor and the prot[eacute]g[eacute].



Sec. 519.7015  Reports.

    (a) Semi-annual reports shall be submitted by the mentor to the GSA 
Mentor-Prot[eacute]g[eacute] Program manager to include information as 
outlined in section 552.219-76(c).
    (b) Prot[eacute]g[eacute]s must agree to provide input into the 
mentor firm's semi-annual reports detailing the assistance provided and 
goals achieved since agreement inception. However, for cost reimbursable 
contracts, costs associated with the preparation of these reports are 
unallowable costs under these Government contracts and will not be 
reimbursed by the Government.
    (c) The GSA contracting officer, or if applicable the technical 
program manager, shall include an assessment of the prime contractor's 
(mentor's) performance in the Mentor-Prot[eacute]g[eacute] Program in a 
quarterly ``Strengths and Weaknesses'' evaluation report. A copy of this 
assessment will be provided to the Mentor-Prot[eacute]g[eacute] Program 
Manager and to the mentor and prot[eacute]g[eacute].



Sec. 519.7016  Program review.

    At the conclusion of each year in the Mentor-Prot[eacute]g[eacute] 
Program (anniversary date of the Mentor-Prot[eacute]g[eacute] Program), 
the prime contractor and prot[eacute]g[eacute], as appropriate, will 
formally brief the GSA Mentor-Prot[eacute]g[eacute] Program Manager, the 
technical program manager, and the contracting officer regarding Mentor-
Prot[eacute]g[eacute] Program accomplishments pertaining to the approved 
Agreement.



Sec. 519.7017  Contract clauses.

    (a) The contracting officer shall insert the clause at 552.219-75, 
GSA Mentor-Prot[eacute]g[eacute] Program, in all unrestricted 
solicitations (not set aside) and contracts that exceed the simplified 
acquisition threshold that offer subcontracting opportunities or in the 
case of a small business, that can offer developmental assistance to a 
small business prot[eacute]g[eacute].
    (b) The contracting officer shall insert the clause at 552.219-76, 
Mentor Requirements and Evaluation, in contracts anticipated to exceed 
the simplified acquisition threshold where the prime contractor has 
signed a Mentor-Prot[eacute]g[eacute] Agreement with GSA.

      PART 522_APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

Sec.

Sec. 522.001 Definition.

                   Subpart 522.1_Basic Labor Policies


Sec. 522.101 Labor relations.

Sec. 522.101-1 General.

Sec. 522.103-5 Contract clauses.

   Subpart 522.4_Labor Standards for Contracts Involving Construction


Sec. 522.406 Administration and enforcement.

Sec. 522.406-6 Payrolls and statements.

               Subpart 522.8_Equal Employment Opportunity


Sec. 522.803 Responsibilities.

Sec. 522.804 Affirmative action programs.

Sec. 522.804-1 Nonconstruction.

Sec. 522.804-2 Construction.

Sec. 522.805 Procedures.

Sec. 522.807 Exemptions.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37220, July 9, 1999, unless otherwise noted.

[[Page 249]]



Sec. 522.001  Definition.

    Agency labor advisor, as used in this part, means the Director of 
the Contract Policy Division (VPC) within the Office of the Chief 
Acquisition Officer (OCAO).

[73 FR 46203, Aug. 8, 2008]

                   Subpart 522.1_Basic Labor Policies



Sec. 522.101  Labor relations.



Sec. 522.101-1  General.

    The Office of General Counsel (OGC) and the agency labor advisor 
shall--
    (a) Serve as the GSA points of contact on all contractor labor 
relations matters;
    (b) Initiate contact on contractor labor relations matters with 
national offices of labor organizations, Government departments, 
agencies or other governmental organizations. Contracting offices shall 
notify OGC and the agency labor advisor when they are contacted by such 
external organizations;
    (c) Serve as a clearinghouse for information on labor laws 
applicable to Government acquisitions; and
    (d) Respond to questions involving FAR Part 22, Application of Labor 
Laws to Government Acquisitions, or other contractor labor relations 
matters concerning GSA acquisition programs. OGC determines the agency's 
legal position.

[73 FR 46203, Aug. 8, 2008]



Sec. 522.103-5  Contract clauses.

    Insert FAR 52.222-1, Notice to the Government of Labor Disputes, in 
solicitations and contracts for DX rated orders under the Defense 
Priorities and Allocations System (DPAS). Information on the DPAS can be 
found at FAR Subpart 11.6, Priorities and Allocations.

[73 FR 46203, Aug. 8, 2008]

   Subpart 522.4_Labor Standards for Contracts Involving Construction



Sec. 522.406  Administration and enforcement.



Sec. 522.406-6  Payrolls and statements.

    Weekly payrolls and statements of compliance with respect to payment 
of wages are not required from a prime contractor or a subcontractor 
that personally performs work.

[73 FR 46203, Aug. 8, 2008]

               Subpart 522.8_Equal Employment Opportunity



Sec. 522.803  Responsibilities.

    Contracting officers should submit questions on the applicability of 
E.O. 11246 and implementing regulations to assigned legal counsel.

[64 FR 37220, July 9, 1999, as amended at 73 FR 46203, Aug. 8, 2008]



Sec. 522.804  Affirmative action programs.



Sec. 522.804-1  Nonconstruction.

    (a) The requirements of FAR 22.804 also apply to each contractor and 
subcontractor with 50 or more employees that either:
    (1) Serves as a depository of Government funds; or
    (2) Is a financial institution serving as an issuing and paying 
agent for U.S. savings bonds and savings notes.
    (b) The contractors, subcontractors, and financial institutions 
described in 522.804-1(a) must develop a written affirmative action 
compliance program for each of its establishments regardless of the 
contract or holding value, in accordance with 41 CFR 60-1.40.

[64 FR 37220, July 9, 1999, as amended at 73 FR 46203, Aug. 8, 2008]



Sec. 522.804-2  Construction.

    Goals for the employment of minorities and women in the construction 
industry are established by the Director, Office of Federal Contract 
Compliance Programs (OFCCP), Department of Labor. The current goal for 
the utilization of women is 6.9%, regardless of the location of the 
Federal contract. This

[[Page 250]]

goal was extended indefinitely by the Department of Labor in 1980. The 
current goals for minority participation vary by location and are listed 
in Appendix E of DOL's ``Technical Assistance Guide for Federal 
Construction Contractors.'' This guide can be accessed at http://
www.dol.gov/esa/ofccp/TAguides/ctaguide.htm.

[73 FR 46203, Aug. 8, 2008]



Sec. 522.805  Procedures.

    (a) To determine whether the contract meets the threshold in FAR 
22.805(a), contracting officers shall include the value of the basic 
contract plus priced options. A contract modification exercising a 
priced option is not a contract award under FAR 22.805(a)(1)(ii) and 
does not a require a preaward clearance.
    (b) Contracting officers shall submit preaward clearance requests 
directly to the appropriate OFCCP regional office. A list of these 
offices can be found at http://www.dol.gov/esa/contacts/ofccp/
ofcpkeyp.htm.
    (c) The EEO poster required by FAR 22.805(b) can be found at: http:/
/www.dol.gov/esa/regs/compliance/posters/pdf/eeopost.pdf. In addition to 
providing this poster to each non-exempt contractor, the contracting 
officer shall advise contractors to complete the Employer Information 
Report (EEO-1) at http://www.eeoc.gov/eeo1survey/index.html.

[64 FR 37220, July 9, 1999, as amended at 73 FR 46203, Aug. 8, 2008]



Sec. 522.807  Exemptions.

    The agency labor advisor submits a request for exemption.

 PART 523_ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY AND DRUG-FREE 
                                WORKPLACE

  Subpart 523.3_Hazardous Materials Identification and Material Safety 
                                  Data

Sec.

Sec. 523.303 Contract clause.

Sec. 523.370 Solicitation provision.

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

    Source: 64 FR 37220, July 9, 1999, unless otherwise noted.

  Subpart 523.3_Hazardous Materials Identification and Material Safety 
                                  Data



Sec. 523.303  Contract clause.

    (a) Insert 552.223-70, Hazardous Substances, in solicitations and 
contracts for packaged items subject to the Federal Hazardous Substances 
Act and the Hazardous Materials Transportation Act.
    (b) Insert 552.223-71, Nonconforming Hazardous Materials, in 
solicitations and contracts for supplies that contain hazardous 
materials.



Sec. 523.370  Solicitation provision.

    Insert 552.223-72, Hazardous Material Information, in any 
solicitation that provides for delivery of hazardous materials on an 
f.o.b. origin basis.

                      PART 525_FOREIGN ACQUISITION

Subpart 525.1--Buy American Act-Supplies [Reserved]

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37221, July 9, 1999, unless otherwise noted.

[[Page 251]]

              SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS

                 PART 527_PATENTS, DATA, AND COPYRIGHTS

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

    Source: 64 FR 37221, July 9, 1999, unless otherwise noted.

               Subpart 527.4_Rights in Data and Copyrights



Sec. 527.409  Solicitation provisions and contract clauses.

    Architect-Engineer Services and Construction Contracts Involving 
                       Architect-Engineer Services

    Insert the following in solicitations and contracts for architect-
engineer services and construction contracts involving architect-
engineer services:
    (a) Insert 552.227-70, Government Rights (Unlimited), instead of FAR 
52.227-17, Rights in Data-Special Works, in contracts, except if 
552.227-71 is prescribed.
    (b) If the Government requires sole property rights and exclusive 
control over the design and data, insert 552.227-71, Drawings and Other 
Data to Become Property of Government, instead of FAR 52.227-17.

                      PART 528_BONDS AND INSURANCE

           Subpart 528.2_Sureties and Other Security for Bonds

Sec.

Sec. 528.202 Acceptability of corporate sureties.

                         Subpart 528.3_Insurance


Sec. 528.310 Contract clause for work on a Government installation.

Sec. 528.311 Solicitation provision and contract clause on liability 
          insurance under cost-reimbursement contracts.

Sec. 528.311-1 Contract clause.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37221, July 9, 1999, unless otherwise noted.

           Subpart 528.2_Sureties and Other Security for Bonds



Sec. 528.202  Acceptability of corporate sureties.

    Corporate surety bonds must be manually signed by the Attorney-in-
Fact or officer of the surety company and the corporate seal affixed. 
The contracting officer may waive failure of the surety to affix the 
corporate seal as a minor informality. (See B-184120, July 2, 1975, 75-2 
CPD 9.)

[74 FR 17099, Apr. 14, 2009]

                         Subpart 528.3_Insurance



Sec. 528.310  Contract clause for work on a Government installation.

    Insert the clause at 552.228-5, Government as Additional Insured, in 
each solicitation and contract that meets all the following conditions:
    (a) The contract amount is expected to exceed the simplified 
acquisition threshold; and
    (b) The contract will require work to be performed on Government 
property.

[74 FR 17099, Apr. 14, 2009]



Sec. 528.311  Solicitation provision and contract clause on liability 
          insurance under cost-reimbursement contracts.



Sec. 528.311-1  Contract clause.

    Use the clause at FAR 52.228-7, Insurance--Liability to Third 
Persons, in solicitations and contracts, other than those for 
construction and those for architect-engineer services, when a cost-
reimbursement contract is contemplated, unless the head of the 
contracting activity waives the requirement for use of the clause.

[74 FR 17099, Apr. 14, 2009]

                             PART 529_TAXES

                     Subpart 529.4_Contract Clauses

Sec.

Sec. 529.401 Domestic contracts.

Sec. 529.401-70 Purchases at or under the simplified acquisition 
          threshold.

[[Page 252]]


Sec. 529.401-71 Contracts for supplies and services usable by the DC 
          Government.

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

    Source: 64 FR 37222, July 9, 1999, unless otherwise noted.

                     Subpart 529.4_Contract Clauses



Sec. 529.401  Domestic contracts.



Sec. 529.401-70  Purchases at or under the simplified acquisition 
          threshold.

    Insert 552.229-70, Federal, State, and Local Taxes, in purchases and 
contracts estimated to exceed the micropurchase threshold, but not the 
simplified acquisition threshold.



Sec. 529.401-71  Contracts for supplies and services usable by the DC 
          Government.

    Insert 552.229-71, Federal Tax-DC Government, in solicitations and 
contracts that permit the District of Columbia Government to place 
orders.

                       PART 532_CONTRACT FINANCING

          Subpart 532.1_Non-Commercial Item Purchase Financing

Sec.

Sec. 532.111 Contract clauses for non-commercial purchases.

                   Subpart 532.8_Assignment of Claims


Sec. 532.806 Contract clauses.

                      Subpart 532.9_Prompt Payment


Sec. 532.904 Determining payment due dates.

Sec. 532.905 Payment documentation and process.

Sec. 532.905-70 Final payment--construction and building service 
          contracts.

Sec. 532.908 Contract clauses.

      Subpart 532.70_Authorizing Payment by Government Charge Card


Sec. 532.7002 Solicitation requirements.

Sec. 532.7003 Contract clause.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37222, July 9, 1999, unless otherwise noted.

          Subpart 532.1_Non-Commercial Item Purchase Financing



Sec. 532.111  Contract clauses for non-commercial purchases.

    For contracts that include the clause at FAR 52.232-5, Payments 
Under Fixed-Price Construction Contracts, the contracting officer shall 
provide the contractor with GSA Form 2419, Certification of Progress 
Payments Under Fixed-Price Construction Contracts, to be used to make 
the certification required by FAR 52.232-5(c).

[74 FR 54917, Oct. 26, 2009]

                   Subpart 532.8_Assignment of Claims



Sec. 532.806  Contract clauses.

    Insert the clause at 552.232-23, Assignment of Claims, in 
solicitations and requirements or indefinite quantity contracts under 
which more than one agency may place orders.

                      Subpart 532.9_Prompt Payment



Sec. 532.904  Determining payment due dates.

    Payment due dates for construction contracts are addressed at FAR 
32.904(d). The following procedures apply to construction and building 
service contracts:
    (a) The amount of final payment must include, as appropriate, 
deductions to cover any of the following:
    (1) Liquidated damages for late completion.
    (2) Liquidated damages for labor violations.
    (3) Amounts withheld for improper payment of labor wages.
    (4) The amount of unilateral change orders covering defects and 
omissions.
    (5) The agreed-upon dollar amount in a Deficiency Report, which is 
included in all applicable Operation and Maintenance (O&M) service 
contracts.
    (b) When the contract is for the performance of building services, 
the contracting officer shall include the clause at 552.232-72, Final 
Payment Under Building Services Contracts.

[74 FR 54917, Oct. 26, 2009]

[[Page 253]]



Sec. 532.905  Payment documentation and process.

    For contracts of the type shown in 532.7201(a)(1) through (4):
    (a) Contractors are to submit invoices or vouchers to the 
contracting officer for approval. Invoices must be annotated with the 
date of receipt, as required by FAR 32.905. That date will be used to 
determine interest penalties for late payments. The contracting officer 
or designee must review the processing of invoices or vouchers before 
payment to determine if the items and amounts claimed are consistent 
with the contract terms and represent prudent business transactions. The 
contracting officer must ensure that these payments are commensurate 
with physical and technical progress under the contract. If the 
contractor has not deducted questionable amounts from the invoice or 
amounts required to be withheld, the contracting officer must make the 
required deduction, except as provided in 532.7203. Subject to 532.7201, 
the contracting officer must note approval of any payment on (or 
attached to) the invoice or voucher submitted by the contractor and 
forward the invoice or voucher to the appropriate contract finance 
office for retention after certification and scheduling for payment by a 
disbursing office.
    (b) See GSAM 532.7203 for the handling of audit findings.

[74 FR 54917, Oct. 26, 2009]



Sec. 532.905-70  Final payment--construction and building service 
          contracts.

    The following procedures apply to construction and building service 
contracts:
    (a) The Government shall pay the final amount due the Contractor 
under this contract after the documentation in the payment clauses of 
the contract is submitted. This includes the final release prescribed 
for construction at FAR 52.232-5, and for building services at GSAR 
552.232-72.
    (b) Contracting officers may not process the final payment on 
construction or building service contracts until the contractor submits 
a properly executed GSA Form 1142, Release of Claims, except as provided 
in paragraph (c) of this section.
    (c) In cases where, after 60 days from the initial attempt, the 
contracting officer is unable to obtain a release of claims from the 
contractor, the final payment may be processed with the approval of 
assigned legal counsel.
    (d) The amount of final payment must include, as appropriate, 
deductions to cover any of the following:
    (1) Liquidated damages for late completion.
    (2) Liquidated damages for labor violations.
    (3) Amount withheld for improper payment of labor wages.
    (4) The amount of unilateral change orders covering defects and 
omissions.

[77 FR 6987, Feb. 10, 2012]



Sec. 532.908  Contract clauses.

    (a) GSA has a FAR deviation that allows this agency to use the 
clause at 552.232-1, Payments, in lieu of the clause at FAR 52.232-1, 
Payments.
    (b) General. Before exercising the authority to modify the date for 
constructive acceptance or constructive approval of progress payments in 
paragraph (a)(5)(i) of the clause at FAR 52.232-25, Prompt Payment, the 
contracting officer must prepare a written justification explaining why 
a longer period is necessary. An official one level above the 
contracting officer must approve the justification. The time needed 
should be determined on a case-by-case basis, but the specified 
constructive acceptance period shall not exceed 30 days.
    (c) Stock, Special Order, and Schedules Programs. (1) GSA has 
obtained a FAR Deviation to authorize payment within 10 days of receipt 
of a proper invoice. The authority applies only to:
    (i) Orders placed by GSA under the referenced programs;
    (ii) That include FAR 52.232-33, Mandatory Information for 
Electronic Funds Transfer Payment; and
    (iii) For which the order is placed, and the contractor submits 
invoices, using EDI in accordance with the Trading Partner Agreement.
    (2) If the contract is for commercial items and will include FAR 
52.212-4, use the clause with its Alternate II. If the contract is not 
for commercial items, use the clause at 552.232-25,

[[Page 254]]

Prompt Payment, instead of FAR 52.232-25.

[74 FR 54918, Oct. 26, 2009]

      Subpart 532.70_Authorizing Payment by Government Charge Card



Sec. 532.7002  Solicitation requirements.

    (a) In solicitations for supplies and services, except FSS schedule 
solicitations, request offerors to indicate if they will accept payment 
by Governmentwide commercial purchase card. Identify the card brand(s) 
under the GSA SmartPay program that may be used to make payments under 
the contract, on the cover page or in Section L of the solicitation.
    (b) For FSS schedule contracts, identify the card brand(s) under the 
GSA SmartPay program that may be used to make payments under the 
contract in the contract award letter.
    (c) For orders placed by GSA, you may authorize payment by 
Governmentwide commercial purchase card only for orders that do not 
exceed $100,000 (see GSA Order, Guidance on Use of the Credit Card for 
Purchases (CFO 4200.1)).
    (d) Consider requesting offerors to designate different levels for 
which they may accept payment by Governmentwide commercial purchase 
card, for example:

    ``If awarded a contract under this solicitation, the offeror agrees 
to accept payment by Governmentwide commercial purchase card for orders 
of:

--$2,500 or less
--$25,000 or less
--$50,000 or less
--$100,000 or less''

[65 FR 11247, Mar. 2, 2000]



Sec. 532.7003  Contract clause.

    For indefinite-delivery, indefinite-quantity (IDIQ) contracts other 
than Schedules, insert the clause at 552.232-77, Payment By Government 
Charge Card, if the contract will provide for payment by Government 
charge card as an alternative method of payment for orders. For Schedule 
contracts that provide for payment using the Government charge card, use 
the clause(s) prescribed at part 538.

[74 FR 54918, Oct. 26, 2009]

                PART 533_PROTESTS, DISPUTES, AND APPEALS

                         Subpart 533.1_Protests

Sec.

Sec. 533.103 Protests to the agency.

Sec. 533.103-1 Filing a protest.

                   Subpart 533.2_Disputes and Appeals


Sec. 533.209 Suspected fraudulent claims.

Sec. 533.211 Contracting officer's decision.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37224, July 9, 1999, unless otherwise noted.

                         Subpart 533.1_Protests



Sec. 533.103  Protests to the agency.



Sec. 533.103-1  Filing a protest.

    (a) Any protester filing an agency protest has the choice of 
requesting either that the contracting officer or the Agency Protest 
Official decide the protest. If the protest is silent on this matter, 
the contracting officer will decide the protest. If a party requests a 
review at a level above the contracting officer, the Agency Protest 
Official will decide the protest. The decision by the Agency Protest 
Official for GSA is an alternative to a decision by the contracting 
officer on a protest. The Agency Protest Official for GSA will not 
consider an appeal of the contracting officer's decision on an agency 
protest.
    (b) If an agency protest is filed, the deciding official uses the 
procedures in FAR 33.103 and this section to resolve the protest. The 
deciding official will provide a fair and quick review of any protest 
filed with the agency.
    (c) The filing timeframes in FAR 33.103(e) apply. An agency protest 
is filed when the complete protest is received at the location the 
solicitation designates for serving protests. GSA's hours of operation 
are 8 a.m. to 4:30 p.m. Protests delivered after 4:30 p.m. will be 
considered received and filed the following business day.
    (d) The protest must meet all the following conditions:

[[Page 255]]

    (1) Include the information required by FAR 33.103(d)(2).
    (2) Indicate that it is a protest to the agency.
    (3) Be filed in writing with the contracting officer.
    (4) State whether the protester chooses to have the contracting 
officer or the Agency Protest Official decide the protest. If the 
protest does not include the protester's choice, then the contracting 
officer will decide the protest (see paragraph (a) of this subsection).
    (e) The following procedures apply to information submitted in 
support of or in response to an agency protest:
    (1) GSA procedures do not provide for any discovery.
    (2) The deciding official has discretion to request additional 
information from either the agency or the protester, orally or in 
writing, as may be necessary to render a timely decision on the protest. 
However, protests are normally decided on the basis of information 
initially provided by the protester and the agency.
    (3) To the extent permitted by law and regulations, the parties may 
exchange relevant information.
    (4) The agency must make a written response to the protest within 
ten days unless another date is set by the deciding official.
    (5) The agency must also provide the protester with a copy of the 
response on the same day it files the protest response with the deciding 
official. If the agency believes it needs to redact or withhold any 
information in the response from the protester, it should identify and 
provide the information to the deciding official for in camera review.
    (f) A protester may represent itself or be represented by legal 
counsel. GSA will not reimburse the protester for any legal fees related 
to the agency protest.
    (g) GSA may dismiss or stay proceedings on an agency protest if a 
protest on the same or similar basis is filed with a protest forum 
outside of GSA.

[73 FR 74614, Dec. 9, 2008]

                   Subpart 533.2_Disputes and Appeals



Sec. 533.209  Suspected fraudulent claims.

    In GSA, the agency official responsible for investigating fraud is 
the Office of Inspector General.

[73 FR 74614, Dec. 9, 2008]



Sec. 533.211  Contracting officer's decision.

    The contracting officer's written decision must include the 
paragraph at FAR 33.211(a)(4)(v). The contracting officer shall state in 
the decision that a contractor's notice of appeal to the Civilian Board 
of Contract Appeals (CBCA) should include a copy of the contracting 
officer's decision.

[73 FR 74614, Dec. 9, 2008]

[[Page 256]]

             SUBCHAPTER F_SPECIAL CATEGORIES OF CONTRACTING

         PART 536_CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

                          Subpart 536.1_General

Sec.

Sec. 536.101 Applicability.

      Subpart 536.2_Special Aspects of Contracting for Construction


Sec. 536.213 Special procedures for sealed bidding in construction 
          contracting.

Sec. 536.213-3 Invitations for bids.

Sec. 536.213-370 Bids that include alternates.

Sec. 536.213-371 Bids that include options.

Sec. 536.213-372 Bids that include both alternates and options.

Sec. 536.270 Exercise of options.

Sec. 536.271 Project labor agreements.

                     Subpart 536.5_Contract Clauses


Sec. 536.570 Supplemental provisions and clauses.

Sec. 536.570-1 Definitions.

Sec. 536.570-2 Authorities and limitations.

Sec. 536.570-3 Specialist.

Sec. 536.570-4 Basis of award--construction contract.

Sec. 536.570-5 Working hours.

Sec. 536.570-6 Use of premises.

Sec. 536.570-7 Measurements.

Sec. 536.570-8 Specifications and drawings.

Sec. 536.570-9 Shop drawings, coordination drawings, and schedules.

Sec. 536.570-10 Samples.

Sec. 536.570-11 Heat.

Sec. 536.570-12 Use of equipment by the Government.

Sec. 536.570-13 Subcontracts.

Sec. 536.570-14 Requirement for a Project Labor Agreement.

                Subpart 536.6_Architect-Engineer Services


Sec. 536.602 Selection of firms for architect-engineer contracts.

Sec. 536.602-1 Selection criteria.

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

    Source: 64 FR 37224, July 9, 1999, unless otherwise noted.

                          Subpart 536.1_General



Sec. 536.101  Applicability.

    If a requirement in this part is inconsistent with a requirement in 
another GSAR part, this part takes precedence.

      Subpart 536.2_Special Aspects of Contracting for Construction



Sec. 536.213  Special procedures for sealed bidding in construction 
          contracting.



Sec. 536.213-3  Invitations for bids.



Sec. 536.213-370  Bids that include alternates.

    (a) The base bid must include all features essential to a sound and 
adequate building design. If it appears that funds available for a 
project may be insufficient to include all desired features in the base 
bid, you may issue a solicitation for a base bid and include one or more 
alternates in the order of priority. Use alternates only if they are 
clearly justified and involve substantial amounts of work in relation to 
the base bid. Their use must be limited and should involve only ``add'' 
alternates.
    (b) Before opening bids that include alternates, determine, and 
record in the contract file, the amount of funds available for the 
project. The amount recorded must be announced at the beginning of the 
bid opening. The amount is the controlling factor in determining the low 
bidder. This amount may be increased later when determining the 
alternate items to award to the low bidder if the following condition is 
met: the award amount of the base bid plus the combination of alternate 
items does not exceed the amount offered for the base bid and the same 
combination of alternate items by any other responsible bidder whose bid 
conforms to the solicitation. This requirement prevents the displacement 
of the low bidder by manipulating the alternates to be used.



Sec. 536.213-371  Bids that include options.

    (a) Subject to the limitations in paragraph (c) of this section, you 
may include options in contracts if it is in the Government's interest.
    (b) the appropriate use of options may include, but is not limited 
to, any of the following:
    (1) If additional work is anticipated but funds are not expected to 
be available at the time of award, and it would

[[Page 257]]

not be practicable to award a separate contract or to permit an 
additional contractor to work on the same site.
    (2) If fixed building equipment, e.g., elevators or escalators, will 
be installed under the construction contract and it is advantageous to 
have the installer of the equipment maintain and service the equipment 
during the warranty period.
    (c) You must not use options under any of the following conditions:
    (1) the prospective option represents known firm requirements for 
which funds are available unless competition for the option quantity is 
impracticable once the initial contract is awarded.
    (2) The contractor will incur undue risks; e.g., the price or 
availability of necessary materials or labor is not reasonably 
foreseeable.
    (d) Solicitations containing option provisions must state the period 
within which the options may be exercised.
    (e) Solicitations must state whether the basis of award is inclusive 
or exclusive of the options. Before issuing a solicitation that includes 
evaluated options, you must determine that there is reasonable certainty 
that funds will be made available to permit exercise of the option.



Sec. 536.213-372  Bids that include both alternates and options.

    (a) Solicitations may include both alternates and options if the 
conditions in 536.213-370, Bids that include alternates, and 536.213-
371, Bids that include options, are satisfied. In these solicitations, 
the low bidder for purposes of award is the responsible bidder offering 
the lowest aggregate price for the base bid and the alternates, in the 
order of priority listed in the solicitation, that provide the most work 
features within the funds available at bid opening, plus all options 
designated to be evaluated.
    (b) The basis of award may require the evaluation of options 
associated with alternates if the related alternate is selected.
    (c) Before opening bids that include both alternates and options, 
determine, and record in the contract file, the amount of funds 
available for the project (i.e., for the base bid and alternate work). 
The amount recorded must be announced at the beginning of the bid 
opening. This amount may be increased later when determining the 
alternate items to be awarded to the low bidder if the following 
condition is met: the award amount of the base bid and evaluated options 
plus the alternate items does not exceed the amount offered for the base 
bid, the evaluated options, and the same combination of alternate items 
by any other responsible bidder whose bid conforms to the solicitation.



Sec. 536.270  Exercise of options.

    (a) If exercising an option, notify the contractor, in writing, 
within the time period specified in the contract.
    (b) Exercise options only after determining that all the following 
conditions exist:
    (1) Funds are available.
    (2) The requirement covered by the option fulfills an existing 
Government need.
    (3) Exercising the option is the most advantageous method of 
satisfying the Government's need, price and other factors considered.
    (c) Before exercising an option, you must determine that the action 
complies with the option's terms and this section's requirements. 
Include your written determination in the contract file.
    (d) The contract modification, or other written document which 
notifies the contractor of the exercise of the option, must cite the 
option clause as authority. If exercising an unpriced or unevaluated 
option, cite the statutory authority permitting the use of other than 
full and open competition (see FAR 6.302 and 517.207).



Sec. 536.271  Project labor agreements.

    (a) Authority. This subpart implements the Presidential memorandum 
of June 5, 1997, on using project labor agreements (PLAs) on Federal 
construction projects. The Presidential memorandum authorizes executive 
departments and agencies to require PLAs on large and significant 
construction projects for facilities to be owned by a Federal department 
or agency.
    (b) Applicability. These policies and procedures apply to all GSA 
activities

[[Page 258]]

authorized to award contracts for construction of facilities to be owned 
by a Federal department or agency. You may use a PLA in leasehold 
arrangement, Federally funded projects, and other appropriate 
circumstances.
    (c) Definitions. Construction means construction, alteration, or 
repair (including dredging, excavating, and painting) of buildings, 
structures, or other real property. The terms buildings, structures, or 
other real property are defined further in Federal Acquisition 
Regulation (FAR) 36.102.
    Labor organization means a labor organization engaged in an industry 
affecting commerce, and any agent of such an organization, and includes 
any organization of any kind, and any agency, or employee representation 
committee, group, association, or plan so engaged in which employees 
participate and which exists for the purpose, in whole or in part, of 
dealing with employers concerning grievances, labor disputes, wages, 
rates of pay, hours, or other terms or conditions of employment, and any 
conference, general committee, joint or system board, or joint council 
so engaged which is subordinate to a national or international labor 
organization (42 U.S.C. 2000e(d)).
    Large and significant project means a Federal construction project 
with a total cost to the Federal Government of more than $5 million.
    Project Labor Agreement (PLA) means an agreement between the 
contractor, subcontractors, and the union(s) representing workers. Under 
a PLA, the contractor and subcontractors on a project and the union(s) 
agree on terms and conditions of employment for the project, 
establishing a framework for labor-management cooperation to advance the 
Government's procurement interest in cost, efficiency, and quality.
    (d) Policy. (1) You may, on a project-by-project basis, use a PLA on 
a large and significant project when both of the following conditions 
apply:
    (i) A PLA will advance the Government's procurement interests.
    (ii) No laws that apply to the specific construction project 
preclude the use of the PLA.
    (2) Do not require any contractor to enter into a PLA with any 
particular labor organization.
    (3) The use of a PLA is not intended to create any right or benefit, 
substantive or procedural enforceable by a nonfederal party against the 
United States, its departments, and agencies, its officers or employees, 
or any other person.
    (e) Procedures. (1) As part of procurement planning for construction 
projects with a total estimated cost to the Federal Government of more 
than $5 million, you may consider requiring a PLA.
    (2) To require a PLA, you must determine whether use of a PLA will 
advance the Government's procurement interests in all the following 
areas:
    (i) Cost, efficiency, and quality.
    (ii) Promoting labor-management stability.
    (iii) Promoting compliance with applicable legal requirements 
governing safety and health, equal employment opportunity, labor and 
employment standards, and other matters.
    (3) In making the determination required by paragraph (b) of this 
section, consult with the agency project or program manager and obtain 
guidance from the Agency Labor Advisor and assigned legal counsel. You 
should consider the following factors:
    (i) Whether past experience with construction projects in the 
location where the project will be performed indicates that a PLA will 
be effective.
    (ii) Whether delays in performance of the construction contract 
would have significant adverse impact on the mission of the agency or 
operation of the installation or facility.
    (iii) Whether any law applies to the specific construction project 
that would impede use of a PLA.
    (iv) Whether the labor organizations in the area can provide a 
reliable source of skilled, experienced building trades workers in all 
crafts needed on the job site for the project's duration (taking into 
consideration other major construction work in the area).
    (v) Whether the Government can benefit from uniform work rules and 
working conditions and established procedures for resolving labor 
disputes, no strike/no lock-out protections.
    (vi) Whether the Government can benefit from increased stability and

[[Page 259]]

labor peace that derives from greater labor-management cooperation.
    (vii) Whether the requirements for a PLA will unreasonably restrict 
competition.
    (viii) Other relevant information.
    (4) Document the rationale supporting your decision to require a PLA 
in the contract file.
    (5) Provide the following information to the Agency Labor Advisor 
(GSA Acquisition Policy Division (MVP)):
    (i) A brief description of the project.
    (ii) The estimated cost.
    (iii) A copy of the document supporting your decision to require a 
PLA.
    (iv) A copy of the solicitation.

                     Subpart 536.5_Contract Clauses



Sec. 536.570  Supplemental provisions and clauses.



Sec. 536.570-1  Definitions.

    Insert 552.236-70, Definitions, in solicitations and contracts if 
construction, dismantling, demolition, or removal of improvements is 
contemplated.



Sec. 536.570-2  Authorities and limitations.

    Insert 552.236-71, Authorities and Limitations, in solicitations and 
contracts if construction, dismantling, demolition, or removal of 
improvements is contemplated and the contract amount is expected to 
exceed the simplified acquisition threshold.



Sec. 536.570-3  Specialist.

    Insert 552.236-72, Specialist, in solicitations and contracts for 
construction if the technical sections of the contract require unusual 
experience or specialized facilities for adequate contract performance.



Sec. 536.570-4  Basis of award--construction contract.

    (a) Insert a provision substantially the same as 552.236-73, Basis 
of Award--Construction Contract, in solicitations for fixed-price 
construction contracts except if any of the following conditions apply:
    (1) The solicitation requires the submission of a lump-sum bid only.
    (2) The solicitation is for an indefinite quantity contract.
    (3) The contract amount is not expected to exceed the simplified 
acquisition threshold.
    (b) Instructions for use.

------------------------------------------------------------------------
     If the solicitation requests the
          submission of a . . .                  Then use the . . .
------------------------------------------------------------------------
(1) Base bid and unit prices.............  Basic provision.
(2) Base bid and options.................  Provision with its Alternate
                                            I.
(3) Base bid and alternates..............  Provision with its Alternate
                                            II.
(4) Base bid, alternates, and options....  Provision with its Alternate
                                            III.
------------------------------------------------------------------------



Sec. 536.570-5  Working hours.

    Insert 552.236-74, Working Hours, in solicitations and contracts if 
construction, dismantling, demolition, or removal of improvements is 
contemplated and the contract amount is expected to exceed the 
simplified acquisition threshold.



Sec. 536.570-6  Use of premises.

    Insert 552.236-75, Use of Premises, in solicitations and contracts 
if construction, dismantling, demolition, or removal of improvements is 
contemplated.



Sec. 536.570-7  Measurements.

    Insert 552.236-76, Measurements, in solicitations and contracts if 
construction, dismantling, demolition, or removal of improvements is 
contemplated.



Sec. 536.570-8  Specifications and drawings.

    Insert the clause at 552.236-77, Specifications and Drawings, in 
solicitations and contracts if construction, dismantling, demolition, or 
removal of improvements is contemplated and the contract amount is 
expected to exceed the simplified acquisition threshold.



Sec. 536.570-9  Shop drawings, coordination drawings, and schedules.

    Insert the clause at 552.236-78, Shop Drawings, Coordination 
Drawings, and Schedules, in solicitations and contracts if construction 
is contemplated and the contract amount is expected to exceed the 
simplified acquisition threshold.



Sec. 536.570-10  Samples.

    Insert the clause at 552.236-79, Samples, in solicitations and 
contracts for construction if the technical sections

[[Page 260]]

of the contract require the submission and approval of samples.



Sec. 536.570-11  Heat.

    Insert the clause at 552.236-80, Heat, in solicitations and 
contracts if construction, dismantling, demolition, or removal of 
improvements is contemplated.



Sec. 536.570-12  Use of equipment by the Government.

    Insert the clause at 552.236-81, Use of Equipment by the Government, 
in contracts requiring heating and air-conditioning of existing 
buildings if it may be necessary for the Government to operate all or 
part of the equipment before final acceptance of the contract.



Sec. 536.570-13  Subcontracts.

    Insert 552.236-82, Subcontracts, in solicitations and contracts for 
construction if the contract amount is expected to exceed the simplified 
acquisition threshold.



Sec. 536.570-14  Requirement for a Project Labor Agreement.

    Insert a clause substantially the same as 552.236-83, Requirement 
for a Project Labor Agreement, in solicitations and contracts that will 
require a project labor agreement.

                Subpart 536.6_Architect-Engineer Services



Sec. 536.602  Selection of firms for architect-engineer contracts.



Sec. 536.602-1  Selection criteria.

    (a) FAR 36.602-1 requires that agencies include ``location in the 
general geographical area of the project and knowledge of locality of 
the project'' as one of several selection criteria.
    (1) Do not use this evaluation factor as a minimum qualification 
requirement for determining whether a firm is eligible to compete for a 
proposed project.
    (2) This factor must not exceed 5 percent of the total weight of all 
evaluation criteria. In order to receive maximum score for this factor, 
the architect-engineer firm(s) must demonstrate that at least 35 percent 
of the architect-engineer contract services (based on the total contract 
price) will be accomplished within the geographical boundaries 
established for the project.
    (3) Under an approved class deviation from FAR 36.602-1(a)(5), this 
factor does not apply to projects that the Chief Architect of GSA 
determines have national significance.
    (b) The public announcement (Commerce Business Daily notice) for a 
proposed project should identify the general geographical area of the 
project by either:
    (1) A radius in miles or other appropriate unit of measure.
    (2) The Standard Metropolitan Statistical Area, county(ies), 
state(s) surrounding the project, or other appropriate geographic 
boundaries.
    (c) Architect-engineer selections under the Design Excellence 
Program must apply the geographical evaluation criteria in the second 
phase.
    (d) The public announcement (Commerce Business Daily notice) must 
provide the number of calendar days the architect-engineer of record has 
to establish a production capability within the general geographical 
area of the project. You may allow the architect-engineer of record up 
to 45 calendar days after contract award to establish this production 
capability.

[65 FR 11247, Mar. 2, 2000]

                      PART 537_SERVICE CONTRACTING

                 Subpart 537.1_Service Contracts_General

Sec.

Sec. 537.110 Solicitation provisions and contract clauses.

             Subpart 537.2_Advisory and Assistance Services


Sec. 537.201 Definitions.

Sec. 537.270 Contract clause.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37226, July 9, 1999, unless otherwise noted.

[[Page 261]]

                 Subpart 537.1_Service Contracts_General



Sec. 537.110  Solicitation provisions and contract clauses.

    The following provision and clauses apply to contracts for building 
services:
    (a) If the contract is expected to exceed the simplified acquisition 
threshold and it is not initiated with Ability One under the Javits-
Wagner-O'Day Act:
    (1) Insert 552.237-70, Qualifications of Offerors, in the 
solicitation.
    (2) Insert 552.237-71, Qualifications of Employees, in the 
solicitation and contract. If needed, use supplemental provisions or 
clauses to describe specific requirements for employees performing work 
on the contract.
    (b) Insert 552.237-72, Prohibition Regaring ``Quasi-Military Armed 
Forces,'' in solicitations and contracts for guard service.

[65 FR 41379, July 5, 2000, as amended at 74 FR 20606, May 5, 2009]

             Subpart 537.2_Advisory and Assistance Services



Sec. 537.201  Definitions.

    As used in this subpart--
    Evaluation or analysis of a proposal means proposal evaluation as 
described in FAR 15.305. It includes: Cost or price evaluation using 
cost or price analysis, as defined in FAR 15.404.
    Proposal means a proposal submitted for an initial contract award. 
(See FAR 37.203(d)). It does not include proposals submitted after 
contract award, such as value engineering proposals, proposals related 
to contract modifications, claims, or other contract administration 
actions.
    Readily available means that employees with the requisite training 
and capability are employed by the agency, capable of handling 
additional work relating to other duties as assigned by management, and 
that the travel and other costs associated with using covered personnel 
does not exceed the projected cost of a contract for evaluation and 
analysis services.
    Requisite training and capability means training and capability 
necessary to successfully perform the task or contract at issue in the 
time and in the manner required. It may include relevant experience, 
recent performance of work of similar size and scope, specific training 
and other factors that the contracting officer determines are necessary 
to the successful performance of the task or contract at issue.

[74 FR 20606, May 5, 2009]



Sec. 537.270  Contract clause.

    Insert the clause at 552.237-73, Restriction on Disclosure of 
Information, in solicitations and contracts for proposal evaluation and 
analysis services.

              PART 538_FEDERAL SUPPLY SCHEDULE CONTRACTING

  Subpart 538.2_Establishing and Administering Federal Supply Schedules

Sec.

Sec. 538.270 Evaluation of multiple award schedule (MAS) offers.

Sec. 538.271 MAS contract awards.

Sec. 538.272 MAS price reductions.

Sec. 538.273 Contract clauses.

                  Subpart 538.70_Cooperative Purchasing


Sec. 538.7000 Scope of subpart.

Sec. 538.7001 Definitions.

Sec. 538.7002 General.

Sec. 538.7003 Policy.

Sec. 538.7004 Solicitation provisions and contract clauses.

                   Subpart 538.71_Recovery Purchasing


Sec. 538.7100 Scope of subpart.

Sec. 538.7101 Definitions.

Sec. 538.7102 General.

Sec. 538.7103 Policy.

Sec. 538.7104 Solicitation provisions and contract clauses.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37227, July 9, 1999, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 538 appear at 69 FR 
28065, May 18, 2004.

  Subpart 538.2_Establishing and Administering Federal Supply Schedules



Sec. 538.270  Evaluation of multiple award schedule (MAS) offers.

    (a) The Government will seek to obtain the offeror's best price (the 
best

[[Page 262]]

price given to the most favored customer). However, the Government 
recognizes that the terms and conditions of commercial sales vary and 
there may be legitimate reasons why the best price is not achieved.
    (b) Establish negotiation objectives based on a review of relevant 
data and determine price reasonableness.
    (c) When establishing negotiation objectives and determining price 
reasonableness, compare the terms and conditions of the MAS solicitation 
with the terms and conditions of agreements with the offeror's 
commercial customers. When determining the Government's price 
negotiation objectives, consider the following factors:
    (1) Aggregate volume of anticipated purchases.
    (2) The purchase of a minimum quantity or a pattern of historic 
purchases.
    (3) Prices taking into consideration any combination of discounts 
and concessions offered to commercial customers.
    (4) Length of the contract period.
    (5) Warranties, training, and/or maintenance included in the 
purchase price or provided at additional cost to the product prices.
    (6) Ordering and delivery practices.
    (7) Any other relevant information, including differences between 
the MAS solicitation and commercial terms and conditions that may 
warrant differentials between the offer and the discounts offered to the 
most favored commercial customer(s). For example, an offeror may incur 
more expense selling to the Government than to the customer who receives 
the offeror's best price, or the customer (e.g., dealer, distributor, 
original equipment manufacturer, other reseller) who receives the best 
price may perform certain value-added functions for the offeror that the 
Government does not perform. In such cases, some reduction in the 
discount given to the Government may be appropriate. If the best price 
is not offered to the Government, you should ask the offeror to identify 
and explain the reason for any differences. Do not require offerors to 
provide detailed cost breakdowns.
    (d) You may award a contract containing pricing which is less 
favorable than the best price the offeror extends to any commercial 
customer for similar purchases if you make a determination that both of 
the following conditions exist:
    (1) The prices offered to the Government are fair and reasonable, 
even though comparable discounts were not negotiated.
    (2) Award is otherwise in the best interest of the Government.



Sec. 538.271  MAS contract awards.

    (a) MAS awards will be for commercial items as defined in FAR 2.101. 
Negotiate contracts as a discount from established catalog prices.
    (b) Before awarding any MAS contract, determine that the offered 
prices are fair and reasonable (see FAR subpart 15.4 and 538.270). 
Document the negotiation and your determination using FAR 15.406-3 as 
guidance.
    (c) State clearly in the award document the price/discount 
relationship between the Government and the identified commercial 
customer (or category of customers) on which the award is predicated.



Sec. 538.272  MAS price reductions.

    (a) Section 552.238-75, Price Reductions, requires the contractor to 
maintain during the contract period the negotiated price/discount 
relationship (and/or term and condition relationship) between the 
eligible ordering activities and the offeror's customer or category of 
customers on which the contract award was predicated (see 538.271(c)). 
If a change occurs in the contractor's commercial pricing or discount 
arrangement applicable to the identified commercial customer (or 
category of customers) that results in a less advantageous relationship 
between the eligible ordering activities and this customer or category 
of customers, the change constitutes a ``price reduction.''
    (b) Make sure that the contractor understands the requirements of 
section 552.238-75 and agrees to report to you all price reductions as 
provided for in the clause.

[64 FR 37227, July 9, 1999, as amended at 68 FR 24378, May 7, 2003]

[[Page 263]]



Sec. 538.273  Contract clauses.

    (a) Multiple award schedules. Insert in solicitations and contracts:
    (1) 552.238-70, Identification of Electronic Office Equipment 
Providing Accessibility for the Handicapped, if you include electronic 
office equipment items.
    (2) 552.238-71, Submission and Distribution of Authorized FSS 
Schedule Pricelists.
    (i) Use Alternate I, in solicitations and contracts for--
    (A) Federal Supply Schedule 70;
    (B) The Consolidated Schedule contracts containing information 
technology Special Item Numbers;
    (C) Federal Supply Schedule 84; and
    (D) Federal Supply Schedules for recovery purchasing (see 538.7102), 
use Alternate I.
    (ii) If GSA is not prepared to accept electronic submissions for a 
particular schedule delete--
    (A) The paragraph identifier ``(i)'' in (b)(1) and the word ``and'' 
at the end of paragraph (b)(1)(i); and
    (B) Paragraphs (b)(1)(ii) and (b)(3).
    (3) 552.238-72, Identification of Products That Have Environmental 
Attributes.
    (4) 552.238-73, Cancellation.
    (b) Multiple and single award schedules. Insert in solicitations and 
contracts:
    (1) 552.238-74, Industrial Funding Fee and Sales Reportings.
    (2) 552.238-75, Price Reductions. Use Alternate I in solicitations 
and contracts for--
    (i) Federal Supply Schedule 70;
    (ii) The Consolidated Schedule containing information technology 
Special Item Numbers;
    (iii) Federal Supply Schedule 84; and
    (iv) Federal Supply Schedules for recovery purchasing (see 
538.7102).

[64 FR 37227, July 9, 1999, as amended at 68 FR 24378, May 7, 2003; 68 
FR 41288, July 11, 2003; 68 FR 52128, Sept. 2, 2003; 72 FR 4652, Feb. 1, 
2007; 73 FR 54338, Sept. 19, 2008]

                  Subpart 538.70_Cooperative Purchasing

    Source: 68 FR 24378, May 7, 2003, unless otherwise noted.



Sec. 538.7000  Scope of subpart.

    This subpart prescribes policies and procedures that implement 
statutory provisions authorizing non-federal organizations to use--
    (a) Federal Supply Schedule 70;
    (b) The Consolidated Schedule contracts containing information 
technology Special Item Numbers (SINs); and
    (c) Federal Supply Schedule 84.

[73 FR 54338, Sept. 19, 2008]



Sec. 538.7001  Definitions.

    Ordering activity (also called ``ordering agency'' and ``ordering 
office'') means an eligible ordering activity (see 552.238-78) 
authorized to place orders under Federal supply schedule contracts.
    Schedule 70, as used in this subpart, means Schedule 70 information 
technology contracts, and Consolidated Products and Services Schedule 
contracts containing information technology SINs. The Consolidated 
Products and Services Schedule is a compilation of multiple individual 
Federal Supply Schedules; therefore, only the SINs that fall under 
Schedule 70 of the Consolidated Products and Services Schedule will 
apply to Cooperative Purchasing. No other Schedules, or SINs, containing 
information technology outside of Schedule 70 SINs, and Consolidated 
Products and Services Schedule contracts containing Schedule 70 SINs, 
will apply.
    Schedule 84 means the Federal Supply Schedule for alarm and signal 
systems, facility management systems, firefighting and rescue equipment, 
law enforcement and security equipment, marine craft and related 
equipment, special purpose clothing, and related services (as contained 
in Federal Supply Classification Code Group 84 or any amended or 
subsequent version of that Federal supply classification group).
    State and local government entities, as used in this subpart, means 
the states of the United States, counties, municipalities, cities, 
towns, townships, tribal governments, public authorities (including 
public or Indian housing agencies under the United States Housing Act of 
1937), school districts, colleges

[[Page 264]]

and other institutions of higher education, council of governments 
(incorporated or not), regional or interstate government entities, or 
any agency or instrumentality of the preceding entities (including any 
local educational agency or institution of higher education), and 
including legislative and judicial departments. The term does not 
include contractors of, or grantees of, State or local governments.
    (1) Local educational agency has the meaning given that term in 
section 8013 of the Elementary and Secondary Education Act of 1965 (20 
U.S.C. 7713).
    (2) Institution of higher education has the meaning given that term 
in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 
1001(a)).
    (3) Tribal government means--
    (i) The governing body of any Indian tribe, band, nation, or other 
organized group or community located in the continental United States 
(excluding the State of Alaska) that is recognized as eligible for the 
special programs and services provided by the United States to Indians 
because of their status as Indians; and
    (ii) Any Alaska Native regional or village corporation established 
pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et 
seq.).

[68 FR 24378, May 7, 2003, as amended at 73 FR 54338, Sept. 19, 2008]



Sec. 538.7002  General.

    (a) 40 U.S.C. 501, (the Act) authorizes the Administrator of General 
Services to procure and supply personal property and nonpersonal 
services for the use of Executive agencies. Under 40 U.S.C. 502, the 
goods and services available to executive agencies are also available to 
mixed ownership Government corporations, establishments within the 
legislative or judicial branches of Government (excepting the Senate, 
House of Representatives, Architect of the Capitol, and any activities 
under the direction of the Architect of the Capitol), the District of 
Columbia, and Qualified Non-profit Agencies.
    (b) Section 211 of the E-Government Act of 2002 amends 40 U.S.C. 502 
to authorize the Administrator of General Services to provide for use of 
certain Federal supply schedules of the GSA by a State or local 
government, which includes any State, local, regional, or tribal 
government, or any instrumentality thereof (including any local 
educational agency or institution of higher education).
    (c) Pub.L. 110-248, The Local Preparedness Acquisition Act, 
authorizes the Administrator of General Services to provide for the use 
by state or local governments of Federal Supply Schedules of the General 
Services Administration (GSA) for alarm and signal systems, facility 
management systems, firefighting and rescue equipment, law enforcement 
and security equipment, marine craft and related equipment, special 
purpose clothing, and related services (as contained in Schedule 84).
    (d) State and local governments are authorized to procure from 
Schedule 70 contracts, Consolidated Schedule contracts containing 
information technology SINs, and Schedule 84 contracts. A listing of the 
participating contractors and SINs for the products and services that 
are available through Schedule 70 contracts, the Consolidated Schedule 
contracts containing information technology SINs, and Schedule 84 
contracts, is available in GSA's Schedules e-Library at www.gsa.gov/
elibrary. Click on Schedules e-Library, and under Cooperative 
Purchasing, click on ``View authorized vendors.'' The contractors and 
the products and services available for Cooperative Purchasing will be 
labeled with the Cooperative Purchasing icon.

[68 FR 24378, May 7, 2003, as amended at 73 FR 54338, Sept. 19, 2008]



Sec. 538.7003  Policy.

    Preparing solicitations when schedules are open to eligible non-
federal entities. When opening Schedule 70, the Consolidated Schedule 
containing information technology SINs, and Schedule 84, for use by 
eligible non-federal entities, the contracting officer must make minor 
modifications to certain Federal Acquisition Regulation and GSAM 
provisions and clauses in order to make clear distinctions between the 
rights and responsibilities of the U.S. Government in its management and 
regulatory capacity pursuant to which it awards schedule contracts and 
fulfills associated Federal requirements versus

[[Page 265]]

the rights and responsibilities of eligible ordering activities placing 
orders to fulfill agency needs. Accordingly, the contracting officer is 
authorized to modify the following FAR provisions/clauses to delete 
``Government'' or similar language referring to the U.S. Government and 
substitute ``ordering activity'' or similar language when preparing 
solicitations and contracts to be awarded under Schedule 70, and the 
Consolidated Schedule containing information technology SINs, and 
Schedule 84. When such changes are made, the word ``(DEVIATION)'' shall 
be added at the end of the title of the provision or clause. These 
clauses include but are not limited to:
    (a) 52.212-4, Contract Terms and Conditions--Commercial Items.
    (b) 52.216-18, Ordering.
    (c) 52.216-19, Order Limitations.
    (d) 52.229-1, State and Local Taxes.
    (e) 52.229-3, Federal, State, and Local Taxes.
    (f) 52.232-7, Payments Under Time-and-Materials and Labor-Hour 
Contracts.
    (g) 52.232-17, Interest.
    (h) 52.232-19, Availability of Funds for the Next Fiscal Year.
    (i) 52.232-34, Payment by Electronic Funds Transfer--Other than 
Central Contractor Registration
    (j) 52.232-36, Payment by Third Party.
    (k) 52.237-3, Continuity of Services.
    (l) 52.246-4, Inspection of Services-Fixed Price.
    (m) 52.246-6, Inspection-Time-and-Material and Labor-Hour.
    (n) 52.247-34, F.O.B. Destination.
    (o) 52.247-38, F.O.B. Inland Carrier Point of Exportation.

[68 FR 24378, May 7, 2003, as amended at 73 FR 54338, Sept. 19, 2008]



Sec. 538.7004  Solicitation provisions and contract clauses.

    (a) The contracting officer shall insert the clause at 552.238-77, 
Definition (Federal Supply Schedules), in solicitations and contracts 
for--
    (1) Schedule 70;
    (2) The Consolidated Schedule containing information technology 
SINs; and
    (3) Schedule 84.
    (b) The contracting officer shall insert the clause at 552.238-78, 
Scope of Contract (Eligible Ordering Activities), in solicitations and 
contracts for--
    (1) Schedule 70; and
    (2) The Consolidated Schedule containing information technology 
SINs; and
    (3) Schedule 84.
    (c) The contracting officer shall insert the clause at 552.238-79, 
Use of Federal Supply Schedule Contracts by Certain Entities--
Cooperative Purchasing, in solicitations and contracts for--
    (1) Schedule 70;
    (2) The Consolidated Schedule containing information technology 
SINs; and
    (3) Schedule 84.
    (d) See 552.101-70 for authorized FAR deviations.

[73 FR 54339, Sept. 19, 2008]

                   Subpart 538.71_Recovery Purchasing

    Source: 72 FR 4653, Feb. 1, 2007, unless otherwise noted.



Sec. 538.7100  Scope of subpart.

    This subpart prescribes policies and procedures to implement the 
John Warner National Defense Authorization Act for Fiscal Year 2007 
(Pub. L. 109-364) authorizing non-federal organizations to use Federal 
Supply Schedule contracts to purchase products and services to be used 
for recovery from major disasters, terrorism or nuclear, biological, 
chemical, or radiological attack.



Sec. 538.7101  Definitions.

    The definitions in subsection 538.7001 shall apply for purposes of 
this subpart.



Sec. 538.7102  General.

    (a) Section 833 of the John Warner National Defense Authorization 
Act for Fiscal Year 2007 (Pub. L. 109-364) amends 40 U.S.C. 502 to 
authorize the Administrator of General Services to provide to State and 
local governments the use of Federal Supply Schedules of the GSA for 
purchase of products and services to be used to facilitate recovery from 
a major disaster declared by the President under the Robert T. Stafford 
Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.) or 
to

[[Page 266]]

facilitate recovery from terrorism or nuclear, biological, chemical, or 
radiological attack. Section 833 requires the Secretary of Homeland 
Security to determine which products and services qualify before the 
Administrator provides for the use of the Federal Supply Schedules. Use 
of Federal supply schedules by State and local governments is voluntary. 
Agreement of a schedule contractor to offer recovery purchasing under 
the contract and acceptance of any order for recovery purchasing from a 
State or local government is voluntary.
    (b) State and local governments are authorized to use Federal Supply 
Schedules to procure products and services determined by the Secretary 
of Homeland Security to be used to facilitate recovery from major 
disasters, terrorism, or nuclear, biological, chemical, or radiological 
attack. A listing of the Federal Supply Schedules for the products and 
services is available in GSA's Schedules e-Library at Web site http://
www.gsaelibrary.gsa.gov. Click on the link, ``Disaster Recovery 
Purchasing, State and Local.'' The participating contractors and the 
products and services available for recovery purchasing will be labeled 
with the Disaster Recovery Purchasing ICON.
    (c) State and local governments that wish to use the Federal Supply 
Schedules to facilitate recovery from major disasters or attacks are 
responsible for ensuring that only authorized representatives of their 
governments place orders against these schedules and that procured 
products and services are used only for the purposes authorized by 
Section 833 of Public Law 109-364.



Sec. 538.7103  Policy.

    Preparing solicitations when schedules are open to eligible non-
federal entities. When opening the Federal Supply Schedules for products 
and services determined by the Secretary of Homeland Security, for use 
by eligible non-federal entities, the contracting officer must make 
minor modifications to certain Federal Acquisition Regulation (FAR) and 
GSAM provisions and clauses in order to make clear distinctions between 
the rights and responsibilities of the U.S. Government in its management 
and regulatory capacity pursuant to which it awards schedule contracts 
and fulfills associated Federal requirements versus the rights and 
responsibilities of eligible ordering activities placing orders to 
fulfill agency needs. Accordingly, the contracting officer is authorized 
to modify the following FAR provisions/clauses to delete ``Government'' 
or similar language referring to the U.S. Government and substitute 
``ordering activity'' or similar language when preparing solicitations 
and contracts to be awarded under the Federal Supply Schedules for 
products and services determined by the Secretary of Homeland Security. 
When such changes are made, the word ``(DEVIATION)'' shall be added at 
the end of the title of the provision or clause. These clauses include 
but are not limited to--
    (a) 52.212-4, Contract Terms and Conditions--Commercial Items.
    (b) 52.216-18, Ordering.
    (c) 52.216-19, Order Limitations.
    (d) 52.229-1, State and Local Taxes.
    (e) 52.229-3, Federal, State, and Local Taxes.
    (f) 52.232-7, Payments Under Time-and-Materials and Labor-Hour 
Contracts.
    (g) 52.232-17, Interest.
    (h) 52.232-19, Availability of Funds for the Next Fiscal Year.
    (i) 52.232-34, Payment by Electronic Funds Transfer--Other than 
Central Contractor Registration.
    (j) 52.232-36, Payment by Third Party.
    (k) 52.237-3, Continuity of Services.
    (l) 52.246-4, Inspection of Services-Fixed Price.
    (m) 52.246-6, Inspection-Time-and-Material and Labor-Hour.
    (n) 52.247-34, F.O.B. Destination.
    (o) 52.247-38, F.O.B. Inland Carrier Point of Exportation.



Sec. 538.7104  Solicitation provisions and contract clauses.

    (a) The contracting officer shall insert the clause at 552.238-76, 
Definition (Federal Supply Schedules)--Recovery Purchasing, in Federal 
Supply Schedule solicitations and contracts which contain products and 
services determined by the Secretary of Homeland Security to facilitate 
recovery from major disasters, terrorism, or nuclear,

[[Page 267]]

biological, chemical, or radiological attack.
    (b) The contracting officer shall insert the clause at 552.238-78, 
Scope of Contract (Eligible Ordering Activities), with Alternate I in 
Federal Supply Schedule solicitations and contracts which contain 
products and services determined by the Secretary of Homeland Security 
to facilitate recovery from major disasters, terrorism, or nuclear, 
biological, chemical, or radiological attack.
    (c) The contracting officer shall insert the clause at 552.238-80, 
Use of Federal Supply Schedule Contracts by Certain Entities--Recovery 
Purchasing, in Federal Supply Schedule solicitations and contracts which 
contain products and services determined by the Secretary of Homeland 
Security that facilitate recovery from major disasters, terrorism, or 
nuclear, biological, chemical, or radiological attack.
    (d) See 552.101-70 for authorized Federal Acquisition Regulation 
deviations.

             PART 539_ACQUISITION OF INFORMATION TECHNOLOGY

 Subpart 539.70_Additional Requirements for Purchases Not in Support of 
                        National Security Systems

Sec.

Sec. 539.7000 Scope of subpart.

Sec. 539.7001 Policy.

Sec. 539.7002 Solicitation provisions and contract clauses.

    Authority: 40 U.S.C. 121(c).

    Source: 76 FR 34888, June 15, 2011, unless otherwise noted.

 Subpart 539.70_Additional Requirements for Purchases Not in Support of 
                        National Security Systems



Sec. 539.7000  Scope of subpart.

    This subpart prescribes acquisition policies and procedures for use 
in acquiring information technology supplies, services and systems not 
in support of national security systems, as defined by FAR part 39.



Sec. 539.7001  Policy.

    (a) GSA must provide information security for the information and 
information systems that support the operations and assets of the 
agency, including those provided or managed by another agency, 
contractor, or other source. Section 3544(a)(1)(A)(ii) of the Federal 
Information Security Management Act (FISMA) describes Federal agency 
security responsibilities as including ``information systems used or 
operated by an agency or by a contractor of an agency or other 
organization on behalf of an agency.''
    (b) Employees responsible for or procuring information technology 
supplies, services and systems shall possess the appropriate security 
clearance associated with the level of security classification related 
to the acquisition. They include, but are not limited to contracting 
officers, contract specialists, project/program managers, and 
contracting officer representatives.
    (c) Contracting activities shall coordinate with requiring 
activities and program officials to ensure that the solicitation 
documents include the appropriate information security requirements. The 
information security requirements must be sufficiently detailed to 
enable service providers to fully understand the information security 
regulations, mandates, and requirements that they will be subject to 
under the contract or task order.
    (d) GSA's Office of the Senior Agency Information Security Officer 
issued CIO IT Security Procedural Guide 09-48, ``Security Language for 
Information Technology Acquisitions Efforts,'' to provide IT security 
standards, policies and reporting requirements that shall be inserted in 
all solicitations and contracts or task orders where an information 
system is contractor owned and operated on behalf of the Federal 
Government. The guide can be accessed at http://www.gsa.gov/portal/
category/25690.



Sec. 539.7002  Solicitation provisions and contract clauses.

    (a) The contracting officer shall insert the provision at 552.239-
70, Information Technology Security Plan and Security Authorization, in 
solicitations that include information technology supplies, services or 
systems in

[[Page 268]]

which the contractor will have physical or electronic access to 
government information that directly supports the mission of GSA.
    (b) The contracting officer shall insert the clause at 552.239-71, 
Security Requirements for Unclassified Information Technology Resources, 
in solicitations and contracts containing the provision at 552.239-70. 
The provision and clause shall not be inserted in solicitations and 
contracts for personal services with individuals.

[[Page 269]]

                    SUBCHAPTER G_CONTRACT MANAGEMENT

                PART 541_ACQUISITION OF UTILITY SERVICES

       Subpart 541.5_Solicitation Provisions and Contract Clauses

Sec.

Sec. 541.501 Solicitation provision and contract clauses.

    Authority: 40 U.S.C. 121(c).

       Subpart 541.5_Solicitation Provisions and Contract Clauses



Sec. 541.501  Solicitation provisions and contract clauses.

    In addition to the solicitation terms, provisions and contract 
clauses at FAR 41.501(c), the contracting officer shall include the 
following clauses--
    (a) 552.241-70, Availability of Funds for the Next Fiscal Year or 
Quarter. As prescribed in 541.501, insert the clause 552.241-70, 
Availability of Funds for the Next Fiscal Year or Quarter, instead of 
FAR 52.232-19, in all utility acquisitions; and
    (b) 552.241-71, Disputes (Utility Contracts). As prescribed in 
541.501, insert clause 552.241-71, Disputes (Utility Contracts), in 
solicitations and contracts for utility services subject to the 
jurisdiction and regulation of a utility rate commission.

[75 FR 48873, Aug. 12, 2010]

           PART 542_CONTRACT ADMINISTRATION AND AUDIT SERVICES

          Subpart 542.11_Production Surveillance and Reporting

Sec.

Sec. 542.1107 Contract clause.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37228, July 9, 1999, unless otherwise noted.

          Subpart 542.11_Production Surveillance and Reporting



Sec. 542.1107  Contract clause.

    The contracting officer shall insert 552.242-70, Status Report of 
Orders and Shipments, in solicitations and indefinite quantity and 
requirements contracts for Stock or Special Order Program items. The 
clause may be used in indefinite-delivery definite-quantity contracts 
for Stock or Special Order Program items when close monitoring is 
necessary because numerous shipments are involved.

[74 FR 863, Jan. 9, 2009]

                     PART 543_CONTRACT MODIFICATIONS

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

    Source: 64 FR 37228, July 9, 1999, unless otherwise noted.

                       Subpart 543.2_Change Orders



Sec. 543.205  Contract clauses.

    The contracting officer shall insert 552.243-71, Equitable 
Adjustments, in solicitations and contracts containing FAR 52.243-4, 
Changes.

[74 FR 864, Jan. 9, 2009]

                       PART 546_QUALITY ASSURANCE

                     Subpart 546.3_Contract Clauses

Sec.

Sec. 546.302 Fixed-price supply contracts.

Sec. 546.302-70 Source inspection by Quality Approved Manufacturer for 
          fixed-price supply contracts.

Sec. 546.302-71 Source inspection.

Sec. 546.302-72 Destination inspection.

Sec. 546.312 Construction contracts.

                        Subpart 546.7_Warranties


Sec. 546.708 Warranties of data.

Sec. 546.710 Contract clause.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37228, July 9, 1999, unless otherwise noted.

[[Page 270]]

                     Subpart 546.3_Contract Clauses



Sec. 546.302  Fixed-price supply contracts.



Sec. 546.302-70  Source inspection by Quality Approved Manufacturer for 
          fixed-price supply contracts.

    (a) For solicitations issued and contracts awarded by FAS that will 
exceed the simplified acquisition threshold and include the clause at 
52.246-2, Inspection of Supplies--Fixed-Price:
    (1) The contracting officer shall insert the clause at 552.246-70, 
Source Inspection by Quality Approved Manufacturer, in solicitations and 
contracts that provide for source inspection for the Stock and Special 
Order Programs.
    (2) The contracting officer may authorize inspection and testing at 
manufacturing plants or other facilities located outside the United 
States, Puerto Rico, or the U.S. Virgin Islands, under paragraph (a)(1) 
of the clause at 552.246-70 under any of the circumstances listed below 
after coordinating the authorization with QVOC and documenting the 
authorization in the file.
    (i) Inspection services are available from another Federal agency 
with primary inspection responsibility in the geographic area.
    (ii) An inspection interchange agreement exists with another agency 
for inspection at a contractor's plant.
    (iii) Other considerations will ensure more economical and effective 
inspection consistent with the Government's interest.
    (b) When the estimated value of the acquisition is below the 
simplified acquisition threshold and will include the clause at 52.246-
2, Inspection of Supplies--Fixed-Price, insert the clause at 552.246-70, 
Source Inspection by Quality Approved Manufacturer only:
    (1) In solicitations and contracts that support the Wildfire 
program.
    (2) In contracts when a pattern of acquisitions demonstrates an 
ongoing relationship with the contractor.

[74 FR 26108, June 1, 2009]



Sec. 546.302-71  Source inspection.

    For solicitations and contracts issued by FAS, if Government 
personnel at the source will perform inspection, insert 552.246-71, 
Source Inspection by Government.

[64 FR 37228, July 9, 1999, as amended at 74 FR 26108, June 1, 2009]



Sec. 546.302-72  Destination inspection.

    The contracting officer shall include the clause at 552.246-78, 
Inspection at Destination (JUL 09)in supply contracts that require 
inspection at destination.

[74 FR 26108, June 1, 2009]



Sec. 546.312  Construction contracts.

    Insert the clause at 552.246-72, Final Inspection and Tests, in 
solicitations and contracts for construction that include FAR 52.246-12, 
Inspection of Construction.

                        Subpart 546.7_Warranties



Sec. 546.708  Warranties of data.

    (a) The contracting officer shall use warranties of data only when 
both of the following conditions are applicable:
    (1) Use of a warranty is in the Government's interest and is 
documented; and
    (2) The contracting director concurs with the decision.
    (b) The contracting officer shall consult with the technical or 
specification manager responsible for developing any warranties of data.

[74 FR 26108, June 1, 2009]



Sec. 546.710  Contract clause.

    The Contracting officer shall insert the clause at 552.246-77, 
Additional Contract Warranty Provisions for Supplies of a Noncomplex 
Nature, when using the clause at 52.246-17 in solicitations and 
contracts.

[74 FR 26108, June 1, 2009]

                           PART 547 [RESERVED]

                    PART 549_TERMINATION OF CONTRACTS

    Authority: 40 U.S.C. 121(c).

Subpart 549.5 [Reserved]

[[Page 271]]

                     SUBCHAPTER H_CLAUSES AND FORMS

          PART 552_SOLICITATION PROVISIONS AND CONTRACT CLAUSES

Sec.

Sec. 552.000 Scope of part.

       Subpart 552.1_Instructions for Using Provisions and Clauses


Sec. 552.101-70 Using part 552.

Sec. 552.102 Incorporating provisions and clauses.

Sec. 552.103 Identification of provisions and clauses.

Sec. 552.104 Procedures for modifying and completing provisions and 
          clauses.

Sec. 552.105 Procedures for using alternates.

Sec. 552.107-70 Provisions and clauses prescribed in subpart 552.1.

              Subpart 552.2_Text of Provisions and Clauses


Sec. 552.200 Scope of subpart.

Sec. 552.203-71 Restriction on Advertising.

Sec. 552.204-9 Personal Identity Verification Requirements.

Sec. 552.211-70--522.211-71 [Reserved]

Sec. 552.211-72 Reference to Specifications in Drawings.

Sec. 552.211-73 Marking.

Sec. 552.211-74 [Reserved]

Sec. 552.211-75 Preservation, Packaging and Packing.

Sec. 552.211-76 Charges for packaging, packing, and marking.

Sec. 552.211-77 Packing List.

Sec. 552.211-78 [Reserved]

Sec. 552.211-79 Acceptable Age of Supplies.

Sec. 552.211-80 Age on Delivery.

Sec. 552.211-81 Time of Shipment.

Sec. 552.211-82 [Reserved]

Sec. 552.211-83 Availability for Inspection, Testing, and Shipment/
          Delivery.

Sec. 552.211-84 [Reserved]

Sec. 552.211-85 Consistent pack and package requirements.

Sec. 552.211-86 Maximum weight per shipping container.

Sec. 552.211-87 Export packing.

Sec. 552.211-88 Vehicle export preparation.

Sec. 552.211-89 Non-manufactured wood packaging material for export.

Sec. 552.211-90 Small parts.

Sec. 552.211-91 Vehicle decals, stickers, and data plates.

Sec. 552.211-92 Radio Frequency Identification (RFID) using passive 
          tags.

Sec. 552.211-93 Unique Item Identification (UID).

Sec. 552.211-94 Time of delivery.

Sec. 552.212-4 Contract Terms and Conditions--Commercial Items

Sec. 552.212-70 [Reserved]

Sec. 552.212-71 Contract Terms and Conditions Applicable to GSA 
          Acquisition of Commercial Items.

Sec. 552.212-72 Contract Terms and Conditions Required To Implement 
          Statutes or Executive Orders Applicable to GSA Acquisition of 
          Commercial Items.

Sec. 552.212-73 [Reserved]

Sec. 552.214-70 ``All or None'' Bids.

Sec. 552.214-71 Progressive Awards and Monthly Quantity Allocations.

Sec. 552.214-72 Bid Sample Requirements.

Sec. 552.215-70 Examination of Records by GSA.

Sec. 552.215-71 Examination of Records by GSA (Multiple Award Schedule).

Sec. 552.215-72 Price Adjustment--Failure To Provide Accurate 
          Information.

Sec. 552.216-70 Economic Price Adjustment--FSS Multiple Award Schedule 
          Contracts.

Sec. 552.216-71 Economic Price Adjustment--Special Order Program 
          Contracts.

Sec. 552.216-72 Placement of Orders.

Sec. 552.216-73 Ordering Information.

Sec. 552.216-74 Task-Order and Delivery-Order Ombudsman.

Sec. 552.217-70 Evaluation of Options.

Sec. 552.217-71 Notice Regarding Option(s).

Sec. 552.219-70 Allocation of Orders--Partially Set-Aside Items.

Sec. 552.219-71 Notice to Offerors of Subcontracting Plan Requirements.

Sec. 552.219-72 Preparation, Submission, and Negotiation of 
          Subcontracting Plans.

Sec. 552.219-73 Goals for Subcontracting Plan.

Sec. 552.219-74 Section 8(a) Direct Award.

Sec. 552.219-75 GSA Mentor-Prot[eacute]g[eacute] Program.

Sec. 552.219-76 Mentor Requirements and Evaluation.

Sec. 552.223-70 Hazardous Substances.

Sec. 552.223-71 Nonconforming Hazardous Materials.

Sec. 552.223-72 Hazardous Material Information.

Sec. 552.227-70 Government Rights (Unlimited).

Sec. 552.227-71 Drawings and Other Data To Become Property of 
          Government.

Sec. 552.228-5 Government as Additional Insured.

Sec. 552.229-70 Federal, State, and Local Taxes.

Sec. 552.229-71 Federal Excise Tax--DC Government.

Sec. 552.232-1 Payments.

Sec. 552.232-23 Assignment of Claims.

Sec. 552.232-25 Prompt Payment.

Sec. 552.232-72 Final Payment Under Building Services Contracts.

Sec. 552.232-77 Payment By Government Charge Card.

Sec. 552.236-70 Definitions.

Sec. 552.236-71 Authorities and Limitations.

Sec. 552.236-72 Specialist.

[[Page 272]]


Sec. 552.236-73 Basis of Award--Construction Contract.

Sec. 552.236-74 Working Hours.

Sec. 552.236-75 Use of Premises.

Sec. 552.236-76 Measurements.

Sec. 552.236-77 Specifications and Drawings.

Sec. 552.236-78 Shop Drawings, Coordination Drawings, and Schedules.

Sec. 552.236-79 Samples.

Sec. 552.236-80 Heat.

Sec. 552.236-81 Use of Equipment by the Government.

Sec. 552.236-82 Subcontracts.

Sec. 552.236-83 Requirement for a Project Labor Agreement.

Sec. 552.237-70 Qualifications of Offerors.

Sec. 552.237-71 Qualifications of Employees.

Sec. 552.237-72 Prohibition Regarding ``Quasi-Military Armed Forces.''

Sec. 552.237-73 Restriction on Disclosure of Information.

Sec. 552.238-70 Identification of Electronic Office Equipment Providing 
          Accessibility for the Handicapped.

Sec. 552.238-71 Submission and Distribution of Authorized FSS Schedule 
          Pricelists.

Sec. 552.238-72 Identification of Products That Have Environmental 
          Attributes.

Sec. 552.238-73 Cancellation.

Sec. 552.238-74 Industrial Funding Fee and Sales Reporting.

Sec. 552.238-75 Price Reductions.

Sec. 552.238-76 Definition (Federal Supply Schedules)--Recovery 
          Purchasing.

Sec. 552.238-77 Definition (Federal Supply Schedules).

Sec. 552.238-78 Scope of Contract (Eligible Ordering Activities).

Sec. 552.238-79 Use of Federal Supply Schedule Contracts by Certain 
          Entities--Cooperative Purchasing.

Sec. 552.238-80 Use of Federal Supply Schedule Contracts by Certain 
          Entities--Recovery Purchasing.

Sec. 552.239-70 Information Technology Security Plan and Security 
          Authorization.

Sec. 552.239-71 Security Requirements for Unclassified Information 
          Technology Resources.

Sec. 552.241-70 Availability of Funds for the Next Fiscal Year or 
          Quarter.

Sec. 552.241-71 Disputes (Utility Contracts).

Sec. 552.242-70 Status Report of Orders and Shipments.

Sec. 552.243-71 Equitable Adjustments.

Sec. 552.246-70 Source Inspection by Quality Approved Manufacturer.

Sec. 552.246-71 Source Inspection by Government.

Sec. 552.246-72 Final Inspection and Tests.

Sec. 552.246-77 Additional Contract Warranty Provisions for Supplies of 
          a Noncomplex Nature.

Sec. 552.246-78 Inspection at Destination.

Sec. 552.252-5 Authorized Deviations in Provisions.

Sec. 552.252-6 Authorized Deviations in Clauses.

Sec. 552.270-1 Instructions to Offerors--Acquisition of Leasehold 
          Interests in Real Property.

Sec. 552.270-2 Historic Preference.

Sec. 552.270-3 Parties To Execute Lease.

Sec. 552.270-4 Definitions.

Sec. 552.270-5 Subletting and Assignment.

Sec. 552.270-6 Maintenance of Building and Premises--Right of Entry.

Sec. 552.270-7 Fire and Casualty Damage.

Sec. 552.270-8 Compliance with Applicable Law.

Sec. 552.270-9 Inspection--Right of Entry.

Sec. 552.270-10 Failure in Performance.

Sec. 552.270-11 Successors Bound.

Sec. 552.270-12 Alterations.

Sec. 552.270-13 Proposals for Adjustment.

Sec. 552.270-14 Changes.

Sec. 552.270-15 Liquidated Damages.

Sec. 552.270-16 Adjustment for Vacant Premises.

Sec. 552.270-17 Delivery and Condition.

Sec. 552.270-18 Default in Delivery--Time Extensions.

Sec. 552.270-19 Progressive Occupancy.

Sec. 552.270-20 Payment.

Sec. 552.270-21 Effect of Acceptance and Occupancy.

Sec. 552.270-22 Default by Lessor During the Term.

Sec. 552.270-23 Subordination, Nondisturbance and Attornment.

Sec. 552.270-24 Statement of Lease.

Sec. 552.270-25 Substitution of Tenant Agency.

Sec. 552.270-26 No Waiver.

Sec. 552.270-27 Integrated Agreement.

Sec. 552.270-28 Mutuality of Obligation.

Sec. 552.270-29 Acceptance of Space.

Sec. 552.270-30 Price Adjustment for Illegal or Improper Activity.

Sec. 552.270-31 Prompt Payment.

Sec. 552.270-32 Covenant Against Contingent Fees.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37229, July 9, 1999, unless otherwise noted.



Sec. 552.000  Scope of part.

    This part provides the text of provisions and clauses which are 
unique to GSA or supplement the FAR.

       Subpart 552.1_Instructions for Using Provisions and Clauses



Sec. 552.101-70  Using part 552.

    (a) Definition. ``Clause,'' as used in this subpart, means provision 
or clause as defined in FAR 52.101(a).
    (b) Numbering. (1) Clauses which are ``substantially'' the same as 
FAR clauses and clauses to be used instead of FAR clauses are identified 
as follows:

[[Page 273]]

    (i) The clause has the same title as a clause in the FAR.
    (ii) The number 5 precedes the clause.
    (iii) The clause appears under the same subsection number and 
caption as in the FAR.
    (2) Supplemental clauses are numbered in the same manner as the FAR, 
except:
    (i) The chapter number precedes the clause.
    (ii) The subsection numbers begin with 70.
    (iii) The clauses are sequentially numbered, e.g., 552.232-70, 
552.232-71, etc.



Sec. 552.102  Incorporating provisions and clauses.

    You may incorporate clauses prescribed in the GSAR for solicitations 
and contracts by reference.



Sec. 552.103  Identification of provisions and clauses.

    Deviations. If the GSAR prescribes a class deviation from a FAR 
clause, identify the clause by the GSAR citation (e.g., 552.232-8 PROMPT 
PAYMENT DISCOUNT (NOV 1987) (DEVIATION FAR 552.232-8)).



Sec. 552.104  Procedures for modifying and completing provisions and 
          clauses.

    (a) The procedures in FAR 52.104 apply when you modify or complete a 
GSAR provision or clause. Provisions and clauses shall not be modified 
unless the GSAR authorizes their modification.
    (b) You do not need to identify modifications of clauses which 
result from negotiations unless you issue an amendment to the 
solicitation.
    (c) In general, you should modify FAR or GSAR clauses only for 
individual cases. If a contracting activity develops a modification for 
repeated use, furnish a copy to the Office of GSA Acquisition Policy 
(MV) for potential inclusion in the GSAR.



Sec. 552.105  Procedures for using alternates.

    The procedures in FAR 52.105 apply to GSAR part 552.



Sec. 552.107-70  Provisions and clauses prescribed in subpart 552.1.

    (a) Insert the provision at 552.252-5, Authorized Deviations in 
Provisions, in solicitation that include any FAR or GSAR clause with an 
authorized deviation. You must use this provision in lieu of the FAR 
provision at 552.252-5.
    (b) Insert the clause at 552.252-6, Authorized Deviations in 
Clauses, in solicitations and contracts that include any FAR or GSAR 
clause with an authorized deviation. You must use this clause in lieu of 
the FAR clause at 52.252-6.

              Subpart 552.2_Text of Provisions and Clauses



Sec. 552.200  Scope of subpart.

    This subpart sets forth the text of all GSAR provisions and clauses. 
It also cross-references the location in the GSAR that prescribes the 
use of each provision and clause.



Sec. 552.203-71  Restriction on Advertising.

    As prescribed in 503.570-2, insert the following clause:

                  Restriction on Advertising (SEP 1999)

    The Contractor shall not refer to this contract in commercial 
advertising or similar promotions in such a manner as to state or imply 
that the product or service provided is endorsed or preferred by the 
White House, the Executive Office of the President, or any other element 
of the Federal Government, or is considered by these entities to be 
superior to other products or services. Any advertisement by the 
Contractor, including price-off coupons, that refers to a military 
resale activity shall contain the following statement: ``This 
advertisement is neither paid for nor sponsored, in whole or in part, by 
any element of the United States Government.''

                             (End of clause)



Sec. 552.204-9  Personal Identity Verification requirements.

    As prescribed in 504.1303, insert the following clause:

         Personal Identity Verification Requirements (OCT 2012)

    (a) The contractor shall comply with GSA personal identity 
verification requirements, identified at http://www.gsa.gov/hspd12, if 
contractor employees require access to GSA

[[Page 274]]

controlled facilities or information systems to perform contract 
requirements.
    (b) The Contractor shall insert this clause in all subcontracts when 
the subcontractor is required to have access to a GSA-controlled 
facility or access to a GSA-controlled information system.

                             (End of clause)

[77 FR 59793, Oct. 1, 2012]



Sec. 552.211-70--552.211-71  [Reserved]



Sec. 552.211-72  Reference to Specifications in Drawings.

    As prescribed in 511.204(a), insert the following clause:

           References to Specifications in Drawings (FEB 1996)

    If military or other drawings are made a part of this contract, any 
reference in the drawings to Federal specifications or standards will be 
considered to be a reference to the date of such Federal specification 
or standard identified in the contract. If the date of the Federal 
specification or standard is not identified in the contract, the 
edition, including revisions thereto, in effect on the date the 
solicitation is issued will apply.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 74 FR 66255, Dec. 15, 2009]



Sec. 552.211-73  Marking.

    As prescribed in 511.204(b)(1), insert the following clause:

                           Marking (FEB 1996)

    (a) General requirements. Interior packages, if any, and exterior 
shipping containers shall be marked as specified elsewhere in the 
contract. Additional marking requirements may be specified on delivery 
orders issued under the contract. If not otherwise specified, interior 
packages and exterior shipping containers shall be marked in accordance 
with the following standards:
    (1) Deliveries to civilian activities. Supplies shall be marked in 
accordance with Federal Standard 123, edition in effect on the date of 
issuance of the solicitation.
    (2) Deliveries to military activities. Supplies shall be marked in 
accordance with Military Standard 129, edition in effect on the date of 
issuance of the solicitation.
    (b) Improperly marked material. When Government inspection and 
acceptance are at destination, and delivered supplies are not marked in 
accordance with contract requirements, the Government has the right, 
without prior notice to the Contractor, to perform the required marking, 
by contract or otherwise, and charge the Contractor therefor at the rate 
specified elsewhere in this contract. This right is not exclusive, and 
is in addition to other rights or remedies provided for in this 
contract.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 74 FR 66255, Dec. 15, 2009]



Sec. 552.211-74  [Reserved]



Sec. 552.211-75  Preservation, Packaging and Packing.

    As prescribed in 511.204(b)(2), insert the following clause:

             Preservation, Packaging, and Packing (FEB 1996)

    Unless otherwise specified, all items shall be preserved, packaged, 
and packed in accordance with normal commercial practices, as defined in 
the applicable commodity specification. Packaging and packing shall 
comply with the requirements of the Uniform Freight Classification and 
the National Motor Freight Classification (issue in effect at time of 
shipment) and each shipping container of each item in a shipment shall 
be of uniform size and content, except for residual quantities. Where 
special or unusual packing is specified in an order, but not 
specifically provided for by the contract, such packing details must be 
the subject of an agreement independently arrived at between the 
ordering agency and the Contractor.

                             (End of clause)

    Alternate I (MAY 2003). As prescribed at 511.204(b)(2), insert the 
following sentence in place of the last sentence of the clause:

    Where special or unusual packing is specified in an order, but not 
specifically provided for by the contract, such packing details must be 
the subject of an agreement independently arrived at between the 
ordering activity and the Contractor.

[64 FR 37229, July 9, 1999, as amended at 68 FR 24379, May 7, 2003; 74 
FR 66255, Dec. 15, 2009]



Sec. 552.211-76  Charges for packaging, packing, and marking.

    As prescribed in 511.204(b)(3), insert a clause substantially as 
follows:

[[Page 275]]

         Charges for Packaging, Packing, and Marking (JAN 2010)

    If supplies shipped to a GSA wholesale distribution center are not 
packaged, packed and marked in accordance with contract requirements, 
the Government has the right, without prior notice to the Contractor, to 
perform the required repackaging/repacking/remarking, by contract or 
otherwise, and charge the Contractor therefore at the rate of $--------
--* per man-hour or fraction thereof. The Contractor will also be 
charged for material costs, if incurred. This right is not exclusive, 
and is in addition to other rights or remedies provided for in this 
contract.

                             (End of clause)

    *The rate to be inserted in the above clause shall be determined by 
the Commissioner, Federal Acquisition Service, or a designee.

[74 FR 66255, Dec. 15, 2009]



Sec. 552.211-77  Packing List.

    As prescribed in 511.204(c), insert the following clause:

                         Packing List (FEB 1996)

    (a) A packing list or other suitable shipping document shall 
accompany each shipment and shall indicate:
    (1) Name and address of the consignor;
    (2) Name and complete address of the consignee;
    (3) Government order or requisition number;
    (4) Government bill of lading number covering the shipment (if any); 
and
    (5) Description of the material shipped, including item number, 
quantity, number of containers, and package number (if any).
    (b) When payment will be made by Government commercial credit card, 
in addition to the information in (a) above, the packing list or 
shipping document shall include:
    (1) Cardholder name and telephone number and
    (2) The term ``Credit Card.''

                             (End of clause)

    Alternate I (MAY 2003). As prescribed at 511.204(d), substitute the 
following paragraphs (a)(3) and (b) for (a)(3) and (b) of the basic 
clause:

    (a)(3) Ordering activity order or requisition number;
    (b) When payment will be made by Ordering activity commercial credit 
card, in addition to the information in (a) above, the packing list or 
shipping document shall include:
    (1) Cardholder name and telephone number; and
    (2) The term ``Credit Card.''

[64 FR 37229, July 9, 1999, as amended at 68 FR 24379, May 7, 2003; 74 
FR 66255, Dec. 15, 2009]



Sec. 552.211-78  [Reserved]



Sec. 552.211-79  Acceptable Age of Supplies.

    As prescribed in 511.404(a)(1), insert the following clause:

                  Acceptable Age of Supplies (FEB 1996)

    The supplies furnished under this contract shall not be more than --
-- months old, beginning with the first full month after the date of 
manufacture marked on the container. For the purpose of this clause, 
supplies shall be considered to be furnished (1) when they are offered 
to the Government for inspection and testing, or (2) on the date of 
shipment if shipment is authorized to be made without prior inspection 
by the Government. If the age of the supplies furnished under this 
contract is greater than the specified period, the Government may 
exercise its right to reject the supplies.

                             (End of clause)

    Alternate I (FEB 1996). For items having a limited shelf-life, the 
sentence below should be substituted for the first sentence of the basic 
clause when authorized:

    The supplies furnished under this contract shall not be more than --
-- days old, beginning with the date of manufacture (month, day, year) 
marked on the container.

[64 FR 37229, July 9, 1999, as amended at 74 FR 66255, Dec. 15, 2009]



Sec. 552.211-80  Age on Delivery.

    As prescribed in 511.404(a)(2) insert the following clause:

                       Age on Delivery (FEB 1996)

    Included in the description of each shelf-life item is a statement 
regarding the ``age on delivery.'' The age of the item(s) shall not 
exceed the number of months shown in the item description, counted from 
the first day of the month after the month of manufacture to the date of 
delivery to the specified delivery point(s). If the age of the supplies 
delivered under this contract is greater than the number of months 
shown, the Government may exercise its right to reject the supplies.

[[Page 276]]

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 74 FR 66255, Dec. 15, 2009]



Sec. 552.211-81  Time of Shipment.

    As prescribed in 511.404(b), insert the following clause:

                       Time of Shipment (FEB 1996)

    Shipment is required within ------ calendar days after receipt of 
order.

                             (End of clause)

    Alternate I (FEB 1996). If the contract will require shipment more 
than 45 calendar days after receipt of the order, the following 
paragraph should be added to the basic clause.

    Each delivery order will specify that shipment is required no later 
than the number of days shown above. If such order also states that 
``Early Shipment is Precluded,'' the Contractor agrees to make shipment 
no sooner than ------ calendar days after receipt of order. Earlier 
shipments may result in nonacceptance of the supplies at the delivery 
point at the time of arrival.

    (The second number to be inserted should be 15 calendar days less 
than the first number.)

[64 FR 37229, July 9, 1999, as amended at 74 FR 66255, Dec. 15, 2009]



Sec. 552.211-82  [Reserved]



Sec. 552.211-83  Availability for Inspection, Testing, and Shipment/
          Delivery.

    As prescribed in 511.404(c), insert the following clause:

 Availability for Inspection, Testing, and Shipment/Delivery (FEB 1996)

    (a) The Government requires that the supplies be made available for 
inspection and testing within --------*-------- calendar days after 
receipt of [Insert ``Notice of Award'' or ``order''], and be [Insert 
``shipped'' or ``delivered''] within --------*-------- calendar days 
after receipt of (1) notice of approval and release by the Government 
inspector or (2) authorization to ship without Government inspection.
    (b) Failure to make supplies available for inspection and testing or 
to [Insert ``ship'' or ``deliver''] as required by this clause may 
result in termination of this contract for default.

                             (End of clause)

    Alternate I (FEB 1996). If the contract is for stock items, the 
Contracting Officer shall insert ``shipped'' or ``ship'' in the basic 
clause, add the following paragraph (b) and redesignate paragraph (b) of 
the basic clause as paragraph (c).

    (b) If notice of approval and release by the Government inspector or 
authorization to ship without Government inspection is received before 
--------*-------- calendar days after receipt of the [Insert ``Notice of 
Award'' or ``order''], receipt of such notice shall be deemed to be 
received on the --------*-------- calendar day after receipt of [Insert 
``Notice of Award'' or ``order'']. Shipments shall not be made before 
the --------*-------- calendar day after receipt of the [Insert ``Notice 
of Award'' or ``order''] unless authorized in writing by the Contracting 
Officer.
    * Entries are normally the same number of days specified for 
availability.

[64 FR 37229, July 9, 1999, as amended at 74 FR 66255, Dec. 15, 2009]



Sec. 552.211-84  [Reserved]



Sec. 552.211-85  Consistent pack and package requirements.

    As prescribed in 511.204(b)(5), insert the following clause:

           Consistent Pack and Package Requirements (JAN 2010)

    The Contractor is advised that the Government will, where possible, 
order in full shipping containers and/or unitized loads. If volume 
warrants, the Government may also order in truckload or carload 
quantities provided such quantities do not exceed the maximum order 
limitation of this contract.
    When the number of items per unit container, intermediate container 
and/or shipping container is not specified for an item, the offeror will 
state, in the spaces provided in the schedule of items, the number of 
items to be provided in each container. The quantities which are 
accepted at the time of award shall remain in effect throughout the term 
of the contract unless the Contracting Officer approves in writing a 
request by the Contractor to change the package quantities. Requests for 
changes shall be directed to the Contracting Officer or Administrative 
Contracting Officer, whichever is applicable.

                             (End of clause)

[74 FR 66255, Dec. 15, 2009]

[[Page 277]]



Sec. 552.211-86  Maximum weight per shipping container.

    As prescribed in 511.204(b)(6), insert the following clause:

            Maximum Weight per Shipping Container (JAN 2010)

    In no instance shall the weight of a shipping container and its 
contents exceed 23 kilograms (51 pounds), except when caused by--
    (1) The weight of a single item within the shipping container;
    (2) A prescribed quantity per pack for an item per shipping 
container; or
    (3) A definite weight limitation set forth in the purchase 
description.

                             (End of clause)

[74 FR 66255, Dec. 15, 2009]



Sec. 552.211-87  Export packing.

    As prescribed in 511.204(b)(7), insert the following clause:

                        Export Packing (JAN 2010)

    (a) Offerors are requested to quote, in the pricelist accompanying 
their offer (or by separate attachment), additional charges or net 
prices covering delivery of the items furnished with commercial or 
military export packing. Military export packing, if offered, shall be 
in accordance with Mil-Std-2073-1 Level A or B as specified. If 
commercial export packing is offered, the offer or pricelist shall 
include detailed specifications describing the packing to be furnished 
at the price quoted.
    (b) Ordering activities will not be obligated to utilize the 
Contractor's services for export packing accepted under this 
solicitation, and they may obtain such services elsewhere if desired. 
However, the Contractor shall furnish items export packed when such 
packing is specified on the purchase order.

                             (End of clause)

[74 FR 66255, Dec. 15, 2009]



Sec. 552.211-88  Vehicle export preparation.

    As prescribed in 511.204(b)(8), insert the following clause:

                  Vehicle Export Preparation (JAN 2010)

    Vehicles shall be prepared for export on wheels, unboxed, unless 
otherwise specified in the Schedule of Items. All parts and equipment 
easily removable (subject to pilferage) shall be enclosed in a box 
substantially secured to the vehicle (inside body if feasible) in such a 
manner as to minimize the possibility of loss or damage while in transit 
to ultimate destination.

                             (End of clause)

[74 FR 66255, Dec. 15, 2009]



Sec. 552.211-89  Non-manufactured wood packaging material for export.

    As prescribed in 511.204(b)(4), insert the following clause:

     Non-Manufactured Wood Packaging Material for Export (JAN 2010)

    (a) Definitions:
    IPPC Country: Countries of the European Union (EU) or any other 
country endorsing the International Plant Protection Convention (IPPC) 
``Guidelines for Regulating Wood Packaging Material in International 
Trade,'' approved March 15, 2002. A listing of countries participating 
in the IPPC is found at http://www.aphis.usda.gov/import--export/plants/
plant--exports/wpm/country/index.shtml.
    Non-manufactured wood, is also called solid wood and defined as wood 
packing other than that comprised wholly of wood-based products such as 
plywood, particle board, oriented strand board, veneer, wood wool, and 
similar materials, which has been created using glue, heat and pressure 
or a combination thereof.
    Packaged material, and solid wood packing material (SWPM), for 
purposes of this clause, is defined as each separate and distinct 
material that by itself or in combination with other materials forms the 
container providing a means of protecting and handling a product. This 
includes, but is not limited to, pallets, dunnage, crating, packing 
blocks, drums, load boards, pallet collars, and skids.
    (b) Non-manufactured wood pallets and other non-manufactured wood 
packaging material used to pack items for delivery to or through IPPC 
countries must be marked and properly treated in accordance with IPPC 
guidelines.
    (c) This requirement applies whether the shipment is direct to the 
end user or through a Government designated consolidation point. 
Packaging that does not conform to IPPC guidelines will be refused 
entry, destroyed or treated prior to entry.
    (d) For Department of Defense distribution facilities or freight 
consolidation points, all non-manufactured wood pallets or packaging 
material with a probability of entering countries endorsing the IPPC 
Guidelines must be treated and marked in accordance with DLAD 47.305-1 
(available at http://www.dla.mil/j-3/j-3311/DLAD/rev5.htm), and MIL-STD-
2073-1, Standard Practice for Military Packaging (and any future 
revision).
    (e) Pallets and packing material shipped to FAS distribution 
facilities designated for possible delivery to the countries endorsing

[[Page 278]]

the IPPC Guidelines will comply with DLAD 47.305-1, and MIL-STD-2073-1.
    (f) Delays in delivery caused by non-complying pallets or wood 
package material will not be considered as beyond the control of the 
Contractor. Any applicable Government expense incurred as a result of 
the Contractor's failure to provide appropriate pallets or package 
material shall be reimbursed by the Contractor. Expenses may include the 
applicable cost for repackaging, handling and return shipping, or the 
destruction of solid wood packaging material.

                             (End of clause)

[74 FR 66255, Dec. 15, 2009]



Sec. 552.211-90  Small parts.

    As prescribed in 511.204(b)(9), insert the following clause:

                         Small Parts (JAN 2010)

    All small parts required to be furnished with machines covered by 
contracts resulting from this solicitation shall be packed in envelopes, 
sealed, identified with part numbers and quantity on outside of 
envelopes. Larger parts must be individually tagged and identified with 
part number on face of tag.

                             (End of clause)

[74 FR 66255, Dec. 15, 2009]



Sec. 552.211-91  Vehicle decals, stickers, and data plates.

    As prescribed in 511.204(b)(10), insert the following clause:

          Vehicle Decals, Stickers, and Data Plates (JAN 2010)

    Unless otherwise specified, caution plates/decals shall be 
conspicuously installed for all equipment requiring such notices. 
Vehicles for civil agencies shall be provided with the manufacturer's 
current warranty legend imprinted on decalcomania, and applied in a 
visible area of the engine compartment. In addition, a decal or sticker 
shall provide at least the following information: contract number; 
purchase order number; date of delivery, month and year; and the 
warranty time, in month and miles.

                             (End of clause)

[74 FR 66255, Dec. 15, 2009]



Sec. 552.211-92  Radio Frequency Identification (RFID) using passive 
          tags.

    As prescribed in 511.204(b)(11), insert the following clause:

   Radio Frequency Identification (RFID) Using Passive Tags (JAN 2010)

    Radio Frequency Identification shall be required on all non-bulk 
shipments to the Defense Logistics Agency (DLA) or Department of Defense 
(DoD) destinations. Shipments shall be tagged in accordance with 48 CFR 
clause 252.211-7006. Shipments to GSA Distribution Centers with final 
destinations to DLA and DoD shall be in compliance to 48 CFR 252.211-
7006. Copies may be obtained from http://www.access.gpo.gov/nara/cfr/
cfr-table-search.html.

                             (End of clause)

[74 FR 66255, Dec. 15, 2009]



Sec. 552.211-93  Unique Item Identification (UID).

    As prescribed in 511.204(b)(12), insert the following clause:

               Unique Item Identification (UID) (JAN 2010)

    Unique Item Identification shall be required on tangible personal 
property in accordance with DFARS 211.274-4 as requested by the Defense 
Logistics Agency (DLA) or Department of Defense (DOD). Item Property 
that falls within this criterion shall be valuated and identified in 
accordance with DFARS 252.211-7003. Details shall be found in DFARS 
252.211-7007. Copies can be obtained from http://www.access.gpo.gov the 
48 Code of Federal Regulations.

                             (End of clause)

[74 FR 66255, Dec. 15, 2009]



Sec. 552.211-94  Time of delivery.

    As prescribed at 511.404(d), insert the following clause:

                       Time of Delivery (JAN 2010)

    An ``X'' mark in the left hand block shall be considered a mandatory 
requirement to be fulfilled by the contractor.

------------------------------------------------------------------------
 
------------------------------------------------------------------------
                           The Contractor will ship contract item(s) to
                            the Federal Acquisition Service (FAS)
                            stocking points identified in the delivery
                            order at its discretion in order to maintain
                            the required stock levels within the minimum
                            and maximum requirements provided in the
                            weekly status report.

[[Page 279]]

 
                           Delivery is required to be made at
                            destination within *----------* calendar
                            days after receipt of order for deliveries
                            to a GSA facility.
                           Orders under this contract may require direct
                            delivery to other agencies. Orders for
                            direct delivery must be shipped and
                            delivered within the time specified in
                            blocks below.
                           Shipment must be made with *----------* days
                            after receipt of order.
                           In addition to block above the Contractor
                            must also ensure that delivery will be made
                            within *----------* days after receipt of
                            order.
------------------------------------------------------------------------

                             (End of clause)

[74 FR 66255, Dec. 15, 2009]



Sec. 552.212-4  Contract Terms and Conditions--Commercial Items.

    Alternate II (FAR Deviation) (NOV 2009). When a commercial item 
contract is contemplated and the contract will include the clause at FAR 
52.212-4, insert this Alternate II instead of subparagraph (g)(2) of the 
FAR clause.

    (g)(2) The due date for making invoice payments by the designated 
payment office is the later of the following two events:
    (i) The 10th day after the designated billing office receives a 
proper invoice from the Contractor. If the designated billing office 
fails to annotate the invoice with the date of receipt at the time of 
receipt, the invoice payment due date shall be the 10th day after the 
date of the Contractor's invoice; provided the Contractor submitted a 
proper invoice and no disagreement exists over quantity, quality, or 
Contractor compliance with contract requirements.
    (ii) The 10th day after Government acceptance of supplies delivered 
or services performed by the Contractor.

[74 FR 54918, Oct. 26, 2009]



Sec. 552.212-70  [Reserved]



Sec. 552.212-71  Contract Terms and Conditions Applicable to GSA 
          Acquisition of Commercial Items.

    As prescribed in 512.301(a)(2), insert the following clause:

     Contract Terms and Conditions Applicable to GSA Acquisition of 
                       Commercial Items (JUL 2003)

    The Contractor agrees to comply with any provision or clause that is 
incorporated herein by reference to implement agency policy applicable 
to acquisition of commercial items or components. The provision or 
clause in effect based on the applicable regulation cited on the date 
the solicitation is issued applies unless otherwise stated herein. The 
following provisions and clauses are incorporated by reference:

[The contracting officer should either check the provisions and clauses 
that apply or delete the provisions and clauses that do not apply from 
the list. The contracting officer may add the date of the provision or 
clause if desired for clarity.]
    (a) Provisions.

---- 552.237-70 Qualifications of Offerors

    (b) Clauses.

---- 552.203-71 Restriction on Advertising
---- 552.211-73 Marking
---- 552.2215-70 Examination of Records by GSA
---- 552.215-71 Examination of Records by GSA (Multiple Award Schedule)
---- 552.215-72 Price Adjustment--Failure to Provide Accurate 
Information
---- 552.219-70 Allocation of Orders--Partially Set-Aside Items
---- 552.228-70 Workers' Compensation Laws
---- 552.229-70 Federal, State, and Local Taxes
---- 552.232-8 Discounts for Prompt Payment
---- 552.232-23 Assignment of Claims
---- 552.232-71 Adjusting Payments
---- 552.232-72 Final Payment
---- 552.232-73 Availability of Funds
---- 552.232-78 Payment Information
---- 552.237-71 Qualifications of Employees
---- 552.238-71 Submission and Distribution of Authorized FSS Schedule 
Price List
---- 552.238-74 Industrial Funding Fee and Sales Reporting
---- 552.238-75 Price Reductions
---- 552.242-70 Status Report of Orders and Shipments
---- 552.243-72 Modifications (Multiple Award Schedule)
---- 552.246-73 Warranty--Multiple Award Schedule
---- 552.246-76 Warranty of Pesticides

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 65 FR 41379, July 5, 2000; 68 
FR 41288, July 11, 2003]

[[Page 280]]



Sec. 552.212-72  Contract Terms and Conditions Required To Implement 
          Statutes or Executive Orders Applicable to GSA Acquisition of 
          Commercial Items.

    As prescribed in 512.301(a)(3), insert the following clause:

    Contract Terms and Conditions Required To Implement Statutes or 
Executive Orders Applicable to GSA Acquisition of Commercial Items (SEP 
                                  2003)

    The Contractor agrees to comply with any provision or clause that is 
incorporated herein by reference to implement provisions of law or 
Executive Orders applicable to acquisition of commercial items or 
components. The provision or clause in effect based on the applicable 
regulation cited on the date the solicitation is issued applies unless 
otherwise stated herein. The following provisions and clauses are 
incorporated by reference:

[The contracting officer should either check the provisions and clauses 
that apply or delete the provisions and clauses that do not apply from 
the list. The contracting officer may add the date of the provision or 
clause if desired for clarity.]
    (a) Provisions.

---- 552.223-72 Hazardous Material Information

    (b) Clauses.

---- 552.223-70 Hazardous Substances
---- 552.223-71 Nonconforming Hazardous Material
---- 552.238-70 Identification of Electronic Office Equipment Providing 
Accessibility for the Handicapped
---- 552.238-72 Identification of Products That Have Environmental 
Attributes

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 65 FR 41379, July 5, 2000; 68 
FR 41288, July 11, 2003; 68 FR 52128, Sept. 2, 2003]



Sec. 552.212-73  [Reserved]



Sec. 552.214-70  ``All or None'' Bids.

    As prescribed in 514.201-6, insert the following provision:

                     ``All or None'' Bids (OCT 2009)

    (a) The Government reserves the right to evaluate bids and make 
awards on an ``all or none'' basis as provided below.
    (b) A bid submitted on an ``all or none'' or similar basis will be 
evaluated as follows: The lowest acceptable bid exclusive of the ``all 
or none'' bid will be selected with respect to each item (or group of 
items when the solicitation provides for aggregate awards) and the total 
cost of all items thus determined shall be compared with the total of 
the lowest acceptable ``all or none'' bid. Award will be made to result 
in the lowest total cost to the Government.

                           (End of provision)

[64 FR 37229, July 9, 1999, as amended at 74 FR 47740, Sept. 17, 2009]



Sec. 552.214-71  Progressive Awards and Monthly Quantity Allocations.

    As prescribed in 514.201-7(a), insert the following clause:

     Progressive Awards and Monthly Quantity Allocations (OCT 2009)

    (a) Monthly quantity allocation. (1) Set forth below are the 
Government's estimated annual and monthly requirements for each stock 
item covered by this solicitation. Bids shall indicate, in the spaces 
provided, the monthly quantity which the bidder is willing to furnish of 
any item or group of items involving the use of the same production 
facilities. In making monthly allocations, bidders are urged to group as 
many items as possible. Such groupings will make it possible for the 
Government to make fullest use of the production capabilities of each 
bidder.
    (2) Bidders need not limit their monthly allocations to the 
Government's estimated monthly requirements, since additional 
unanticipated needs may occur during the period of the contract. If a 
bid does not include monthly allocation quantities, it will be deemed to 
offer to furnish all of the Government's requirements, even though they 
may exceed the stated estimated requirements.

------------------------------------------------------------------------
                                   Estimated annual    Estimated monthly
     National stock number           requirements        requirements
------------------------------------------------------------------------
                                 ...................
                                 ...................
------------------------------------------------------------------------


                  Bidders Monthly Quantity Allocations
------------------------------------------------------------------------
                                                  Monthly allocation
          Items or groups of items                     quantity
------------------------------------------------------------------------
                                              ..........................
                                              ..........................
------------------------------------------------------------------------

    (b) Progressive awards. If the low responsive bid's monthly quantity 
allocation is less than the Government's estimated requirements, the 
Government may make progressive awards beginning with the low responsive 
bid and including each next low responsive bid to the extent necessary 
to meet the estimated requirements.
    (c) Ordering procedures. If progressive awards are made, orders will 
be placed first with the Contractor offering the lowest price on each 
item normally up to that Contractor's maximum quantity allocation and

[[Page 281]]

then, in the same manner, successively to other Contractors. When 
cumulative orders during any month, placed with a lower priced 
Contractor, equal or exceed 95 percent of its monthly quantity 
allocation, to avoid the placement of unduly small orders or the 
splitting of a subsequent order, the Government reserves the right to 
award the full quantity of the subsequent order to the next lower priced 
Contractor. In no case will orders be placed with any Contractor in 
excess of its monthly quantity allocation.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 74 FR 47740, Sept. 17, 2009]



Sec. 552.214-72  Bid Sample Requirements.

    As prescribed in 514.202-4(a)(3), insert the following provision:

                   Bid Sample Requirements (OCT 2009)

    This provision supplements FAR 52.214-20, which is incorporated by 
reference. Samples shall be from the production of the manufacturer 
whose products will be supplied under resultant contracts.
    (a) Two bid samples are required for each of the following items in 
this solicitation:

________________________________________________________________________
    (b) Two representative samples shall be submitted for each of the 
following items upon which a bid is submitted:

------------------------------------------------------------------------
                                            Acceptable representative
                 Items                               samples
------------------------------------------------------------------------
                                         ...............................
                                         ...............................
------------------------------------------------------------------------

    Note: Bidders that propose to furnish an item or group of items from 
more than one manufacturer or production point must submit two samples 
from the production of each manufacturer or production point.
    (c) Samples will be evaluated to determine compliance with all 
characteristics listed below:

------------------------------------------------------------------------
        Subjective characteristics            Objective characteristics
------------------------------------------------------------------------
                                            ............................
                                            ............................
------------------------------------------------------------------------

    (d) Forward samples addressed to the Sample Room indicated below. 
Except for samples delivered by U.S. Mail, deliveries will be accepted 
between the hours of -------------------- Mondays through Fridays, 
official holidays excluded.
    Caution: Use proper address for method of shipment selected.

Mail and Parcel Post
(Insert Address of Bid Sample Room)
Freight or Express
(Insert address of Bid Sample Room)
    (e) Contracting Officer insert address.

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

                           (End of provision)

[64 FR 37229, July 9, 1999, as amended at 74 FR 47740, Sept. 17, 2009]



Sec. 552.215-70  Examination of Records by GSA.

    As prescribed in 514.201-7(b) and 515.209-70(a) insert the following 
clause:

                Examination of Records by GSA (FEB 1996)

    The Contractor agrees that the Administrator of General Services or 
any duly authorized representatives shall, until the expiration of 3 
years after final payment under this contract, or of the time periods 
for the particular records specified in Subpart 4.7 of the Federal 
Acquisition Regulation (48 CFR 4.7), whichever expires earlier, have 
access to and the right to examine any books, documents, papers, and 
records of the Contractor involving transactions related to this 
contract or compliance with any clauses thereunder. The Contractor 
further agrees to include in all its subcontracts hereunder a provision 
to the effect that the subcontractor agrees that the Administrator of 
General Services or any authorized representatives shall, until the 
expiration of 3 years after final payment under the subcontract, or of 
the time periods for the particular records specified in Subpart 4.7 of 
the Federal Acquisition Regulation (48 CFR 4.7), whichever expires 
earlier, have access to and the right to examine any books, documents, 
papers, and records of such subcontractor involving transactions related 
to the subcontract or compliance with any clauses thereunder. The term 
``subcontract'' as used in this clause excludes (a) purchase orders not 
exceeding $100,000 and (b) subcontracts or purchase orders for public 
utility services at rates established for uniform applicability to the 
general public.

                             (End of clause)



Sec. 552.215-71  Examination of Records by GSA (Multiple Award 
          Schedule).

    As prescribed in 515.209-70(c), insert the following clause:

   Examination of Records by GSA (Multiple Award Schedule) (JUL 2003)

    The Contractor agrees that the Administrator of General Services or 
any duly authorized representative shall have access to and the right to 
examine any books, documents, papers and records of the contractor

[[Page 282]]

involving transactions related to this contract for overbillings, 
billing errors, compliance with the Price Reduction clause and 
compliance with the Industrial Funding Fee and Sales Reporting clause of 
this contract. This authority shall expire 3 years after final payment. 
The basic contract and each option shall be treated as separate 
contracts for purposes of applying this clause.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 68 FR 41288, July 11, 2003]



Sec. 552.215-72  Price Adjustment--Failure To Provide Accurate 
          Information.

    As prescribed in 515.408(d), insert the following clause:

  Price Adjustment--Failure To Provide Accurate Information (AUG 1997)

    (a) The Government, at its election, may reduce the price of this 
contract or contract modification if the Contracting Officer determines 
after award of this contract or contract modification that the price 
negotiated was increased by a significant amount because the Contractor 
failed to:
    (1) Provide information required by this solicitation/contract or 
otherwise requested by the Government; or
    (2) Submit information that was current, accurate, and complete; or
    (3) Disclose changes in the Contractor's commercial pricelist(s), 
discounts or discounting policies which occurred after the original 
submission and prior to the completion of negotiations.
    (b) The Government will consider information submitted to be 
current, accurate and complete if the data is current, accurate and 
complete as of 14 calendar days prior to the date it is submitted.
    (c) If any reduction in the contract price under this clause reduces 
the price for items for which payment was made prior to the date of the 
modification reflecting the price reduction, the Contractor shall be 
liable to and shall pay the United States--
    (1) The amount of the overpayment; and
    (2) Simple interest on the amount of such overpayment to be computed 
from the date(s) of overpayment to the Contractor to the date the 
Government is repaid by the Contractor at the applicable underpayment 
rate effective each quarter prescribed by the Secretary of Treasury 
under 26 U.S.C. 6621(a)(2).
    (d) Failure to agree on the amount of the decrease shall be resolved 
as a dispute.
    (e) In addition to the remedy in paragraph (a) of this clause, the 
Government may terminate this contract for default. The rights and 
remedies of the Government specified herein are not exclusive, and are 
in addition to any other rights and remedies provided by law or under 
this contract.

                             (End of clause)



Sec. 552.216-70  Economic Price Adjustment--FSS Multiple Award Schedule 
          Contracts.

    As prescribed in 516.203-4(a), insert the following clause:

 Economic Price Adjustment--FSS Multiple Award Schedule Contracts (SEP 
                                  1999)

    Price adjustments include price increases and price decreases. 
Adjustments will be considered as follows:
    (a) Contractors shall submit price decreases anytime during the 
contract period in which they occur. Price decreases will be handled in 
accordance with the provisions of the Price Reduction Clause.
    (b) Contractors may request price increases under the following 
conditions:
    (1) Increases resulting from a reissue or other modification of the 
Contractor's commercial catalog/pricelist that was used as the basis for 
the contract award.
    (2) Only three increases will be considered during the contract 
period.
    (3) Increases are requested after the first 30 days of the contract 
period and prior to the last 60 days of the contract period.
    (4) At least 30 days elapse between requested increases.
    (c) The aggregate of the increases in any contract unit price under 
this clause shall not exceed ------* percent of the original contract 
unit price. The Government reserves the right to raise this ceiling 
where changes in market conditions during the contract period support an 
increase.
    (d) The following material shall be submitted with the request for a 
price increase:
    (1) A copy of the commercial catalog/pricelist showing the price 
increase and the effective date for commercial customers.
    (2) Commercial Sales Practice format regarding the Contractor's 
commercial pricing practice relating to the reissued or modified 
catalog/price-list, or a certification that no change has occurred in 
the data since completion of the initial negotiation or a subsequent 
submission.
    (3) Documentation supporting the reasonableness of the price 
increase.
    (e) The Government reserves the right to exercise one of the 
following options:
    (1) Accept the Contractor's price increases as requested when all 
conditions of (b), (c), and (d) of this clause are satisfied;
    (2) Negotiate more favorable discounts from the new commercial 
prices when the total increase requested is not supported; or,
    (3) Remove the product(s) from contract involved pursuant to the 
Cancellation Clause

[[Page 283]]

of this contract, when the increase requested is not supported.
    (f) The contract modification reflecting the price adjustment shall 
be signed by the Government and made effective upon receipt of 
notification from the Contractor that the new catalog/pricelist has been 
mailed to the addresses previously furnished by the Contracting Officer, 
provided that in no event shall such price adjustment be effective prior 
to the effective date of the commercial price increases. The increased 
contract prices shall apply to delivery orders issued to the Contractor 
on or after the effective date of the contract modification.

                             (End of clause)

    * Insert the percent appropriate at the time the solicitation is 
issued. This percentage should normally be 10 percent, unless based on a 
trend established by an appropriate index such as the Producer Prices 
and Price Index during the most recent 6-month period indicates that a 
different percentage is more appropriate. Any ceiling other than 10 
percent must be approved by the contracting director.
    Alternate I (SEP 1999). The following is substituted for paragraphs 
(b) and (c) of the clause:

    (b) Contractors may request price increases to be effective on or 
after the first 12 months of the contract period providing all of the 
following conditions are met:
    (1) Increases resulting from a reissue or other modification of the 
Contractor's commercial catalog/pricelist that was used as the basis for 
the contract award.
    (2) No more than three increases will be considered during each 
succeeding 12-month period of the contract. (For succeeding contract 
periods of less than 12 months, up to three increases will be considered 
subject to the other conditions of this subparagraph (b)).
    (3) Increases are requested before the last 60 days of the contract 
period.
    (4) At least 30 days elapse between requested increases.
    (c) In any contract period during which price increases will be 
considered, the aggregate of the increases during any 12-month period 
shall not exceed *-------- percent of the contract unit price in effect 
at the end of the preceding 12-month period. The Government reserves the 
right to raise the ceiling when market conditions during the contract 
period support such a change.
    * Insert the percentage appropriate at the time the solicitation is 
issued. This percentage should be determined based on the trend 
established by an appropriate index such as the Producer Prices and 
Price Index. A ceiling of more than 10 percent must be approved by the 
Contracting Director.

[64 FR 37229, July 9, 1999; 64 FR 49844, Sept. 14, 1999]



Sec. 552.216-71  Economic Price Adjustment--Special Order Program 
          Contracts.

    As prescribed in 516.203-4(a), insert the following clause:

  Economic Price Adjustment--Special Order Program Contracts (AUG 2010)

    (a) ``Producer Price Index'' (PPI), as used in this clause, means 
the originally released index, not seasonally adjusted, published by the 
Bureau of Labor Statistics, U.S. Department of Labor (Labor) for product 
code -------- found under Table --------.
    (b) During the term of the contract, the award price may be adjusted 
once during each 12-month period upward or downward. However, if an 
upward adjustment, a maximum of ------*------ percent shall apply. Any 
price adjustment for the product code shall be based upon the percentage 
change in the PPI released in the month prior to the initial month of 
the contract period specified in the solicitation for sealed bidding or 
the month prior to award in negotiation (the base index) and the PPI 
released 12 months later (the updated index). The formula for 
determining the Adjusted Contract Price (ACP) applicable to shipments 
for the balance of the contract period is--
[GRAPHIC] [TIFF OMITTED] TR09JY99.000

    (c) If the PPI is not available for the month of the base index or 
the updated index, the month with the most recently published PPI prior 
to the month determining the base index or updated index shall be used.
    (d) If a product code is discontinued, the Government and the 
Contractor will mutually agree to substitute a similar product code. If 
Labor designates an index with a new title and/or code number as 
continuous with the product code specified above, the new index shall be 
used.
    (e) Unless the Contractor's written request for a price adjustment 
resulting from the application of the formula in (b) above is received 
by the Contracting Officer within 30 calendar days of the release of the 
updated index, the Contractor shall have waived its right to an upward 
price adjustment for the balance of the contract. Alternatively, the 
Contracting Officer will unilaterally adjust the award price downward 
when appropriate using the updated index defined in (b) above.

[[Page 284]]

    (f) Price adjustments shall be effective upon execution of a 
contract modification by the Government or on the 31st day following the 
release of the updated index, whichever is later, shall indicate the 
updated index and percent of change as well as the ACP, and shall not 
apply to delivery orders issued before the effective date.

                             (End of clause)

    Alternate I (AUG 2010). As prescribed in 516.203-4(a)(1) and (2), 
substitute the following paragraphs (b), (e), and (f) for paragraphs 
(b), (e), and (f) of the basic clause:

    (b) Once during each 12-month period, the contract price may be 
adjusted upward or downward a maximum of ------*------ percent.
    (1) For the first option period, any price adjustment for the 
product code shall be based upon the percentage change in the PPI 
released in the month prior to the initial month of the contract period 
specified in the solicitation for sealed bidding or the month prior to 
award in negotiation (the base index) and the PPI released in the third 
month before completion of the initial contract period stated in the 
solicitation (the updated index). This initial contract period may be 
less than 12 months. The formula for determining the Adjusted Contract 
Price (ACP) applicable to shipments during the first option period is--
[GRAPHIC] [TIFF OMITTED] TR09JY99.001

    (2) For any subsequent option period, the price adjustment shall be 
the percentage change between the previously updated index (the new base 
index) and the PPI released 12 months later (the most recent updated 
index). This percentage shall be applied to the Current Contract Price 
(CCP). The formula for determining the ACP applicable to shipments for 
the subsequent option period(s) is--
[GRAPHIC] [TIFF OMITTED] TR09JY99.002

    (e) Unless the Contractor's written request for a price adjustment 
resulting from the application of the formulas in (b) (1) or (2) above 
is received by the Contracting Officer within 30 calendar days of the 
date of the Government's preliminary written notice of its intent to 
exercise the option, the Contractors shall have waived its right to an 
upward price adjustment for that option period. Alternatively, the 
Contracting Officer in its written notice shall exercise the option at 
the CCP or at a reduced price when appropriate using the formulas in (b) 
(1) or (2) above.
    (f) Price adjustments shall be effected by execution of a contract 
modification by the Government indicating the most recent updated index 
and percent of change and shall apply to delivery orders placed on or 
after the first day of the option period.

    Alternate II (AUG 2010). As prescribed in 516.203-4(a)(2), add the 
following paragraph (g) to the basic clause.

    (g) No price adjustment will be made unless the percentage change in 
the PPI is at least ------*------ percent.
    ** The Contracting Officer should insert a lower percent than the 
maximum percentage stated in paragraph (b) of the clause.

    * The appropriate percentage should be determined based upon the 
historical trend in the PPI for the product code. A ceiling of more than 
10 percent must be approved by the Contracting Director.

[64 FR 37229, July 9, 1999, as amended at 75 FR 41096, July 15, 2010]



Sec. 552.216-72  Placement of Orders.

    As prescribed in 516.506(a), insert the following clause:

                     Placement of Orders (AUG 2010)

    (a) Delivery orders (orders) will be placed by:
    [Contracting Officer insert names of Federal agencies]
    (b) Orders may be placed through Electronic Data Interchange (EDI) 
or mailed in paper form. EDI orders shall be placed using the American 
National Standards Institute (ANSI) X12 Standard for Electronic Data 
Interchange (EDI) format.
    (c) If the Contractor agrees, General Services Administration's 
Federal Acquisition Service (FAS) will place all orders by EDI using 
computer-to-computer EDI. If computer-to-computer EDI is not possible, 
FAS will use an alternative EDI method allowing the Contractor to 
receive orders by facsimile transmission. Subject to the Contractor's 
agreement, other agencies may place orders by EDI.
    (d) When computer-to-computer EDI procedures will be used to place 
orders, the Contractor shall enter into one or more Trading Partner 
Agreements (TPA) with each Federal agency placing orders electronically 
in order to ensure mutual understanding by the parties of certain 
electronic transaction conventions and to recognize the rights and 
responsibilities of the parties as they apply to this method of placing 
orders. The TPA must identify, among other things, the third party 
provider(s) through which electronic orders

[[Page 285]]

are placed, the transaction sets used, security procedures, and 
guidelines for implementation. Federal agencies may obtain a sample 
format to customize as needed from the office specified in (g) below.
    (e) The Contractor shall be responsible for providing its own 
hardware and software necessary to transmit and receive data 
electronically. Additionally, each party to the TPA shall be responsible 
for the costs associated with its use of third party provider services.
    (f) Nothing in the TPA will invalidate any part of this contract 
between the Contractor and the General Services Administration. All 
terms and conditions of this contract that otherwise would be applicable 
to a mailed order shall apply to the electronic order.
    (g) The basic content and format of the TPA will be provided by: 
General Services Administration, Office of the Chief Information Officer 
(QI), 2100 Crystal Drive, Arlington, VA 22202, Telephone: (703) 605-
9444.

                             (End of clause)

    Alternate I (AUG 2010). As prescribed in 516.506(a), substitute the 
following paragraphs (a), (b), (c), and (d) for paragraphs (a), (b), 
(c), and (d) of the basic clause:

    (a) All delivery orders (orders) under this contract will be placed 
by the General Services Administration's Federal Acquisition Service 
(FAS). The Contractor is not authorized to accept orders from any other 
agency. Violation of this restriction may result in termination of the 
contract pursuant to the default clause of this contract.
    (b) All orders shall be placed by Electronic Data Interchange (EDI) 
using the American National Standards Institute (ANSI) X12 Standard for 
Electronic Data Interchange (EDI) format.
    (c) If the Contractor agrees, transmission will be computer-to-
computer EDI. If computer-to-computer EDI is not possible, FAS will use 
an alternative EDI method allowing the Contractor to receive orders by 
facsimile transmission.
    (d) When computer-to-computer EDI procedures will be used to place 
orders, the Contractor shall enter into a Trading Partner Agreement 
(TPA) with FAS in order to ensure mutual understanding by the parties of 
certain electronic transaction conventions and to recognize the rights 
and responsibilities of the parties as they apply to this method of 
placing orders. The TPA must identify among other things, the third 
party provider(s) through which electronic orders are placed, the 
transaction sets used, security procedures, and guidelines for 
implementation.

[64 FR 37229, July 9, 1999, as amended at 68 FR 24380, May 7, 2003; 69 
FR 28065, May 18, 2004; 72 FR 4654, Feb. 1, 2007; 75 FR 41096, July 15, 
2010]



Sec. 552.216-73  Ordering Information.

    As prescribed in 516.506(c), insert the following provision:

                     Ordering Information (AUG 2010)

    (a) In accordance with the Placement of Orders clause of this 
solicitation, the offeror elects to receive orders placed by GSA's 
Federal Acquisition Service (FAS) by either [squ] facsimile transmission 
or [squ] computer-to-computer Electronic Data Interchange (EDI).
    (b) An offeror electing to receive computer-to-computer EDI is 
requested to indicate below the name, address, and telephone number of 
the representative to be contacted regarding establishment of an EDI 
interface.

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

    (c) An offeror electing to receive orders by facsimile transmission 
is requested to indicate below the telephone number(s) for facsimile 
transmission equipment where orders should be forwarded.

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

    (d) For mailed orders, the offeror is requested to include the 
postal mailing address(es) where paper form orders should be mailed.

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________
    (e) Offerors marketing through dealers are requested to indicate 
below whether those dealers will be participating in the proposed 
contract.
    Yes ( ) No ( )
    If ``yes'' is checked, ordering information to be inserted above 
shall reflect that in addition to offeror's name, address, and facsimile 
transmission telephone number, orders can be addressed to the offeror's 
name, c/o nearest local dealer. In this event, two copies of a list of 
participating dealers shall accompany this offer, and shall also be 
included in Contractor's Federal Supply Schedule pricelist.

[[Page 286]]

                           (End of provision)

    Alternate I (SEP 1999). As prescribed in 516.506(c), delete 
paragraph (d) of the basic provision.

[64 FR 37229, July 9, 1999, as amended at 72 FR 4654, Feb. 1, 2007; 75 
FR 41096, July 15, 2010]



Sec. 552.216-74  Task-Order and Delivery-Order Ombudsman.

    As prescribed in 516.506(b), insert the following clause:

           Task-Order and Delivery-Order Ombudsman (AUG 2010)

    GSA has designated a Task-Order and Delivery-Order Ombudsman who 
will review complaints from contractors and ensure that they are 
afforded a fair opportunity for consideration in the award of task or 
delivery orders under Indefinite Delivery/Indefinite Quantity (ID/IQ) 
contracts, consistent with the procedures in the contract. Written 
complaints shall be submitted to the Ombudsman, with a copy to the 
Contracting Officer.
    In the case that the contractor is not satisfied with the resolution 
of the complaint by the GSA Task-Order and Delivery-Order Ombudsman, the 
contractor may follow the procedures outlined in subpart 33.1.
    The GSA Ombudsman is the Director, Office of Acquisition Integrity 
located at: General Services Administration (GSA), Office of 
Governmentwide Policy (OGP), Office of Acquisition Policy (MV), 
Acquisition Integrity Division (MVA), 1800 F Street, NW., Room 4014, 
Washington, D.C. 20405, Telephone: (202) 219-3454, Fax: (202) 219-3615, 
E-mail:[email protected].

[75 FR 41096, July 15, 2010]



Sec. 552.217-70  Evaluation of Options.

    As prescribed in 517.208(a), insert the following provision:

                    Evaluation of Options (AUG 1990)

    (a) The Government will evaluate offers for award purposes by 
determining the lowest base period price. When option year pricing is 
based on a formula (e.g., changes in the Producer Price Index or other 
common standard); option year pricing is automatically considered when 
evaluating the base year price, as any change in price will be uniformly 
related to changes in market conditions. All options are therefore 
considered to be evaluated. Evaluation of options will not obligate the 
Government to exercise the option(s).
    (b) The Government will reject the offer if exceptions are taken to 
the price provisions of the Economic Price Adjustment clause, unless the 
exception results in a lower maximum option year price. Such offers will 
be evaluated without regard to the lower option year(s) maximum. 
However, if the offeror offering a lower maximum is awarded a contract, 
the award will reflect the lower maximum.



Sec. 552.217-71  Notice Regarding Option(s).

    As prescribed in 517.208(b), insert the following provision:

                  Notice Regarding Option(s) (NOV 1992)

    The General Services Administration (GSA) has included an option to 
[Insert ``purchase additional quantities of supplies or services'' or 
``extend the term of this contract'' or ``purchase additional quantities 
of supplies or services and to extend the term of this contract''] in 
order to demonstrate the value it places on quality performance by 
providing a mechanism for continuing a contractual relationship with a 
successful Offeror that performs at a level which meets or exceeds GSA's 
quality performance expectations as communicated to the Contractor, in 
writing, by the Contracting Officer or designated representative. When 
deciding whether to exercise the option, the Contracting Officer will 
consider the quality of the Contractor's past performance under this 
contract in accordance with 48 CFR 517.207.

                           (End of provision)



Sec. 552.219-70  Allocation of Orders--Partially Set-Aside Items.

    As prescribed in 519.508, insert the following clause:

       Allocation of Orders--Partially Set-Aside Items (SEP 1999)

    Where the set-aside portion of an item or group of items is awarded 
to a Contractor other than the one receiving the award on the 
corresponding non-set-aside portion, the Government will divide the 
requirements to be ordered between the two Contractors with the 
objective of achieving, as nearly as possible, a 50/50 division of the 
total value of orders placed after the award of the set-aside portion. 
In no case will this division vary by more than a 60/40 division (with 
either the non-set-aside or set-aside Contractor receiving the larger 
portion) from the time of the award of the set-aside portion.

                             (End of clause)



Sec. 552.219-71  Notice to Offerors of Subcontracting Plan Requirements.

    As prescribed in 519.708-70(a), insert the following provision:

[[Page 287]]

    Notice to Offerors of Subcontracting Plan Requirements (MAR 2012)

    The General Services Administration (GSA) is committed to assuring 
that maximum practicable opportunity is provided to small, HUBZone 
small, small disadvantaged, women-owned, veteran-owned, and service-
disabled veteran-owned small business concerns to participate in the 
performance of this contract consistent with its efficient performance. 
GSA expects any subcontracting plan submitted pursuant to FAR 52.219-9, 
Small Business Subcontracting Plan, to reflect this commitment. 
Consequently, an offeror, other than a small business concern, before 
being awarded a contract exceeding $650,000 ($1,500,000 for 
construction), must demonstrate that its subcontracting plan represents 
a creative and innovative program for involving small, HUBZone small, 
small disadvantaged, women-owned, veteran-owned, and service-disabled 
veteran-owned small business concerns as subcontractors in the 
performance of this contract.

                           (End of provision)

[64 FR 37229, July 9, 1999, as amended at 70 FR 32522, 32523, June 3, 
2005; 77 FR 10666, Feb. 23, 2012]



Sec. 552.219-72  Preparation, Submission, and Negotiation of 
          Subcontracting Plans.

    As prescribed in 519.708-70(b), insert the following provision:

 Preparation, Submission, and Negotiation of Subcontracting Plans (MAR 
                                  2012)

    (a) An offeror, other than a small business concern, submitting an 
offer that exceeds $650,000 ($1,500,000 for construction) shall submit a 
subcontracting plan with its initial offer. The subcontracting plan will 
be negotiated concurrently with price and any required technical and 
management proposals, unless the offeror submits a previously-approved 
commercial plan.
    (b) Maximum practicable utilization of small, HUBZone small, small 
disadvantaged, women-owned, veteran-owned, and service-disabled veteran 
owned small business concerns as subcontractors is a matter of national 
interest with both social and economic benefits. The General Services 
Administration (GSA) expects that an offeror's subcontracting plan will 
reflect a commitment to assuring that small, HUBZone small, small 
disadvantaged, women-owned, veteran-owned, and service-disabled veteran 
owned small business concerns are provided the maximum practicable 
opportunity, consistent with efficient contract performance, to 
participate as subcontractors in the performance of the resulting 
contract. An offeror submitting a commercial plan can reflect this 
commitment through subcontracting opportunities it provides that relate 
to the offeror's production generally; i.e., for both its commercial and 
Government business.
    (c) GSA believes that this potential contract provides significant 
opportunities for the use of small, HUBZone small, small disadvantaged, 
women-owned, veteran-owned, and service-disabled veteran-owned small 
business concerns as subcontractors. Consequently, in addressing the 
eleven elements described at FAR 52.219-9(d) of the clause in this 
contract entitled Small Business Subcontracting Plan, the offeror shall:
    (1) Demonstrate that its subcontracting plan represents a creative 
and innovative program for involving small, HUBZone small, small 
disadvantaged, women-owned, veteran-owned, and service-disabled veteran-
owned small business concerns in performing the contract.
    (2) Include a description of the offeror's subcontracting strategies 
used in any previous contracts, significant achievements, and how this 
plan will build upon those earlier achievements.
    (3) Demonstrate through its plan that it understands the small 
business subcontracting program's objectives and GSA's expectations, and 
it is committed to taking those actions necessary to meet these goals or 
objectives.
    (d) In determining the acceptability of any subcontracting plan, the 
Contracting Officer will take each of the following actions:
    (1) Review the plan to verify that the offeror demonstrates an 
understanding of the small business subcontracting program's objectives 
and GSA's expectations with respect to the program and has included all 
the information, goals, and assurances required by FAR 52.219-9.
    (2) Consider previous goals and achievements of contractors in the 
small industry.
    (3) Consider information and potential sources obtained from 
agencies administering national and local preference programs and other 
advocacy groups in evaluating whether the goals stated in the plan 
adequately reflect the anticipated potential for subcontracting to 
small, HUBZone small, small disadvantaged, women-owned, veteran-owned, 
and service-disabled veteran-owned small business concerns.
    (4) Review the offeror's description of its strategies, historical 
performance and significant achievements in placing subcontracts for the 
same or similar products or services with small, HUBZone small, small 
disadvantaged, women-owned, veteran-owned, and service-disabled veteran-
owned small business concerns. The offeror's description can apply to 
commercial as well as previous Government contracts.

[[Page 288]]

    (e) Failure to submit an acceptable subcontracting plan and/or 
correct deficiencies in a plan within the time specified by the 
Contracting Officer shall make the offeror ineligible for award.

                           (End of provision)

[64 FR 37229, July 9, 1999, as amended at 70 FR 32522, 32523, June 3, 
2005; 77 FR 10666, Feb. 23, 2012]



Sec. 552.219-73  Goals for Subcontracting Plan.

    As prescribed in 519.708-70(c), insert the following provision:

                Goals for Subcontracting Plan (JUN 2005)

    (a) Maximum practicable utilization of small, HUBZone small, small 
disadvantaged, women-owned, veteran-owned, and service-disabled veteran-
owned small business concerns as subcontractors is a matter of national 
interest with both social and economic benefits.
    (1) The General Service Administration's (GSA's) commitment to 
ensuring that maximum practicable opportunity is provided to small, 
HUBZone small, small disdvantaged, women-owned, veteran-owned, and 
service-disabled veteran-owned small business concerns to participate as 
subcontractors in the performance of this contract, consistent with its 
efficient performance, must be reflected in the offeror's subcontracting 
plan submitted pursuant to the clause of this contract at FAR 52.219-9, 
Small Business Subcontracting Plan.
    (2) In addressing the eleven elements described at FAR 52.219-9(d), 
the offeror shall demonstrate that its subcontracting plan represents a 
creative and innovative program for involving small, HUBZone small, 
small disadvantaged, women-owned, veteran-owned, and service-disabled 
veteran owned small business concerns in performing this contract. An 
offeror submitting a commercial plan can demonstrate its commitment in 
providing maximum practicable opportunities through subcontracting 
opportunities it provides to small, HUBZone small, small disadvantaged, 
women-owned, veteran-owned, and service-disabled veteran owned small 
business concerns that relate to the offeror's production generally; 
i.e., for both its commercial and Government business.
    (3) The subcontracting plan shall include a description of the 
offeror's subcontracting strategies used in previous contracts and 
significant achievements, with an explanation of how this plan will 
build upon those earlier achievements. Additionally, the offeror shall 
demonstrate through its plan that it understands the small business 
subcontracting program's objectives, GSA's expectations, and is 
committed to taking those actions necessary to meet these goals or 
objectives.
    (b) GSA believes that this contract provides significant 
opportunities for the use of small, HUBZone small, small disadvantaged, 
women-owned, veteran-owned, and service-disabled veteran-owned small 
business concerns as subcontractors. Accordingly, it is anticipated that 
an acceptable subcontracting plan will contain at least the following 
goals:

Small Business.......................................      ---- percent.
HUBZone Small Business...............................      ---- percent.
Small Disadvantaged Business.........................      ---- percent.
Women-Owned Small Business...........................      ---- percent.
Veteran-Owned Small Business.........................      ---- percent.
Service-Disabled Veteran-Owned Small Business........      ---- percent.
 

    Note: Target goals are expressed as a percentage of planned 
subcontracting dollars.

    (c) In determining the acceptability of any subcontracting plan, the 
Contracting Officer will--
    (1) Review the plan to verify that the offeror has demonstrated an 
understanding of the small business subcontracting program's objectives 
and GSA's expectations with respect to the programs and has included all 
the information, goals, and assurances required by FAR 52.219-9;
    (2) Consider previous goals and achievements of contractors in the 
same industry;
    (3) Consider information and potential sources obtained from 
agencies administering national and local preference programs and other 
advocacy groups in evaluating whether the goals stated in the plan 
adequately reflect the anticipated potential for subcontracting to 
small, HUBZone small, small disadvantaged, women-owned, veteran-owned, 
and service-disabled veteran-owned small business concerns; and
    (4) Review the offeror's description of its strategies, historical 
performance and significant achievements in placing subcontracts for the 
same or similar products or services with small, HUBZone small, small 
disadvantaged, women-owned, veteran-owned, and service-disabled veteran-
owned small business concerns. The offeror's description can apply to 
commercial as well as previous Government contracts.
    (d) Failure to submit an acceptable subcontracting plan and/or 
correct deficiencies in a plan within the time specified by the 
Contracting Officer shall make the offeror ineligible for award.

                           (End of provision)

    Alternate I (SEP 1999). As prescribed in 519.708-70(c)(2), delete 
paragraph (b) of the basic provision and redesignate

[[Page 289]]

paragraphs (c) and (d) as paragraphs (b) and (c).

[64 FR 37229, July 9, 1999, as amended at 70 FR 32522, 32523, June 3, 
2005]



Sec. 552.219-74  Section 8(a) Direct Award.

    As prescribed in 519.870-8, insert the following clause:

                  Section 8(a) Direct Award (SEP 1999)

    (a) This contract is issued as a direct award between the 
contracting activity and the 8(a) Contractor pursuant to the Memorandum 
of Understanding between the Small Business Administration (SBA) and the 
General Services Administration. SBA retains the responsibility for 8(a) 
certifications, 8(a) eligibility determinations, and related issues, and 
will provide counseling and assistance to the 8(a) contractor under the 
8(a) program. The cognizant SBA district office is: [Complete at time of 
award]
    (b) The contracting activity is responsible for administering the 
contract and taking any action on behalf of the Government under the 
terms and conditions of the contract. However, the contracting activity 
shall give advance notice to SBA before it issues a final notice 
terminating performance, either in whole or in part, under the contract. 
The contracting activity shall also coordinate with SBA prior to 
processing any advance payments or novation agreements. The contracting 
activity may assign contract administration functions to a contract 
administration office.
    (c) The Contractor agrees:
    (1) To notify the Contracting Officer, simultaneous with its 
notification to SBA (as required by SBA's 8(a) regulations), when the 
owner or owners upon whom 8(a) eligibility is based plan to relinquish 
ownership or control of the concern. Consistent with 15 U.S.C. 
637(a)(21), transfer of ownership or control shall result in termination 
of the contract for convenience, unless SBA waives the requirement for 
termination prior to the actual relinquishing of ownership and control.
    (2) To the requirements of 52.219-14, Limitations on Subcontracting.

                             (End of clause)



Sec. 552.219-75  GSA Mentor-Prot[eacute]g[eacute] Program.

    As prescribed in 519.7017(a), insert the following clause:

           GSA Mentor-Prot[eacute]G[eacute] Program (SEP 2009)

    (a) Prime contractors, including small businesses, are encouraged to 
participate in the GSA Mentor-Prot[eacute]g[eacute] Program for the 
purpose of providing developmental assistance to eligible 
prot[eacute]g[eacute] entities to enhance their capabilities and 
increase their participation in GSA contracts.
    (b) The Program consists of:
    (1) Mentor firms are large prime contractors with at least one 
active subcontracting plan, or that are eligible small businesses;
    (2) Prot[eacute]g[eacute]s are subcontractors to the prime 
contractor, and include small business concerns, small disadvantaged 
business concerns, veteran-owned small business concerns, service-
disabled veteran-owned small business concerns, HUBZone small business 
concerns, and women-owned small business concerns meeting the 
qualifications specified in Subpart 519.70; and
    (3) Mentor-prot[eacute]g[eacute] Applications and Agreements, 
approved by the Mentor-Prot[eacute]g[eacute] Program Manager in the GSA 
Office of Small Business Utilization (OSBU).
    (c) Mentor participation in the Program means providing technical, 
managerial and financial assistance to aid prot[eacute]g[eacute]s in 
developing requisite high-tech expertise and business systems to compete 
for and successfully perform GSA contracts and subcontracts.
    (d) Contractors interested in participating in the Program are 
encouraged to read FAR Subpart 19.7 and to contact the GSA Office of 
Small Business Utilization (E), Washington, DC 20405, (202) 501-1021, 
for further information.

                             (End of clause)

[74 FR 41066, Aug. 14, 2009]



Sec. 552.219-76  Mentor Requirements and Evaluation.

    As prescribed in 519.7017(b), insert the following clause:

              Mentor Requirements and Evaluation (MAR 2012)

    (a) The purpose of the GSA Mentor-Prot[eacute]g[eacute] Program is 
for a GSA prime contractor to provide developmental assistance to 
certain subcontractors qualifying as prot[eacute]g[eacute]s. Eligible 
prot[eacute]g[eacute]s include small business concerns, small 
disadvantaged business concerns, veteran-owned small business concerns, 
service-disabled veteran-owned small business concerns, HUBZone small 
business concerns, and women-owned small business concerns meeting the 
qualifications specified in section 519.7007. The Program requires an 
Application process and an Agreement between the mentor and the 
prot[eacute]g[eacute]. See GSAR Subpart 519.70 for more information.
    (b) GSA will evaluate a GSA mentor's performance on the following 
factors:
    (1) Specific actions taken by the contractor, during the evaluation 
period, to increase the participation of its prot[eacute]g[eacute] as a 
subcontractor and supplier;

[[Page 290]]

    (2) Specific actions taken by the contractor during this evaluation 
period to develop the technical and corporate administrative expertise 
of its prot[eacute]g[eacute] as defined in the Agreement;
    (3) To what extent the prot[eacute]g[eacute] has met the 
developmental objectives in the Agreement; and
    (4) To what extent the firm's participation in the Mentor-
Prot[eacute]g[eacute] Program resulted in the prot[eacute]g[eacute] 
receiving competitive contract(s) and subcontract(s) from private firms 
other than the mentor, and from agencies.
    (c) Semi-annual reports shall be submitted by a GSA mentor to the 
GSA Mentor-Prot[eacute]g[eacute] Program Manager, GSA Office of Small 
Business Utilization (E), Washington, DC 20405. The reports must include 
information as outlined in paragraph (b) of this section. The semi-
annual report may include a narrative describing the forms of 
developmental assistance a mentor provides to a prot[eacute]g[eacute] 
and any other types of permissible, mutually beneficial assistance.
    (d) A GSA mentor will notify the GSA Mentor-Prot[eacute]g[eacute] 
Program Manager and the contracting officer, in writing, at least 30 
days in advance of the mentor firm's intent to voluntarily withdraw from 
the GSA Program or terminate the Agreement, or upon receipt of a 
prot[eacute]g[eacute]'s notice to withdraw from the Program.
    (e) GSA mentor and prot[eacute]g[eacute] firms will submit a 
``Lessons Learned'' evaluation to the GSA Mentor-Prot[eacute]g[eacute] 
Program Manager at the conclusion of the Mentor-Prot[eacute]g[eacute] 
Agreement. At the end of each year in the Mentor-Prot[eacute]g[eacute] 
Program, the mentor and prot[eacute]g[eacute], as appropriate, will 
formally brief the GSA Mentor-Prot[eacute]g[eacute] Program manager, the 
technical program manager, and the contracting officer during a formal 
Program review regarding Program accomplishments as they pertain to the 
approved Agreement.
    (f) GSA has the authority to exclude mentor or prot[eacute]g[eacute] 
firms from participating in the GSA Program. If GSA excludes a mentor or 
a prot[eacute]g[eacute] from the Program, the GSA Office of Small 
Business Utilization will deliver to the contractor a Notice specifying 
the reason for Program exclusion and the effective date. The exclusion 
from the Program does not constitute a termination of the subcontract 
between the mentor and the prot[eacute]g[eacute]. A plan for 
accomplishing the subcontract effort should the Agreement be terminated 
shall be submitted with the Agreement as required in section 
519.7010(j).
    (g) Subcontracts awarded to GSA prot[eacute]g[eacute] firms under 
this Program are exempt from competition requirements, notwithstanding 
FAR 52.244-5. However, price reasonableness should still be determined.

                             (End of clause)

[74 FR 41066, Aug. 14, 2009, as amended at 77 FR 10666, Feb. 23, 2012]



Sec. 552.223-70  Hazardous Substances.

    As prescribed in 523.303(a), insert the following clause:

                     Hazardous Substances (MAY 1989)

    (a) If the packaged items to be delivered under this contract are of 
a hazardous substance and ordinarily are intended or considered to be 
for use as a household item, this contract is subject to the Federal 
Hazardous Materials Act, as amended (15 U.S.C. 1261-1276), implementing 
regulations thereof (16 CFR Chapter II), and Federal Standard No. 123, 
Marking for Shipment (Civil Agencies), issue in effect on the date of 
this solicitation.
    (b) The packaged items to be delivered under this contract are 
subject to the preparation of shipping documents, the preparation of 
items for transportation, shipping container construction, package 
making, package labeling, when required, shipper's certification of 
compliance, and transport vehicle placarding in accordance with Parts 
171 through 178 of 49 CFR and the Hazardous Materials Transportation 
Act.
    (c) The minimum packaging acceptable for packaging Department of 
Transportation regulated hazardous materials shall be those in 49 CFR 
173.

                             (End of clause)



Sec. 552.223-71  Nonconforming Hazardous Materials.

    As prescribed in 523.303(b), insert the following clause:

              Nonconforming Hazardous Materials (SEP 1999)

    (a) Nonconforming supplies that contain hazardous material or that 
may expose persons who handle or transport the supplies to hazardous 
material and which require replacement under the inspection and/or 
warranty clauses of this contract shall be reshipped to the Contractor 
at the Contractor's expense. The Contractor agrees to accept return of 
these nonconforming supplies and to pay all costs occasioned by their 
return.
    (b) ``Hazardous materials,'' as used in this clause, includes any 
material defined as hazardous under the latest version of Federal 
Standard No. 313 (including revisions adopted during the term of the 
contract).
    (c) If the Contractor fails to provide acceptable disposition 
instructions for the nonconforming supplies within 10 days from the date 
of the Government's request (or such

[[Page 291]]

longer period as may be agreed to between the Contracting Officer and 
the Contractor), or fails to accept return of the reshipped 
nonconforming supplies, such failure:
    (1) may be interpreted as a willful failure to perform,
    (2) may result in termination of the contract for default and
    (3) shall be considered by the Contracting Officer in determining 
the responsibility of the Contractor for any future award (see FAR 
9.104-3(b) and 9.406-2).
    (d) Pending final resolution of any dispute, the Contractor shall 
promptly comply with the decision of the Contracting Officer.

                             (End of clause)



Sec. 552.223-72  Hazardous Material Information.

    As prescribed in 523.370, insert the following provision:

                Hazardous Material Information (SEP 1999)

    Offeror shall indicate for each national stock number (NSN) the 
following information:

------------------------------------------------------------------------
                    DOT shipping   DOT hazard
       NSN              name         class         DOT label required
------------------------------------------------------------------------
                                               Yes [ ] No [ ]
                                               Yes [ ] No [ ]
                                               Yes [ ] No [ ]
------------------------------------------------------------------------

                           (End of provision)



Sec. 552.227-70  Government Rights (Unlimited).

    As prescribed in 527.409, insert the following clause:

                Government Rights (Unlimited) (MAY 1989)

    The Government shall have unlimited rights in all drawings, designs, 
specifications, notes and other works developed in the performance of 
this contract, including the right to use same on any other Government 
design or construction without additional compensation to the 
Contractor. The Contractor hereby grants to the Government a paid-up 
license throughout the world to all such works to which he may assert or 
establish any claim under design patent or copyright laws. The 
Contractor for a period of three years after completion of the project 
agrees to furnish the original or copies of all such works on the 
request of the Contracting Officer.

                             (End of clause)



Sec. 552.227-71  Drawings and Other Data To Become Property of 
          Government.

    As prescribed in 527.409(b), substitute the following clause:

   Drawings and Other Data To Become Property of Government (MAY 1989)

    All designs, drawings, specifications, notes and other works 
developed in the performance of this contract shall become the sole 
property of the Government and may be used on any other design or 
construction without additional compensation to the Contractor. The 
Government shall be considered the ``person for whom the work was 
prepared'' for the purpose of authorship in any copyrightable work under 
Section 201(b) of Title 17, United States Code. With respect thereto, 
the Contractor agrees not to assert or authorize others to assert any 
rights nor establish any claim under the design patent or copyright 
laws. The Contractor for a period of three years after completion of the 
project agrees to furnish all retained works on the request of the 
Contracting Officer. Unless otherwise provided in this contract, the 
Contractor shall have the right to retain copies of works beyond such 
period.

                             (End of clause)



Sec. 552.228-5  Government as Additional Insured.

    As prescribed in 528.310, insert the following clause:

               Government as Additional Insured (MAY 2009)

    (a) This clause supplements the requirements set forth in FAR clause 
52.528-5, Insurance--Work on a Government Installation.
    (b) Each insurance policy required under this contract, other than 
workers' compensation insurance, shall contain an endorsement naming the 
United States as an additional insured with respect to operations 
performed under this contract. The insurance carrier is required to 
waive all subrogation rights against any of the named insured.

                             (End of clause)

[74 FR 17099, Apr. 14, 2009]



Sec. 552.229-70  Federal, State, and Local Taxes.

    As prescribed in 529.401-70, insert the following clause:

[[Page 292]]

               Federal, State, and Local Taxes (APR 1984)

    The contract price includes all applicable Federal, State, and local 
taxes. No adjustment will be made to cover taxes which may subsequently 
be imposed on this transaction or changes in the rates of currently 
applicable taxes. However, the Government will, upon the request of the 
Contractor, furnish evidence appropriate to establish exemption from any 
tax from which the Government is exempt and which was not included in 
the contract price.

                             (End of clause)



Sec. 552.229-71  Federal Excise Tax--DC Government.

    As prescribed in 529.401-71, insert the following clause:

              Federal Excise Tax--DC Government (SEP 1999)

    If the District of Columbia cites an Internal Revenue Tax Exempt 
Certificate Number on orders placed under this contract, the Contractor 
shall bill shipments to the District of Columbia at prices exclusive of 
Federal excise tax and show the amount of such tax on the invoice.

                             (End of clause)



Sec. 552.232-1  Payments.

    As prescribed in 532.7104, insert the following clause:

              Payments (NOV 2009) (Deviation FAR 52.232-1)

    (a) The Government shall pay the Contractor, without submission of 
invoices or vouchers, 30 days after the service period, the prices 
stipulated in this contract for supplies delivered and accepted or 
services rendered and accepted, less any deductions provided in this 
contract.
    (b) Unless otherwise specified in this contract, the Government will 
make payment on partial deliveries accepted by the Government if either:
    (1) The amount due on the deliveries warrants it.
    (2) The Contractor requests it and the amount due on the deliveries 
is at least $1,000 or 50 percent of the total contract price.
    (c) When processing payment, GSA's Finance Office will automatically 
generate the 12 digit invoice number using the PDN assigned to the 
contract, followed by an abbreviated month and year of service (e.g., 
84261554JUN7, for June 2007). The PDN appears on the contract award 
document.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 74 FR 54918, Oct. 26, 2009]



Sec. 552.232-23  Assignment of Claims.

    As prescribed in 532.806, insert the following clause:

                     Assignment of Claims (SEP 1999)

    Because this is a requirements or indefinite quantity contract under 
which more than one agency may place orders, paragraph (a) of the 
Assignment of Claims clause (FAR 52.232-23) is inapplicable and the 
following is substituted therefor:
    In order to prevent confusion and delay in making payment, the 
Contractor shall not assign any claim(s) for amounts due or to become 
due under this contract. However, the Contractor is permitted to assign 
separately to a bank, trust company, or other financial institution, 
including any Federal lending agency, under the provisions of the 
Assignment of Claims Act, as amended, 31 U.S.C. 3727, 41 U.S.C. 15 
(hereinafter referred to as ``the Act''), all amounts due or to become 
due under any order amounting to $1,000 or more issued by any Government 
agency under this contract. Any such assignment takes effect only if and 
when the assignee files written notice of the assignment together with a 
true copy of the instrument of assignment with the contracting officer 
issuing the order and the finance office designated in the order to make 
payment. Unless otherwise stated in the order, payments to an assignee 
of any amounts due or to become due under any order assigned may, to the 
extent specified in the Act, be subject to reduction or set-off.

                             (End of clause)



Sec. 552.232-25  Prompt Payment.

    As prescribed in 532.908(c)(2), insert the following clause:

           Prompt Payment (NOV 2009) (Deviation FAR 52.232-25)

    Notwithstanding any other payment clause in this contract, the 
Government will make invoice payments and contract financing payments 
under the terms and conditions specified in this clause. Payment shall 
be considered as being made on the day a check is dated or the date of 
an electronic funds transfer. Definitions of pertinent terms are set 
forth in section 32.902 of the Federal Acquisition Regulation. All days 
referred to in this clause are calendar days, unless otherwise 
specified. (However, see subparagraph (a)(4) of this clause concerning 
payments due on Saturdays, Sundays, and legal holidays.)

[[Page 293]]

    (a) Invoice payments. (1) The due date for making invoice payments 
by the designated payment office is:
    (i) For orders placed electronically by the General Services 
Administration (GSA) Federal Acquisition Service (FAS), and to be paid 
by GSA through electronic funds transfer (EFT), the later of the 
following two events:
    (A) The 10th day after the designated billing office receives a 
proper invoice from the Contractor. If the designated billing office 
fails to annotate the invoice with the date of receipt at the time of 
receipt, the invoice payment due date shall be the 10th day after the 
date of the Contractor's invoice; provided the Contractor submitted a 
proper invoice and no disagreement exists over quantity, quality, or 
Contractor compliance with contract requirements.
    (B) The 10th day after Government acceptance of supplies delivered 
or services performed by the Contractor.
    (ii) For all other orders, the later of the following two events:
    (A) The 30th day after the designated billing office receives a 
proper invoice from the Contractor. If the designated billing office 
fails to annotate the invoice with the date of receipt at the time of 
receipt, the invoice payment due date shall be the 30th day after the 
date ofthe Contractor's invoice; provided the Contractor submitted a 
proper invoice and no disagreement exists over quantity, quality, or 
Contractor compliance with contract requirements.
    (B) The 30th day after Government acceptance of supplies delivered 
or services performed by the Contractor.
    (iii) On a final invoice, if the payment amount is subject to 
contract settlement actions, acceptance occurs on the effective date of 
the contract settlement.
    (2) The General Services Administration will issue payment on the 
due date in (a)(1)(i) above if the Contractor complies with full cycle 
electronic commerce. Full cycle electronic commerce includes all the 
following elements:
    (i) The Contractor must receive and fulfill electronic data 
interchange (EDI) purchase orders (transaction set 850).
    (ii) The Contractor must generate and submit to the Government valid 
EDI invoices (transaction set 810) or submit invoices through the GSA 
Finance Center Internet-based invoice process. Internet-based invoices 
must be submitted using procedures provided by GSA.
    (iii) The Contractor's financial institution must receive and 
process, on behalf of the Contractor, EFT payments through the Automated 
Clearing House (ACH) system.
    (iv) The EDI transaction sets in (i) through (iii) above must adhere 
to implementation conventions provided by GSA.
    (3) If any of the conditions in(a)(2) above do not occur, the 10 day 
payment due dates in (a)(1) become 30 day payment due dates.
    (4) Certain food products and other payments. (i) Due dates on 
Contractor invoices for meat, meat food products, or fish; perishable 
agricultural commodities; and dairy products, edible fats or oils, and 
food products prepared from edible fats or oils are--
    (A) For meat or meat food products, as defined in section 2(a)(3) of 
the Packers and Stockyard Act of 1921 (7 U.S.C. 182 (3)), and as further 
defined in Pub. L. 98-181, including any edible fresh or frozen poultry 
meat, any perishable poultry meat food product, fresh eggs, an any 
perishable egg product, as close as possible to, but not later than, the 
7th day after product delivery.
    (B) For fresh or frozen fish, as defined in section 204(3) of the 
Fish and Seafood Promotion Act of 1986 (16 U.S.C. 4003(3)), as close as 
possible to, but not later than, the 7th day after product delivery.
    (C) For perishable agricultural commodities, as defined in section 
1(4) of the Perishable Agricultural Commodities Act of 1930 (7 U.S.C. 
499a(4)), as close as possible to, but not later than, the 10th day 
after product delivery, unless another date is specified in the 
contract.
    (D) For daily products, as defined in section 111(e) of the Dairy 
Production Stabilization Act of 1983 (7 U.S.C. 4502(e)), edible fats or 
oils, and food products prepared from edible fats or oils, as close as 
possible to, but not later than, the 10th day after the date on which a 
proper invoice has been received. Liquid milk, cheese, certain processed 
cheese products, butter, yogurt, ice cream, mayonnaise, salad dressing, 
and other similar products, fall within this classification. Nothing in 
the Act limits this classification to refrigerated products. When 
questions arise regarding the proper classification of a specific 
product, prevailing industry practices will be followed in specifying a 
contract payment due date. The burden of proof that a classification of 
a specific product is, in fact, prevailing industry practice is upon the 
Contractor making the representation.
    (ii) If the contract does not require submission of an invoice for 
payment (e.g., periodic lease payments), the due date will be as 
specified in the contract.
    (5) Contractor's invoice. The Contractor shall prepare and submit 
invoices to the designated billing office specified in the contract. 
Notwithstanding paragraph (g) of the clause at FAR 52.212-4, Contract 
Terms and Conditions--Commercial Items, if the Contractor submits hard-
copy invoices, submit only an original invoice. No copies of the invoice 
are required. A proper invoice must include the items listed in 
subdivisions (a)(5)(i) through (a)(5)(viii) of this clause. If the 
invoice does not comply with these requirements, it shall be returned 
within 7 days

[[Page 294]]

after the date the designated billing office received the invoice (3 
days for meat, meat food products, or fish; 5 days for perishable 
agricultural commodities, edible fats or oils, and food products 
prepared from edible fats or oils), with a statement of the reasons why 
it is not a proper invoice. Untimely notification will be taken into 
account in computing any interest penalty owed the Contractor in the 
manner described in subparagraph (a)(5) of this clause.
    (i) Name and address of the Contractor.
    (ii) Invoice date. (The Contractor is encouraged to date invoices as 
close as possible to the date of the mailing or transmission.)
    (iii) Contract number or other authorization for supplies delivered 
or services preformed (including order number and contract line item 
number).
    (iv) Description, quantity, unit of measure, unit price, an extended 
prices of supplies delivered or services performed.
    (v) Shipping and payment terms (e.g., shipment number and date of 
shipment, prompt payment discount terms). Bill of lading number and 
weight of shipment will be shown for shipments on Government bills or 
lading.
    (vi) Name and address of Contractor official to whom payment is to 
be sent (must be the same as that in the contract or in a proper notice 
of assignment).
    (vii) Name (where practicable), title, phone number, and mailing 
address of person to be notified in the event of a defective invoice.
    (viii) Any other information or documentation required by the 
contract (such as evidence of shipment).
    (ix) While not required, the Contractor is strongly encouraged to 
assign an identification number to each invoice.
    (6) Interest penalty. An interest penalty shall be paid 
automatically by the designated payment office, without request from the 
Contractor, if payment is not made by the due date and the conditions 
listed in subdivisions (a)(6)(i) through (a)(6)(iii) of this clause are 
met, if applicable. However, when the due date falls on a Saturday, 
Sunday, or legal holiday when Federal Government offices are closed and 
Government business is not expected to be conducted, payment may be made 
on the following business day without incurring a late payment interest 
penalty.
    (i) A proper invoice was received by the designated billing office.
    (ii) A receiving report or other Government documentation 
authorizing payment was processed, and there was no disagreement over 
quantity, quality, or Contractor compliance with any contract term or 
condition.
    (iii) In the case of a final invoice for any balance of funds due 
the Contractor for supplies delivered or services performed, the amount 
was not subject to further contract settlement actions between the 
Government and the Contractor.
    (7) Computing penalty amount. The interest penalty shall be at the 
rate established by the Secretary of the Treasury under section 12 of 
the Contract Disputes Act of 1978 (41 U.S.C. 611) that is in effect on 
the day after the due date, except where the interest penalty is 
prescribed by other governmental authority (e.g., tariffs). This rate is 
referred to as the ``Renegotiation Board Interest Rate,'' and it is 
published in the Federal Register semiannually on or about January 1 and 
July 1. The interest penalty shall accrue daily on the invoice principal 
payment amount approved by the Government until the payment date of such 
approved principal amount; and will be compounded in 30-day increments 
inclusive from the first day after the due date through the payment 
date. That is, interest accrued at the end of any 30-day period will be 
added to the approved invoice principal payment amount and will be 
subject to interest penalties if not paid in the succeeding 30-day 
period. If the designated billing office failed to notify the Contractor 
of a defective invoice within the periods prescribed in subparagraph 
(a)(5) of this clause, the due date on the corrected invoice will be 
adjusted by subtracting from such date the number of days taken beyond 
the prescribed notification of defects period. Any interest penalty owed 
the Contractor will be based on this adjusted due date. Adjustments will 
be made by the designated payment office for errors in calculating 
interest penalties.
    (i) For the sole purpose of computing an interest penalty that might 
be due the Contractor, Government acceptance shall be deemed to have 
occurred constructively on the 7th day (unless otherwise specified in 
this contract) after the Contractor delivered the supplies or performed 
the services in accordance with the terms and conditions of the 
contract, unless there is a disagreement over quantity, quality or 
Contractor compliance with a contract provision. In the event that 
actual acceptance occurs within the constructive acceptance period, the 
determination of an interest penalty shall be based on the actual date 
of acceptance. The constructive acceptance requirement does, not 
however, compel Government officials to accept supplies or services, 
perform contract administration functions, or make payment prior to 
fulfilling their responsibilities.
    (ii) The following periods of time will not be included in the 
determination of an interest penalty:
    (A) The period taken to notify the Contractor of defects in invoices 
submitted to the Government, but this may not exceed 7 days (3 days for 
meat, meat food products, or fish; 5 days for perishable agricultural 
commodities, dairy products, edible fats or oils, and food products 
prepared from edible fats or oils).

[[Page 295]]

    (B) The period between the defects notice and resubmission of the 
corrected invoice by the Contractor.
    (C) For incorrect electronic funds transfer (EFT) information, in 
accordance with the EFT clause of this contract.
    (iii) Interest penalties will not continue to accrue after the 
filing of a claim for such penalties under the clause at 52.233-1, 
Disputes, or for more than 1 year. Interest penalties of less than $1 
need not be paid.
    (iv) Interest penalties are not required on payment delays due to 
disagreement between the Government and the Contractor over the payment 
amount or other issues involving contract compliance or on amounts 
temporarily withheld or retained in accordance with the terms of the 
contract. Claims involving disputes, and any interest that may be 
payable, will be resolved in accordance with the clause at 52.233-1, 
Disputes.
    (8) Prompt payment discounts. An interest penalty also shall be paid 
automatically by the designated payment office, without request from the 
Contractor, if a discount for prompt payment is taken improperly. The 
interest penalty will be calculated as described in subparagraph (a)(7) 
of this clause on the amount of discount taken for the period beginning 
with the first day after the end of the discount period through the date 
when the Contractor is paid.
    (9) Additional interest penalty. (i) If this contract was awarded on 
or October 1, 1989, a penalty amount, calculated in accordance with 
subdivision (a)(9)(iii) of this clause, shall be paid in addition to the 
interest penalty amount if the Contractor--
    (A) Is owed an interest penalty of $1 or more;
    (B) Is not paid the interest penalty within 10 days after the date 
the invoice amount is paid; and
    (C) Makes a written demand to the designated payment office for 
additional penalty payment, in accordance with subdivision (a)(9)(ii) of 
this clause, postmarked not later than 40 days after the invoice amount 
is paid.
    (ii)(A) Contractors shall support written demands for additional 
penalty payments with the following data. No additional data shall be 
required. Contractors shall--
    (1) Specifically assert that late payment interest is due under a 
specific invoice, and request payment of all overdue late payment 
interest penalty and such additional penalty as may be required;
    (2) Attach a copy of the invoice on which the unpaid late payment 
interest was due; and
    (3) State that payment of the principal has been received, including 
the date of receipt.
    (B) Demands must be postmarked on or before the 40th day after 
payment was made, except that--
    (1) If the postmark is illegible or nonexistent, the demand must 
have been received and annotated with the date of receipt by the 
designated payment office on or before the 40th day after payment was 
made; or
    (2) If the postmark is illegible or nonexistent and the designated 
payment office fails to make the required annotation, the demand's 
validity will be determined by the date the Contractor has placed on the 
demand; provided such date is no later than the 40th day after payment 
was made.
    (iii)(A) The additional penalty shall be equal to 100 percent of any 
original late payment interest penalty, except--
    (1) The additional penalty shall not exceed $5,000;
    (2) The additional penalty shall never be less than $25; and
    (3) No additional penalty is owed if the amount of the underlying 
interest penalty is less than $1.
    (B) If the interest penalty ceases to accrue in accordance with the 
limits stated in subdivision (a)(5)(iii) of this clause, the amount of 
the additional penalty shall be calculated on the amount of interest 
penalty that would have accrued in the absence of these limits, subject 
to the overall limits on the additional penalty specified in subdivision 
(a)(7)(iii)(A) of this clause.
    (C) For determining the maximum and minimum additional penalties, 
the test shall be the interest penalty due on each separate payment made 
for each separate contract. The maximum and minimum additional penalty 
shall not be based upon individual invoices unless the invoices are paid 
separately. Where payments are consolidated for disbursing purposes, the 
maximum and minimum additional penalty determination shall be made 
separately for each contract therein.
    (D) The additional penalty does not apply to payments regulated by 
other Government regulations (e.g., payments under utility contracts 
subject to tariffs and regulation).
    (b) Contract financing payments--(1) Due dates for recurring 
financing payments. If this contract provides for contract financing, 
requests for payment shall be submitted to the designated billing office 
as specified in this contract or as directed by the Contracting Officer. 
Contract financing payments shall be made on the [insert day as 
prescribed by Agency head; if not prescribed, insert 30th day] day after 
receipt of a proper contract financing request by the designated billing 
office. In the event that an audit or other review of a specific 
financing request is required to ensure compliance with the terms and 
conditions of the contract, the designated payment office is not 
compelled to make payment by the due date specified.
    (2) Due dates for other contract financing. For advance payments, 
loans, or other arrangements that do not involve recurring

[[Page 296]]

submissions of contract financing requests, payment shall be in 
accordance with the corresponding contract terms or as directed by the 
Contracting Officer.
    (3) Interest penalty not applicable. Contract financing payments 
shall not be assessed an interest penalty for payment delays.
    (c) Fast payment procedure due dates. If this contract contains the 
clause at 52.213-1, Fast Payment Procedure, payments will be made within 
15 days after the date of receipt of the invoice.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 74 FR 54918, Oct. 26, 2009]



Sec. 552.232-72  Final Payment Under Building Services Contracts.

    As prescribed in 532.904(c), insert the following clause:

       Final Payment Under Building Services Contracts (MAR 2012)

    Before final payment is made, the Contractor shall complete and 
furnish the Contracting Officer with GSA Form 1142, Release of Claims, 
releasing all claims against the Government relating to this contract, 
other than claims in stated amounts that are specifically excepted by 
the Contractor from the release. If the Contractor's claim to amounts 
payable under the contract has been assigned under the Assignment of 
Claims Act of 1940, as amended (31 U.S.C. 3727, 41 U.S.C. 15), a release 
may also be required of the assignee.

[77 FR 6988, Feb. 10, 2012]



Sec. 552.232-77  Payment By Government Charge Card.

    As prescribed in 532.7003, insert the following clause:

              Payment By Government Charge Card (NOV 2009)

    (a) Definitions. ``Governmentwide commercial purchase card'' means a 
uniquely numbered charge card issued by a contractor under the GSA 
SmartPay [reg] program contract for Fleet, Travel, and Purchase Card 
Services to named individual Government employees or entities to pay for 
official Government purchases.
    ``Oral order'' means an order placed orally either in person or by 
telephone.
    (b) At the option of the Government and if agreeable to the 
Contractor, payments of ------*-- or less for oral or written orders may 
be made using the Governmentwide commercial purchase card.
    (c) The Contractor shall not process a transaction for payment using 
the charge card until the purchased supplies have been shipped or 
services performed. Unless the cardholder requests correction or 
replacement of a defective or faulty item under other contract 
requirements, the Contractor must immediately credit a cardholder's 
account for items returned as defective or faulty.
    (d) Payments made using the Governmentwide commercial purchase card 
are not eligible for any negotiated prompt payment discount. Payment 
made using a Government debit card will receive the applicable prompt 
payment discount.

                             (End of clause)

    * Enter amount not to exceed $100,000.

[65 FR 11248, Mar. 2, 2000, as amended at 74 FR 54918, Oct. 26, 2009]



Sec. 552.236-70  Definitions.

    As prescribed in 536.570-1, insert the following clause:

                         Definitions (APR 1984)

    The terms ``Administration'' and ``Service'' as used in this 
contract shall mean the General Services Administration (GSA) and the 
Public Buildings Service (PBS), respectively.

                             (End of clause)



Sec. 552.236-71  Authorities and Limitations.

    As prescribed in 536.570-2, insert the following clause:

                 Authorities and Limitations (APR 1984)

    (a) All work shall be performed under the general direction of the 
Contracting Officer, who alone shall have the power to bind the 
Government and to exercise the rights, responsibilities, authorities and 
functions vested in him by the contract documents, except that he shall 
have the right to designate authorized representatives to act for him. 
Wherever any provision in this contract specifies an individual (such 
as, but not limited to, Construction Engineer, Resident Engineer, 
Inspector or Custodian) or organization, whether governmental or 
private, to perform any act on behalf of or in the interests of the 
Government, that individual or organization shall be deemed to be the 
Contracting Officer's authorized representative under this contract but 
only to the extent so specified. The Contracting Officer may, at any 
time during the performance of this contract, vest in any such 
authorized representatives additional power and authority to act for him 
or designate additional representatives, specifying the extent of their 
authority to act for him; a copy of each document

[[Page 297]]

vesting additional authority in an authorized representative or 
designating an additional authorized representative shall be furnished 
to the Contractor.
    (b) The Contractor shall perform the contract in accordance with any 
order (including but not limited to instruction, direction, 
interpretation, or determination) issued by an authorized representative 
in accordance with his authority to act for the Contracting Officer; but 
the Contractor assumes all the risk and consequences of performing the 
contract in accordance with any order (including but not limited to 
instruction, direction, interpretation, or determination) of anyone not 
authorized to issue such order.

                             (End of clause)



Sec. 552.236-72  Specialist.

    As prescribed in 536.570-3, insert the following clause:

                          Specialist (APR 1984)

    The term ``Specialist,'' as used in the contract specification, 
shall mean an individual or firm of established reputation (or, if newly 
organized, whose personnel have previously established a reputation in 
the same field), which is regularly engaged in, and which maintains a 
regular force of workmen skilled in either (as applicable) manufacturing 
or fabricating items required by the contract, installing items required 
by the contract, or otherwise performing work required by the contract. 
Where the contract specification requires installation by a specialist, 
that term shall also be deemed to mean either the manufacturer of the 
item, an individual or firm licensed by the manufacturer, or an 
individual or firm who will perform the work under the manufacturer's 
direct supervision.

                             (End of clause)



Sec. 552.236-73  Basis of Award--Construction Contract.

    As prescribed in 536.570-4, insert the following provision or the 
appropriate Alternate:

            Basis of Award--Construction Contract (APR 1985)

    (a) The low bidder for purposes of award is the responsible bidder 
offering the lowest price for the base bid (consisting of the lump sum 
bid and any associated unit price bids extended by the applicable number 
of units shown on the bid form). See Standard Form 1442, Solicitation, 
Offer, and Award and the provision entitled ``Contract Award--Sealed 
Bidding.''
    (b) A bid may be rejected as nonresponsive if the bid is materially 
unbalanced as to bid prices. A bid is unbalanced when the bid is based 
on prices significantly less than cost for some work and significantly 
overstated for other work.

                           (End of provision)

    Alternate I (APR 1985). if the solicitation includes a base bid and 
options, the Contracting Officer shall delete paragraph (a) of the basic 
provision and insert paragraph (a) substantially as follows:

    (a) The low bidder for purposes of award is the responsible bidder 
offering the lowest aggregate price for (1) the base bid (consisting of 
the lump sum bid and any associated unit price bids extended by the 
applicable number of units shown on the bid form) plus (2) all options 
designated to be evaluated. The evaluation of options will not obligate 
the Government to exercise the options. See Standard Form 1442, 
Solicitation, Offer, and Award and the provision entitled ``Contract 
Award--Sealed Bidding.''
    Alternate II (APR 1985). If the solicitation includes a base bid and 
alternates, the Contracting Officer shall delete paragraph (a) of the 
basic provision and insert paragraphs (a), (c), and (d) substantially as 
follows:

    (a) The low bidder for purposes of award is the responsible bidder 
offering the lowest aggregate price for (1) the base bid (consisting of 
the lump sum bid and any associated unit price bids extended by the 
applicable number of units shown on the bid form) plus (2) those 
alternates in the order of priority listed in the solicitation that 
provide the most features of work within the funds available at bid 
opening. See the provision entitled ``Contract Award--Sealed Bidding.''
    (c) Alternates will be added to the base bid in the order listed in 
the solicitation (see Standard Form 1442, Solicitation, Offer, and 
Award). If the addition of an alternate would make all bids exceed the 
funds available at bid opening, that alternate shall be skipped and the 
next subsequent alternate in a lower amount shall be added, provided 
that the aggregate of base bid and the selected alternates do not exceed 
the funds available at bid opening. For example, when the amount 
available is $100,000 and a bidder's base bid is $85,000, with its 
separate bids on four successive alternatives being $10,000, $8,000, 
$6,000, and $4,000, the aggregate amount of the bid for purposes of 
selecting the alternates would be $99,000 (base bid plus the first and 
four alternates). The second and third alternates are skipped because 
each of them would cause the aggregate of the base bid and alternates to 
exceed the $100,000 amount

[[Page 298]]

available when considered with the first alternate. All bids shall be 
evaluated on the basis of the same alternates.
    (d) After the low bidder has been determined in accordance with 
paragraph (a), an award may be made to that low bidder on the base bid, 
plus any combination of alternates for which funds are available at the 
time of award, but only if the award amount does not exceed the amount 
offered by any other responsible bidder. If the base bid plus the 
proposed combination of alternates exceed the amount offered by any 
other responsible bidder for the same combination of alternates, the 
award cannot be made on that combination of alternates.

    Alternate III (APR 1985). If the solicitation includes a base bid, 
alternates, and options, the Contracting Officer shall delete paragraph 
(a) of the basic provision and insert paragraphs (a), (c), and (d) 
substantially as follows:

    (a) The low bidder for purposes of award is the responsible bidder 
offering the lowest aggregate price for (1) the base bid (consisting of 
the lump sum bid and any associated unit price bids extended by the 
applicable number of units shown on the bid form) plus (2) those 
alternates in the order of priority listed in the solicitation that 
provide the most features of work within the funds available at bid 
opening plus (3) all options designated to be evaluated except those 
options associated with alternates which are skipped during the 
selection process outlined in paragraph (c) below. The evaluation of 
options will not obligate the Government to exercise the options. See 
the provision entitled ``Contract Award--Sealed Bidding.''
    (c) Alternates will be added to the base bid in the order listed in 
the solicitation (see Standard Form 1442, Solicitation, Offer, or 
Award). If the addition of an alternate would make all bids exceed the 
funds available at bid opening, that alternate shall be skipped and the 
next subsequent alternate in a lower amount shall be added, provided 
that the aggregate of base bid and the selected alternates do not exceed 
the funds available at bid opening. For example, when the amount 
available is $100,000 and a bidder's base bid is $85,000, with its 
separate bids on four successive alternates being $10,000, $8,000, 
$6,000, and $4,000, the aggregate amount of the bid for purposes of 
selecting the alternates would be $99,000 (base bid plus the first and 
fourth alternates). The second and third alternates are skipped because 
each of them would cause the aggregate of the base bid and alternates to 
exceed the $100,000 amount available when considered with the first 
alternate. All bids shall be evaluated on the basis of the same 
alternates.
    (d) After the low bidder has been determined in accordance with 
paragraph (a), award may be made to that low bidder on the base bid and 
evaluated options plus any combination of alternates for which funds are 
available at the time of award, but only if that low bidder is still low 
on the sum thereof plus any previously unevaluated options designated to 
be evaluated which are associated with proposed alternates that were 
skipped during the selection under paragraph (c). If that low bidder is 
not still low, award cannot be made on the proposed combination of 
alternates.



Sec. 552.236-74  Working Hours.

    As prescribed in 536.570-5, insert the following clause:

                        Working Hours (APR 1984)

    (a) It is contemplated that all work will be performed during the 
customary working hours of the trades involved unless otherwise 
specified in this contract. Work performed by the Contractor at his own 
volition outside such customary working hours shall be at no additional 
expense to the Government.
    (b) Any requests received by the Contractor from occupants of 
existing buildings to change the hours of work shall be referred to the 
Contracting Officer for determination.

                             (End of clause)



Sec. 552.236-75  Use of Premises.

    As prescribed in 536.570-6, insert the following clause:

                       Use of Premises (APR 1984)

    (a) If the premises are occupied, the Contractor, his 
subcontractors, and their employees shall comply with the regulations 
governing access to, operation of, and conduct while in or on the 
premises and shall perform the work required under this contract in such 
a manner as not to unreasonably interrupt or interfere with the conduct 
of Government business.
    (b) Any request received by the Contractor from occupants of 
existing buildings to change the sequence of work shall be referred to 
the Contracting Officer for determination.
    (c) If the premises are occupied, the Contractor, his subcontractors 
and their employees shall not have access to or be admitted into any 
building outside the scope of this contract except with official 
permission.

                             (End of clause)



Sec. 552.236-76  Measurements.

    As prescribed in 536.570-7, insert the following clause:

[[Page 299]]

                         Measurements (APR 1984)

    All dimensions shown of existing work and all dimensions required 
for work that is to connect with work now in place, shall be verified by 
the Contractor by actual measurement of the existing work. Any 
discrepancies between the contract requirements and the existing 
conditions shall be referred to the Contracting Officer before any work 
affected thereby has been performed.

                             (End of clause)



Sec. 552.236-77  Specifications and Drawings

    As prescribed in 536.570-8, insert the following clause:

                 Specifications and Drawings (SEP 1999)

    The requirements of the clause entitled ``Specifications and 
Drawings for Construction'' at FAR 52.236-21, are supplemented as 
follows:
    (a) In case of difference between small and large-scale drawings, 
the large-scale drawings shall govern. Schedules on any contract drawing 
shall take precedence over conflicting information on that or any other 
contract drawing. On any of the drawings where a portion of the work is 
detailed or drawn out and the remainder is shown in outline, the parts 
detailed or drawn out shall apply also to all other like portions of the 
work.
    (b) Where the word ``similar'' occurs on the drawings, it shall have 
a general meaning and not be interpreted as being identical, and all 
details shall be worked out in relation to their location and their 
connection with other parts of the work.
    (c) Standard Details or Specification Drawings are applicable when 
listed, bound with the specifications, noted on the drawings or 
referenced elsewhere in the specifications. Where the notes on the 
drawings indicate modifications, such modifications shall govern.
    (d) In case of difference between Standard Details or Specification 
Drawings and the specifications, the specifications will govern. In case 
of difference between the Standard Details or Specification Drawings and 
their drawings prepared specifically for this contract, the later shall 
govern.

                             (End of clause)



Sec. 552.236-78  Shop Drawings, Coordination Drawings, and Schedules.

    As prescribed in 536.570-9, insert the following clause:

     Shop Drawings, Coordination Drawings, and Schedules (SEP 1999)

    The requirements, of the clause entitled ``Specifications and 
Drawings for Construction'' at FAR 52.236-21, are supplemented as 
follows:
    (a) The Contractor shall submit shop drawings, coordination 
drawings, and schedules for approval as required by the specifications 
or requested by the Contracting Officer as follows:
    (b) Show drawings shall include fabrication, erection and setting 
drawings, schedule drawings, manufacturers' scale drawings, wriring and 
control diagrams, cuts or entire catalogs, pamphlets, descriptive 
literature, and performance and test data.
    (c) Drawings and schedules, other than catalogs, pamphlets and 
similar printed material, shall be submitted in reproducible form with 
two prints made by a process approved by the Contracting Officer. Upon 
approval, the reproducible form will be returned to the Contractor who 
shall then furnish the number of additional prints, not to exceed 10, 
required by the specifications. The Contractor shall submit shop 
drawings in catalog, pamphlet and similar printed form in a minimum of 
four copies plus as many additional copies as the Contractor may desire 
or need for his use or use by subcontractors.
    (d) Before submitting shop drawings on the mechanical and electrical 
work, the Contractor shall submit and obtain the Contracting Officer's 
approval of such lists of mechanical and electrical equipment and 
materials as may be required by the specifications.
    (e) Each shop drawing or coordination drawing shall have a blank 
area 5 by 5 inches, located adjacent to the title block. The title block 
shall display the following:

Number and title of drawing
Date of drawing or revision
Name of project building or facility
Name of Contractor and (if appropriate) name of subcontractor submitting 
drawing
Clear identify of contents and location on the work
Project title and contract number

    (f) Unless otherwise provided in this contract, or otherwise 
directed by the Contracting Officer, shop drawings, coordination 
drawings and schedules shall be submitted to the Contracting Officer, 
with a letter in triplicate, sufficiently in advance of construction 
requirements to permit no less than 10 working days for checking and 
appropriate action.
    (g) Approval of drawings and schedules will be general and shall not 
be construed as permitting any departure from the contract requirements, 
or as approving departures from full-size details furnished by the 
Contracting Officer.

[[Page 300]]

                             (End of clause)



Sec. 552.236-79  Samples.

    As prescribed in 536.570-10, insert the following clause:

                           Samples (APR 1984)

    (a) After the award of the contract, the Contractor shall furnish 
for the approval of the Contracting Officer samples required by the 
specifications or by the Contracting Officer. Samples shall be delivered 
to the Contracting Officer or to the Architect as specified or as 
directed. The Contractor shall prepay all shipping charges on samples. 
Materials or equipment for which samples are required shall not be used 
in the work until approved in writing by the Contracting Officer.
    (b) Each sample shall have a label indicating:
    (1) Name of project building or facility, project title and contract 
number.
    (2) Name of Contractor and, if appropriate, name of subcontractor.
    (3) Identification of material or equipment with specification 
requirement.
    (4) Place of origin.
    (5) Name of producer and brand (if any).
    Samples of finished materials shall have additional markings that 
will identify them under the finish schedules.
    (c) The Contractor shall mail under separate cover a letter in 
triplicate submitting each shipment of samples and containing the 
information required in paragraph (b) of this clause. He shall enclose a 
copy of this letter with the shipment and send a copy to the Government 
representative on the project. Approval of a sample shall be only for 
the characteristics or use named in such approval and shall not be 
construed to change or modify any contract requirement. Substitutions 
will not be permitted unless they are approved in writing by the 
Contracting Officer.
    (d) Approved samples not destroyed in testing will be sent to the 
Government representative at the project. Approved samples of hardware 
in good condition will be marked for identification and may be used in 
the work. Materials and equipment, incorporated in the work shall match 
the approved samples. Other samples not destroyed in testing or not 
approved will be returned to the Contractor at his expense if so 
requested at time of submission.
    (e) Failure of any material to pass the specified tests will be 
sufficient cause for refusal to consider, under this contract, any 
further samples of the same brand or make of that material or equipment 
which previously has proved unsatisfactory in service.
    (f) Samples of various materials or equipment delivered on the site 
or in place may be taken by the Government representative for testing. 
Samples failing to meet contract requirements, or there shall be a 
proper adjustment of the contract price as determined by the Contracting 
Officer.
    (g) Unless otherwise specified, when tests are required only one 
test of each sample proposed for use will be made at the expense of the 
Government. Samples which do not meet specification requirements will be 
rejected. Testing of additional samples will be made by the Government 
at the expense of the Contractor.

                             (End of clause)



Sec. 552.236-80  Heat.

    As prescribed in 536.570-11, insert the following clause:

                             Heat (APR 1984)

    Unless otherwise specified or unless already provided by the 
Government the Contractor shall;
    (a) Provide heat, as necessary to protect all work, materials, and 
equipment against injury from dampness and cold;
    (b) Protect, cover and/or heat as may be necessary, to provide and 
maintain a temperature of not less than 50 degrees Fahrenheit (1) in the 
concrete during the placing, setting and curing of concrete, and (2) in 
the plaster during the application, setting and curing of plaster; and
    (c) Provide heat as necessary in the area where work is to be done 
to provide the minimum temperature recommended by the supplier or 
manufacturer of the material, but in no case less than 50 degrees 
Fahrenheit, for a period beginning 10 days before placing or interior 
finishes and finish materials and continuing until completion or 
beneficial occupancy of the area, whichever is earlier.

                             (End of clause)



Sec. 552.236-81  Use of Equipment by the Government.

    As prescribed in 536.570-12, insert the following clause:

              Use of Equipment by the Government (APR 1984)

    (a) The Government may take over and operate, with Government 
employees, such equipment as is necessary for heating or cooling such 
areas of the building as require the service, as soon as the 
installation is sufficiently complete.
    (b) The Contracting Officer will advise the Contractor by letter, 
prior to the use of equipment, which items of equipment will be 
operated, and the date and time such operation will begin.
    (c) Government operation of equipment will not relieve the 
Contractor of the one-

[[Page 301]]

year guarantee on materials and workmanship elsewhere provided for in 
this contract.
    (d) The guarantee period, elsewhere provided for in this contact, 
for each piece of equipment shall be in accordance with the 
``Guarantees'' clause of this contract.

                             (End of clause)



Sec. 552.236-82  Subcontracts.

    As prescribed in 536.570-13, insert the following clause:

                         Subcontracts (APR 1984)

    (a) Nothing contained in the contract shall be construed as creating 
any contractual relationship between any subcontractor and the 
Government. The divisions or sections of the specifications are not 
intended to control the Contractor in dividing the work among 
subcontractors, or to limit the work performed by any trade.
    (b) The Contractor shall be responsible to the Government for acts 
and omissions of his own employees and of subcontractors and their 
employees. He shall also be responsible for the coordination of the work 
of the trades, subcontractors and suppliers.
    (c) The Government will not undertake to settle any differences 
between or among the Contractor, subcontractors, or suppliers.

                             (End of clause)



Sec. 552.236-83  Requirement for a Project Labor Agreement.

    As prescribed in 536.570-14, insert a clause substantially the same 
as the following:

          Requirement for a Project Labor Agreement (SEP 1999)

    (a) Definition. ``Project Labor Agreement'' (PLA) means an agreement 
between the contractor, subcontractors, and the union(s) representing 
workers. Under a PLA, the contractor and subcontractors on a project and 
the union(s) agree on terms and conditions of employment for the 
project, establishing a framework for labor-management cooperation to 
advance the Government's procurement interest in cost, efficiency, and 
quality.
    (b) The Contractor shall, after contract award, enter into a PLA for 
performance of [Insert project or contract name]. The PLA binds the 
Contractor and subcontractors of whatever tier engaged in onsite 
construction work. The PLA shall include all the following terms:
    (1) Guarantees against strikes, lockouts, and similar work 
disruptions.
    (2) Effective, prompt and mutually binding procedures for resolving 
labor disputes arising during the project.
    (3) Other mechanisms for labor-management cooperation on matters of 
mutual interest and concern, including productivity, quality of work, 
safety, and health.
    (4) The PLA shall fully conform to all applicable statutes, 
regulations, and Executive Orders.
    (c) Any PLA reached under this clause shall not change the terms of 
this contract or provide for any pricing adjustment by the Government.
    (d) The Government shall not participate in the negotiations of any 
PLA.
    (e) Nothing in this clause precludes contractors or subcontractors 
from competing for contracts or subcontracts on this project without 
discrimination based on union or non-union status.

                             (End of clause)



Sec. 552.237-70  Qualifications of Offerors.

    As prescribed in 537.110(a), insert the following provision:

                  Qualifications of Offerors (MAY 2009)

    (a) Offers will be considered only from responsible organizations or 
individuals now or recently engaged in the performance of building 
service contracts comparable to those described in this solicitation. To 
determine an Offeror's qualifications, the Offeror may be requested to 
furnish a narrative statement listing comparable contracts which it has 
performed; a general history of its operating organization; and its 
complete experience. An Offeror may also be required to furnish a 
statement of its financial resources; show that it has the ability to 
maintain a staff of regular employees adequate to ensure continuous 
performance of the work; and, demonstrate that its equipment and/or 
plant capacity for the work contemplated is sufficient, adequate, and 
suitable.
    (b) Competency in performing comparable building service contracts, 
demonstration of acceptable financial resources, personnel staffing, 
plant, equipment, and supply sources will be considered in determining 
whether an Offeror is responsible.
    (c) Prospective Offerors are advised that in evaluating these areas 
involving any small business concern(s), any negative determinations are 
subject to the Certificate of Competency procedures set forth in the 
Federal Acquisition Regulation.

                           (End of provision)

[64 FR 37229, July 9, 1999, as amended at 74 FR 20606, May 5, 2009]

[[Page 302]]



Sec. 552.237-71  Qualifications of Employees.

    As prescribed in 537.110(a), insert the following clause:

                 Qualifications of Employees (MAY 1989)

    (a) The contracting officer or a designated representative may 
require the Contractor to remove any employee(s) from GSA controlled 
buildings or other real property should it be determined that the 
individual(s) is either unsuitable for security reasons or otherwise 
unfit to work on GSA controlled property.
    (b) The Contractor shall fill out and cause all of its employees 
performing work on the contract work to fill out, for submission to the 
Government, such forms as may be necessary for security or other 
reasons. Upon request of the Contracting Officer, the Contractor and its 
employees shall be fingerprinted.
    (c) Each employee of the Contractor shall be a citizen of the United 
States of America, or an alien who has been lawfully admitted for 
permanent residence as evidenced by Alien Registration Receipt Card Form 
I-151, or, who presents other evidence from the Immigration and 
Naturalization Service that employment will not affect his immigration 
status.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 74 FR 20606, May 5, 2009]



Sec. 552.237-72  Prohibition Regarding ``Quasi-Military Armed Forces.''

    As prescribed in 537.110(b), insert the following clause:

    Prohibition Regarding ``Quasi-Military Armed Forces'' (SEP 1999)

    The Contractor must not, during the term of this contract, offer for 
hire ``Quasi-Military Armed Forces'' within the meaning of the court 
decision in United States ex. rel. Weinberger v. Equifax, 557 F.2d 456 
(5th Cir. 1977).

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 74 FR 20606, May 5, 2009]



Sec. 552.237-73  Restriction on Disclosure of Information.

    As prescribed in 537.270, insert the following clause:

           Restriction on Disclosure of Information (MAY 2009)

    (a) The Contractor shall, in the performance of this contract, keep 
all information contained in source documents or other media furnished 
by the Government in the strictest confidence. The Contractor shall not 
publish or otherwise divulge such information in whole or in part, in 
any manner or form, nor authorize or permit others to do so. The 
Contractor shall take such reasonable measures as are necessary to 
restrict access to such information, while in the Contractor's 
possession, to those employees needing such information to perform the 
work provided herein, i.e., on a ``need to know'' basis. The Contractor 
shall immediately notify, in writing, the Contracting Officer in the 
event that the Contractor determines or has reason to suspect a breach 
of this requirement.
    (b) The Contractor shall not disclose any information concerning the 
work under this contract to any persons or entity unless the Contractor 
obtains prior written approval from the Contracting Officer.
    (c) The Contractor shall insert the substance of this clause in any 
consultant agreement or subcontract under this contract.
    (d) Any unauthorized disclosure of information may result in 
termination of this contract for cause.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 74 FR 20606, May 5, 2009]



Sec. 552.238-70  Identification of Electronic Office Equipment Providing 
          Accessibility for the Handicapped.

    As prescribed in 538.273(a)(1), insert the following clause:

 Identification of Electronic Office Equipment Providing Accessibility 
                     for the Handicapped (SEP 1991)

    (a) Definitions. ``Electronic office equipment accessiblity'' means 
the application/configuration of electronic office equipment (includes 
hardware, software and firmware) in a manner that accommodates the 
functional limitations of individuals with disabilities (i.e., 
handicapped individuals) so as to promote productivity and provide 
access to work related and/or public information resources.
    ``Handicapped individuals'' mean qualified individuals with 
impairments as cited in 29 CFR 1613.702(f) who can benefit from 
electronic office equipment accessibility.

[[Page 303]]

    ``Special peripheral'' means a special needs aid that provides 
access to electronic equipment that is otherwise inaccessible to a 
handicapped individual.
    (b) The offeror is encouraged to identify in its offer, and include 
in any commercial catalogs and pricelists accepted by the Contracting 
Officer, office equipment, including any special peripheral, that will 
facilitate electronic office equipment accessibility for handicapped 
individuals. Identification should include the type of disability 
accommodated and how the users with that disability would be helped.

                             (End of clause)



Sec. 552.238-71  Submission and Distribution of Authorized FSS Schedule 
          Pricelists.

    As prescribed in 538.273(a)(2), insert the following clause:

 Submission and Distribution of Authorized FSS Schedule Pricelists (SEP 
                                  1999)

    (a) Definition. For the purposes of this clause, the Mailing List is 
[Contracting officer shall insert either: ``the list of addressees 
provided to the Contractor by the Contracting Officer'' or ``the 
Contractor's listing of its Federal Government customers''].
    (b) The Contracting Officer will return one copy of the Authorize 
FSS Schedule Pricelist to the Contractor with the notification of 
contract award.
    (c)(1) The Contractor shall provide to the GSA Contracting Officer:
    (i) Two paper copies of Authorized FSS Schedule Pricelist; and
    (ii) The Authorized FSS Schedule Pricelist on a common-use 
electronic medium.
    The Contracting Officer will provide detailed instructions for the 
electronic submission with the award notification. Some structured data 
entry in a prescribed format may be required.
    (2) The Contractor shall provide to each addressee on the mailing 
list either:
    (i) One paper copy of the Authorized FSS Schedule Price List; or
    (ii) A self-addressed, postage-paid envelope or postcard to be 
returned by addressee that want to receive a paper copy of the 
pricelist. The Contractor shall distribute price lists within 20 
calendar days after receipt of returned requests.
    (3) The Contractor shall advise each addressee of the availability 
of pricelist information through the on-line Multiple Award Schedule 
electronic data base.
    (d) The Contractor shall make all of the distributions required in 
paragraph (c) at least 15 calendar days before the beginning of the 
contract period, or within 30 calendar days after receipt of the 
Contracting Officer's approval for printing, whichever is later.
    (e) During the period of the contract, the Contractor shall provide 
one copy of its Authorized FSS Schedule Pricelist to any authorized 
schedule user, upon request. Use of the mailing list for any other 
purpose is not authorized.

                             (End of clause)

    Alternate I (MAY 2003). As prescribed in 538.273(a)(2), substitute 
the following paragraph (a) for paragraph (a) of the basic clause:

    (a) Definition. For the purposes of this clause, the Mailing List is 
[Contracting officer shall insert either: ``the list of addressees 
provided to the Contractor by the Contracting Officer'' or ``the 
Contractor's listing of its ordering activity customers''].

[64 FR 37229, July 9, 1999, as amended at 68 FR 24381, May 7, 2003]



Sec. 552.238-72  Identification of Products That Have Environmental 
          Attributes.

    As prescribed in 538.273(a)(3), insert the following clause:

Identification of Products That Have Environmental Attributes (SEP 2003)

    (a) Several laws, Executive orders, and Agency directives require 
Federal buyers to purchase products that are less harmful to the 
environment, when they are life cycle cost-effective (see FAR Subpart 
23.7). The U.S. General Services Administration (GSA) requires 
contractors to highlight environmental products under Federal Supply 
Service schedule contracts in various communications media (e.g., 
publications and electronic formats).
    (b) Definitions. As used in this clause--
    Energy-efficient product means a product that--
    (1) Meets Department of Energy and Environmental Protection Agency 
criteria for use of the ENERGY STAR [supreg] trademark label; or
    (2) Is in the upper 25 percent of efficiency for all similar 
products as designated by the Department of Energy's Federal Energy 
Management Program.
    GSA Advantage! is an on-line shopping mall and ordering system that 
provides customers with access to products and services under GSA 
contracts.
    Other environmental attributes refers to product characteristics 
that provide environmental benefits, excluding recovered materials and 
energy and water efficiency. Several examples of these characteristics 
are

[[Page 304]]

biodegradable, recyclable, reduced pollutants, ozone safe, and low 
volatile organic compounds (VOCs).
    Post-consumer material means a material or finished product that has 
served its intended use and has been discarded for disposal or recovery, 
having completed its life as a consumer item. Post-consumer material is 
part of the broader category of ``recovered material.'' The 
Environmental Protection Agency (EPA) has developed a list of EPA-
designated products in their Comprehensive Procurement Guidelines (CPGs) 
to provide Federal agencies with purchasing recommendations on specific 
products in a Recovered Materials Advisory Notice (RMAN). The RMAN 
contains recommended recovered and post-consumer material content levels 
for the specific products designated by EPA (40 CFR part 247 and http://
www.epa.gov/cpg/).
    Recovered materials means waste materials and by-products recovered 
or diverted from solid waste, but the term does not include those 
materials and by-products generated from, and commonly reused within, an 
original manufacturing process (Executive Order 13101 and 42 U.S.C. 
6903(19) and http://www.epa.gov/cpg/). For paper and paper products, see 
the definition at FAR 11.301 (42 U.S.C. 6962(h)).
    Remanufactured means factory rebuilt to original specifications.
    Renewable energy means energy produced by solar, wind, geothermal, 
and biomass power.
    Renewable energy technology means--
    (1) Technologies that use renewable energy to provide light, heat, 
cooling, or mechanical or electrical energy for use in facilities or 
other activities; or
    (2) The use of integrated whole-building designs that rely upon 
renewable energy resources, including passive solar design.
    (c)(1) The offeror must identify products that--
    (i) Are compliant with the recovered and post-consumer material 
content levels recommended in the Recovered Materials Advisory Notices 
(RMANs) for EPA-designated products in the CPG program (http://
www.epa.gov/cpg/);
    (ii) Contain recovered materials that either do not meet the 
recommended levels in the RMANs or are not EPA-designated products in 
the CPG program (see FAR 23.401 and http://www.epa.gov/cpg/);
    (iii) Are energy-efficient, as defined by either ENERGY STAR 
[supreg] and/or FEMP's designated top 25th percentile levels (see ENERGY 
STAR [supreg] at http://www.energystar.gov/ and FEMP at http://
www.eere.energy.gov/femp/procurement/);
    (iv) Are water-efficient;
    (v) Use renewable energy technology;
    (vi) Are remanufactured; and
    (vii) Have other environmental attributes.
    (2) These identifications must be made in each of the offeror's 
following mediums:
    (i) The offer itself.
    (ii) Printed commercial catalogs, brochures, and pricelists.
    (iii) Online product website.
    (iv) Electronic data submission for GSA Advantage! submitted via 
GSA's Schedules Input Program (SIP) software or the Electronic Data 
Inter-change (EDI). Offerors can use the SIP or EDI methods to indicate 
environmental and other attributes for each product that is translated 
into respective icons in GSA Advantage!.
    (d) An offeror, in identifying an item with an environmental 
attribute, must possess evidence or rely on a reasonable basis to 
substantiate the claim (see 16 CFR part 260, Guides for the Use of 
Environmental Marketing Claims). The Government will accept an offeror's 
claim of an item's environmental attribute on the basis of--
    (1) Participation in a Federal agency-sponsored program (e.g., the 
EPA and DOE ENERGY STAR [supreg] product labeling program);
    (2) Verification by an independent organization that specializes in 
certifying such claims; or
    (3) Possession of competent and reliable evidence. For any test, 
analysis, research, study, or other evidence to be ``competent and 
reliable,'' it must have been conducted and evaluated in an objective 
manner by persons qualified to do so, using procedures generally 
accepted in the profession to yield accurate and reliable results.

                             (End of clause)

[68 FR 52128, Sept. 2, 2003]



Sec. 552.238-73  Cancellation.

    As prescribed in 538.273(a)(4), insert the following clause:

                         Cancellation (SEP 1999)

    Either party may cancel this contract in whole or in part by 
providing written notice. The cancellation will take effect 30 calendar 
days after the other party receives the notice of cancellation. If the 
Contractor elects to cancel this contract, the Government will not 
reimburse the minimum guarantee.

                             (End of clause)



Sec. 552.238-74  Industrial Funding Fee and Sales Reporting.

    As prescribed in 538.273(b)(1), insert the following clause:

[[Page 305]]

          Industrial Funding Fee and Sales Reporting (JUL 2003)

    (a) Reporting of Federal Supply Schedule Sales. The Contractor shall 
report all contract sales under this contract as follows:
    (1) The Contractor shall accurately report the dollar value, in U.S. 
dollars and rounded to the nearest whole dollar, of all sales under this 
contract by calendar quarter (January 1-March 31, April 1-June 30, July 
1-September 30, and October 1-December 31). The dollar value of a sale 
is the price paid by the Schedule user for products and services on a 
Schedule task or delivery order. The reported contract sales value shall 
include the Industrial Funding Fee (IFF). The Contractor shall maintain 
a consistent accounting method of sales reporting, based on the 
Contractor's established commercial accounting practice. The acceptable 
points at which sales may be reported include--
    (i) Receipt of order;
    (ii) Shipment or delivery, as applicable;
    (iii) Issuance of an invoice; or
    (iv) Payment.
    (2) Contract sales shall be reported to FSS within 30 calendar days 
following the completion of each reporting quarter. The Contractor shall 
continue to furnish quarterly reports, including ``zero'' sales, through 
physical completion of the last outstanding task order or delivery order 
of the contract.
    (3) Reportable sales under the contract are those resulting from 
sales of contract items to authorized users unless the purchase was 
conducted pursuant to a separate contracting authority such as a 
Governmentwide Acquisition Contract (GWAC); a separately awarded FAR 
Part 12, FAR Part 13, FAR Part 14, or FAR Part 15 procurement; or a non-
FAR contract. Sales made to state and local governments under 
Cooperative Purchasing authority shall be counted as reportable sales 
for IFF purposes.
    (4) The Contractor shall electronically report the quarterly dollar 
value of sales, including ``zero'' sales, by utilizing the automated 
reporting system at an Internet website designated by the General 
Services Administration (GSA)'s Federal Supply Service (FSS). Prior to 
using this automated system, the Contractor shall complete contract 
registration with the FSS Vendor Support Center (VSC). The website 
address, as well as registration instructions and reporting procedures, 
will be provided at the time of award. The Contractor shall report sales 
separately for each National Stock Number (NSN), Special Item Number 
(SIN), or sub-item.
    (5) The Contractor shall convert the total value of sales made in 
foreign currency to U.S. dollars using the ``Treasury Reporting Rates of 
Exchange'' issued by the U.S. Department of Treasury, Financial 
Management Service. The Contractor shall use the issue of the Treasury 
report in effect on the last day of the calendar quarter. The report is 
available from Financial Management Service, International Funds Branch, 
Telephone: (202) 874-7994, Internet: http://www.fms.treas.gov/intn.html.
    (b) The Contractor shall remit the IFF at the rate set by GSA's FSS.
    (1) The Contractor shall remit the IFF to FSS in U.S. dollars within 
30 calendar days after the end of the reporting quarter; final payment 
shall be remitted within 30 days after physical completion of the last 
outstanding task order or delivery order of the contract.
    (2) The IFF represents a percentage of the total quarterly sales 
reported. This percentage is set at the discretion of GSA's FSS. GSA's 
FSS has the unilateral right to change the percentage at any time, but 
not more than once per year. FSS will provide reasonable notice prior to 
the effective date of the change. The IFF reimburses FSS for the costs 
of operating the Federal Supply Schedules Program and recoups its 
operating costs from ordering activities. Offerors must include the IFF 
in their prices. The fee is included in the award price(s) and reflected 
in the total amount charged to ordering activities. FSS will post notice 
of the current IFF at http://72a.fss.gsa.gov/ or successor website as 
appropriate.
    (c) Within 60 days of award, an FSS representative will provide the 
Contractor with specific written procedural instructions on remitting 
the IFF. FSS reserves the unilateral right to change such instructions 
from time to time, following notification to the Contractor.
    (d) Failure to remit the full amount of the IFF within 30 calendar 
days after the end of the applicable reporting period constitutes a 
contract debt to the United States Government under the terms of FAR 
Subpart 32.6. The Government may exercise all rights under the Debt 
Collection Improvement Act of 1996, including withholding or setting off 
payments and interest on the debt (see FAR clause 52.232-17, Interest). 
Should the Contractor fail to submit the required sales reports, falsify 
them, or fail to timely pay the IFF, this is sufficient cause for the 
Government to terminate the contract for cause.

                             (End of clause)

[68 FR 41288, July 11, 2003]



Sec. 552.238-75  Price Reductions.

    As prescribed in 538.273(b)(2), insert the following clause:

                       Price Reductions (MAY 2004)

    (a) Before award of a contract, the Contracting Officer and the 
Offeror will agree

[[Page 306]]

upon (1) the customer (or category of customers) which will be the basis 
of award, and (2) the Government's price or discount relationship to the 
identified customer (or category of customers). This relationship shall 
be maintained through out the contract period. Any change in the 
Contractor's commercial pricing or discount arrangement applicable to 
the identified customer (or category of customers) which disturbs this 
relationship shall constitute a price reduction.
    (b) During the contract period, the Contractor shall report to the 
Contracting Officer all price reductions to the customer (or category of 
customers) that was the basis of award. The Contractor's report shall 
include an explanation of the conditions under which the reductions were 
made.
    (c)(1) A price reduction shall apply to purchases under this 
contract if, after the date negotiations conclude, the Contractor--
    (i) Revises the commercial catalog, pricelist, schedule or other 
document upon which contract award was predicated to reduce prices;
    (ii) Grants more favorable discounts or terms and conditions than 
those contained in the commercial catalog, pricelist, schedule or other 
documents upon which contract award was predicated; or
    (iii) Grants special discounts to the customer (or category of 
customers) that formed the basis of award, and the change disturbs the 
price/discount relationship of the Government to the customer (or 
category of customers) that was the basis of award.
    (2) The Contractor shall offer the price reduction to the Government 
with the same effective date, and for the same time period, as extended 
to the commercial customer (or category of customers).
    (d) There shall be no price reduction for sales--
    (1) To commercial customers under firm, fixed-price definite 
quantity contracts with specified delivery in excess of the maximum 
order threshold specified in this contract;
    (2) To Federal agencies;
    (3) Made to State and local government entities when the order is 
placed under this contract (and the State and local government entity is 
the agreed upon customer or category of customer that is the basis of 
award); or
    (4) Caused by an error in quotation or billing, provided adequate 
documentation is furnished by the Contractor to the Contracting Officer.
    (e) The Contractor may offer the Contracting Officer a voluntary 
Governmentwide price reduction at any time during the contract period.
    (f) The Contractor shall notify the Contracting Officer of any price 
reduction subject to this clause as soon as possible, but not later than 
15 calendar days after its effective date.
    (g) The contractor will be modified to reflect any price reduction 
which becomes applicable in accordance with this clause.

                             (End of clause)

    Alternate I (MAY 2003). As prescribed in 538.273(b)(2), substitute 
the following paragraph (c)(2) for paragraph (c)(2) of the basic clause, 
and substitute the following paragraph (d)(2) for paragraph (d)(2) of 
the basic clause.

    (c)(2) The Contractor shall offer the price reduction to the 
eligible ordering activities with the same effective date, and for the 
same time period, as extended to the commercial customer (or category of 
customers).
    (d)(2) To eligible ordering activities under this contract; or

[64 FR 37229, July 9, 1999, as amended at 68 FR 24381, May 7, 2003; 69 
FR 28065, May 18, 2004]



Sec. 552.238-76  Definition (Federal Supply Schedules)--Recovery 
          Purchasing.

    As prescribed in 538.7104(a), insert the following clause:

  Definition (Federal Supply Schedules)--Recovery Purchasing (FEB 2007)

    Ordering activity (also called ``ordering agency'' and ``ordering 
office'') means an eligible ordering activity (see 552.238-78, Alternate 
I) authorized to place orders under Federal Supply Schedule contracts.

                             (End of clause)

[72 FR 4654, Feb. 1, 2007]



Sec. 552.238-77  Definition (Federal Supply Schedules).

    As prescribed in 538.7004(a), insert the following clause:

            Definition (Federal Supply Schedules) (MAY 2003)

    Ordering activity (also called ``ordering agency'' and ``ordering 
office'') means an eligible ordering activity (see 552.238-78) 
authorized to place orders under Federal Supply Schedule contracts.

                             (End of clause)

[68 FR 24381, May 7, 2003]

[[Page 307]]



Sec. 552.238-78  Scope of Contract (Eligible Ordering Activities).

    As prescribed in 538.7004(b), insert the following clause:

       Scope of Contract (Eligible Ordering Activities) (SEP 2008)

    (a) This solicitation is issued to establish contracts which may be 
used on a nonmandatory basis by the agencies and activities named below, 
as a source of supply for the supplies or services described herein, for 
domestic and/or overseas delivery. For Special Item Number 132-53, 
Wireless Services ONLY, limited geographic coverage (consistent with the 
Offeror's commercial practice) may be proposed.
    (1) Executive agencies (as defined in FAR Subpart 2.1) including 
nonappropriated fund activities as prescribed in 41 CFR 101-26.000);
    (2) Government contractors authorized in writing by a Federal agency 
pursuant to FAR 51.1;
    (3) Mixed ownership Government corporations (as defined in the 
Government Corporation Control Act);
    (4) Federal Agencies, including establishments in the legislative or 
judicial branch of government (except the Senate, the House of 
Representatives and the Architect of the Capitol and any activities 
under the direction of the Architect of the Capitol).
    (5) The District of Columbia;
    (6) Tribal governments when authorized under 25 U.S.C. 450j(k);
    (7) Qualified Nonprofit Agencies as authorized under 40 U.S.C. 
502(b); and
    (8) Organizations, other than those identified in paragraph (d) of 
this clause, authorized by GSA pursuant to statute or regulation to use 
GSA as a source of supply.
    (b) Definitions. Domestic delivery is delivery within the 48 
contiguous states, Alaska, Hawaii, Puerto Rico, Washington, DC, and U.S. 
territories. Domestic delivery also includes a port or consolidation 
point, within the aforementioned areas, for orders received from 
overseas activities.
    Overseas delivery is delivery to points outside of the 48 contiguous 
states, Washington, DC, Alaska, Hawaii, Puerto Rico, and U.S. 
territories.
    (c) Offerors are requested to check one of the following boxes:
    [squ] Contractor will provide domestic and overseas delivery.
    [squ] Contractor will provide overseas delivery only.
    [squ] Contractor will provide domestic delivery only.
    (d) The following activities may place orders against Schedule 70 
contracts, and Consolidated Schedule contracts containing information 
technology Special Item Numbers, and Schedule 84 contracts, on an 
optional basis; PROVIDED, the Contractor accepts order(s) from such 
activities: State and local government, includes any state, local, 
regional or tribal government or any instrumentality thereof (including 
any local educational agency or institution of higher learning).
    (e) Articles or services may be ordered from time to time in such 
quantities as may be needed to fill any requirement, subject to the 
Order Limitations thresholds which will be specified in resultant 
contracts. Overseas activities may place orders directly with schedule 
contractors for delivery to CONUS port or consolidation point.
    (f)(1) The Contractor is obligated to accept orders received from 
activities within the Executive branch of the Federal Government.
    (2) The Contractor is not obligated to accept orders received from 
activities outside the Executive branch; however, the Contractor is 
encouraged to accept such orders. If the Contractor elects to accept 
such orders, all provisions of the contract shall apply, including 
clause 552.232-79, Payment by Credit Card. If the Contractor is 
unwilling to accept such orders, and the proposed method of payment is 
not through the Credit Card, the Contractor shall return the order by 
mail or other means of delivery within 5 workdays from receipt. If the 
Contractor is unwilling to accept such orders, and the proposed method 
of payment is through the Credit Card, the Contractor must so advise the 
ordering activity within 24 hours of receipt of order. (Reference clause 
552.232-79, Payment by Credit Card.) Failure to return an order or 
advise the ordering activity within the time frames of this paragraph 
shall constitute acceptance whereupon all provisions of the contract 
shall apply.
    (g) The Government is obligated to purchase under each resultant 
contract a guaranteed minimum of $2,500 (two thousand, five hundred 
dollars) during the contract term.
    Alternate I (FEB 2007). As prescribed in 538.7104(b), substitute the 
following paragraphs (a) and (d) for paragraphs (a) and (d) of the basic 
clause:

    (a) This solicitation is issued to establish contracts which may be 
used on a nonmandatory basis by the agencies and activities named below, 
as a source of supply for the supplies or services described herein, for 
domestic delivery.
    (1) Executive agencies (as defined in Federal Acquisition Regulation 
Subpart 2.1) including nonappropriated fund activities as prescribed in 
41 CFR 101-26.000;
    (2) Government contractors authorized in writing by a Federal agency 
pursuant to Federal Acquisition Regulation Subpart 51.1;
    (3) Mixed ownership Government corporations (as defined in the 
Government Corporation Control Act);

[[Page 308]]

    (4) Federal Agencies, including establishments in the legislative or 
judicial branch of government (except the Senate, the House of 
Representatives and the Architect of the Capitol and any activities 
under the direction of the Architect of the Capitol);
    (5) The District of Columbia;
    (6) Tribal governments when authorized under 25 U.S.C. 450j(k);
    (7) Qualified Nonprofit Agencies as authorized under 40 U.S.C. 
502(b); and
    (8) Organizations, other than those identified in paragraph (d) of 
this clause, authorized by GSA pursuant to statute or regulation to use 
GSA as a source of supply.
    (d) The following activities may place orders against Federal Supply 
Schedules for products and services determined by the Secretary of 
Homeland Security to facilitate recovery from major disasters, 
terrorism, or nuclear, biological, chemical, or radiological attack, on 
an optional basis; PROVIDED, the Contractor accepts order(s) from such 
activities: State and local government entities, includes any state, 
local, regional or tribal government or any instrumentality thereof 
(including any local educational agency or institution of higher 
learning).
    State and local government entities, means the states of the United 
States, counties, municipalities, cities, towns, townships, tribal 
governments, public authorities (including public or Indian housing 
agencies under the United States Housing Act of 1937), school districts, 
colleges and other institutions of higher education, council of 
governments (incorporated or not), regional or interstate government 
entities, or any agency or instrumentality of the preceding entities 
(including any local educational agency or institution of higher 
education), and including legislative and judicial departments. The term 
does not include contractors of, or grantees of, State or local 
governments.
    (1) Local educational agency has the meaning given that term in 
section 8013 of the Elementary and Secondary Education Act of 1965 (20 
U.S.C. 7713).
    (2) Institution of higher education has the meaning given that term 
in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 
1001(a)).
    (3) Tribal government means--
    (i) The governing body of any Indian tribe, band, nation, or other 
organized group or community located in the continental United States 
(excluding the State of Alaska) that is recognized as eligible for the 
special programs and services provided by the United States to Indians 
because of their status as Indians; and
    (ii) Any Alaska Native regional or village corporation established 
pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et 
seq.).

                             (End of clause)

[68 FR 24381, May 7, 2003, as amended at 69 FR 28065, May 18, 2004; 72 
FR 4654, Feb. 1, 2007; 73 FR 54339, Sept. 19, 2008]



Sec. 552.238-79  Use of Federal Supply Schedule Contracts by Certain 
          Entities--Cooperative Purchasing.

    As prescribed in 538.7004(c), insert the following clause:

     Use of Federal Supply Schedule Contracts by Certain Entities--
                    Cooperative Purchasing (MAY 2004)

    (a) If an entity identified in paragraph (d) of the clause at 
552.238-78, Scope of Contract (Eligible Ordering Activities), elects to 
place an order under this contract, the entity agrees that the order 
shall be subject to the following conditions:
    (1) When the Contractor accepts an order from such an entity, a 
separate contract is formed which incorporates by reference all the 
terms and conditions of the Schedule contract except the Disputes 
clause, the patent indemnity clause, and the portion of the Commercial 
Item Contract Terms and Conditions that specifies ``Compliance with laws 
unique to Government contracts'' (which applies only to contracts with 
entities of the Executive branch of the U.S. Government). The parties to 
this new contract which incorporates the terms and conditions of the 
Schedule contract are the individual ordering activity and the 
Contractor. The U.S. Government shall not be liable for the performance 
or nonperformance of the new contract. Disputes which cannot be resolved 
by the parties to the new contract may be litigated in any State or 
Federal court with jurisdiction over the parties, applying Federal 
procurement law, including statutes, regulations and case law, and, if 
pertinent, the Uniform Commercial Code. To the extent authorized by law, 
parties to this new contract are encouraged to resolve disputes through 
Alternative Dispute Resolution. Likewise, a Blanket Purchase Agreement 
(BPA), although not a contract, is an agreement that may be entered into 
by the Contractor with such an entity and the Federal Government is not 
a party.
    (2) Where contract clauses refer to action by a Contracting Officer 
or a Contracting Officer of GSA, that shall mean the individual 
responsible for placing the order for the ordering activity (e.g., FAR 
52.212-4 at paragraph (f) and FSS clause I-FSS-249 B.)
    (3) As a condition of using this contract, eligible ordering 
activities agree to abide by all terms and conditions of the Schedule 
contract, except for those deleted clauses or portions of clauses 
mentioned in paragraph (a)(1) of this clause. Ordering activities may 
include terms and conditions required by

[[Page 309]]

statute, ordinance, regulation, order, or as otherwise allowed by State 
and local government entities as a part of a statement of work (SOW) or 
statement of objective (SOO) to the extent that these terms and 
conditions do not conflict with the terms and conditions of the Schedule 
contract. The ordering activity and the Contractor expressly acknowledge 
that, in entering into an agreement for the ordering activity to 
purchase goods or services from the Contractor, neither the ordering 
activity nor the Contractor will look to, primarily or in any secondary 
capacity, or file any claim against the United States or any of its 
agencies with respect to any failure of performance by the other party.
    (4) The ordering activity is responsible for all payments due the 
Contractor under the contract formed by acceptance of the ordering 
activity's order, without recourse to the agency of the U.S. Government, 
which awarded the Schedule contract.
    (5) The Contractor is encouraged, but not obligated, to accept 
orders from such entities. The Contractor may, within 5 days of receipt 
of the order, decline to accept any order, for any reason. The 
Contractor shall fulfill orders placed by such entities, which are not 
declined within the 5-day period.
    (6) The supplies or services purchased will be used for governmental 
purposes only and will not be resold for personal use. Disposal of 
property acquired will be in accordance with the established procedures 
of the ordering activity for the disposal of personal property.
    (b) If the Schedule Contractor accepts an order from an entity 
identified in paragraph (d) of the clause at 552.238-78, Scope of 
Contract (Eligible Ordering Activities), the Contractor agrees to the 
following conditions:
    (1) The ordering activity is responsible for all payments due the 
Contractor for the contract formed by acceptance of the order, without 
recourse to the agency of the U.S. Government, which awarded the 
Schedule contract.
    (2) The Contractor is encouraged, but not obligated, to accept 
orders from such entities. The Contractor may, within 5 days of receipt 
of the order, decline to accept any order, for any reason. The 
Contractor shall decline the order using the same means as those used to 
place the order. The Contractor shall fulfill orders placed by such 
entities, which are not declined within the 5-day period.
    (c) In accordance with clause 552.238-74, Industrial Funding Fee and 
Sales Reporting, the Contractor must report the quarterly dollar value 
of all sales under this contract. When submitting sales reports, the 
Contractor must report two dollar values for each Special Item Number:
    (1) The dollar value for sales to entities identified in paragraph 
(a) of the clause at 552.238-78, Scope of Contract (Eligible Ordering 
Activities), and
    (2) The dollar value for sales to entities identified in paragraph 
(d) of clause 552.238-78.

                             (End of clause)

[68 FR 24381, May 7, 2003, as amended at 68 FR 41289, July 11, 2003; 69 
FR 28066, May 18, 2004]



Sec. 552.238-80  Use of Federal Supply Schedule Contracts by Certain 
          Entities--Recovery Purchasing.

    As prescribed in 538.7104(c), insert the following clause:

 Use of Federal Supply Schedule Contracts by Certain Entities--Recovery 
                          Purchasing (FEB 2007)

    (a) If an entity identified in paragraph (d) of the clause at 
552.238-78, Scope of Contract (Eligible Ordering Activities)--Alternate 
I, elects to place an order under this contract, the entity agrees that 
the order shall be subject to the following conditions:
    (1) When the Contractor accepts an order from such an entity, a 
separate contract is formed which incorporates by reference all the 
terms and conditions of the Schedule contract except the Disputes 
clause, the patent indemnity clause, and the portion of the Commercial 
Item Contract Terms and Conditions that specifies ``Compliance with laws 
unique to Government contracts'' (which applies only to contracts with 
entities of the Executive branch of the U.S. Government). The parties to 
this new contract which incorporates the terms and conditions of the 
Schedule contract are the individual ordering activity and the 
Contractor. The U.S. Government shall not be liable for the performance 
or nonperformance of the new contract. Disputes which cannot be resolved 
by the parties to the new contract may be litigated in any State or 
Federal court with jurisdiction over the parties, applying Federal 
procurement law, including statutes, regulations and case law, and, if 
pertinent, the Uniform Commercial Code. To the extent authorized by law, 
parties to this new contract are encouraged to resolve disputes through 
Alternative Dispute Resolution. Likewise, a Blanket Purchase Agreement 
(BPA), although not a contract, is an agreement that may be entered into 
by the Contractor with such an entity and the Federal Government is not 
a party.
    (2) Where contract clauses refer to action by a Contracting Officer 
or a Contracting Officer of GSA, that shall mean the individual 
responsible for placing the order for the ordering activity (e.g., 
Federal Acquisition Regulation 52.212-4 at paragraph (f) and FSS clause 
I-FSS-249 B).

[[Page 310]]

    (3) As a condition of using this contract, eligible ordering 
activities agree to abide by all terms and conditions of the Schedule 
contract, except for those deleted clauses or portions of clauses 
mentioned in paragraph (a)(1) of this clause. Ordering activities may 
include terms and conditions required by statute, ordinance, regulation, 
order, or as otherwise allowed by State and local government entities as 
a part of a statement of work (SOW) or statement of objective (SOO) to 
the extent that these terms and conditions do not conflict with the 
terms and conditions of the Schedule contract. The ordering activity and 
the Contractor expressly acknowledge that, in entering into an agreement 
for the ordering activity to purchase goods or services from the 
Contractor, neither the ordering activity nor the Contractor will look 
to, primarily or in any secondary capacity, or file any claim against 
the United States or any of its agencies with respect to any failure of 
performance by the other party.
    (4) The ordering activity is responsible for all payments due the 
Contractor under the contract formed by acceptance of the ordering 
activity's order, without recourse to the agency of the U.S. Government, 
which awarded the Schedule contract.
    (5) The Contractor is encouraged, but not obligated, to accept 
orders from such entities. The Contractor may, within 5 days of receipt 
of the order, decline to accept any order, for any reason. The 
Contractor shall fulfill orders placed by such entities, which are not 
declined within the 5-day period.
    (6) The supplies or services purchased will be used for governmental 
purposes only and will not be resold for personal use. Disposal of 
property acquired will be in accordance with the established procedures 
of the ordering activity for the disposal of personal property.
    (7) The state or local government ordering activity will be 
responsible for purchasing products or services to be used to facilitate 
recovery from a major disaster declared by the President under the 
Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 
U.S.C. 5121 et seq.) or to facilitate recovery from terrorism or 
nuclear, biological, chemical, or radiological attack.
    (b) If the Schedule Contractor accepts an order from an entity 
identified in paragraph (d) of the clause at 552.238-78, Scope of 
Contract (Eligible Ordering Activities)--Alternate I, the Contractor 
agrees to the following conditions--
    (1) The ordering activity is responsible for all payments due the 
Contractor for the contract formed by acceptance of the order, without 
recourse to the agency of the U.S. Government, which awarded the 
Schedule contract.
    (2) The Contractor is encouraged, but not obligated, to accept 
orders from such entities. The Contractor may, within 5 days of receipt 
of the order, decline to accept any order, for any reason. The 
Contractor shall decline the order using the same means as those used to 
place the order. The Contractor shall fulfill orders placed by such 
entities, which are not declined within the 5-day period.
    (c) In accordance with clause 552.238-74, Industrial Funding Fee and 
Sales Reporting, the Contractor must report the quarterly dollar value 
of all sales under this contract. When submitting sales reports, the 
Contractor must report two dollar values for each Special Item Number--
    (1) The dollar value for sales to entities identified in paragraph 
(a) of the clause at 552.238-78, Scope of Contract (Eligible Ordering 
Activities)--Alternate I; and
    (2) The dollar value for sales to entities identified in paragraph 
(d) of clause 552.238-78, Alternate I.
    (d) A listing of the Federal Supply Schedule contracts for the 
products and services available for disaster recovery purchasing is 
accessible in GSA's Schedules e-Library at Web site http://
www.gsaelibrary.gsa.gov. Click on the link, ``Disaster Recovery 
Purchasing, State and Local.'' The participating Contractors and the 
products and services available for disaster recovery purchasing will be 
labeled with the Disaster Recovery Purchasing icon.

                             (End of clause)

[72 FR 4654, Feb. 1, 2007]



Sec. 552.239-70  Information Technology Security Plan and Security 
          Authorization.

    As prescribed in 539.7002(a), insert the following provision:

  Information Technology Security Plan and Security Authorization (JUN 
                                  2011)

    All offers/bids submitted in response to this solicitation must 
address the approach for completing the security plan and certification 
and security authorization requirements as required by the clause at 
552.239-71, Security Requirements for Unclassified Information 
Technology Resources.

                           (End of provision)

[76 FR 34888, June 15, 2011]



Sec. 552.239-71  Security Requirements for Unclassified Information 
          Technology Resources.

    As prescribed in 539.7002(b), insert the following clause:

[[Page 311]]

Security Requirements for Unclassified Information Technology Resources 
                               (JAN 2012)

    (a) General. The Contractor shall be responsible for information 
technology (IT) security, based on General Services Administration (GSA) 
risk assessments, for all systems connected to a GSA network or operated 
by the Contractor for GSA, regardless of location. This clause is 
applicable to all or any part of the contract that includes information 
technology resources or services in which the Contractor has physical or 
electronic access to GSA's information that directly supports the 
mission of GSA, as indicated by GSA. The term information technology, as 
used in this clause, means any equipment, including telecommunications 
equipment that is used in the automatic acquisition, storage, 
manipulation, management, control, display, switching, interchange, 
transmission, or reception of data or information. This includes major 
applications as defined by OMB Circular A-130. Examples of tasks that 
require security provisions include:
    (1) Hosting of GSA e-Government sites or other IT operations;
    (2) Acquisition, transmission, or analysis of data owned by GSA with 
significant replacement cost should the Contractors copy be corrupted;
    (3) Access to GSA major applications at a level beyond that granted 
the general public; e.g., bypassing a firewall; and
    (4) Any new information technology systems acquired for operations 
within the GSA must comply with the requirements of HSPD-12 and OMB M-
11-11. Usage of the credentials must be implemented in accordance with 
OMB policy and NIST guidelines (e.g., NIST SP 800-116). The system must 
operate within the GSA's access management environment. Exceptions must 
be requested in writing and can only be granted by the GSA Senior Agency 
Information Security Officer.
    (b) IT Security Plan. The Contractor shall develop, provide, 
implement, and maintain an IT Security Plan. This plan shall describe 
the processes and procedures that will be followed to ensure appropriate 
security of IT resources that are developed, processed, or used under 
this contract. The plan shall describe those parts of the contract to 
which this clause applies. The Contractors IT Security Plan shall comply 
with applicable Federal laws that include, but are not limited to, 40 
U.S.C. 11331, the Federal Information Security Management Act (FISMA) of 
2002, and the E-Government Act of 2002. The plan shall meet IT security 
requirements in accordance with Federal and GSA policies and procedures. 
GSA's Office of the Chief Information Officer issued ``CIO IT Security 
Procedural Guide 09-48, Security Language for Information Technology 
Acquisitions Efforts,'' to provide IT security standards, policies and 
reporting requirements. This document is incorporated by reference in 
all solicitations and contracts or task orders where an information 
system is contractor owned and operated on behalf of the Federal 
Government. The guide can be accessed at http://www.gsa.gov/portal/
category/25690. Specific security requirements not specified in ``CIO IT 
Security Procedural Guide 09-48, Security Language for Information 
Technology Acquisitions Efforts'' shall be provided by the requiring 
activity.
    (c) Submittal of IT Security Plan. Within 30 calendar days after 
contract award, the Contractor shall submit the IT Security Plan to the 
Contracting Officer and Contracting Officers Representative (COR) for 
acceptance. This plan shall be consistent with and further detail the 
approach contained in the contractors proposal or sealed bid that 
resulted in the award of this contract and in compliance with the 
requirements stated in this clause. The plan, as accepted by the 
Contracting Officer and COR, shall be incorporated into the contract as 
a compliance document. The Contractor shall comply with the accepted 
plan.
    (d) Submittal of a Continuous Monitoring Plan. The Contractor must 
develop a continuous monitoring strategy that includes:
    (1) A configuration management process for the information system 
and its constituent components;
    (2) A determination of the security impact of changes to the 
information system and environment of operation;
    (3) Ongoing security control assessments in accordance with the 
organizational continuous monitoring strategy;
    (4) Reporting the security state of the information system to 
appropriate GSA officials; and
    (5) All GSA general support systems and applications must implement 
continuous monitoring activities in accordance with this guide and NIST 
SP 800-37 Revision 1, Guide for Applying the Risk Management Framework 
to Federal Information Systems: A Security Life Cycle Approach.
    (e) Security authorization. Within six (6) months after contract 
award, the Contractor shall submit written proof of IT security 
authorization for acceptance by the Contracting Officer. Such written 
proof may be furnished either by the Contractor or by a third party. The 
security authorization must be in accordance with NIST Special 
Publication 800-37. This security authorization will include a final 
security plan, risk assessment, security test and evaluation, and 
disaster recovery plan/continuity of operations plan. This security 
authorization, when accepted by the Contracting Officer, shall be 
incorporated into the contract as a compliance document, and shall 
include a final security plan, a risk assessment, security test

[[Page 312]]

and evaluation, and disaster recovery/continuity of operations plan. The 
Contractor shall comply with the accepted security authorization 
documentation.
    (f) Annual verification. On an annual basis, the Contractor shall 
submit verification to the Contracting Officer that the IT Security plan 
remains valid.
    (g) Warning notices. The Contractor shall ensure that the following 
banners are displayed on all GSA systems (both public and private) 
operated by the Contractor prior to allowing anyone access to the 
system:

                            Government Warning

                      **WARNING**WARNING**WARNING**

    Unauthorized access is a violation of U.S. law and General Services 
Administration policy, and may result in criminal or administrative 
penalties. Users shall not access other users or system files without 
proper authority. Absence of access controls IS NOT authorization for 
access! GSA information systems and related equipment are intended for 
communication, transmission, processing and storage of U.S. Government 
information. These systems and equipment are subject to monitoring by 
law enforcement and authorized Department officials. Monitoring may 
result in the acquisition, recording, and analysis of all data being 
communicated, transmitted, processed or stored in this system by law 
enforcement and authorized Department officials. Use of this system 
constitutes consent to such monitoring.

                      **WARNING**WARNING**WARNING**

    (h) Privacy Act notification. The Contractor shall ensure that the 
following banner is displayed on all GSA systems that contain Privacy 
Act information operated by the Contractor prior to allowing anyone 
access to the system:
    This system contains information protected under the provisions of 
the Privacy Act of 1974 (Pub. L. 93-579). Any privacy information 
displayed on the screen or printed shall be protected from unauthorized 
disclosure. Employees who violate privacy safeguards may be subject to 
disciplinary actions, a fine of up to $5,000, or both.
    (i) Privileged or limited privileges access. Contractor personnel 
requiring privileged access or limited privileges access to systems 
operated by the Contractor for GSA or interconnected to a GSA network 
shall adhere to the specific contract security requirements contained 
within this contract and/or the Contract Security Classification 
Specification (DD Form 254).
    (j) Training. The Contractor shall ensure that its employees 
performing under this contract receive annual IT security training in 
accordance with OMB Circular A-130, FISMA, and NIST requirements, as 
they may be amended from time to time during the term of this contract, 
with a specific emphasis on the rules of behavior.
    (k) GSA access. The Contractor shall afford GSA access to the 
Contractor's and subcontractors' facilities, installations, operations, 
documentation, databases, IT systems and devices, and personnel used in 
performance of the contract, regardless of the location. Access shall be 
provided to the extent required, in GSA's judgment, to conduct an 
inspection, evaluation, investigation or audit, including vulnerability 
testing to safeguard against threats and hazards to the integrity, 
availability and confidentiality of GSA data or to the function of 
information technology systems operated on behalf of GSA, and to 
preserve evidence of computer crime. This information shall be available 
to GSA upon request.
    (l) Subcontracts. The Contractor shall incorporate the substance of 
this clause in all subcontracts that meet the conditions in paragraph 
(a) of this clause.
    (m) Notification regarding employees. The Contractor shall 
immediately notify the Contracting Officer when an employee either 
begins or terminates employment when that employee has access to GSA 
information systems or data. If an employee's employment is terminated, 
for any reason, access to GSA's information systems or data shall be 
immediately disabled and the credentials used to access the information 
systems or data shall be immediately confiscated.
    (n) Termination. Failure on the part of the Contractor to comply 
with the terms of this clause may result in termination of this 
contract.

                             (End of clause)

[76 FR 34888, June 15, 2011, as amended at 77 FR 751, Jan. 6, 2012]



Sec. 552.241-70,  Availability of Funds for the Next Fiscal Year or 
          Quarter.

    As prescribed in 541.501, insert the clause 552.241-70, Availability 
of Funds for the Next Fiscal Year or Quarter, instead of FAR 52.232-19, 
in all utility acquisitions.

  Availability of Funds for the Next Fiscal Year or Quarter (AUG 2010)

    Funds are not presently available for performance under this 
contract beyond ------------. The Government's obligation for 
performance of this contract beyond that date is contingent upon the 
availability of appropriated funds from which payment for contract 
purposes can be made. No legal liability on the part of the Government 
for any payment may arise for performance under this contract beyond --
----------, until

[[Page 313]]

funds are made available to the Contracting Officer for performance and 
until the Contractor receives notice of availability, to be confirmed in 
writing by the Contracting Officer.

                             (End of clause)

[75 FR 48873, Aug. 12, 2010]



Sec. 552.241-71  Disputes (Utility Contracts).

    As prescribed in 541.501, insert clause 552.241-71, Disputes 
(Utility Contracts), in solicitations and contracts for utility services 
subject to the jurisdiction and regulation of a utility rate commission.

                 Disputes (Utility Contracts) (AUG 2010)

    The requirements of the Disputes clause at FAR 52.233-1 are 
supplemented to provide that matters involving the interpretation of 
tariffed retail rates, tariff rate schedules, and tariffed terms 
provided under this contract are subject to the jurisdiction and 
regulation of the utility rate commission having jurisdiction.

                             (End of clause)

[75 FR 48873, Aug. 12, 2010]



Sec. 552.242-70  Status Report of Orders and Shipments.

    As prescribed in 542.1107, insert the following clause:

           Status Report of Orders and Shipments (FEB 9, 2009)

    (a) The Contractor shall furnish to the Administrative Contracting 
Officer (ACO) a report covering orders received and shipments made 
during each calendar month of contract performance. The information 
required by the Government shall be reported on GSA Form 1678, Status 
Report of Orders and Shipments, in accordance with instructions on the 
form. The information required by the GSA Form 1678 may also be 
submitted in an automated printout form if authorized by the ACO. 
Alternatively, the required information may be reported by electronic 
data interchange using ANSI standards. For further information, contact 
GSA, Contract Administration Division [Insert appropriate telephone 
number of QVOC] Reports shall be forwarded to the ACO no later than the 
seventh workday of the succeeding month.
    (b) A copy of GSA Form 1678 will be forwarded to the Contractor with 
the contract. Additional copies of the form, if needed, may be 
reproduced by the Contractor.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 74 FR 863, Jan. 9, 2009]



Sec. 552.243-71  Equitable Adjustments.

    As prescribed in 543.205, insert the following clause:

                    Equitable Adjustments (JAN 2009)

    (a) This clause governs the determination of equitable adjustments 
to which the Contractor may be entitled under the ``Changes'' clause 
prescribed by FAR 52.243-4, the ``Differing Site Conditions'' clause 
prescribed by FAR 52.236-2, and any other provision of this contract 
allowing entitlement to an equitable adjustment. This clause does not 
govern determination of the Contractor's relief allowable under the 
``Suspension of Work'' clause prescribed by FAR 52.242-14.
    (b) At the written request of the Contracting Officer, the 
Contractor shall submit a proposal, in accordance with the requirements 
set forth herein, for an equitable adjustment to the contract for 
changes or other conditions that may entitle a Contractor to an 
equitable adjustment. If the Contractor deems an oral or written order 
to be a change to the contract, it shall promptly submit to the 
Contracting Officer a proposal for equitable adjustment attributable to 
such deemed change. The proposal shall also conform to the requirements 
set forth herein.
    (c) The proposal shall be submitted within the time specified in the 
``Changes'' clause, or such other time as may reasonably be required by 
the Contracting Officer. In the case of a proposal submitted based on 
the ``Differing Site Conditions'' clause, the notice requirement of that 
clause shall be met.
    (d) Proposals for equitable adjustments, including no cost requests 
for adjustment of the contract's required completion date, shall include 
a detailed breakdown of the following elements, as applicable:
    (1) Direct costs.
    (2) Markups.
    (3) Change to the time for completion specified in the contract.
    (e) Direct costs. The Contractor shall separately identify each item 
of deleted and added work associated with the change or other condition 
giving rise to entitlement to an equitable adjustment, including 
increases or decreases to unchanged work impacted by the change. For 
each item of work so identified, the Contractor shall propose for itself 
and, if applicable, its first two tiers of subcontractors, the following 
direct costs:
    (1) Material cost broken down by trade, supplier, material 
description, quantity of material units, and unit cost (including all

[[Page 314]]

manufacturing burden associated with material fabrication and cost of 
delivery to site, unless separately itemized);
    (2) Labor cost broken down by trade, employer, occupation, quantity 
of labor hours, and burdened hourly labor rate, together with 
itemization of applied labor burdens (exclusive of employer's overhead, 
profit, and any labor cost burdens carried in employer's overhead rate);
    (3) Cost of equipment required to perform the work, identified with 
material to be placed or operation to be performed;
    (4) Cost of preparation and/or revision to shop drawings and other 
submittals with detail set forth in paragraphs (e)(1) and (e)(2) of this 
clause;
    (5) Delivery costs, if not included in material unit costs;
    (6) Time-related costs not separately identified as direct costs, 
and not included in the Contractor's or subcontractors' overhead rates, 
as specified in paragraph (g) of this clause; and
    (7) Other direct costs.
    (f) Marked-up costs of subcontractors below the second tier may be 
treated as other direct costs of a second tier subcontractor, unless the 
Contracting Officer requires a detailed breakdown under paragraph (i) of 
this clause.
    (g) Extensions of Time and Time-Related Costs. The Contractor shall 
propose a daily rate for each firm's time-related costs during the 
affected period, and, for each firm, the increase or decrease in the 
number of work days of performance attributable to the change or other 
condition giving rise to entitlement to an equitable adjustment, with 
supporting analysis. Entitlement to time and time-related costs shall be 
determined as follows:
    (1) Increases or decreases to a firm's time-related costs shall be 
allowed only if such increase or decrease necessarily and exclusively 
results from the change or other condition giving rise to entitlement to 
an equitable adjustment.
    (2) The Contractor shall not be entitled to an extension of time or 
recovery of its own time-related costs except to the extent that such 
change or other condition necessarily and exclusively causes its 
duration of performance to extend beyond the completion date specified 
in the contract.
    (3) Costs may be characterized as time-related costs only if they 
are incurred solely to support performance of this contract and the 
increase or decrease in such costs is solely dependent upon the duration 
of a firm's performance of work.
    (4) Costs may not be characterized as time-related costs if they are 
included in the calculation of a firm's overhead rate.
    (5) Equitable adjustment of time and time-related costs shall not be 
allowed unless the analysis supporting the proposal complies with 
provisions specified elsewhere in this contract regarding the 
Contractor's project schedule.
    (h) Markups. For each firm whose direct costs are separately 
identified in the proposal, the Contractor shall propose an overhead 
rate, profit rate, and where applicable, a bond rate and insurance rate. 
Markups shall be determined and applied as follows:
    (1) Overhead rates shall be negotiated, and may be subject to audit 
and adjustment.
    (2) Profit rates shall be negotiated, but shall not exceed ten 
percent, unless entitlement to a higher rate of profit may be 
demonstrated.
    (3) The Contractor and its subcontractor[s] shall not be allowed 
overhead or profit on the overhead or profit received by a 
subcontractor, except to the extent that the subcontractor's costs are 
properly included in other direct costs as specified in paragraph (f) of 
this clause.
    (4) Overhead rates shall be applied to the direct costs of work 
performed by a firm, and shall not be allowed on the direct costs of 
work performed by a subcontractor to that firm at any tier except as set 
forth below in paragraphs (h)(6) and (h)(7) of this clause.
    (5) Profit rates shall be applied to the sum of a firm's direct 
costs and the overhead allowed on the direct costs of work performed by 
that firm.
    (6) Overhead and profit shall be allowed on the direct costs of work 
performed by a subcontractor within two tiers of a firm at rates equal 
to only fifty percent of the overhead and profit rates negotiated 
pursuant to paragraphs (h)(1) and (h)(2) of this clause for that firm, 
but not in excess of ten percent when combined.
    (7) Overhead and profit shall not be allowed on the direct costs of 
a subcontractor more than two tiers below the firm claiming overhead and 
profit for subcontractor direct costs.
    (8) If changes to a Contractor's or subcontractor's bond or 
insurance premiums are computed as a percentage of the gross change in 
contract value, markups for bond and insurance shall be applied after 
all overhead and profit is applied. Bond and insurance rates shall not 
be applied if the associated costs are included in the calculation of a 
firm's overhead rate.
    (9) No markup shall be applied to a firm's costs other than those 
specified herein.
    (i) At the request of the Contracting Officer, the Contractor shall 
provide such other information as may be reasonably necessary to allow 
evaluation of the proposal. If the proposal includes significant costs 
incurred by a subcontractor below the second tier, the Contracting 
Officer may require the same detail for those costs as required for the 
first two tiers of subcontractors, and markups shall be applied to these 
subcontractor costs in accordance with paragraph (h).

[[Page 315]]

    (j) Proposal Preparation Costs. If performed by the firm claiming 
them, proposal preparations costs shall be included in the labor hours 
proposed as direct costs. If performed by an outside consultant or law 
firm, proposal preparation costs shall be treated as other direct costs 
to the firm incurring them. Requests for proposal preparation costs 
shall include the following:
    (1) A copy of the contract or other documentation identifying the 
consultant or firm, the scope of the services performed, the manner in 
which the consultant or firm was to be compensated, and if compensation 
was paid on an hourly basis, the fully burdened and marked-up hourly 
rates for the services provided.
    (2) If compensation was paid on an hourly basis, documentation of 
the quantity of hours worked, including descriptions of the activities 
for which the hours were billed, and applicable rates.
    (3) Written proof of payment of the costs requested. The sufficiency 
of the proof shall be determined by the Contracting Officer.
    (k) Proposal preparation costs shall be allowed only if--
    (1) The nature and complexity of the change or other condition 
giving rise to entitlement to an equitable adjustment warrants 
estimating, scheduling, or other effort not reasonably foreseeable at 
the time of contract award;
    (2) Proposed costs are not included in a firm's time-related costs 
or overhead rate; and
    (3) Proposed costs were incurred prior to a Contracting Officer's 
unilateral determination of an equitable adjustment under the conditions 
set forth in paragraph (o), or were incurred prior to the time the 
request for equitable adjustment otherwise became a matter in dispute.
    (l) Proposed direct costs, markups, and proposal preparation costs 
shall be allowable in the determination of an equitable adjustment only 
if they are reasonable and otherwise consistent with the contract cost 
principles and procedures set forth in part 31 of the Federal 
Acquisition Regulation (48 CFR part 31) in effect on the date of this 
contract. Characterization of costs as direct costs, time-related costs, 
or overhead costs must be consistent with the requesting firm's 
accounting practices on other work under this contract and other 
contracts.
    (m) If the Contracting Officer determines that it is in the 
Government's interest that the Contractor proceed with a change before 
negotiation of an equitable adjustment is completed, the Contracting 
Officer may order the Contractor to proceed on the basis of a unilateral 
modification to the contract increasing or decreasing the contract price 
by an amount to be determined later. Such increase or decrease shall not 
exceed the increase or decrease proposed by the Contractor.
    (n) If the parties cannot agree to an equitable adjustment, the 
Contracting Officer may determine the equitable adjustment unilaterally.
    (o) The Contractor shall not be entitled to any proposal preparation 
costs incurred subsequent to the date of a unilateral determination or 
denial of the request if the Contracting Officer issues a unilateral 
determination or denial under any of the following circumstances:
    (1) The Contractor fails to submit a proposal within the time 
required by this contract or such time as may reasonably be required by 
the Contracting Officer.
    (2) The Contractor fails to submit additional information requested 
by the Contracting Officer within the time reasonably required.
    (3) Agreement to an equitable adjustment cannot be reached within 60 
days of submission of the Contractor's proposal or receipt of additional 
requested information, despite the Contracting Officer's diligent 
efforts to negotiate the equitable adjustment.

                             (End of clause)

[74 FR 864, Jan. 9, 2009]



Sec. 552.246-70  Source Inspection by Quality Approved Manufacturer.

    As prescribed in 546.302-70, insert the following clause:

       Source Inspection by Quality Approved Manufacturer (JUL 09)

    (a) Inspection system and inspection of facilities. (1) The 
inspection system maintained by the Contractor under the Inspection of 
Supplies--Fixed Price clause (FAR 52.246-2) of this contract shall be 
maintained throughout the contract period. Unless otherwise authorized 
in writing by the Contracting Officer, the Contractor shall comply with 
all requirements of editions in effect on the date of the solicitation 
of either Federal Standard 368 or the International Organization for 
Standardization (ISO) Standard 9001:2000 (Quality Management Systems--
Requirements). A documented description of the inspection system shall 
be made available to the Government before contract award. At the sole 
discretion of the Contracting Officer, he/she may authorize in writing 
exceptions to the quality assurance standards identified above. The 
Contractor shall immediately notify the Administrative Contracting 
Officer (ACO) of any changes made in the inspection system during the 
contract period. As used herein, the term ``inspection system'' means 
the Contractor's own facility

[[Page 316]]

or any other facility acceptable to the Government that will be used to 
perform inspections or tests of materials and components before 
incorporation into end articles and for inspection of such end articles 
before shipment. When the manufacturing plant is located outside of the 
United States, the Contractor shall arrange delivery of the items from a 
plant or warehouse located in the United States (including Puerto Rico 
and the U.S. Virgin Islands) equipped to perform all inspections and 
tests required by the contract or specifications to evidence conformance 
therewith, or shall arrange with a testing laboratory or other facility 
in the United States, acceptable to the Government, to perform the 
required inspections and tests.
    (2) In addition to the requirements in Federal Standard 368, ISO 
9001:2000 or as otherwise approved by the Government, records shall 
include the date inspection and testing were performed. These records 
shall be available for (i) 3 years after final payment; or (ii) 4 years 
from the end of the Contractor's fiscal year in which the record was 
created, whichever period expires first.
    (3) Offerors are required to specify, in the space provided 
elsewhere in this solicitation, the name and address of each 
manufacturing plant or other facility where supplies will be available 
for inspection, indicating the item number(s) to which each applies.
    (4) The Contractor shall provide the Administrative Contracting 
Officer ACO with the name(s) of the individual and an alternate 
responsible for the inspection system. In the event that the designated 
individual(s) becomes unavailable to oversee the inspection system, the 
Contractor, within 10 calendar days of such event, shall provide the ACO 
with the names of the replacement individual(s).
    (b) Inspection by the Contractor. The Contractor is required to 
demonstrate that the supplies in the shipment have been subject to and 
have passed all inspections and tests required by the contract and meet 
the requirements of the contract.
    (c) Inspection by Government personnel. (1) Although the Government 
will normally rely upon the Contractor's representation as to the 
quality of supplies shipped, it reserves the right under the Inspection 
of Supplies--Fixed Price clause to inspect and test all supplies called 
for by this contract, before acceptance, at all times and places, 
including the point of manufacture. When the Government notifies the 
Contractor of its intent to inspect supplies before shipment, the 
Contractor shall notify or arrange for subcontractors to notify the 
designated GSA quality assurance office 7 workdays before the date when 
supplies will be ready for inspection. Shipment shall not be made until 
inspection by the Government is completed and shipment is authorized by 
the Government.
    (2) The offeror shall indicate, in the spaces provided below, the 
location(s) at which the supplies will be inspected or made available 
for inspection.

                                                INSPECTION POINT
 
                                                           NAME, ADDRESS (Including
        ITEM NO(S).              NAME OF MANUFACTURER            County), and              TELEPHONE NUMBER
 
----------------             ----------------             ----------------            ----------------
----------------             ----------------             ----------------            ----------------
----------------             ----------------             ----------------            ----------------
 

    NOTE: If additional space is needed, the offeror may furnish the 
requested information by an attachment to the offer.

    (3) During the contract period, a Government representative may 
periodically select samples of supplies produced under this contract for 
Government verification, inspection, and testing. Samples selected for 
testing will be disposed of as follows: Samples from an accepted lot, 
not damaged in the testing process, will be returned promptly to the 
Contractor after completion of tests. Samples damaged in the testing 
process will be disposed of as requested by the Contractor. Samples from 
a rejected lot will be returned to the Contractor or disposed of in a 
time and manner agreeable to both the Contractor and the Government.
    (d) Quality deficiencies. (1) Notwithstanding any other clause of 
this contract concerning the conclusiveness of acceptance by the 
Government, any supplies or production lots shipped under this contract 
found to be defective in material or workmanship, or otherwise not in 
conformity with the requirements of this contract within a period of --
------*-------- months after acceptance shall, at the Government's 
option, be replaced, repaired, or otherwise corrected by the Contractor 
at no cost to the Government within 30 calendar days (or such longer 
period as the Contracting Officer may authorize in writing) after 
receipt of notice to replace or correct. The Contractor shall remove, at 
its own expense, supplies rejected or required to be replaced, repaired, 
or corrected. When the nature of the defect affects an entire batch or 
lot of supplies, and the Contracting Officer determines that correction 
can best be accomplished by retaining the nonconforming supplies, and 
reducing

[[Page 317]]

the contract price by an equitable amount under the circumstances, then 
the equitable price adjustment shall apply to the entire batch or lot of 
supplies from which the nonconforming item was taken.
    (2) The Contractor may be issued a Quality Deficiency Notice (QDN) 
if:
    (i) Supplies in process, shipped, or awaiting shipment to fill 
Government orders are found not to comply with contract requirements, or 
(ii) deficiencies in either plant quality or process controls are found. 
Upon receipt of a QDN, the Contractor shall take immediate corrective 
action and shall suspend shipment of the supplies covered by the QDN 
until such time as corrective action has been completed. The Contractor 
shall notify the Government representative, within 5 workdays, of the 
action plan or the corrective action taken. The Government may elect to 
verify the corrective action at the Contractor location(s). Shipments of 
nonconforming supplies will be returned at the Contractor's expense and 
may constitute cause for termination of the contract. Delays due to the 
insurance of a QDN do not constitute excusable delay under the default 
clause of this contract. Failure to complete corrective action in a 
timely manner may result in termination of the contract.
    (3) This contract may be terminated for default if subsequent 
Government inspection discloses that plant quality or process controls 
are not being maintained, supplies that do not meet the requirements of 
the contract are being shipped, or if the contractor fails to comply 
with any other requirement of this clause.
    (e) Additional cost for inspection and testing. The Contractor shall 
be charged for any additional cost of inspection/testing or 
reinspecting/retesting supplies for the reasons stated in paragraph (e) 
of FAR 52.246-2, Inspection of Supplies--Fixed Price. When inspection or 
testing is performed by or under the direction of GSA, charges will be 
at the rate of $--------**-------- per man-hour or fraction thereof if 
the inspection is at a GSA distribution center; $--------**-------- per 
man-hour or fraction thereof, plus travel costs incurred, if the 
inspection is at any other location; and $--------**-------- per man-
hour or fraction thereof for laboratory testing, except that when a 
testing facility other than a GSA laboratory performs all or part of the 
required tests, the Contractor shall be assessed the actual cost 
incurred by the Government as a result of testing at such facility. When 
inspection is performed by or under the direction of any agency other 
than GSA, the charges indicated above may be used, or the agency may 
assess the actual cost of performing the inspection and testing.
    (f) Responsibility for rejected supplies. When the Contractor fails 
to remove or provide instructions for the removal of rejected supplies 
under paragraph (d) of this clause, pursuant to the Contracting 
Officer's instructions, the Contractor shall be liable for all costs 
incurred by the Government in taking such measures as are expedient to 
avoid unnecessary loss to the Contractor. In addition to the remedies 
provided in FAR 52.246-2, supplies may be--
    (1) Stored and charged against the Contractor's account;
    (2) Reshipped to the Contractor at its expense (any additional 
expense incurred by the Government or the freight carrier caused by the 
refusal of the Contractor to accept their return shall also be charged 
against the Contractor's account);
    (3) Sold to the highest bidder on the open market and the proceeds 
applied against the accumulated storage and other costs, including the 
cost of the sale; or
    (4) Otherwise disposed of by the Government.
    (g) Subcontracting requirements. The Contractor shall insert in any 
subcontracts the inspection or testing provisions set forth in 
paragraphs (a) through (d) of this clause and the Inspection of 
Supplies--Fixed Price clause of this contract. The Contractor shall be 
responsible for compliance by any subcontractor with the provisions set 
forth in paragraphs (a) through (d) of this clause and the Inspection of 
Supplies--Fixed Price clause.

                             (End of clause)

    *Normally insert 12 months as the period during which defective or 
otherwise nonconforming supplies must be replaced. However, when the 
supplies being bought have a shelf life of less than 1 year, you should 
use the shelf-life period, or in the instance where you reasonably 
expect a longer period to be available, you should use the longer 
period.
    **The rates to be inserted are established by the Commissioner of 
the Federal Acquisition Service or a designee.

[74 FR 26108, June 1, 2009]



Sec. 552.246-71  Source Inspection by Government.

    As prescribed in 546.302-71, insert the following clause:

             Source Inspection by Government (JUNE 1, 2009)

    (a) Inspection by Government personnel. (1) Supplies to be furnished 
under this contract will be inspected at source by the Government before 
shipment from the manufacturing plant or other facility designated by 
the Contractor, unless the Contractor is otherwise notified in writing 
by the Contracting Officer or a designated representative. 
Notwithstanding the foregoing, the Government may perform any or all 
tests contained in the contract specifications at a Government

[[Page 318]]

facility without prior written notice by the Contracting Officer before 
release of the supplies for shipment. Samples sent to a Government 
resting facility will be disposed of as follows: Samples from an 
accepted lot, not damaged in the testing process, will be returned 
promptly to the Contractor after completion of tests. Samples damaged in 
the testing process will be disposed of as requested by the Contractor. 
Samples from a rejected lot will be returned to the Contractor or 
disposed of in a time and manner agreeable to both the Contractor and 
the Government.
    (2) Government inspection responsibility will be assigned to the GSA 
quality assurance office which has jurisdiction over the State in which 
the Contractor's subcontractor's plant or other designated point for 
inspection is located. The Contractor shall notify or arrange for 
subcontractors to notify the designated GSA quality assurance office 7 
workdays before the date when supplies will be ready for inspection. 
Shipment shall not be made until after inspection by the Government is 
completed and shipment is authorized by Government.
    (b) Inspection and receiving reports. For each shipment, the 
Contractor shall be responsible for preparation and distribution of 
inspection documents as follows: (1) DD Form 250, Material Inspection 
and Receiving Report, or computer formatted equivalent for deliveries to 
military agencies; or (2) GSA Form 308, Notice of Inspection for 
deliveries to GSA or other civilian agencies. When required, the 
Contractor will be furnished a supply of GSA Form 308 and/or DD Form 
250, and complete instructions for their reparation and distribution.
    (c) Inspection facilities. (1) The inspection system required to be 
maintained by the Contractor in accordance with FAR 52.246-2, Inspection 
of Supplies--Fixed Price, may be the Contractor's own facilities or any 
other facilities acceptable to the Government. The facilities shall be 
utilized to perform all inspections and tests of materials and 
components before incorporation into end articles, and for the 
inspection of such end articles before shipment. The Government reserves 
the right to evaluate the acceptability and effectiveness of the 
Contractor's inspection system before award and periodically during the 
contract period.
    (2) Offerors are required to specify, in the spaces provided 
elsewhere in the solicitation, the name and address of each 
manufacturing plant or other facility where supplies will be available 
for inspection, indicating the item number(s) to which each applies.
    (3) The Contractor shall deliver the items specified in this 
contract from a plant or warehouse located within the United States 
(including Puerto Rico and the U.S. Virgin Islands) that is equipped to 
perform all inspections and tests required by this contract or 
specifications to evidence conformance therewith, or shall arrange with 
a testing laboratory or other facility in the United States, acceptable 
to the Government, to perform the required inspections and tests.
    (d) Availability of records. (1) In addition to any other 
requirement of this contract, the Contractor shall maintain records 
showing the following information for each order received under the 
contract: (i) order number; (ii) date order received by the Contractor; 
(iii) quantity ordered; (iv) date scheduled into production; (v) batch 
or lot number, if applicable; (vi) date inspected and/or tested; (vii) 
date available for shipment; (viii) date shipped or date service 
completed; and (ix) National Stock Number (NSN), or if none is provided 
in the contract, the applicable item number or other contractual 
identification.
    (2) These records should be maintained at the point of source 
inspection and shall be available to the Contracting Officer, or an 
authorized representative, for (i) 3 years after final payment; or (ii) 
4 years from the end of the Contractor's fiscal year in which the record 
was created, whichever period expires first.
    (e) Additional cost for inspection and testing. The Contractor will 
be charged for any additional cost for inspecting/testing or 
reinspection/retesting supplies for the reasons stated in paragraph (e) 
of FAR 52.246-2, Inspection of Supplies--Fixed Price. When inspection or 
testing is performed by or under the direction of GSA, charges will be 
at the rate of $--------*-------- per man-hour or fraction thereof if 
the inspection is at a GSA distribution center; $--------*-------- per 
man-hour or fraction thereof, plus travel costs incurred, if the 
inspection is at any other location; and $--------*-------- per man-hour 
or fraction thereof for laboratory testing, except that when a testing 
facility other than a GSA laboratory performs all or part of the 
required tests, the Contractor shall be assessed the actual cost 
incurred by the Government as a result of testing at such facility. When 
inspection is performed by or under the direction of any agency other 
than GSA, the charges indicated above may be used, or the agency may 
assess the actual cost of performing the inspection and testing.
    (f) Responsibility for rejected supplies. When the Contractor fails 
to remove or provide instructions for the removal of rejected supplies 
under FAR 52.246-2(h) pursuant to the Contracting Officer's 
instructions, the Contractor shall be liable for all costs incurred by 
the Government in taking such measures as are expedient to avoid 
unnecessary loss to the Contractor. In addition to the remedies provided 
in FAR 52.246-2, supplies may be--
    (1) Stored for the Contractor's account;
    (2) Reshipped to the Contractor at its expense (any additional 
expense incurred by the Government or the freight carrier caused

[[Page 319]]

by the refusal of the Contractor to accept their return also shall be 
for the Contractor's account); or
    (3) Sold to the highest bidder on the open market and the proceeds 
applied against the accumulated storage and other costs, including the 
cost of the sale.

                             (End of clause)

    * The rates to be inserted are established by the Commissioner of 
the Federal Acquisition Service or a designee.

[64 FR 37229, July 9, 1999, as amended at 74 FR 26110, June 1, 2009]



Sec. 552.246-72  Final Inspection and Tests.

    As prescribed in 546.312, insert the following clause:

                  Final Inspection and Tests (SEP 1999)

    The Contractor shall give written notice to the Contracting Officer 
at least 10 calendar days before the date the work will be completed and 
ready for final inspection and tests. Final inspection and tests will 
begin within 10 calendar days after the date specified in the 
Contractor's notice unless the Contracting Officer determines that the 
work is not ready for final inspection and so informs the Contractor.

                             (End of clause)



Sec. 552.246-77  Additional Contract Warranty Provisions for Supplies of 
          a Noncomplex Nature.

    As prescribed in 546.710(a), insert the following clause in 
solicitations and contracts that include FAR 52.246-17, Warranty of 
Supplies of a Noncomplex Nature.

  Additional Contract Warranty Provisions for Supplies of a Noncomplex 
                             Nature (JUL 09)

    (a) Definitions. Correction, as used in this clause, means the 
elimination of a defect.
    (b) Contractor's obligations. When return, correction, or 
replacement is required, the Contractor shall be responsible for all 
costs attendant to the return, correction, or replacement of the 
nonconforming supplies. Any removal in connection with the above shall 
be done by the Contractor at its expense.
    (c) Remedies available to the Government. When the nature of the 
defect in the nonconforming item is such that the defect affects an 
entire batch or lot of material, then the equitable price adjustment 
shall apply to the entire batch or lot of material from which the 
nonconforming item was taken.

                             (End of clause)

[74 FR 26110, June 1, 2009]



Sec. 552.246-78  Inspection at Destination.

    As prescribed in 546.302-72 insert the following clause:

                   Inspection at Destination (JUL 09)

    Inspection of all purchases under this contract will be made at 
destination by an authorized Government representative.

                             (End of clause)

[74 FR 26110, June 1, 2009]



Sec. 552.252-5  Authorized Deviations in Provisions.

    As prescribed in 552.107-70(a), insert the following provision:

 Authorized Deviations in Provisions (Deviation FAR 52.252-5) (SEP 1999)

    (a) Deviations to FAR provisions. (1) This solicitation indicates 
any authorized deviation to a Federal Acquisition Regulation (48 CFR 
chapter 1) provision by the addition of ``(DEVIATION)'' after the date 
of the provision, if the provision is not published in the General 
Services Administration Acquisition Regulation (48 CFR chapter 5).
    (2) This solicitation indicates any authorized deviation to a 
Federal Acquisition Regulation (FAR) provision that is published in the 
General Services Administration Acquisition Regulation by the addition 
of ``(DEVIATION (FAR provision no.))'' after the date of the provision.
    (b) Deviations to GSAR provisions. This solicitation indicates any 
authorized deviation to a General Services Administration Acquisition 
Regulation provision by the addition of ``(DEVIATION)'' after the date 
of the provision.
    (c) ``Substantially the same as'' provisions. Changes in wording of 
provisions prescribed for use on a ``substantially the same as'' basis 
are not considered deviations.

                           (End of provision)



Sec. 552.252-6  Authorized Deviations in Clauses.

    As prescribed in 552.107-70(b), insert the following clause:

  Authorized Deviations in Clauses (Deviation FAR 52.252-6) (SEP 1999)

    (a) Deviations to FAR clauses. (1) This solicitation or contract 
indicates any authorized deviation to a Federal Acquisition Regulation 
(48 CFR chapter 1) clause by the addition of ``(DEVIATION)'' after the 
date of the

[[Page 320]]

clause, if the clause is not published in the General Services 
Administration Acquisition Regulation (48 CFR chapter 5).
    (2) This solicitation indicates any authorized deviation to a 
Federal Acquisition Regulation (FAR) clause that is published in the 
General Services Administration Acquisition Regulation by the addition 
of ``(DEVIATION (FAR clause no.))'' after the date of the clause.
    (b) Deviations to GSAR clauses: This solicitation indicates any 
authorized deviation to a General Services Administration Acquisition 
Regulation clause by the addition of ``(DEVIATION)'' after the date of 
the clause.
    (c) ``Substantially the same as'' clauses. Changes in wording of 
clauses prescribed for use on a ``substantially the same as'' basis are 
not considered deviations.

                             (End of clause)



Sec. 552.270-1  Instructions to Offerors--Acquisition of Leasehold 
          Interests in Real Property.

    As prescribed in 570.702, insert the following provision:

  Instructions to Offerors--Acquisition of Leasehold Interests in Real 
                           Property (JUN 2011)

    (a) Definitions. As used in this provision--
    ``Discussions'' are negotiations that occur after establishment of 
the competitive range that may, at the contracting Officer's discretion, 
result in the offeror being allowed to revise its proposal.
    ``In writing, writing or written'' means any worded or numbered 
expression that can be read, reproduced, and later communicated, and 
includes electronically transmitted and stored information.
    ``Proposal modification'' is a change made to a proposal before the 
solicitation's closing date and time, or made in response to an 
amendment, or made to correct a mistake at any time before award.
    ``Proposal revision'' is a change to a proposal made after the 
solicitation closing date, at the request of as allowed by a Contracting 
Officer as the result or of negotiations.
    ``Time,'' if stated as a number of days, is calculated using 
calendar days, unless otherwise specified, and will include Saturdays, 
Sundays, and legal holidays. However, if the last day falls on a 
Saturday, Sunday, or legal holiday, then the period shall include the 
next working day.
    (b) Amendments to solicitations. If this solicitation is amended, 
all terms and conditions that are not amended remain unchanged. Offerors 
shall acknowledge receipt of any amendment to this solicitation by the 
date and time specified in the amendment(s).
    (c) Submission, modification, revision, and withdrawal of proposals. 
(1) Unless other methods (e.g., electronic commerce or facsimile) are 
permitted in the solicitation, proposals and modifications to proposals 
shall be submitted in paper media in sealed envelopes or packages. 
Offers must be:
    (i) Submitted on the forms prescribed and furnished by the 
Government as a part of this solicitation or on copies of those forms, 
and
    (ii) Signed. The person signing an offer must initial each erasure 
or change appearing on any offer form. If the offeror is a partnership, 
the names of the partners composing the firm must be included with the 
offer.
    (2) Late proposals and revisions. (i) The Government will not 
consider any proposal received at the office designated in the 
solicitation after the exact time specified for receipt of offers unless 
it is received before the Government makes award and it meets at least 
one of the following conditions:
    (A) It was sent by registered or certified mail not later than the 
fifth calendar day before the date specified for receipt of offers 
(e.g., an offer submitted in response to solicitation requiring receipt 
of offers by the 20th of the month must have been mailed by the 15th).
    (B) It was sent by mail (or telegram or facsimile, if authorized) or 
hand-carried (including delivery by a commercial carrier) if it is 
determined by the Government that the late receipt was due primarily to 
Government mishandling after receipt at the Government installation.
    (C) It was sent by U.S. Postal Service Express Mail Next Day 
Service-Post Office to Addressee, not later than 5:00 p.m. at the place 
of mailing two working days prior to the date specified for receipt of 
proposals. The term ``working days'' excludes weekends and U.S. Federal 
holidays.
    (D) It was transmitted through an electronic commerce method 
authorized by the solicitation and was received at the initial point of 
entry of the Government infrastructure not later than 5:00 p.m. one 
working day prior to the date specified for receipt of proposals.
    (E) There is acceptable evidence to establish that it was received 
at the activity designated for receipt of offers and was under the 
Government's control prior to the time set for receipt of offers, and 
that the Contracting Officer determines that accepting the late offer 
would not unduly delay the procurement.
    (F) It is the only proposal received.
    (ii) Any modification or revision of a proposal or response to 
request for information, including any final proposal revision, is 
subject to the same conditions as in subparagraphs (c)(2)(i)(A) through 
(c)(2)(i)(E) of this provision.

[[Page 321]]

    (iii) The only acceptable evidence to establish the date of mailing 
of a late proposal or modification or revision sent either by registered 
or certified mail is the U.S. or Canadian Postal Service postmark both 
on the envelope or wrapper and on the original receipt from the U.S. or 
Canadian Postal Service. Both postmarks must show a legible date or the 
proposal, response to a request for information, or modification or 
revision shall be processed as if mailed late. ``Postmark'' means a 
printed, stamped, or otherwise placed impression (exclusive of a postage 
meter machine impression) that is readily identifiable without further 
action as having been supplied and affixed by employees of the U.S. or 
Canadian Postal Service on the date of mailing. Therefore, offerors or 
respondents should request the postal clerk to place a legible hand 
cancellation bull's eye postmark on both the receipt and the envelope or 
wrapper.
    (iv) Acceptable evidence to establish the time of receipt at the 
Government installation includes the time/date stamp of that 
installation on the proposal wrapper, other documentary evidence of 
receipt maintained by the installation, or oral testimony or statements 
of Government personnel.
    (v) The only acceptable evidence to establish the date of mailing of 
a late offer, modification or revision, or withdrawal sent by Express 
Mail Next Day Service-Post Office to Addressee is the date entered by 
the post office receiving clerk on the ``Express Mail Next Day Service-
Post Office to Addressee'' label and the postmark on both the envelope 
or wrapper and on the original receipt from the U.S. Postal Service, 
``Postmark'' has the same meaning as defined in paragraph (c)(2)(iii) of 
this provision, excluding postmarks of the Canadian Postal Service. 
Therefore, offerors or respondents should request the postal clerk to 
place a legible hand cancellation bull's eye postmark on both the 
receipt and the envelope or wrapper.
    (vi) Notwithstanding paragraph (c)(2)(i) of this provision, a late 
modification or revision of an otherwise successful proposal that makes 
its terms more favorable to the Government will be considered at any 
time it is received and may be accepted.
    (vii) An offeror may withdraw its proposal by written notice or 
telegram (including mailgram) received at any time before award. If the 
solicitation authorizes facsimile proposals, an offeror may withdraw its 
proposal via facsimile received at any time before award, subject to the 
conditions specified in the provision entitled ``Facsimile Proposals.'' 
Proposals may be withdrawn in person by an offeror or an authorized 
representative, if the representative's identity is made known and the 
representative signs a receipt for the proposal before award.
    (viii) If an emergency or unanticipated event interrupts normal 
Government processes so that proposals cannot be received at the office 
designated for receipt of proposals by the exact time specified in the 
solicitation, and urgent Government requirements preclude amendment of 
the solicitation or other notice of an extension of the closing date, 
the time specified for receipt of proposals will be deemed to be 
extended to the same time of day specified in the solicitation on the 
first work day on which normal Government processes resume. If no time 
is specified in the solicitation, the time for receipt is 4:30 p.m., 
local time, for the designated Government office.
    (3) Any information given to a prospective offeror concerning this 
solicitation will be furnished promptly to all other prospective 
offerors, if that information is necessary in submitting offers or if 
the lack of it would be prejudicial to any other prospective offeror.
    (4) Offerors may submit modifications to their proposals at any time 
before the solicitation closing date and time, and may submit 
modifications in response to an amendment, or to correct a mistake at 
any time before award.
    (5) Offerors may submit revised proposals only if requested or 
allowed by the Contracting Officer.
    (6) The Government will construe an offer to be in full and complete 
with this solicitation unless the offer describes any deviation in the 
offer.
    (7) Offerors may submit proposals that depart from stated 
requirements. Such a proposal shall clearly identify why the acceptance 
of the proposal would be advantageous to the Government. The proposal 
must clearly identify and explicitly define any deviations from the 
terms and conditions of the solicitation, as well as the comparative 
advantage to the Government. The Government reserves the right to amend 
the solicitation to allow all offerors an opportunity to submit revised 
proposals based on the revised requirements.
    (d) Restriction on disclosure and use of data. An offeror that 
includes in its proposal data that it does not want disclosed to the 
public for any purpose, or use by the Government except for evaluation 
purposes, must meet both of the following conditions:
    (1) Mark the title page with the following legend:
    This proposal includes data that shall not be disclosed outside the 
Government and shall not be duplicated, used, or disclosed--in whole or 
in part--for any purpose other than to evaluate this proposal. If, 
however, a lease is awarded to this offeror as a result of--or in 
connection with--the submission of this data, the Government shall have 
the right to duplicate, use, or disclose the data to the extent provided 
in the resulting contract. This restriction does not limit the 
Government's

[[Page 322]]

right to use information contained in this data if it is obtained from 
another source without restriction. The data subject to this restriction 
are contained in sheets [insert numbers or other identification of 
sheets].
    (2) Mark each sheet of data it wishes to restrict with the following 
legend:
    Use or disclosure of data contained on this sheet is subject to the 
restriction on the title page of this proposal.
    (e) Lease award. (1) The Government intends to award a lease 
resulting from this solicitation to the responsible offeror whose 
proposal represents the best value after evaluation in accordance with 
the factors and subfactors in the solicitation.
    (2) The Government may reject any or all proposals if such action is 
in the Government's interest.
    (3) The Government may waive informalities and minor irregularities 
in proposals received.
    (4) The Government intends to evaluate proposals and award a lease 
after conducting discussions with offerors whose proposals have been 
determined to be within the competitive range. If the Contracting 
Officer determines that the number of proposals that would otherwise be 
in the competitive range exceeds the number at which an efficient 
competition can be conducted, the Contracting Officer may limit the 
number of proposals in the competitive range to the greatest number that 
will permit an efficient competition among the most highly rated 
proposals. Therefore, the offeror's initial proposal should contain the 
offeror's best terms from a price and technical standpoint.
    (5) Exchanges with offerors after receipt of a proposal do not 
constitute a rejection or counteroffer by the Government.
    (6) The Government may determine that a proposal is unacceptable if 
the price proposed are materially unbalanced between line terms or 
subline items. Unbalanced pricing exists when, despite an acceptable 
total evaluated price, the price of one or more contract line items is 
significantly overstated or understand as indicated by the application 
of cost or price analysis techniques. A proposal may be rejected if the 
Contracting Officer determines that the lack of balance poses an 
unacceptable risk to the Government.
    (7) The execution and delivery of the Lease contract by the 
Government establishes a valid award and contract.
    (8) The Government may disclose the following information in 
postaward debriefings to other offerors:
    (i) The overall evaluated cost or price and technical rating of the 
successful offeror;
    (ii) The overall making of all offerors, when any making was 
developed by the agency during source selection; and
    (iii) A summary of the rationale for award.
    (f) Paperwork collection. The information collection requirements 
contained in this solicitation/contract are either required by 
regulation or approved by the Office of Management and Budget pursuant 
to the Paperwork Reduction Act and assigned OMB Control No. 3090-0163.

                           (End of provision)

    Alternate I (MAR 1998). As prescribed in 570.702, substitute the 
following paragraph for paragraph (c)(2)(i) of the basic provision:

    (i) Any offer received at the office designated in the solicitation 
after the exact time specified for receipt of final proposal revisions 
will not be considered unless it is received before award is made and it 
meets one of the following conditions--

    Alternate II (MAR 1998). As prescribed in 570.702, substitute the 
following paragraph for paragraph (e)(4) of the basic provision:

    (4) The Government intends to evaluate proposals and award a lease 
without discussions with offerors (except clarifications as described in 
FAR 15.306(a)). Therefore, the offeror's initial proposal should contain 
the offeror's best terms from a cost or price and technical standpoint. 
The Government reserves the right to conduct discussions if the 
Contracting Officer later determines them to be necessary. If the 
Contracting Officer determines that the number of proposals that would 
otherwise be in the competitive range exceeds the number at which an 
efficient competition can be conducted, the Contracting Officer may 
limit the number of proposals in the competitive range to the greatest 
number that will permit an efficient competition among the most highly 
rated proposals.

[64 FR 37229, July 9, 1999, as amended at 76 FR 30845, May 27, 2011]



Sec. 552.270-2  Historic Preference.

    As prescribed in 570.702, insert the following provision:

                     Historic Preference (SEP 2004)

    (a) The Government will give preference to offers of space in 
historic properties following this hierarchy of consideration:
    (1) Historic properties within historic districts.
    (2) Non-historic developed and non-historic undeveloped sites within 
historic districts.
    (3) Historic properties outside of historic districts.

[[Page 323]]

    (b) Definitions. (1) Determination of eligibility means a decision 
by the Department of the Interior that a district, site, building, 
structure or object meets the National Register criteria for evaluation 
although the property is not formally listed in the National Register 
(36 CFR 60.3(c)).
    (2) Historic district means a geographically definable area, urban 
or rural, possessing a significant concentration, linkage, or continuity 
of sites, buildings, structures, or objects united by past events or 
aesthetically by plan or physical development. A district may also 
comprise individual elements separated geographically but linked by 
association or history (36 CFR 60.3(d)). The historic district must be 
included in or be determined eligible for inclusion in the National 
Register of Historic Places.
    (3) Historic property means any pre-historic or historic district, 
site, building, structure, or object included in or been determined 
eligible for inclusion in the National Register of Historic Places 
maintained by the Secretary of the Interior (36 CFR 800.16(l)).
    (4) National Register of Historic Places means the National Register 
of districts, sites, buildings, structures and objects significant in 
American history, architecture, archeology, engineering and culture that 
the Secretary of the Interior is authorized to expand and maintain under 
the National Historic Preservation Act (36 CFR 60.1).
    (c) The offer of space must meet the terms and conditions of this 
solicitation. The Contracting Officer has discretion to accept 
alternatives to certain architectural characteristics and safety 
features defined elsewhere in this solicitation to maintain the 
historical integrity of an historic building, such as high ceilings and 
wooden floors, or to maintain the integrity of an historic district, 
such as setbacks, floor-to-ceiling heights, and location and appearance 
of parking.
    (d) When award will be based on the lowest price technically 
acceptable source selection process, the Government will give a price 
evaluation preference, based on the total annual square foot (ANSI/BOMA 
Office Area) cost to the Government, to historic properties as follows:
    (1) First to suitable historic properties within historic districts, 
a 10 percent price preference.
    (2) If no suitable historic property within an historic district is 
offered, or the 10 percent preference does not result in such property 
being the lowest price technically acceptable offer, the Government will 
give a 2.5 percent price preference to suitable non-historic developed 
or undeveloped sites within historic districts.
    (3) If no suitable non-historic developed or undeveloped site within 
an historic district is offered, or the 2.5 percent preference does not 
result in such property being the lowest price technically acceptable 
offer, the Government will give a 10 percent price preference to 
suitable historic properties outside of historic districts.
    (4) Finally, if no suitable historic property outside of historic 
districts is offered, no historic price preference will be given to any 
property offered.
    (e) When award will be based on the best value tradeoff source 
selection process, which permits tradeoffs among price and non-price 
factors, the Government will give a price evaluation preference, based 
on the total annual square foot (ANSI/BOMA Office Area) cost to the 
Government, to historic properties as follows:
    (1) First to suitable historic properties within historic districts, 
a 10 percent price preference.
    (2) If no suitable historic property within a historic district is 
offered or remains in the competition, the Government will give a 2.5 
percent price preference to suitable non-historic developed or 
undeveloped sites within historic districts.
    (3) If no suitable non-historic developed or undeveloped site within 
an historic district is offered or remains in the competition, the 
Government will give a 10 percent price preference to suitable historic 
properties outside of historic districts.
    (4) Finally, if no suitable historic property outside of historic 
districts is offered, no historic price preference will be given to any 
property offered.
    (f) The Government will compute price evaluation preferences by 
reducing the price(s) of the offerors qualifying for a price evaluation 
preference by the applicable percentage provided in this provision. The 
price evaluation preference will be used for price evaluation purposes 
only. The Government will award a contract in the amount of the actual 
price(s) proposed by the successful offeror and accepted by the 
Government.
    (g) To qualify for a price evaluation preference, offerors must 
provide satisfactory documentation in their offer that their property 
qualifies as one of the following:
    (1) An historic property within an historic district.
    (2) A non-historic developed or undeveloped site within an historic 
district.
    (3) An historic property outside of an historic district.

                           (End of provision)

[69 FR 55938, Sept. 16, 2004, as amended at 76 FR 30845, May 27, 2011]



Sec. 552.270-3  Parties To Execute Lease.

    As prescribed in 570.702, insert the following provision:

[[Page 324]]

                   Parties To Execute Lease (JUN 2011)

    (a) If the lessor is an individual, that individual shall sign the 
lease. A lease 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) If the Lessor is a partnership, the lease must be signed in the 
partnership name, followed by the name of the legally authorized partner 
signing the same, and a copy of either the partnership agreement or 
current Certificate of Limited Partnership shall accompany the lease.
    (c) If the Lessor is a corporation, the lease must be signed in the 
corporate name, followed by the signature and title of the officer or 
other person signing the lease on its behalf, duly attested, and, if 
requested by the Government, evidence of this authority to so act shall 
be furnished.
    (d) If the Lessor is a joint venture, the lease must be signed by 
each participant in the joint venture in the manner prescribed in 
paragraphs (a) through (c) of this provision for each type of 
participant. When a corporation is participating in the joint venture, 
the corporation shall provide evidence that the corporation is 
authorized to participate in the joint venture.
    (e) If the lease is executed by an attorney, agent, or trustee on 
behalf of the Lessor, an authenticated copy of the power of attorney, or 
other evidence to act on behalf of the Lessor, must accompany the lease.

                           (End of provision)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30845, May 27, 2011]



Sec. 552.270-4  Definitions.

    As prescribed in 570.703, insert the following clause:

                         Definitions (SEP 1999)

    The following terms and phrases (except as otherwise expressly 
provided or unless the context otherwise requires) for all purposes of 
this lease shall have the respective meanings hereinafter specified:
    (a) ANSI/BOMA Office Area (ABOA) means the area ``where a tenant 
normally houses personnel, and/or furniture, for which a measurement is 
to be computed,'' as stated by the American National Standards 
Institute/Building Owners and Managers Association (ANSI/BOMA) 
publication, Z65.1-1996.
    (b) ``Commencement Date'' means the first day of the term.
    (c) ``Contract'' and ``Contractor'' means ``Lease'' and ``Lessor,'' 
respectively.
    (d) ``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.
    (e) ``Delivery Date'' means the date specified in or determined 
pursuant to the provisions of this lease for delivery of the premises to 
the Government, improved in accordance with the provisions of this lease 
and substantially complete, as such date may be modified in accordance 
with the provisions of this lease.
    (f) ``Delivery Time'' means the number of days provided by this 
lease for delivery of the premises to the Government, as such number may 
be modified in accordance with the provision so this lease.''
    (g) ``Excusable Delays'' means delays arising without the fault or 
negligence of Lessor and Lessor's subcontractors and suppliers at any 
tier, and shall include, without limitation:
    (1) acts of God or of the public enemy,
    (2) acts of the United States of America in either its sovereign or 
contractual capacity,
    (3) acts of another contractor in the performance of a contract with 
the Government,
    (4) fires,
    (5) floods,
    (6) epidemics,
    (7) quarantine restrictions,
    (8) strikes,
    (9) freight embargoes,
    (10) unusually severe weather, or
    (11) delays of subcontractors or suppliers at any tier arising from 
unforeseeable causes beyond the control and without the fault or 
negligence of both the Lessor and any such subcontractor or supplier.
    (h) ``Lessor'' means the sub-lessor if this lease is a sublease.
    (i) ``Lessor shall provide'' means the Lessor shall furnish and 
install at Lessor's expense.
    (j) ``Notice'' means written notice sent by certified or registered 
mail, Express Mail or Comparable service, or delivered by hand. Notice 
shall be effective on the date delivery is accepted or refused.
    (k) ``Premises'' means the space described in this lease.
    (l) ``Substantially complete'' and ``substantial completion'' means 
that the work, the common and other areas of the building, and all other 
things necessary for the Government's access to the premises and 
occupancy, possession, use and enjoyment thereof, as provided in this 
lease, have been completed or obtained, excepting only such minor 
matters as do not interfere with or materially diminish such access, 
occupancy, possession, use of enjoyment.

[[Page 325]]

    (m) ``Work'' means all alterations, improvements, modifications, and 
other things required for the preparation or continued occupancy of the 
premises by the Government as specified in this lease.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



Sec. 552.270-5  Subletting and Assignment.

    As prescribed in 570.703, insert the following clause:

                  Subletting and Assignment (SEP 1999)

    The Government may sublet any part of the premises but shall not be 
relieved from any obligations under this lease by reason of any such 
subletting. The Government may at any time assign this lease, and be 
relieved from all obligations to Lessor under this lease excepting only 
unpaid rent and other liabilities, if any that have accrued to the date 
of said assignment. Any assignment shall be subject to prior written 
consent of Lessor, which shall not be unreasonably withheld.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



Sec. 552.270-6  Maintenance of Building and Premises--Right of Entry.

    As prescribed in 570.703, insert the following clause:

     Maintenance of Building and Premises--Right of Entry (SEP 1999)

    Except in case of damage arising out of the willful act or 
negligence of a Government employee, Lessor shall maintain the premises, 
including the building and all equipment, fixtures, and appurtenances 
furnished by the lessor under this lease, in good repair and condition 
so that they are suitable in appearance and capable of supplying such 
heat, air conditioning, light, ventilation, access and other things to 
the premises, without reasonably preventable or recurring disruption, as 
is required for the Government's access to, occupancy, possession, use 
and enjoyment of the premises as provided in this lease. For the purpose 
of so maintaining the premises, the Lessor may at reasonable times enter 
the premises with the approval of the authorized Government 
representative in charge.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



Sec. 552.270-7  Fire and Casualty Damage.

    As prescribed in 570.703, insert the following clause:

                   Fire and Casualty Damage (JUN 2011)

    If the entire premises are destroyed by fire or other casualty, this 
lease will immediately terminate. In case of partial destruction or 
damage, so as to render the premises untenantable, as determined by the 
Government, the Government may terminate the lease by giving written 
notice to the Lessor within 15 calendar days after such determination; 
if so terminated, no rent will accrue to the Lessor after such partial 
destruction or damage; and if not so terminated, the rent will be 
reduced proportionately by supplemental agreement hereto effective from 
the date of such partial destruction or damage. Nothing in this lease 
shall be construed as relieving Lessor from liability for damage to or 
destruction of property of the United States of America caused by the 
willful or negligent act or omission of Lessor.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



Sec. 552.270-8  Compliance with Applicable Law.

    As prescribed in 570.703, insert the following clause:

                Compliance With Applicable Law (SEP 1999)

    Lessor shall comply with all Federal, state and local laws 
applicable to the Lessor as owner or lessor, or both, of the building or 
premises, including, without limitation, laws applicable to the 
construction, ownership, alteration or operation of both or either 
thereof, and will obtain all necessary permits, licenses and similar 
items at Lessor's expense. The Government will comply with all Federal, 
state and local laws applicable to and enforceable against it as a 
tenant under this lease; provided that nothing in this lease shall be 
construed as a waiver of any sovereign immunity of the Government. This 
lease shall be governed by Federal law.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]

[[Page 326]]



Sec. 552.270-9  Inspection--Right of Entry.

    As prescribed in 570.703, insert the following clause:

                  Inspection--Right of Entry (SEP 1999)

    (a) At any time and from time to time after receipt of an offer 
(until the same has been duly withdrawn or rejected), after acceptance 
thereof and during the term, the agents, employees and contractors of 
the Government may, upon reasonable prior notice to Offeror or Lessor, 
enter upon the offered premises or the premises, and all other areas of 
the building access to which is necessary to accomplish the purposes of 
entry, to determine the potential or actual compliance by the Offeror or 
Lessor with the requirements of the solicitation or this lease, which 
purposes shall include, but not be limited to:
    (1) Inspecting, sampling and analyzing suspected asbestos-containing 
materials and air monitoring for asbestos fibers;
    (2) Inspecting the heating, ventilation and air conditioning system, 
maintenance records, and mechanical rooms for the offered premises or 
the premises;
    (3) Inspecting for any leaks, spills, or other potentially hazardous 
conditions which may involve tenant exposure to hazardous or toxic 
substances; and
    (4) Inspecting for any current or past hazardous waste operations, 
to ensure that appropriate mitigative actions were taken to alleviate 
any environmentally unsound activities in accordance with Federal, State 
and local law.
    (b) Nothing in this clause shall be construed to create a Government 
duty to inspect for toxic materials or to impose a higher standard of 
care on the Government than on other lessees. The purpose of this clause 
is to promote the ease with which the Government may inspect the 
building. Nothing in this clause shall act to relieve the Lessor of any 
duty to inspect or liability which might arise as a result of Lessor's 
failure to inspect for or correct a hazardous condition.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



Sec. 552.270-10  Failure in Performance.

    As prescribed in 570.703, insert the following clause:

                    Failure in Performance (SEP 1999)

    The covenant to pay rent and the covenant to provide any service, 
utility, maintenance, or repair required under this lease are 
interdependent. In the event of any failure by the Lessor to provide any 
service, utility, maintenance, repair or replacement required under this 
lease the Government may, by contract or otherwise, perform the 
requirement and deduct from any payment or payments under this lease, 
then or thereafter due, the resulting cost to the Government, including 
all administrative costs. If the Government elects to perform any such 
requirement, the Government and each of its contractors shall be 
entitled to access to any and all areas of the building, access to which 
is necessary to perform any such requirement, and the Lessor shall 
afford and facilitate such access. Alternatively, the Government may 
deduct from any payment under this lease, then or thereafter due, an 
amount which reflects the reduced value of the contract requirement not 
performed. No deduction from rent pursuant to this clause shall 
constitute a default by the Government under this lease. These remedies 
are not exclusive and are in addition to any other remedies which may be 
available under this lease or at law.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



Sec. 552.270-11  Successors Bound.

    As prescribed in 570.703, insert the following clause:

                       Successors Bound (SEP 1999)

    This lease shall bind, and inure to the benefit of, the parties and 
their respective heirs, executors, administrators, successors and 
assigns.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



Sec. 552.270-12  Alterations.

    As prescribed in 570.703, insert the following clause:

                         Alterations (SEP 1999)

    The Government shall have the right during the existence of this 
lease to make alterations, attach fixtures, and erect structures or 
signs in or upon the premises hereby leased, which fixtures, additions 
or structures so placed in, on, upon, or attached to the said premises 
shall be and remain the property of the Government and may be removed or 
otherwise disposed of by the Government. If the lease contemplates that 
the Government is the sole occupant of the building, for purposes of 
this clause, the leased premises include the land on which the building 
is sited and the building itself. Otherwise, the Government shall have 
the

[[Page 327]]

right to tie into or make any physical connection with any structure 
located on the property as is reasonably necessary for appropriate 
utilization of the leased space.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



Sec. 552.270-13  Proposals for Adjustment.

    As prescribed in 570.703, insert the following clause:

                   Proposals for Adjustment (SEP 1999)

    (a) The Contracting Officer may, from time to time during the term 
of this lease, require changes to be made in the work or services to be 
performed and in the terms or conditions of this lease. Such changes 
will be required under the Changes clause.
    (b) If the Contracting Officer makes a change within the general 
scope of the lease, the Lessor shall submit, in a timely manner, an 
itemized cost proposal for the work to be accomplished or services to be 
performed when the cost exceeds $100,000. The proposal, including all 
subcontractor work, will contain at least the following details--
    (1) Material quantities and unit costs;
    (2) Labor costs (identified with specific item or material to be 
placed or operation to be performed);
    (3) Equipment costs;
    (4) Worker's compensation and public liability insurance;
    (5) Overhead;
    (6) Profit; and
    (7) Employment taxes under FICA and FUTA.
    (c) The following Federal Acquisition Regulation (FAR) provisions 
also apply to all proposals exceeding $500,000 in cost--
    (1) The Lessor shall provide cost or pricing data including 
subcontractor cost or pricing data (48 CFR 15.403-4); and
    (2) The Lessor's representative, all Contractors, and subcontractors 
whose portion of the work exceeds $500,000 must sign and return the 
``Certificate of Current Cost or Pricing Data'' (48 CFR 15.406-2).
    (d) Lessors shall also refer to 48 CFR Part 31, Contract Cost 
Principles, for information on which costs are allowable, reasonable, 
and allocable in Government work.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



Sec. 552.270-14  Changes.

    As prescribed in 570.703, insert the following clause:

                           Changes (JUN 2011)

    (a) The Contracting Officer may at any time, by written order, make 
changes within the general scope of this lease in any one or more of the 
following:
    (1) Specifications (including drawings and designs).
    (2) Work or services.
    (3) Facilities or space layout.
    (4) Amount of space, provided the Lessor consents to the change.
    (b) If any such change causes an increase or decrease in Lessor's 
cost of or the time required for performance under this lease, whether 
or not changed by the order, the Contracting Officer shall modify this 
lease to provide for one or more of the following:
    (1) A modification of the delivery date.
    (2) An equitable adjustment in the rental rate.
    (3) A lump sum equitable adjustment.
    (4) An equitable adjustment of the annual operating costs per ABOA 
square foot specified in this lease.
    (c) The Lessor must assert its right to an adjustment under this 
clause within 30 days from the date of receipt of the change order and 
must submit a proposal for adjustment. The Lessor's failure to assert 
its right for adjustment within the time frame specified herein shall be 
a waiver of the Lessor's right to an adjustment under this paragraph. 
Failure to agree to any adjustment shall be a dispute under the Disputes 
clause. However, nothing in this clause excuses the lessor from 
proceeding with the change as directed.
    (d) Absent such written change order, the Government is not liable 
to Lessor under this clause.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



Sec. 552.270-15  Liquidated Damages.

    As prescribed in 570.703, insert the following clause:

                      Liquidated Damages (SEP 1999)

    In case of failure on the part of the Lessor to complete the work 
within the time fixed in the lease contract or letter of award, the 
Lessor shall pay the Government as fixed and agreed liquidated damages, 
pursuant to this clause, the sum $------ for each and every calendar day 
that the delivery is delayed beyond the date specified for delivery of 
all the space ready for occupancy by the Government. this remedy is not 
exclusive and is in addition to any other remedies which may be 
available under this lease or at law.

[[Page 328]]

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



Sec. 552.270-16  Adjustment for Vacant Premises.

    As prescribed in 570.703, insert the following clause:

                Adjustment for Vacant Premises (JUN 2011)

    (a) If the Government fails to occupy any portion of the leased 
premises or vacates the premises in whole or in part before the lease 
term expires, the rental rate will be reduced. The reduction shall occur 
after the Government gives 30 calendar days notice to the Lessor, and 
shall continue in effect until the Government occupies or reoccupies the 
vacant premises or the lease expires or is terminated.
    (b) The rate will be reduced by that portion of the costs per ABOA 
square foot of operating expenses not required to maintain the space. In 
addition, at the first operating cost adjustment after the notice of 
reduction to the rent, the base cost of services subject to escalation 
will be reduced by said amount. In the event that the Government 
occupies or reoccupies the vacant premises on the lease anniversary date 
following the occupation of the vacant premises, the base cost of 
services subject to escalation will be increased by said amount.
    (c) The reduction in operating costs shall be negotiated and stated 
in the lease.

                             (End of clause)

[76 FR 30846, May 27, 2011]



Sec. 552.270-17  Delivery and Condition.

    As prescribed in 570.703, insert the following clause:

                    Delivery and Condition (SEP 1999)

    (a) Unless the Government elects to have the space occupied in 
increments, the space must be delivered ready for occupancy as a 
complete unit. The Government reserves the right to determine when the 
space is substantially complete.
    (b) If the premises do not in every respect comply with the 
provisions of this lease the Contracting Officer may, in accordance with 
the Failure in Performance clause of this lease, elect to reduce the 
rent payments.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



Sec. 552.270-18  Default in Delivery--Time Extensions.

    As prescribed in 570.703, insert the following clause:

             Default In Delivery--Time Extensions (SEP 1999)

    (a) With respect to Lessor's obligation to deliver the premises 
substantially complete by the delivery date, time is of the essence. If 
the Lessor fails to work diligently to ensure its substantial completion 
by the delivery date or fails to substantially complete the work by such 
date, the Government may by notice to the Lessor terminate this lease. 
Such termination is effective when received by Lessor. The Lessor and 
the Lessor's sureties, if any, are jointly and severally liable for any 
damages to the Government resulting from such termination, as provided 
in this clause. The Government is entitled to the following damages:
    (1) The Government's aggregate rent, estimated real estate tax, and 
operating cost adjustments for the firm term and all option terms of its 
replacement lease or leases, in excess of the aggregate rent and 
estimated real estate tax and operating cost adjustments for the term. 
If the Government procures replacement premises for a term (including 
all option terms) in excess of this lease term, the Lessor is not liable 
for excess Government rent or adjustments during such excess lease term.
    (2) All administrative and other costs the Government incurs in 
procuring a replacement lease or leases.
    (3) Other, additional relief provided for in this lease, at law, or 
in equity.
    (b) Damages to which the Government is entitled under this clause 
are due and payable thirty (30) days following the date Lessor receives 
notice from the Contracting Officer specifying such damages.
    (c) Delivery by Lessor of less than the minimum ABOA square footage 
required by this lease shall in no event be construed as substantial 
completion, except as the Contracting Officer permits.
    (d) The Government shall not terminate this lease under this clause 
nor charge the Lessor with damages under this clause, if (1) the delay 
in substantially completing the work arises from excusable delays, and 
(2) the Lessor within 10 days from the beginning of any such delay 
(unless extended in writing by the Contracting Officer) provides notice 
to the Contracting Officer of the causes of delay. The Contracting 
Officer shall ascertain the facts and the extent of delay. If the facts 
warrant, the Contracting Officer shall extend the delivery date, to the 
extent of such delay at no additional costs to the Government. A time 
extension is the sole remedy of the Lessor.

[[Page 329]]

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



Sec. 552.270-19  Progressive Occupancy.

    As prescribed in 570.703, insert the following clause:

                    Progressive Occupancy (SEP 1999)

    The Government shall have the right to elect to occupy the space in 
partial increments prior to the substantial completion of the entire 
leased premises, and the Lessor agrees to schedule its work so as to 
deliver the space incrementally as elected by the Government. The 
Government shall pay rent commencing with the first business day 
following substantial completion of the entire leased premise unless the 
Government has elected to occupy the leased premises incrementally. In 
case of incremental occupancy, the Government shall pay rent pro rata 
upon the first business day following substantial completion of each 
incremental unit. Rental payments shall become due on the first workday 
of the month following the month in which an increment of space is 
substantially complete, except that should an increment of space be 
substantially completed after the fifteenth day of the month, the 
payment due date will be the first workday of the second month following 
the month in which it was substantially complete. The commencement date 
of the firm lease term will be a complete determined from all rent 
commencement dates.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



Sec. 552.270-20  Payment.

    As prescribed in 570.703, insert the following clause:

                           Payment (SEP 1999)

    (a) When space is offered and accepted, ABOA square footage 
delivered will be confirmed by either:
    (1) The Government's measurement of plans submitted by the 
successful offeror as approved by the Government, and an inspection of 
the space to verify that the delivered space conforms with such plans.
    (2) A mutual on-site measurement of the space if the Contracting 
Officer determines it necessary.
    (b) The Government will not pay for space in excess of the amount of 
ABOA square footage stated in the lease.
    (c) If the amount of ABOA square footage delivered is less than the 
amount agreed to in the lease, the lease will be modified to reflect the 
amount of ABOA space delivered and the annual rental will be adjusted as 
follows:
    ABOA square feet not delivered multiplied by one plus the common 
area factor (CAF), multiplied by the rate per rentable square foot 
(RSF). That is:


Sec. x (1+CAF) x Rate per RSF = Reduction in Annual Rent.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



Sec. 552.270-21  Effect of Acceptance and Occupancy.

    As prescribed in 570.703, insert the following clause:

              Effect of Acceptance and Occupancy (SEP 1999)

    Neither the Government's acceptance of the premises for occupancy, 
nor the Government's occupancy thereof, shall be construed as a waiver 
of any requirement of or right of the Government under this Lease, or as 
otherwise prejudicing the Government with respect to any such 
requirement or right.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



Sec. 552.270-22  Default by Lessor During the Term.

    As prescribed in 570.703, insert the following clause:

              Default By Lessor During the Term (SEP 1999)

    (a) Each of the following shall constitute a default by Lessor under 
this lease:
    (1) Failure to maintain, repair, operate or service the premises as 
and when specified in this lease, or failure to perform any other 
requirement of this lease as and when required provided any such failure 
shall remain uncured for a period of thirty (30) days next following 
Lessor's receipt of notice thereof from the Contracting Officer or an 
authorized representative.
    (2) Repeated and unexcused failure by Lessor to comply with one or 
more requirements of this lease shall constitute a default 
notwithstanding that one or all such failures shall have been timely 
cured pursuant to this clause.
    (b) If a default occurs, the Government may, by notice to Lessor, 
terminate this lease for default and if so terminated, the Government 
shall be entitled to the damages

[[Page 330]]

specified in the Default in Delivery-Time Extensions clause.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



Sec. 552.270-23  Subordination, Nondisturbance and Attornment.

    As prescribed in 570.703, insert the following clause:

         Subordination, Nondisturbance and Attornment (SEP 1999)

    (a) Lessor warrants that it holds such title to or other interest in 
the premises and other property as is necessary to the Government's 
access to the premises and full use and enjoyment thereof in accordance 
with the provisions of this lease. Government agrees, in consideration 
of the warranties and conditions set forth in this clause, that this 
lease is subject and subordinate to any and all recorded mortgages, 
deeds of trust and other liens now or hereafter existing or imposed upon 
the premises, and to any renewal, modification or extension thereof. It 
is the intention of the parties that this provision shall be self-
operative and that no further instrument shall be required to effect the 
present or subsequent subordination of this lease. Government agrees, 
however, within twenty (20) business days next following the Contracting 
Officer's receipt of a written demand, to execute such instruments as 
Lessor may reasonably request to evidence further the subordination of 
this lease to any existing or future mortgage, deed of trust or other 
security interest pertaining to the premises, and to any water, sewer or 
access easement necessary or desirable to serve the premises or 
adjoining property owned in whole or in part by Lessor if such easement 
does not interfere with the full enjoyment of any right granted the 
Government under this lease.
    (b) No such subordination, to either existing or future mortgages, 
deeds of trust or other lien or security instrument shall operate to 
affect adversely any right of the Government under this lease so long as 
the Government is not in default under this lease. Lessor will include 
in any future mortgage, deed of trust or other security instrument to 
which this lease becomes subordinate, or in a separate nondisturbance 
agreement, a provision to the foregoing effect. Lessor warrants that the 
holders of all notes or other obligations secured by existing mortgages, 
deeds of trust or other security instruments have consented to the 
provisions of this clause, and agrees to provide true copies of all such 
consents to the Contracting Officer promptly upon demand.
    (c) In the event of any sale of the premises or any portion thereof 
by foreclosure of the lien of any such mortgage, deed of trust or other 
security instrument, or the giving of a deed in lieu of foreclosure, the 
Government will be deemed to have attorned to any purchaser, purchasers, 
transferee or transferees of the premises or any portion thereof and its 
or their successors and assigns, and any such purchasers and transferees 
will be deemed to have assumed all obligations of the Lessor under this 
lease, so as to establish direct privity of estate and contract between 
Government and such purchasers or transferees, with the same force, 
effect and relative priority in time and right as if the lease had 
initially been entered into between such purchasers or transferees and 
the Government; provided, further, that the Contracting Officer and such 
purchasers or transferees shall, with reasonable promptness following 
any such sale or deed delivery in lieu of foreclosure, execute all such 
revisions to this lease, or other writings, as shall be necessary to 
document the foregoing relationship.
    (d) None of the foregoing provisions may be deemed or construed to 
imply a waiver of the Government's rights as a sovereign.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



Sec. 552.270-24  Statement of Lease.

    As prescribed in 570.703, insert the following clause:

                      Statement of Lease (SEP 1999)

    (a) The Contracting Officer will, within thirty (30) days next 
following the Contracting Officer's receipt of a joint written request 
from Lessor and a prospective lender or purchaser of the building, 
execute and deliver to Lessor a letter stating that the same is issued 
subject to the conditions stated in this clause and, if such is the 
case, that (1) the lease is in full force and effect; and (2) the date 
to which the rent and other charges have been paid in advance, if any; 
and (3) whether any notice of default has been issued.
    (b) Letters issued pursuant to this clause are subject to the 
following conditions:
    (1) That they are based solely upon a reasonably diligent review of 
the Contracting Officer's lease file as of the date of issuance;
    (2) That the Government shall not be held liable because of any 
defect in or condition of the premises or building;
    (3) That the Contracting Officer does not warrant or represent that 
the premises or building comply with applicable Federal, State and local 
law; and

[[Page 331]]

    (4) That the Lessor, and each prospective lender and purchaser are 
deemed to have constructive notice of such facts as would be 
ascertainable by reasonable prepurchase and precommitment inspection of 
the Premises and Building and by inquiry to appropriate Federal, State 
and local Government officials.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30846, May 27, 2011]



Sec. 552.270-25  Substitution of Tenant Agency.

    As prescribed in 570.703, insert the following clause:

                Substitution of Tenant Agency (SEP 1999)

    The Government may, at any time and from time to time, substitute 
any Government agency or agencies for the Government agency or agencies, 
if any, named in the lease.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30847, May 27, 2011]



Sec. 552.270-26  No Waiver.

    As prescribed in 570.703, insert the following clause:

                          No Waiver (SEP 1999)

    No failure by either party to insist upon the strict performance of 
any provision of this lease or to exercise any right or remedy 
consequent upon a breach thereof, and no acceptance of full or partial 
rent or other performance by either party during the continuance of any 
such breach shall constitute a waiver of any such breach of such 
provision.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30847, May 27, 2011]



Sec. 552.270-27  Integrated Agreement.

    As prescribed in 570.703, insert the following clause:

                     Integrated Agreement (SEP 1999)

    This Lease, upon execution, contains the entire agreement of the 
parties and no prior written or oral agreement, express or implied, 
shall be admissible to contradict the provisions of the Lease.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30847, May 27, 2011]



Sec. 552.270-28  Mutuality of Obligation.

    As prescribed in 570.703, insert the following clause:

                   Mutuality of Obligation (SEP 1999)

    The obligations and covenants of the Lessor, and the Government's 
obligation to pay rent and other Government obligations and covenants, 
arising under or related to this Lease, are interdependent. The 
Government may, upon issuance of and delivery to Lessor of a final 
decision asserting a claim against Lessor, set off such claim, in whole 
or in part, as against any payment or payments then or thereafter due 
the Lessor under this lease. No setoff pursuant to this clause shall 
constitute a breach by the Government of this lease.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30847, May 27, 2011]



Sec. 552.270-29  Acceptance of Space.

    As prescribed in 570.703, insert the following clause:

                     Acceptance of Space (JUN 2011)

    (a) When the Lessor has completed all alterations, improvements, and 
repairs necessary to meet the requirements of the lease, the Lessor 
shall notify the Contracting Officer. The Contracting Officer or 
designated representative shall promptly inspect the space.
    (b) The Government will accept the space and the lease term will 
begin after determining that the space is substantially complete and 
contains the required ABOA square footage as indicated in the 
solicitation paragraph, Amount and Type of Space.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 76 FR 30847, May 27, 2011]



Sec. 552.270-30  Price Adjustment for Illegal or Improper Activity.

    As prescribed in 570.703, insert the following clause:

      Price Adjustment for Illegal or Improper Activity (JUN 2011)

    (a) If the head of the contracting activity (HCA) or his or her 
designee determines that there was a violation of subsection 27(a) of

[[Page 332]]

the Office of Federal Procurement Policy Act, as amended (41 U.S.C. 
423), as implemented in the Federal Acquisition Regulation, the 
Government, at its election, may--
    (1) Reduce the monthly rental under this lease by five percent of 
the amount of the rental for each month of the remaining term of the 
lease, including any option periods, and recover five percent of the 
rental already paid;
    (2) Reduce payments for alterations not included in monthly rental 
payments by five percent of the amount of the alterations agreement; or
    (3) Reduce the payments for violations by a Lessor's subcontractor 
by an amount not to exceed the amount of profit or fee reflected in the 
subcontract at the time the subcontract was placed.
    (b) Prior to making a determination as set forth above, the HCA or 
designee shall provide to the Lessor a written notice of the action 
being considered and the basis thereof. The Lessor shall have a period 
determined by the agency head or designee, but not less than 30 calendar 
days after receipt of such notice, to submit in person, in writing, or 
through a representative, information and argument in opposition to the 
proposed reduction. The agency head or designee may, upon good cause 
shown, determine to deduct less than the above amounts from payments.
    (c) The rights and remedies of the Government specified herein are 
not exclusive, and are in addition to any other rights and remedies 
provided by law or under this lease.

                             (End of clause)

[76 FR 30847, May 27, 2011]



Sec. 552.270-31  Prompt Payment.

    As prescribed in 570.703, insert the following clause:

                        Prompt Payment (JUN 2011)

    The Government will make payments under the terms and conditions 
specified in this clause. Payment shall be considered as being made on 
the day a check is dated or an electronic funds transfer is made. All 
days referred to in this clause are calendar days, unless otherwise 
specified.
    (a) Payment due date--(1) Rental payments. Rent shall be paid 
monthly in arrears and will be due on the first workday of each month, 
and only as provided for by the lease.
    (i) When the date for commencement of rent falls on the 15th day of 
the month or earlier, the initial monthly rental payment under this 
contract shall become due on the first workday of the month following 
the month in which the commencement of the rent is effective.
    (ii) When the date for commencement of rent falls after the 15th day 
of the month, the initial monthly rental payment under this contract 
shall become due on the first workday of the second month following the 
month in which the commencement of the rent is effective.
    (2) Other payments. The due date for making payments other than rent 
shall be the later of the following two events:
    (i) The 30th day after the designated billing office has received a 
proper invoice from the Contractor.
    (ii) The 30th day after Government acceptance of the work or 
service. However, if the designated billing office fails to annotate the 
invoice with the actual date of receipt, the invoice payment due date 
shall be deemed to be the 30th day after the Contractor's invoice is 
dated, provided a proper invoice is received and there is no 
disagreement over quantity, quality, or Contractor compliance with 
contract requirements.
    (b) Invoice and inspection requirements for payments other than 
rent. (1) The Contractor shall prepare and submit an invoice to the 
designated billing office after completion of the work. A proper invoice 
shall include the following items:
    (i) Name and address of the Contractor.
    (ii) Invoice date.
    (iii) Lease number.
    (iv) Government's order number or other authorization.
    (v) Description, price, and quantity of work or services delivered.
    (vi) Name and address of Contractor official to whom payment is to 
be sent (must be the same as that in the remittance address in the lease 
or the order).
    (vii) Name (where practicable), title, phone number, and mailing 
address of person to be notified in the event of a defective invoice.
    (2) The Government will inspect and determine the acceptability of 
the work performed or services delivered within seven days after the 
receipt of a proper invoice or notification of completion of the work or 
services unless a different period is specified at the time the order is 
placed. If actual acceptance occurs later, for the purpose of 
determining the payment due date and calculation of interest, acceptance 
will be deemed to occur on the last day of the seven day inspection 
period. If the work or service is rejected for failure to conform to the 
technical requirements of the contract, the seven days will be counted 
beginning with receipt of a new invoice or notification. In either case, 
the Contractor is not entitled to any payment or interest unless actual 
acceptance by the Government occurs.
    (c) Interest Penalty. (1) An interest penalty shall be paid 
automatically by the Government, without request from the Contractor, if 
payment is not made by the due date.
    (2) The interest penalty shall be at the rate established by the 
Secretary of the Treasury under Section 12 of the Contract Disputes

[[Page 333]]

Act of 1978 (41 U.S.C. 611) that is in effect on the day after the due 
date. This rate is referred to as the ``Renegotiation Board Interest 
Rate,'' and it is published in the Federal Register semiannually on or 
about January 1 and July 1. The interest penalty shall accrue daily on 
the payment amount approved by the Government and be compounded in 30-
day increments inclusive from the first day after the due date through 
the payment date.
    (3) Interest penalties will not continue to accrue after the filing 
of a claim for such penalties under the clause at 52.233-1, Disputes, or 
for more than one year. Interest penalties of less than $1.00 need not 
be paid.
    (4) Interest penalties are not required on payment delays due to 
disagreement between the Government and Contractor over the payment 
amount or other issues involving contract compliance or on amounts 
temporarily withheld or retained in accordance with the terms of the 
contract. Claims involving disputes, and any interest that may be 
payable, will be resolved in accordance with the clause at 52.233-1, 
Disputes.
    (d) Overpayments. If the Lessor becomes aware of a duplicate payment 
or that the Government has otherwise overpaid on a payment, the 
Contractor shall--
    (1) Return the overpayment amount to the payment office cited in the 
contract along with a description of the overpayment including the--
    (i) Circumstances of the overpayment (e.g., duplicate payment, 
erroneous payment, liquidation errors, date(s) of overpayment);
    (ii) Affected lease number;
    (iii) Affected lease line item or subline item, if applicable; and
    (iv) Lessor point of contact.
    (2) Provide a copy of the remittance and supporting documentation to 
the Contracting Officer.

                             (End of clause)

    Alternate I (Sep 1999). If Alternate I is used, subparagraph (a)(1) 
of the basic clause should be designated as paragraph (a) and 
subparagraph (a)(2) and paragraph (b) should be deleted. Paragraph (c) 
of the basic clause should be redesignated as (b).

[76 FR 30847, May 27, 2011]



Sec. 552.270-32  Covenant Against Contingent Fees.

    As prescribed in 570.703, insert the following clause:

               Covenant Against Contingent Fees (JUN 2011)

    (a) The Contractor warrants that no person or agency has been 
employed or retained to solicit or obtain this contract upon an 
agreement or understanding for a contingent fee, except a bona fide 
employee or agency. For breach or violation of this warranty, the 
Government shall have the right to annul this contract without liability 
or, in its discretion, to deduct from the contract price or 
consideration, or otherwise recover the full amount of the contingent 
fee.
    (b) Bona fide agency, as used in this clause, means an established 
commercial or selling agency (including licensed real estate agents or 
brokers), maintained by a Contractor for the purpose of securing 
business, that neither exerts nor proposes to exert improper influence 
to solicit or obtain Government contracts nor holds itself out as being 
able to obtain any Government contract or contracts through improper 
influence.
    Bona fide employee, as used in this clause, means a person, employed 
by a Contractor and subject to the Contractor's supervision and control 
as to time, place, and manner of performance, who neither exerts nor 
proposes to exert improper influence to solicit or obtain Government 
contracts nor holds out as being able to obtain any Government contract 
or contracts through improper influence.
    Contingent fee, as used in this clause, means any commission, 
percentage, brokerage, or other fee that is contingent upon the success 
that a person or concern has in securing a Government contract.
    Improper influence, as used in this clause, means any influence that 
induces or tends to induce a Government employee or officer to give 
consideration or to act regarding a Government contract on any basis 
other than the merits of the matter.

                             (End of clause)

[76 FR 30847, May 27, 2011]

                             PART 553_FORMS

                  Subpart 553.2_Illustrations of Forms

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

    Source: 64 FR 37265, July 9, 1999, unless otherwise noted.



Sec. 553.300  Scope of subpart.

    Standard and GSA forms prescribed or referenced in the text of this 
chapter are illustrated in and made a part of the General Services 
Administration Acquisition Manual. The forms are not illustrated in 
Title 48, Chapter 5, of the Code of Federal Regulations. Copies may be 
obtained from the Director of the Office of GSA Acquisition Policy

[[Page 334]]

(MVP), 1800 F Street, NW, Washington, DC 20405.

[[Page 335]]

                SUBCHAPTER I_SPECIAL CONTRACTING PROGRAMS

         PART 570_ACQUIRING LEASEHOLD INTERESTS IN REAL PROPERTY

                          Subpart 570.1_General

Sec.

Sec. 570.101 Applicability.

Sec. 570.102 Definitions.

Sec. 570.103 Authority to lease.

Sec. 570.104 Competition.

Sec. 570.105 Methods of contracting.

Sec. 570.105-1 Contracting by negotiation.

Sec. 570.105-2 Criteria for the use of two-phase design-build.

Sec. 570.106 Advertising, publicizing, and notifications to Congress.

Sec. 570.106-1 Synopsis of lease awards.

Sec. 570.107 Oral presentations.

Sec. 570.108 Responsibility determination.

Sec. 570.109 Certifications.

Sec. 570.110 Cost or pricing data and information other than cost or 
          pricing data.

Sec. 570.111 Inspection and acceptance.

Sec. 570.112 Awards to Federal employees.

Sec. 570.113 Disclosure of mistakes after award.

Sec. 570.114 Protests.

Sec. 570.115 Novation and change of ownership.

Sec. 570.116 Contract format.

Sec. 570.117 Sustainable requirements for lease acquisition.

Sec. 570.117-1 Federal leadership in environmental, energy, and economic 
          performance.

Sec. 570.117-2 Guiding principles for federal leadership in high 
          performance and sustainable buildings.

          Subpart 570.2_Simplified Lease Acquisition Procedures


Sec. 570.201 Purpose.

Sec. 570.202 Policy.

Sec. 570.203 Procedures.

Sec. 570.203-1 Market survey.

Sec. 570.203-2 Competition.

Sec. 570.203-3 Soliciting offers.

Sec. 570.203-4 Negotiation, evaluation, and award.

  Subpart 570.3_Acquisition Procedures for Leasehold Interests in Real 
        Property Over the Simplified Lease Acquisition Threshold


Sec. 570.301 Market survey.

Sec. 570.302 Description of requirements.

Sec. 570.303 Solicitation for offers.

Sec. 570.303-1 Preparing the SFO.

Sec. 570.303-2 Issuing the SFO.

Sec. 570.303-3 Late offers, modifications of offers, and withdrawals of 
          offers.

Sec. 570.303-4 Changes to SFOs.

Sec. 570.304 General source selection procedures.

Sec. 570.305 Two-phase design-build selection procedures.

Sec. 570.306 Evaluating offers.

Sec. 570.307 Negotiations.

Sec. 570.308 Award.

Sec. 570.309 Debriefings.

    Subpart 570.4_Special Aspects of Contracting for Continued Space 
                              Requirements


Sec. 570.401 Renewal options.

Sec. 570.402 Succeeding leases.

Sec. 570.402-1 General.

Sec. 570.402-2 Publicizing/Advertising.

Sec. 570.402-3 Market survey.

Sec. 570.402-4 No potential acceptable locations.

Sec. 570.402-5 Potential acceptable locations.

Sec. 570.402-6 Cost-benefit analysis.

Sec. 570.403 Expansion requests.

Sec. 570.404 Superseding leases.

Sec. 570.405 Lease extensions.

   Subpart 570.5_Special Aspects of Contracting for Lease Alterations


Sec. 570.501 General.

Sec. 570.502 Alterations by the lessor.

Sec. 570.502-1 Justification and approval requirements.

Sec. 570.502-2 Procedures.

Sec. 570.503 Alterations by the Government or through a separate 
          contract.

 Subpart 570.6_Contracting for Overtime Services and Utilities in Leases


Sec. 570.601 General.

       Subpart 570.7_Solicitation Provisions and Contract Clauses


Sec. 570.701 FAR provisions and clauses.

Sec. 570.702 GSAR solicitation provisions.

Sec. 570.703 GSAR contract clauses.

Sec. 570.704 Deviations to provisions and clauses.

                           Subpart 570.8_Forms


Sec. 570.801 Standard forms.

Sec. 570.802 GSA forms.

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

    Source: 64 FR 37265, July 9, 1999, unless otherwise noted.

                          Subpart 570.1_General



Sec. 570.101  Applicability.

    (a) This part applies to acquisitions of leasehold interests in real 
property except:

[[Page 336]]

    (1) Leasehold interests acquired by the power of eminent domain or 
by donation.
    (2) Acquisition of leasehold interests in bare or unimproved land.
    (b) In addition, the GSAR rules in the following table apply. Other 
provisions of 48 CFR Chapter 5 (GSAR) do not apply to leases of real 
property unless specifically cross-referenced in this part 570.

  GSAR Rules Applicable to Acquisitions of Leasehold Interests in Real
                                Property
 
 
 
501               515.209-70            519.12           536.271
502               515.305               522.805          537.2
503               517.202               522.807          552
509.4             517.207               532.111          553
514.407           519.7                 533              ...............
 

    (c) [Reserved]
    (d) The FAR does not apply to leasehold acquisitions of real 
property. Where referenced in this part, FAR provisions have been 
adopted based on a statutory requirement applicable to such lease 
acquisitions or as a matter of policy, including, but not limited to 
``Federal agency procurement'' as defined at FAR 3.104.

[64 FR 37265, July 9, 1999, as amended at 76 FR 30848, May 27, 2011]



Sec. 570.102  Definitions.

    ANSI/BOMA Office Area (ABOA) means the area ``where a tenant 
normally houses personnel, and/or furniture, for which a measurement is 
to be computed,'' as stated by the American National Standards 
Institute/Building Owners and Managers Association (ANSI/BOMA) 
publication, Z65.1-1996.
    Contract means lease.
    Contractor means lessor.
    Landlord or lessor means any individual, firm, partnership, trust, 
association, State or local government, or other legal entity that 
leases real property to the Government.
    Lease or leasehold interest in real property means a conveyance to 
the Government of the right of exclusive possession of real property for 
a definite period of time by a landlord. It may include operational 
services provided by the landlord.
    Lease acquisition means the acquiring by lease of an interest in 
improved real property for use by the Government, whether the space 
already exists or must be constructed.
    Lease extension means extension of the expiration date of a lease to 
provide for continued occupancy on a short term basis.
    Lease renewal (option) means the right, but not the obligation of 
the Government to continue a lease upon specified terms and conditions, 
including lease term and rent.
    Lessee or tenant means the United States of America.
    Operational services means services that support use of a leased 
property, such as heating, ventilation, air condition, utilities, and 
custodial services.
    Simplified lease acquisition procedures mean the procedures for 
awarding leases at or below the simplified lease acquisition threshold.
    Simplified lease acquisition threshold means the simplified 
acquisition threshold (see FAR 2.101), when applied to the average 
annual amount of rent for the term of the lease, including option 
periods and excluding the cost of services.
    Small business means a concern including affiliates, which is 
organized for profit, is independently-owned and operated, is not 
dominant in the field of leasing commercial real estate, and that has 
annual average gross receipts for the preceding three fiscal years which 
are less than the size standard established by the Small Business 
Administration pursuant to 13 CFR Part 121. The size standards may be 
found at http://www.sba.gov/size/sizetable--2002.html. For most lease 
procurements, the NAICS code is 531190.
    Solicitation for Offers (SFO) means a request for proposals.
    Substantially as follows or substantially the same as, when used in 
prescribing a provision or clause, means that the contracting officer 
may prepare and use a variation of that provision or clause to 
accommodate requirements peculiar to an individual acquisition. The 
variation must include the salient features of the FAR or GSAR provision 
or clause. It must also be consistent with the intent, principle, and 
substance of the FAR or GSAR provision or clause and related coverage on 
the subject matter.

[[Page 337]]

    Succeeding lease means a lease whose effective date immediately 
follows the expiration date of an existing lease for space in the same 
building.
    Superseding lease means a lease that replaces an existing lease, 
prior to the scheduled expiration of the existing lease term.

[64 FR 37265, July 9, 1999, as amended at 76 FR 30848, May 27, 2011]



Sec. 570.103  Authority to lease.

    (a) The Administrator of General Services is authorized by 40 U.S.C. 
Sec. 585 to enter into a lease agreement for the accommodation of a 
Federal agency in a building (or improvement) which is in existence or 
being erected by the lessor for the accommodation of the Federal agency. 
The lease agreement may not bind the Government for more than 20 years.
    (b) The contracting officer has exclusive authority to enter into 
and administer leases on the Government's behalf to the extent provided 
in the certificate of appointment as a contracting officer. Nothing in 
this paragraph is intended to limit the contracting officer's authority 
to designate, consistent with statute and regulation, a contracting 
officer's representative.

[76 FR 30848, May 27, 2011]



Sec. 570.104  Competition.

    Unless the contracting officer uses the simplified procedures in 
subpart 570.2, the competition requirements of FAR part 6 apply to 
acquisition of leasehold interests in real property.

[64 FR 37265, July 9, 1999, as amended at 76 FR 30849, May 27, 2011]



Sec. 570.105  Methods of contracting.



Sec. 570.105-1  Contracting by negotiation.

    Contracting by negotiation is appropriate for acquiring space in a 
building through a lease contract. The contracting officer will usually 
need to conduct discussions with offerors about their proposals and 
consider factors other than price in making the award.

[76 FR 30849, May 27, 2011]



Sec. 570.105-2  Criteria for the use of two-phase design-build.

    The contracting officer may use the two-phase design-build selection 
procedures in 41 U.S.C. 253m for lease construction projects. This 
includes lease construction projects with options to purchase the real 
property leased. Use the procedures in 41 U.S.C. 253m and FAR 36.3 when 
the conditions in (a) and (b) below are met:
    (a) The contracting officer anticipates that the lease will involve 
the design and construction of a building, facility, or work for lease 
to the Government.
    (b) The contracting officer determines whether the procedures are 
appropriate for entering into a lease construction contract based on the 
following:
    (1) The contracting officer expects to receive three or more offers.
    (2) Offerors will need to perform design work before developing a 
price.
    (3) Offerors will incur a substantial amount of expense in preparing 
offers.
    (4) The contracting officer considers criteria such as the 
following:
    (i) The extent to which the project requirements have been 
adequately defined.
    (ii) The time constraints for delivery of the project.
    (iii) The capability and experience of potential contractors.
    (iv) The past performance of potential contractors.
    (v) The suitability of the project for use of the two-phase 
selection procedures.
    (vi) The capability of the agency to manage the two-phase selection 
process.
    (vii) Other criteria established by the HCA.
    (c) See 570.305 for additional information.

[64 FR 37265, July 9, 1999, as amended at 76 FR 30849, May 27, 2011]



Sec. 570.106  Advertising, publicizing, and notifications to Congress.

    (a) If a proposed acquisition is not exempt under FAR 5.202 or GSAR

[[Page 338]]

570.106(e), and is for a leasehold interest in real property estimated 
to exceed 10,000 square feet, then the contracting officer must 
publicize the proposed acquisition in http://www.FBO.gov.
    (b) For leasehold acquisitions where the solicitation requires the 
construction of a new building on a preselected site, the contracting 
officer, in accordance with the timeframes established in FAR 5.203, 
must publicize the proposed acquisition in http://www.FBO.gov regardless 
of size or value.
    (c) For leasehold acquisitions not subject to a square foot 
measurement (e.g., antennas, piers, parking), contracting officers must 
publicize the proposed acquisition in http://www.FBO.gov when the 
contract action is expected to exceed $25,000, unless an exception under 
FAR 5.202 applies.
    (d) Other than as identified in paragraphs (a) through (c) of this 
section, the contracting officer need not publicize the proposed 
acquisition of a leasehold interest in real property, including 
expansion requests within the scope of a lease (see 570.403), lease 
extensions under the conditions defined in 570.405, and building 
alterations within the scope of a lease (see 570.5). However, the 
contracting officer may publicize proposed lease acquisitions of any 
dollar value or square footage in http://www.FBO.gov or local newspapers 
if, in the opinion of the contracting officer, doing so is necessary to 
promote competition.
    (e) The contracting officer may issue a consolidated advertisement 
for multiple leasing actions.
    (f) Except as otherwise provided in paragraph (b) of this section, 
where publicizing of the proposed acquisition is required, the notice 
shall be published in http://www.FBO.gov not less than three calendar 
days prior to issuance of a solicitation.
    (g) Except as otherwise provided in paragraph (b) of this section 
and as set forth in paragraphs (g) and (h) of this section, the 
contracting officer shall provide offerors not less than 20 calendar 
days between solicitation issuance and the date established for receipt 
of initial offers.
    (1) For a proposed acquisition using simplified lease acquisition 
procedures (see 570.2), consider the individual acquisition and 
establish a reasonable response time.
    (2) In cases of unusual and compelling urgency (FAR 6.303-2), 
provide as much time as reasonably possible under the circumstances and 
document the contract file.
    (h) If a Member of Congress has specifically requested notification 
of award, the contracting officer must provide award notifications in 
accordance with 505.303.

[76 FR 30849, May 27, 2011]



Sec. 570.106-1  Synopsis of lease awards.

    (a) Except for lease actions described in paragraph (b) of this 
section, contracting officers must synopsize in http://www.FBO.gov 
awards exceeding $25,000 total contract value that are 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.
    (b) A notice is not required if--
    (1) The notice would disclose the occupant agency's needs and the 
disclosure of such needs would compromise the national security; or
    (2) The lease--
    (i) Is for an amount not greater than the simplified lease 
acquisition threshold;
    (ii) Was made through a means where access to the notice of proposed 
lease action was provided through http://www.FBO.gov; and
    (iii) Permitted the public to respond to the solicitation 
electronically.
    (c) Justifications for other than full and open competition must be 
posted in http://www.FBO.gov. Information exempt from public disclosure 
must be redacted.

[76 FR 30849, May 27, 2011]



Sec. 570.107  Oral presentations.

    The contracting officer may require oral presentations for 
acquisitions of

[[Page 339]]

leasehold interests in real property. Follow the procedures in FAR 
15.102.

[64 FR 37265, July 9, 1999, as amended at 76 FR 30849, May 27, 2011]



Sec. 570.108  Responsibility determination.

    (a) Determine that the prospective awardee is responsible with 
respect to the lease under consideration. The standards in FAR 9.104 
apply. As part of the determination that a prospective contractor is 
otherwise qualified and eligible for award, review the Excluded Parties 
List System (EPLS).
    (b) The contracting officer's signature on the contract is deemed an 
affirmative determination.
    (c) If the contracting officer finds an offeror nonresponsible, sign 
and place in the contract file a determination of nonresponsibility. 
State the basis for the determination.
    (d) If the contracting officer finds a small business concern 
nonresponsible, the procedures at FAR 19.6 apply. Place all documents 
and reports supporting a determination of responsibility or 
nonresponsibility in the lease file.

[64 FR 37265, July 9, 1999, as amended at 76 FR 30849, May 27, 2011]



Sec. 570.109  Certifications.

    Before awarding a lease, review applicable representations and 
certifications for compliance with statute and regulations.

[64 FR 37265, July 9, 1999, as amended at 76 FR 30849, May 27, 2011]



Sec. 570.110  Cost or pricing data and information other than cost or 
          pricing data.

    (a) The policies and procedures of FAR 15.403 apply to lease 
contract actions.
    (b) FAR 15.403-1 defines exceptions to and waivers for submitting 
cost or pricing data. Most leasing actions will have adequate price 
competition. For price analysis of offered rental rates, the contracting 
officer may use a market survey, an appraisal conducted using accepted 
real property appraisal procedures to establish a market price for 
comparison, or other relevant market research data. For price analysis 
of offered tenant improvement costs, obtain two offers or cost and 
pricing data.
    (c) In exceptional cases, the requirement for submission of 
certified cost or pricing data may be waived under FAR 15.403-1(c)(4).
    (d) If cost or pricing data are required, follow the procedures in 
FAR 15.403-4 and 15.406-2.

[64 FR 37265, July 9, 1999, as amended at 76 FR 30850, May 27, 2011]



Sec. 570.111  Inspection and acceptance.

    Before accepting the space, the contracting officer must verify that 
the space complies with the Government's requirements and specifications 
and document this in an inspection report. The inspection and acceptance 
document must contain the square footage accepted and the acceptance 
date. Include the inspection and acceptance in the contract file. When 
space such as piers, antennas, and parking are leased, square footage 
may not be the manner in which the amount of space is specified; 
therefore, document that the space complies with the Government's 
written requirements.

[76 FR 30850, May 27, 2011]



Sec. 570.112  Awards to Federal employees.

    If the contracting officer receives an offer from an officer or 
employee of the Government, follow the procedures in FAR 3.6.

[64 FR 37265, July 9, 1999, as amended at 76 FR 30850, May 27, 2011]



Sec. 570.113  Disclosure of mistakes after award.

    If a mistake in a lessor's offer is discovered after award, the 
contracting officer should process it substantially in accordance with 
FAR 14.407-4 and GSAM 514.407-4.

[76 FR 30850, May 27, 2011]



Sec. 570.114  Protests.

    FAR 33.1 and 533.1 apply to protests of lease acquisitions.



Sec. 570.115  Novation and change of ownership.

    In the event of a transfer of ownership of the leased premises or a 
change

[[Page 340]]

in the lessor's legal name, FAR 42.12 applies.

[76 FR 30850, May 27, 2011]



Sec. 570.116  Contract format.

    The uniform contract format is not required for leases of real 
property.

[76 FR 30850, May 27, 2011]



Sec. 570.117  Sustainable requirements for lease acquisition.

    Contracting officers must include sustainable design requirements 
appropriate for the type of leasing action in the solicitations for 
offers. Contracting officers can find solicitation requirements and 
instructions on http://www.gsa.gov/leasing under Leasing Policies and 
Procedures, Green Leasing, and in the Leasing Desk Guide to assist them 
in complying with GSA's sustainable requirements identified in this 
part.

[76 FR 30850, May 27, 2011]



Sec. 570.117-1  Federal leadership in environmental, energy, and 
          economic performance.

    In order to create a clean energy economy that will increase our 
Nation's prosperity, promote energy security, protect the interests of 
taxpayers, and safeguard the health of our environment, GSA will 
accomplish all requirements of E.O. 13514 that apply to lease 
acquisition.

[76 FR 30850, May 27, 2011]



Sec. 570.117-2  Guiding principles for federal leadership in high 
          performance and sustainable buildings.

    GSA is committed to the design, construction, operation, and 
maintenance of leased space that comply with all of the following 
Guiding Principles:
    (a) Employ Integrated Design Principles;
    (b) Optimize Energy Performance;
    (c) Protect and Conserve Water;
    (d) Enhance Indoor Environmental Quality; and
    (e) Reduce the Environmental Impact of Building Materials.

[76 FR 30850, May 27, 2011]

          Subpart 570.2_Simplified Lease Acquisition Procedures



Sec. 570.201  Purpose.

    This subpart prescribes simplified procedures for small leases. 
These procedures reduce administrative costs, while improving efficiency 
and economy, when acquiring small leasehold interests in real property.



Sec. 570.202  Policy.

    Use simplified lease acquisition procedures to the maximum extent 
practicable for actions at or below the simplified lease acquisition 
threshold.



Sec. 570.203  Procedures.



Sec. 570.203-1  Market survey.

    Conduct a market survey to identify potential sources. Use 
information available in GSA or from other sources to identify locations 
that will meet the Government's requirements.



Sec. 570.203-2  Competition.

    (a) To the maximum extent practicable, the contracting officer must 
solicit at least three sources to promote competition. If there are 
repeated requirements for space in the same market, invite two sources, 
if practicable, that are not included in the most recent solicitation to 
submit offers.
    (b) If the contracting officer solicits only one source, document 
the file to explain the lack of competition.

[64 FR 37265, July 9, 1999, as amended at 76 FR 30850, May 27, 2011]



Sec. 570.203-3  Soliciting offers.

    (a) The contracting officer must solicit offers by providing each 
prospective offeror a proposed short form lease GSA Form 3626 or SFO. 
The short form lease or SFO must:
    (1) Describe the Government's requirements.
    (2) List all award factors, including price or cost, and any 
significant subfactors that the contracting officer will consider in 
awarding the lease.
    (3) State the relative importance of the evaluation factors and 
subfactors.

[[Page 341]]

    (4) State whether all evaluation factors other than cost or price, 
when combined, are either:
    (i) Significantly more important than cost or price.
    (ii) Approximately equal in importance to cost or price.
    (iii) Significantly less important than cost or price.
    (5) Include either in full text or by reference, applicable FAR 
provisions and contract clauses required by 570.6.
    (6) Include sustainable design requirements.
    (b) As necessary, review with prospective offerors the Government's 
requirements, pricing matters, evaluation procedures and submission of 
offers.

[76 FR 30850, May 27, 2011]



Sec. 570.203-4  Negotiation, evaluation, and award.

    (a) If the contracting officer needs to conduct negotiations, use 
the procedures in 570.307.
    (b) Evaluate offers in accordance with the solicitation. Evaluate 
prices and document the lease file to demonstrate whether the proposed 
contract prices are fair and reasonable. See 570.110.
    (c) If the total price, including options, exceeds the amount 
established by FAR 15.403-4, consider whether the contracting officer 
needs cost and pricing data to determine that the price is fair and 
reasonable. In most cases, the exceptions at FAR 15.403-1 will apply.
    (d) Regardless of the process used, the contracting officer must 
determine whether the price is fair and reasonable.
    (e) If the total contract value of the lease, including options, 
will exceed the amount established by FAR 19.702(a), the proposed 
awardee must provide an acceptable small business subcontracting plan. 
This requirement does not apply if the proposed awardee is a small 
business concern.
    (f) Make award to the responsible offeror whose proposal represents 
the best value to the Government considering price and other factors 
included in the solicitation.

[76 FR 30850, May 27, 2011]

  Subpart 570.3_Acquisition Procedures for Leasehold Interests in Real 
        Property Over the Simplified Lease Acquisition Threshold



Sec. 570.301  Market survey.

    Conduct a market survey to identify potential sources. Use 
information available in GSA or from other sources to identify locations 
capable of meeting the Government's requirements.



Sec. 570.302  Description of requirements.

    (a) The description of requirements depends on the nature of the 
space the agency needs and the market available to satisfy that need.
    (b) The description of requirements must include all the following:
    (1) A statement of the purpose of the lease.
    (2) Functional, performance, or physical requirements.
    (3) Any special requirements.
    (4) The delivery schedule.
    (c) The description must promote full and open competition. Include 
restrictive provisions or conditions only to the extent necessary to 
satisfy the agency's needs or as authorized by law.



Sec. 570.303  Solicitation for offers.



Sec. 570.303-1  Preparing the SFO.

    The SFO forms the basis for the lease negotiation process and 
becomes part of the lease. Document each SFO in writing or 
electronically. Include the information necessary to enable prospective 
offerors to prepare proposals. Each SFO, at a minimum, must :
    (a) Describe the Government's requirements.
    (b) State the method the Government will use to measure space.
    (c) Explain how to structure offers.
    (d) Specify a date, time, and place for submission of offers.
    (e) Explain how the Government will evaluate offers.
    (f) Describe the source selection procedures the Government will 
use.
    (g) Include a statement outlining the information the Government may 
disclose in debriefings.
    (h) Include appropriate forms prescribed in 570.8.

[[Page 342]]

    (i) Include sustainable design requirements.

[64 FR 37265, July 9, 1999, as amended at 76 FR 30851, May 27, 2011]



Sec. 570.303-2  Issuing the SFO.

    Release the SFO to all prospective offerors at the same time. The 
SFO may be released electronically.

[76 FR 30851, May 27, 2011]



Sec. 570.303-3  Late offers, modifications of offers, and withdrawals of 
          offers.

    Follow the procedures in FAR 15.208.



Sec. 570.303-4  Changes to SFOs.

    (a) If the Government's requirements change, either before or after 
receipt of proposals, issue an amendment. Document the amendment using 
the same method as for the SFO, written or electronic.
    (b) If time is critical, you may provide information on SFO 
amendments orally.
    (1) Make a record of the information provided.
    (2) Provide, or attempt to provide, the notice to all offerors or 
prospective offerors on the same day.
    (3) Promptly confirm the information provided orally in a written 
amendment.
    (c) Distribute an amendment as follows:
    (1) If before the proposal due date, send the amendment to all 
prospective offerors who were sent a copy of the SFO.
    (2) If after proposal receipt, send the amendment to each offeror 
who submitted a proposal.
    (d) If an amendment is so substantial that it requires a complete 
revision of the SFO, cancel the SFO, readvertise if required by 570.106, 
and issue a new SFO.
    (e) If there are changes to the Government's requirements for amount 
of space, delineated area, occupancy date, and/or other major aspects of 
the requirements, the contracting officer shall consider whether there 
is a need to readvertise, and to document the file accordingly.

[64 FR 37265, July 9, 1999, as amended at 76 FR 30851, May 27, 2011]



Sec. 570.304  General source selection procedures.

    (a) These procedures apply to acquisitions of leasehold interests 
except if the contracting officer uses one of the following:
    (1) Simplified lease acquisition procedures authorized by 570.2.
    (2) Two-phase design-build selection procedures authorized by 
570.105-2.
    (b) The contracting officer is designated as the source selection 
official unless the HCA appoints another individual for a particular 
leasing action or group of leasing actions.
    (c) In a trade off procurement, the contracting officer must include 
price or cost to the Government, past performance, the planned 
participation of small disadvantaged business concerns in performance of 
the contract, and other factors as required by FAR 15.304 as evaluation 
factors. The contracting officer may include other evaluation factors as 
needed.
    (d) The evaluation factors and significant subfactors must comply 
with FAR 15.304 and either one of the following:
    (1) FAR 15.101-1 if the contracting officer will use the tradeoff 
process.
    (2) FAR 15.101-2 if the contracting officer will use the lowest 
price technically acceptable source selection process.

[64 FR 37265, July 9, 1999, as amended at 76 FR 30851, May 27, 2011]



Sec. 570.305  Two-phase design-build selection procedures.

    (a) These procedures apply to acquisitions of leasehold interests if 
the contracting officer uses the two-phase design-build selection 
procedures authorized by 570.105-2. Follow FAR 36.3.
    (b) The SFO must include all the following information:
    (1) The scope of work.
    (2) The evaluation factors and subfactors to be used in evaluating 
phase-one proposals and their relative importance.
    (3) The maximum number of offerors to be selected to submit 
competitive proposals in phase-two.
    (4) The evaluation factors, including cost or price, and subfactors 
to be used in evaluating phase-two proposals and

[[Page 343]]

selecting the successful offeror, and their relative importance.
    (c) The following procedures apply to phase-one evaluation factors:
    (1) Phase one factors include:
    (i) Specialized experience and technical competence.
    (ii) Capability to perform.
    (iii) Past performance of the offeror's team (including architect-
engineer and construction members of the team).
    (iv) The planned participation of small disadvantaged business 
concerns in performance of the contract.
    (v) Other appropriate factors, such as site or location.
    (2) The contracting officer shall not require offerors to submit 
detailed design information or cost or price information in phase one. 
The contracting officer shall not use cost related or price related 
evaluation factors.
    (d) The contracting officer shall set the maximum number of offerors 
to be selected for phase-two to not exceed five unless the contracting 
officer determines that a number greater than five is both:
    (1) In the government's interest.
    (2) Consistent with the purpose and objectives of the two-phase 
selection process.
    (e) In phase-two, require detailed technical and price proposals. 
Evaluate the proposals using the procedures in 570.306.

[64 FR 37265, July 9, 1999, as amended at 76 FR 30851, May 27, 2011]



Sec. 570.306  Evaluating offers.

    (a) The contracting officer must evaluate offers solely in 
accordance with the factors and subfactors stated in the SFO.
    (b) Evaluate prices and document the lease file to demonstrate that 
the proposed contract price is fair and reasonable. The contracting 
officer must review the elements of the offeror's proposed rent to 
analyze whether the individual elements are realistic and reflect the 
offeror's clear understanding of the work to be performed. The 
contracting officer must discuss any inconsistencies with the offeror. 
If the offeror refuses to support or make any changes to the rent 
proposed, consider the risk to the Government prior to making any lease 
award.
    (c) Evaluate past performance on previous lease projects in 
accordance with 515.305 and FAR 15.305(a)(2). Obtain information 
through:
    (1) Questionnaires tailored to the circumstances of the acquisition;
    (2) Interviews with program managers or contracting officers;
    (3) Other sources; or
    (4) Past performance information collected under FAR 42.15 and 
available through the Past Performance Information Retrieval System 
(PPIRS) at http://www.ppirs.gov.
    (d) The contracting officer may obtain information to evaluate an 
offeror's past performance on subcontracting plan goals and small 
disadvantaged business participation, monetary targets, and 
notifications under FAR 19.1202-4(b) from the following sources:
    (1) The Small Business Administration;
    (2) Information on prior contracts from contracting officers and 
administrative contracting officers;
    (3) Offeror's references; and
    (4) Past performance information collected under FAR 42.15 and 
available through PPIRS.
    (e) Document the evaluation of award factors other than price listed 
in the solicitation. The file must include the basis for evaluation, an 
analysis of each offer, and a summary of findings.
    (f) Also see the requirements in 570.108, 570.109 and 570.111.

[64 FR 37265, July 9, 1999, as amended at 76 FR 30851, May 27, 2011]



Sec. 570.307  Negotiations.

    (a) Follow the procedures in FAR 15.306 and 15.307 for exchanges 
(including clarifications, communications, negotiations, discussions, 
and revisions).
    (b) Place a written record of all exchanges in the lease file.
    (c) Provide prompt written notice to any offeror excluded from the 
competitive range or otherwise eliminated from the competition in 
accordance with FAR 15.503(a).



Sec. 570.308  Award.

    (a) Make award to the responsible offeror whose proposal represents 
the best value after evaluation in accordance with the factors and 
subfactors in the SFO.

[[Page 344]]

    (b) Make award in writing and in the timeframe specified in the SFO.
    (1) If the contracting officer cannot make an award in that time, 
request in writing from each offeror an extension of the acceptance 
period through a specific date.
    (2) If time is critical, the contracting officer may request the 
extensions orally. The contracting officer must make a record of the 
request and confirm it promptly in writing.
    (c) Notify unsuccessful offerors in writing or electronically in 
accordance with FAR 15.501 and 15.503(b).
    (d) The source selection authority may reject all proposals received 
in response to an SFO, if doing so is in the best interest of the 
Government.

[76 FR 30851, May 27, 2011]



Sec. 570.309  Debriefings.

    The procedures of FAR 15.505 and 15.506 apply to leasing actions.

    Subpart 570.4_Special Aspects of Contracting for Continued Space 
                              Requirements



Sec. 570.401  Renewal options.

    (a) Exercise of options. Before exercising an option to renew, 
follow the procedures in 517.207. The contract must first provide the 
right to renew the lease. If a renewal option was not evaluated as part 
of the lease at award, then the addition of a renewal option during the 
lease term must satisfy the requirements of GSAM 506 regarding full and 
open competition.
    (b) Market information review. Before exercising an option to renew 
a lease, review current market information to determine that the rental 
rate in the option is fair and reasonable.

[76 FR 30851, May 27, 2011]



Sec. 570.402  Succeeding leases.



Sec. 570.402-1  General.

    (a) If a succeeding lease for the continued occupancy of space in a 
building does not exceed the simplified lease acquisition threshold, the 
contracting officer may use the simplified procedures in 570.2. Explain 
the absence of competition in the contract file.
    (b) If a succeeding lease will exceed the simplified lease 
acquisition threshold, the contracting officer may enter into the lease 
under either of the following conditions:
    (1) The contracting officer does not identify any potential 
acceptable locations.
    (2) The contracting officer identifies potential acceptable 
locations, but a cost-benefit analysis indicates that award to an 
offeror other than the present lessor will result in substantial 
relocation costs or duplication of costs to the Government, and the 
Government cannot expect to recover such costs through competition.

[76 FR 30852, May 27, 2011]



Sec. 570.402-2  Publicizing/Advertising.

    The contracting officer must publish a notice if required by 
570.106. The notice should:
    (a) Indicate that the Government's lease is expiring.
    (b) Describe the requirements in terms of type and quantity of 
space.
    (c) Indicate that the Government is interested in considering 
alternative space if economically advantageous, and that otherwise the 
Government intends to pursue a sole source acquisition.
    (d) Advise prospective offerors that the Government will consider 
the cost of moving, alterations, etc., when deciding whether it should 
relocate.
    (e) Provide a contact person for those interested in providing space 
to the Government.

[64 FR 37265, July 9, 1999, as amended at 76 FR 30852, May 27, 2011]



Sec. 570.402-3  Market survey.

    Conduct a market survey following 570.301.



Sec. 570.402-4  No potential acceptable locations.

    If the contracting officer does not identify any potential 
acceptable locations through the advertisement or the market survey, 
prepare a written justification to negotiate directly with the present 
lessor. Fully document the efforts to locate alternative sources.

[[Page 345]]

Prepare the justification and obtain approval following FAR 6.3 and 
506.3.

[64 FR 37265, July 9, 1999, as amended at 76 FR 30852, May 27, 2011]



Sec. 570.402-5  Potential acceptable locations.

    If the contracting officer identifies potential acceptable locations 
through the advertisement or market survey, conduct a cost-benefit 
analysis following the procedures in 570.402-6. Based on the results of 
the cost-benefit analysis, take appropriate action as follows:
    (a) If the cost-benefit analysis indicates that the Government will 
recover relocation costs and duplication of costs through competition, 
develop an SFO and negotiate with all interested parties following 
570.3.
    (b) If the cost-benefit analysis indicates that the Government 
cannot expect to recover relocation costs and duplication of costs 
through competition, prepare a justification for approval in accordance 
with FAR 6.3 and 506.3. Explain both:
    (1) How the contracting officer performed the cost-benefit analysis.
    (2) That the cost-benefit analysis indicates that award to any other 
offeror will likely result in substantial costs to the Government that 
the Government cannot expect to recover through competition.

[64 FR 37265, July 9, 1999, as amended at 76 FR 30852, May 27, 2011]



Sec. 570.402-6  Cost-benefit analysis.

    (a) The cost-benefit analysis must consider all the following:
    (1) The prices of other potentially available properties.
    (2) Relocation costs, including estimated costs for moving, 
telecommunications, and alterations, amortized over the firm term of the 
lease.
    (3) Duplication of costs to the Government.
    (4) Other appropriate considerations.
    (b) Establish the prices for other potentially available properties 
by requesting each prospective offeror to provide an informational 
quotation for standard space for comparison purposes.
    (1) Adjust the prices quoted for standard space for any special 
requirements.
    (2) You do not need a formal SFO to obtain the informational 
quotation. However, you must provide a general description of the 
Government's needs.
    (3) If you obtain oral quotations, document the following 
information, as a minimum:
    (i) Name and address of the firm solicited.
    (ii) Name of the firm's representative providing the quote.
    (iii) Price(s) quoted.
    (iv) Description of the space and services for which the quote is 
provided.
    (v) Name of the Government employee soliciting the quotation.
    (vi) Date of the conversation.
    (4) Compare the informational quotations to the present lessor's 
price, adjusted to reflect the anticipated price for a succeeding lease.



Sec. 570.403  Expansion requests.

    (a) If the expansion space is in the general scope of the lease, the 
contracting officer may acquire the space through a modification without 
further justification under FAR 6.3.
    (b) If the expansion space needed is outside the general scope of 
the lease, the contracting officer must determine whether it is more 
prudent to provide the expansion space by supplemental agreement to the 
existing lease or to meet the expansion requirement and existing tenancy 
to the requirement by competitive means.
    (1) Conduct a market survey to determine the availability of 
suitable alternative locations.
    (2) If you identify alternate locations that can satisfy the total 
requirement, perform a cost-benefit analysis to determine whether it is 
in the Government's best interest to relocate. Consider, as appropriate.
    (i) The cost of the alternate space compared to the cost of 
expanding at the existing location.
    (ii) The cost of moving.
    (iii) The cost of duplicating existing improvements.
    (iv) The cost of the unexpired portion of the firm lease term. If a 
termination is possible, use the actual cost of such an action.

[[Page 346]]

    (v) the cost of disruption to the agency's operation.
    (c) If the contracting officer determines not to use competitive 
procedures and the expansion space is outside the general scope of the 
lease:
    (1) If the estimated value of the acquisition does not exceed the 
simplified lease acquisition threshold, document the file as required by 
570.203-2(b).
    (2) If the estimated value of the acquisition exceeds the simplified 
lease acquisition threshold, prepare a justification for approval under 
FAR 6.3 and 506.3.

[64 FR 37265, July 9, 1999, as amended at 76 FR 30852, May 27, 2011]



Sec. 570.404  Superseding leases.

    (a) Consider executing a superseding lease to replace an existing 
lease when the Government need numerous or detailed modifications to the 
space that would cause complications or substantially change the present 
lease or when market conditions warrant renegotiation of an existing 
lease.
    (b) If the value of the superseding lease exceeds the simplified 
lease acquisition threshold, the justification and approval requirements 
in FAR 6.3 and 506.3 apply. If the cost does not exceed the simplified 
lease acquisition threshold, the contracting officer may use the 
simplified procedures in 570.2 and explain the absence of competition in 
the file.

[64 FR 37265, July 9, 1999, as amended at 76 FR 30852, May 27, 2011]



Sec. 570.405  Lease extensions.

    (a) This section applies to extension of the term of a lease to 
provide for continued occupancy on a short-term basis.
    (b) If the value of a lease extension will exceed the simplified 
lease acquisition threshold, the justification and approval requirements 
in FAR 6.3 and 506.3 apply. For extensions that will not exceed the 
simplified lease acquisition threshold, the contracting officer may use 
the simplified procedures in 570.2 and explain the absence of 
competition in the file.
    (c) FAR 6.302-1 permits contracting without providing for full and 
open competition when the property or services needed by the agency are 
available from only one responsible source and no other type of property 
or services will satisfy the needs of the agency. This authority may 
apply to lease extensions in situations such as, but not limited to, the 
following:
    (1) The agency occupying the leased space is scheduled to move into 
other Federally controlled space, but encounters unexpected delays in 
preparing the new space for occupancy.
    (2) The Government encounters unexpected delays outside of its 
control in acquiring replacement space.
    (3) The Government is consolidating various agencies and the 
contracting officer needs to extend the terms of some leases to 
establish a common expiration date.
    (4) The agency occupying the space has encountered delays in 
planning for a potential relocation to other federally controlled space 
due to documented organizational, financial, or other uncertainties.

[64 FR 37265, July 9, 1999, as amended at 76 FR 30852, May 27, 2011]

   Subpart 570.5_Special Aspects of Contracting for Lease Alterations



Sec. 570.501  General.

    (a) The procedures in 570.502 apply to alterations acquired directly 
from a lessor by modification or supplemental lease agreement. This is 
allowed if the following conditions are met:
    (1) The alterations fall within the scope of the lease. Consider 
whether the work can be regarded fairly and reasonably as part of the 
original lease requirement.
    (2) The lessor is willing to perform the proposed alterations at a 
fair and reasonable price.
    (3) It is in the Government's interest to acquire the alterations 
from the lessor.
    (b) If proposed alterations are outside the scope of the existing 
lease, decide whether to acquire the alterations through either:
    (1) A supplemental lease agreement, as justified and approved under 
570.502-1.
    (2) Government performance or a separate contract. The lease must 
first

[[Page 347]]

provide the Government the right to perform alterations to the leased 
space.

[64 FR 37265, July 9, 1999, as amended at 76 FR 30852, May 27, 2011]



Sec. 570.502  Alterations by the lessor.



Sec. 570.502-1  Justification and approval requirements.

    If the proposed alterations are outside the general scope of the 
lease and the contracting officer plans to acquire them from the lessor 
without competition, the following justification and approval 
requirements apply:
    (a) If the alteration project will not exceed the micro-purchase 
threshold identified in FAR 2.101(b), no justification and approval is 
required.
    (b) If the alteration project will exceed the micro-purchase 
threshold identified in FAR 2.101(b), but not the simplified lease 
acquisition threshold, the contracting officer may use simplified 
acquisition procedures and explain the absence of competition in the 
file.
    (c) If the alteration project will exceed the simplified lease 
acquisition threshold, the justification and approval requirements in 
FAR 6.3 and 506.3 apply.

[76 FR 30852, May 27, 2011]



Sec. 570.502-2  Procedures.

    (a) Scope of work. The contracting officer must prepare a scope of 
work for each alteration project.
    (b) Independent Government estimate. The contracting officer must 
obtain an independent Government estimate for each alteration project, 
including changes to existing alteration agreements with the lessor.
    (c) Request for proposal. (1) The contracting officer must provide 
the scope of work to the lessor, including any plans and specifications, 
and request a proposal.
    (2) The contracting officer must request sufficient cost or price 
information to permit a price analysis.
    (d) Audits. If the contracting officer requires cost or pricing data 
and the alteration project will exceed the threshold identified in FAR 
15.403-4, request an audit.
    (e) Proposal evaluation. The contracting officer must--
    (1) Determine if the proposal meets the Government's requirements.
    (2) Analyze price or cost information. At a minimum, compare the 
proposed cost to the independent estimate and, if applicable, any audit 
results received.
    (3) Analyze profit following FAR 15.404-4.
    (4) Document the analysis under this paragraph and the resulting 
negotiation objectives.
    (f) Price negotiations. The contracting officer must--
    (1) Exercise sound judgment. Make reasonable compromises as 
necessary.
    (2) Provide the lessor with the greatest incentive for efficient and 
economical performance.
    (3) Document negotiations in the contract file, including 
discussions regarding restoration cost or waiver of restoration cost.
    (g) Order. For modifications not exceeding the simplified 
acquisition threshold, lease contracting officers may delegate 
alteration contracting authority to a warranted contracting officer's 
representative in GSA or the tenant agency. Alterations awards must 
reference the lease number. If the modification does not exceed the 
simplified acquisition threshold, the contracting officer may use GSA 
Form 300, Order for Supplies or Services. Reference the lease on the 
form.
    (h) Inspection and payment. The contracting officer must not make 
final payment for alterations until the work is:
    (1) Inspected by a qualified Government employee or independent 
Government contractor.
    (2) Confirmed as completed in a satisfactory manner.

[76 FR 30852, May 27, 2011]



Sec. 570.503  Alterations by the Government or through a separate 
          contract.

    If the Government chooses to exercise its right to make the 
alterations rather than contracting directly with the lessor, the 
Government may either:
    (a) Have Federal employees perform the work.
    (b) Contract out the work using standard contracting procedures that

[[Page 348]]

apply to a construction contract performed on Federal property. If the 
Government decides to contract for the work, invite the lessor, as well 
as all other prospective contractors, to submit offers for the project.

[76 FR 30853, May 27, 2011]

 Subpart 570.6_Contracting for Overtime Services and Utilities in Leases

    Source: 76 FR 30853, May 27, 2011, unless otherwise noted.



Sec. 570.601  General.

    (a) Lease tenant agencies may need overtime services and utilities 
on a regular or intermittent basis. Lease contracting officers may 
negotiate overtime rates for services and utilities and include those 
rates in leases where a need is projected. Only lease contracting 
officers may negotiate overtime rates.
    (b) An independent government estimate is required in support of the 
negotiated rate.
    (c) Order. To order overtime services and utilities, if the order 
does not exceed the simplified acquisition threshold, a warranted 
contracting officer's representative, in GSA or the tenant agency, may 
place an order. The order must reference the lease number.
    (d) Payment. Do not make final payment for services and utilities 
until confirmed as delivered in a satisfactory manner.



       Subpart 570.7_Solicitation Provisions and Contract Clauses

    Source: 64 FR 37265, July 9, 1999. Redesignated at 76 FR 30853, May 
27, 2011

570.701  FAR provisions and clauses.

    Include provisions or clauses substantially the same as the FAR 
provisions and clauses listed below.

------------------------------------------------------------------------
                If . . .                        Then include . . .
------------------------------------------------------------------------
(a) the estimated value of the           52.204-3 Taxpayer
 acquisition exceeds the micro-purchase   Identification.
 threshold identified in FAR 2.101.      52.204-6 Data Universal
                                          Numbering System (DUNS)
                                          Number.
                                         52.204-7 Central Contractor
                                          Registration.
                                         52.219-1 Small Business Program
                                          Representations.
                                         52.219-28 Post-Award Small
                                          Business Program
                                          Rerepresentation (use if lease
                                          term exceeds five years).
                                         52.232-23 Assignment of Claims.
                                         52.232-33 Electronic Funds
                                          Transfer--Central Contractor
                                          Registration.
                                         52.233-1 Disputes.
(b) the estimated value of the           52.222-21 Prohibition of
 acquisition exceeds $10,000.             Segregated Facilities.
                                         52.222-22 Previous Contracts
                                          and Compliance Reports.
                                         52.222-25 Affirmative Action
                                          Compliance.
                                         52.222-26 Equal Opportunity.
                                         52.222-35 Affirmative Action
                                          for Disabled Veterans and
                                          Veterans of the Vietnam Era.
                                         52.222-36 Affirmative Action
                                          for Workers with Disabilities.
                                         52.222-37 Employment Reports on
                                          Disabled Veterans and Veterans
                                          of the Vietnam Era.
(c) the estimated value of the           52.204-10 Reporting Executive
 acquisition is $25,000 or more (not      Compensation and First-Tier
 applicable to individuals).              Subcontract Awards.
(d) the estimated value of the           52.209-6 Protecting the
 acquisition exceeds the threshold        Government's Interest when
 identified in FAR 9.409(b).              Subcontracting with
                                          Contractors Debarred,
                                          Suspended, or Proposed for
                                          Debarment.
(e) the estimated value of the           52.203-11 Certification and
 acquisition exceeds $100,000.            Disclosure Regarding Payments
                                          to Influence Certain Federal
                                          Transactions.
(f) the estimated value of the           52.203-2 Certificate of
 acquisition exceeds the simplified       Independent Price
 lease acquisition threshold.             Determination.
                                         52.203-7 Anti-Kickback
                                          Procedures.
                                         52.204-5 Women-Owned Business
                                          (Other than Small Business).
                                         52.209-5 Certification
                                          Regarding Debarment,
                                          Suspension, Proposed
                                          Debarment, and Other
                                          Responsibility Matters.
                                         52.215-2 Audit and Records--
                                          Negotiation.
                                         52.219-8 Utilization of Small
                                          Business Concerns.

[[Page 349]]

 
                                         52.223-6 Drug-Free Workplace.
                                         52.233-2 Service of Protest.
(g) the estimated value of the           52.219-9 Small Business
 acquisition exceeds the threshold        Subcontracting Plan.
 identified in FAR 19.708(b).            52.219-16 Liquidated Damages--
                                          Subcontracting Plan.
(h) the estimated value of the           52.219-24 Small Disadvantaged
 acquisition the estimated value of the   Business Participation
 acquisition exceeds the threshold        Program--Targets.
 identified in FAR 19.1202-2(a) and the  52.219-25 Small Disadvantaged
 contracting officer is using a best      Business Participation
 value trade off analysis in an           Program--Disadvantaged Status
 acquisition includes an evaluation       and Reporting.
 factor that considers the extent of
 participation of small disadvantaged
 business concerns in accordance with
 FAR 19.12.
(i) the value of the contract is         52.203-13 Contractor Code of
 expected to exceed $5 million and the    Business Ethics and Conduct.
 performance period is 120 days or more. 52.203-14 Display of Hotline
                                          Poster(s).
(j) the estimated value of the           52.222-24 Pre-award On-site
 acquisition exceeds $10 million.         Equal Opportunity Compliance
                                          Review.
(k) the contracting officer requires     52.215-10 Price Reduction for
 cost or pricing data for work or         Defective Cost or Pricing Data
 services exceeding the threshold        52.215-12 Subcontractor Cost or
 identified in FAR 15.403-4.              Pricing Data.
(l) the contracting officer authorizes   52.215-5 Facsimile Proposals.
 submission of facsimile proposals.
(m) a negotiated acquisition provides    52.219-26 Small Disadvantaged
 monetary incentives based on actual      Business Participation
 achievement of small disadvantaged       Program--Incentive
 business subcontracting targets under    Subcontracting.
 FAR 19.1203 and 519.1203.
------------------------------------------------------------------------


[76 FR 30853, May 27, 2011]



Sec. 570.702  GSAR solicitation provisions.

    Each SFO must include provisions substantially the same as the 
following, unless the contracting officer determines that the provision 
is not appropriate. However, document the file with the basis for 
deleting or substantially changing a clause.


Sec. 552.270-1 Instructions to Offerors--Acquisition of Leasehold 
          Interests in Real Property. Use Alternate I if you decide that 
          it is advantageous to the Government to allow offers to be 
          submitted up to the exact time specified for award. Use 
          Alternate II if the Government intends to award without 
          discussions. These two alternates are not exclusive.

Sec. 552.270-2 Historic Preference.

Sec. 552.270-3 Parties to Execute Lease.

[64 FR 37265, July 9, 1999. Redesignated and amended at 76 FR 30853, 
30854, May 27, 2011]



Sec. 570.703  GSAR contract clauses.

    (a) Insert clauses substantially the same as the following in 
solicitations and contracts for leasehold interests in real property 
that exceed the simplified lease acquisition threshold, unless the 
contracting officer determines that a clause is not appropriate. 
However, document the file with the basis for deleting or substantially 
changing a clause. A deviation is not required under section 570.704 to 
determine that a clause in this section is not appropriate. Use the 
clauses at your discretion in actions at or below the simplified lease 
acquisition threshold.

552.215-70 Examination of Records by GSA.
552.270-4 Definitions. You must use this clause if you use 552.270-28.
552.270-5 Subletting and Assignment.
552.270-6 Maintenance of Building and Premises--Right of Entry.
552.270-7 Fire and Casualty Damage.
552.270-8 Compliance with Applicable Law.
552.270-9 Inspection--Right of Entry.
552.270-10 Failure in Performance.
552.270-11 Successors Bound.
552.270-12 Alterations.
552.270-13 Proposals for Adjustment.
552.270-14 Changes.
552.270-15 Liquidated Damages. Insert this clause in solicitations and 
contracts if you have a critical requirement to meet the delivery date 
and you cannot establish an actual cost for the loss to the Government 
resulting from late delivery.
552.270-16 Adjustment for Vacant Premises.
552.270-17 Delivery and Condition.
552.270-18 Default in Delivery--Time Extensions.
552.270-19 Progressive Occupancy.

[[Page 350]]

552.270-20 Payment.
552.270-21 Effect of Acceptance and Occupancy.
552.270-22 Default by Lessor During the Term.
552.270-23 Subordination, Nondisturbance and Attornment
552.270-24 Statement of Lease.
552.270-25 Substitution of Tenant Agency.
552.270-26 No Waiver.
552.270-27 Integrated Agreement.
552.270-28 Mutuality of Obligation.
552.270-29 Acceptance of Space.
    (b) Include the following provisions and clauses in leasehold 
interests in real property.
552.270-30 Price Adjustment for Illegal Improper Activity.
552.270-31 Prompt Payment.
552.270-32 Covenant Against Contingent Fees.

[76 FR 30854, May 27, 2011]



Sec. 570.704  Deviations to provisions and clauses.

    (a) The contracting officer needs a deviation approved under Subpart 
501.4 to omit any required provision or clause.
    (b) The contracting officer also needs an approved deviation to 
modify the language of a provision or clause mandated by statute (e.g., 
FAR 52.215-2, Audit and Records--Negotiation). The authorizing statute 
must allow for a waiver.
    (c) Certain clauses required by non-GSA regulations require approval 
of the issuing agency before the contracting officer can delete or 
modify them. For example, FARs 52.222-26, Equal Opportunity; 52.222-35, 
Affirmative Action for Disabled Veterans and Veterans of the Vietnam 
Era; and 52.222-36, Affirmative Action for Workers with Disabilities, 
require the approval of the Department of Labor's Office of Federal 
Contract Compliance Programs before they can be deleted from or modified 
in the SFO or lease.

[76 FR 30854, May 27, 2011]

                           Subpart 570.8_Forms

    Source: 64 FR 37265, July 9, 1999. Redesignated at 76 FR 30853, May 
27, 2011



Sec. 570.801  Standard forms.

    Use Standard Form 2, U.S. Government Lease for Real Property, to 
award leases unless the contracting officer uses GSA Form 3626 (see 
570.802).

[76 FR 30854, May 27, 2011]



Sec. 570.802  GSA forms.

    (a) The contracting officer may use GSA Form 3626, U.S. Government 
Lease for Real Property (Short Form), to award leases if using the 
simplified leasing procedures in Subpart 570.2 or if the contracting 
officer determines it advantageous to use the form.
    (b) The contracting officer may use GSA Form 276, Supplemental Lease 
Agreement, for actions requiring the agreement of both parties. This 
includes actions such as amending an existing lease to acquire 
additional space, obtaining partial release of space, revising the terms 
of a lease, settling restoration claims, and acquiring alterations.
    (c) The contracting officer may use GSA Form 1364, Proposal To Lease 
Space to obtain offers from prospective offerors.
    (d) The contracting officer may use GSA Form 1217, Lessor's Annual 
Cost Statement, to obtain pricing information regarding offered services 
and lease commissions.

[76 FR 30854, May 27, 2011]

[[Page 351]]



                     CHAPTER 6--DEPARTMENT OF STATE




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

                          SUBCHAPTER A--GENERAL
Part                                                                Page
601             Department of State Acquisition Regulations 
                    System..................................         353
602             Definitions of words and terms..............         358
603             Improper business practices and personal 
                    conflicts of interest...................         358
604             Administrative matters......................         361
           SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
605             Publicizing contract actions................         362
606             Competition requirements....................         363
607             Acquisition planning........................         365
609             Contractor qualifications...................         366
611             Describing agency needs.....................         369
612             Acquisition of commercial items.............         372
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
613             Simplified acquisition procedures...........         373
614             Sealed bidding..............................         373
615             Contracting by negotiation..................         374
616             Types of contracts..........................         375
617             Special contracting methods.................         376
                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
619             Small business programs.....................         378
622             Application of labor laws to Government 
                    acquisitions............................         387
623             Environment, energy and water efficiency, 
                    renewable energy technologies, 
                    occupational safety, and drug-free 
                    workplace...............................         389
624             Protection of privacy and freedom of 
                    information.............................         390
625             Foreign acquisition.........................         390
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
627             Patents, data, and copyrights...............         392
628             Bonds and insurance.........................         392

[[Page 352]]

629             Taxes.......................................         394
630             Cost accounting standards administration....         395
631             Contract cost principles and procedures.....         395
632             Contract financing..........................         396
633             Protests, disputes, and appeals.............         398
             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
634             Major system acquisition....................         401
636             Construction and architect-engineer 
                    contracts...............................         401
637             Service contracting.........................         403
639             Acquisition of information technology.......         404
641             Acquisition of utility services.............         405
                    SUBCHAPTER G--CONTRACT MANAGEMENT
642             Contract administration and audit services..         406
643             Contract modifications......................         407
644             Subcontracting policies and procedures......         408
645             Government property.........................         408
647             Transportation..............................         408
648             Value engineering...........................         409
649             Termination of contracts....................         409
651             Use of Government sources by contractors....         409
                     SUBCHAPTER H--CLAUSES AND FORMS
652             Solicitation provisions and contract clauses         410
653             Forms.......................................         433

[[Page 353]]

                          SUBCHAPTER A_GENERAL

       PART 601_DEPARTMENT OF STATE ACQUISITION REGULATIONS SYSTEM

Sec.

Sec. 601.000 Scope of part.

               Subpart 601.1_Purpose, Authority, Issuance


Sec. 601.101 Purpose.

Sec. 601.105 Issuance.

Sec. 601.105-3 Copies.

Sec. 601.106 OMB approval under the Paperwork Reduction Act.

                      Subpart 601.2_Administration


Sec. 601.201 Maintenance of the FAR.

Sec. 601.201-1 The two councils.

              Subpart 601.3_Agency Acquisition Regulations


Sec. 601.301 Policy.

Sec. 601.302 Limitations.

Sec. 601.303 Publication and codification.

                  Subpart 601.4_Deviations from the FAR


Sec. 601.403 Individual deviations.

Sec. 601.404 Class deviations.

Sec. 601.405 Deviations pertaining to treaties and executive agreements.

Sec. 601.470 Deviations from the DOSAR.

              Subpart 601.5_Agency and Public Participation


Sec. 601.570 Rulemaking.

      Subpart 601.6_Career Development, Contracting Authority, and 
                            Responsibilities


Sec. 601.601 General.

Sec. 601.602 Contracting officers.

Sec. 601.602-1 Authority.

Sec. 601.603 Selection, appointment, and termination of appointment.

Sec. 601.603-1 General

Sec. 601.603-3 Appointment.

Sec. 601.603-70 Delegations of authority.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26159, July 11, 1988, unless otherwise noted.



Sec. 601.000  Scope of part.

    This part describes the Department of State Acquisition Regulation 
(DOSAR) in terms of establishment, relationship to the Federal 
Acquisition Regulation (FAR), arrangement, applicability, and deviation 
procedures.

[53 FR 26159, July 11, 1988, as amended at 59 FR 66750, Dec. 28, 1994]

               Subpart 601.1_Purpose, Authority, Issuance



Sec. 601.101  Purpose.

    The DOSAR is issued to provide Department guidance in accordance 
with the policy cited in FAR 1.301(a)(2). The portions of this 
regulation that affects the relationship between a Department of State 
organization and a contractor or potential contractor are published in 
this chapter 6 of title 48 of the Code of Federal Regulations, in 
accordance with FAR 1.301(b).

[59 FR 66750, Dec. 28, 1994]



Sec. 601.105  Issuance.



Sec. 601.105-3  Copies.

    The DOSAR is available through the Department's Intranet system at 
http://aope.a.state.gov, or through the Internet from A/OPE's 
Acquisition Web site. The Internet address is: http://
www.statebuy.state.gov/.

[69 FR 19329, Apr. 13, 2004]



Sec. 601.106  OMB approval under the Paperwork Reduction Act.

    The Paperwork Reduction Act of 1980 (44 U.S.C. 3501-3520) requires 
that Federal agencies obtain approval from the Office of Management and 
Budget before collecting information from ten (10) or more members of 
the public. Individuals are not required to respond to information 
collection unless the OMB number and burden estimate information is 
provided. Accordingly, the information and recordkeeping requirements 
contained in this regulation have been approved by OMB under OMB Control 
Number 1405-0050. The burden estimate is 225,503 hours. The information 
and recordkeeping requirements for Form DS-4053, Department of State 
Mentor-Prot[eacute]g[eacute] Program Application, have been approved by 
OMB under

[[Page 354]]

OMB Control Number 1405-0161; the burden estimate is 294 hours.

[64 FR 43620, Aug. 11, 1999, as amended at 69 FR 19329, Apr. 13, 2004; 
71 FR 34839, June 16, 2006]

                      Subpart 601.2_Administration



Sec. 601.201  Maintenance of the FAR.



Sec. 601.201-1  The two councils.

    The Office of the Procurement Executive (A/OPE) represents the 
Department of State (DOS) on the Civilian Agency Acquisition Council. 
The Procurement Executive shall appoint a representative for this 
purpose. A/OPE is responsible for coordinating with all interested DOS 
elements proposed FAR revisions and for advocating FAR revisions sought 
by the Department.

[53 FR 26159, July 11, 1988, as amended at 59 FR 66750, Dec. 28, 1994]

              Subpart 601.3_Agency Acquisition Regulations



Sec. 601.301  Policy.

    (a) The Assistant Secretary of State for Administration is the 
agency head for the purposes of FAR 1.301 (see Delegation of Authority 
No. 120 (34 FR 18095, October 30, 1969), as amended by Delegation of 
Authority No. 120-4 (59 FR 38022, July 26, 1994)). Under Delegation of 
Authority No. 120-5 (59 FR 62771, December 6, 1994), the Assistant 
Secretary of State for Administration redelegated to the Procurement 
Executive the authority to prescribe, promulgate, and amend DOS 
acquisition policies, rules, and regulations.
    (b) The Department of State Acquisition Regulation (DOSAR) is 
prescribed under the authority of 22 U.S.C. 2658 and 40 U.S.C. 486(c).
    (c) The DOSAR implements and supplements the FAR.

[59 FR 66751, Dec. 28, 1994, as amended at 64 FR 43620, Aug. 11, 1999]



Sec. 601.302  Limitations.

    (a) The FAR and the DOSAR apply to all DOS acquisitions of personal 
property and services, including construction, both within and outside 
the United States, unless expressly excluded by this subpart, or exempt 
from the Federal Property and Administrative Services Act of 1949, as 
amended (40 U.S.C. 474(7)), or undertaken pursuant to section 208 of the 
State Department Basic Authorities Act of 1956, as amended (22 U.S.C. 
4308), or the Foreign Service Buildings Act of 1926, as amended (22 
U.S.C. 292 et seq.).
    (b) At posts where Joint Administrative Offices have been formed, 
the FAR and the DOSAR apply to all Agency for International Development 
(AID) administrative and technical support acquisitions, except in those 
areas which have been exempted by the cognizant administrative office.

[53 FR 26159, July 11, 1988, as amended at 59 FR 66751, Dec. 28, 1994; 
64 FR 43620, Aug. 11, 1999]



Sec. 601.303  Publication and codification.

    (a) The DOSAR is issued as Chapter 6 of Title 48, Code of Federal 
Regulations. The DOSAR is established as Chapter 6 of the Federal 
Acquisition Regulations System. The DOSAR is divided into the same 
parts, subparts, sections, subsections, and paragraphs as is the FAR. 
However, when the FAR coverage is adequate by itself there will be no 
corresponding DOSAR coverage. Where the DOSAR implements a specific 
part, subpart, section, or subsection of the FAR, the DOSAR coverage is 
numbered and titled to correspond to the appropriate FAR number and 
title, except that the DOSAR number will include a 6 or 60 such that 
there will always be three numbers to the left of the decimal. For 
example, the DOSAR implementation of FAR 14.1 is shown as 614.1 and the 
DOSAR implementation of FAR 1.301 is shown as 601.301. Materials that 
supplement the FAR are assigned the numbers 70 and up. For example, 
DOSAR requires additional definitions than those used in FAR; this 
supplementary material is provided in 602.101-70.
    (b) The DOSAR and its revisions are published in the Federal 
Register and in the Code of Federal Regulations, both of which may be 
purchased from the Superintendent of Documents, Government Printing 
Office, Washington, DC 20402.

[[Page 355]]

    (c) The DOSAR shall be referenced in the same manner as described at 
FAR 1.105-2(c).

[53 FR 26159, July 11, 1988, as amended at 59 FR 66751, Dec. 28, 1994; 
64 FR 43620, Aug. 11, 1999]

                  Subpart 601.4_Deviations from the FAR



Sec. 601.403  Individual deviations.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 1.403.

[53 FR 26159, July 11, 1988, as amended at 59 FR 66751, Dec. 28, 1994]



Sec. 601.404  Class deviations.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 1.404(a).

[53 FR 26159, July 11, 1988, as amended at 59 FR 66751, Dec. 28, 1994]



Sec. 601.405  Deviations pertaining to treaties and executive 
          agreements.

    The Procurement Executive shall determine whether a deviation 
pertaining to treaties and executive agreements is authorized under FAR 
1.405 or that a request for deviation is required under FAR 1.405(e).

[53 FR 26159, July 11, 1988, as amended at 59 FR 66751, Dec. 28, 1994]



Sec. 601.470  Deviations from the DOSAR

    The authority to approve any deviations from the DOSAR is reserved 
to the Procurement Executive.

[53 FR 26159, July 11, 1988, as amended at 59 FR 66751, Dec. 28, 1994]

              Subpart 601.5_Agency and Public Participation



Sec. 601.570  Rulemaking.

    (a) The DOSAR is promulgated and may be revised, as necessary, in 
accordance with FAR part 1.
    (b) The Procurement Executive shall issue all DOS acquisition 
regulations.

[59 FR 66751, Dec. 28, 1994]

      Subpart 601.6_Career Development, Contracting Authority, and 
                            Responsibilities



Sec. 601.601  General.

    The Procurement Executive is the agency head for the purposes of FAR 
1.601.



Sec. 601.602  Contracting officers.



Sec. 601.602-1  Authority.

    (a) DOS contracts are awarded pursuant to the foreign affairs 
management responsibilities conferred on the Secretary of State (22 
U.S.C. 2656), and the various laws, regulations, and Executive Orders 
relating thereto.
    (b) Except as otherwise provided by law, DOS regulations, and this 
DOSAR, the Procurement Executive has the authority to execute, award, 
and administer contracts, purchase orders, other contractual 
arrangements, and other agreements, including FAR-covered interagency 
acquisition agreements, for the expenditure of funds involved in the 
acquisition of personal property, services, and for the sale of personal 
property. The Procurement Executive may further delegate this authority 
to those DOS employees appointed or designated to the contracting 
activities enumerated in 601.603-70.
    (c) The contracting officer shall not award, modify, or terminate a 
contract unless all reviews, clearances, and approvals prescribed in the 
FAR or the DOSAR have been obtained, and all applicable requirements of 
law, the FAR, the DOSAR, and other regulations have been met.

[53 FR 26159, July 11, 1988, as amended at 55 FR 5774, Feb. 16, 1990; 59 
FR 66751, Dec. 28, 1994; 72 FR 45695, Aug. 15, 2007]



Sec. 601.603  Selection, appointment, and termination of appointment.



Sec. 601.603-1  General.

    Details of the Department's acquisition career management program 
are described in 14 FAH-3, Acquisition Career Management Program 
Handbook, which is available on the Internet at http://foia.state.gov/
REGS/search.asp.

[72 FR 45695, Aug. 15, 2007]

[[Page 356]]



Sec. 601.603-3  Appointment.

    (a) General. There is no contracting officer authority conferred 
upon any DOS employee by virtue of position. The Procurement Executive 
appoints all DOS contracting officers, in conformance with FAR 1.603-3, 
with the one exception as noted in paragraph (b) of this section. The 
contracting officer shall retain the original copy of the Standard Form 
1402, Certificate of Appointment, signed by the Procurement Executive. 
Only qualified employees shall be appointed as contracting officers. A/
OPE is responsible for providing guidance and oversight in managing such 
appointments.
    (b) Temporary warrants. The Chief of Mission is delegated the 
authority by the Procurement Executive to issue temporary contracting 
officer warrants for periods up to 90 calendar days in order to cover 
emergency, post-specific operational requirements (e.g., staffing gaps, 
medical evacuations, extended leave, etc.). These temporary appointments 
shall be executed on the Standard Form 1402, and a copy shall be 
furnished to A/OPE. The warrant shall contain both a dollar limitation 
of no more than $100,000 and a specific time period (not to exceed 90 
days) during which the warrant is effective.
    (c) Non-Federal employees. Only United States Government employees 
shall be appointed as contracting officers. For acquisitions at $25,000 
and below only, this includes locally employed staff (i.e., Foreign 
Service Nationals and Third Country nationals). Personal services 
contractors are not eligible for appointment as DOS contracting 
officers.
    (d) Personal services agreements. Individuals who may sign personal 
services agreements (PSAs) are limited to the following:
    (1) The Human Resources Officer;
    (2) The Human Resources/Financial Management Officer; or,
    (3) The Management Officer or an American Foreign Service Officer 
designated to perform human resource functions.

[59 FR 66752, Dec. 28, 1994, as amended at 64 FR 43620, Aug. 11, 1999; 
69 FR 19330, Apr. 13, 2004; 76 FR 30265, May 25, 2011]



Sec. 601.603-70  Delegations of authority.

    (a) Delegations. As stated in 601.603-3(a), there is no contracting 
officer authority conferred by virtue of position. Pursuant to 601.602-
1(b), the Procurement Executive has designated the following as 
contracting activities as defined in FAR 2.101. These authorities are 
not redelegable. In addition, specific individuals are designated as 
heads of contracting activities (HCAs) (see FAR 2.101):
    (1) Overseas posts. Each overseas post shall be regarded as a 
contracting activity to enter into and administer contracts for the 
expenditure of funds involved in the acquisition of supplies, equipment, 
publications, and services. The Principal Officer, the Management 
Officer, or the Supervisory General Services Officer are designated as 
HCAs; provided, that he/she has a contracting officer's warrant issued 
by the Procurement Executive. The Procurement Executive (or authorized 
A/OPE staff) may delegate to a contracting officer, on a case-by-case 
basis, the authority to award a contract or modification which exceeds 
the contracting officer's warrant level.
    (i) No authority is delegated to enter into cost-reimbursement, 
fixed-price incentive, or fixed-price redeterminable contracts. Design/
build solicitations and contracts may only be entered into with the 
written approval of A/OPE and OBO. Proposed construction contracts 
exceeding $500,000 and any related architect-engineer contracts must 
have prior A/OPE approval.
    (ii) When expressly authorized by a U.S. Government agency which 
does not have a contracting officer at the post, the officers named in 
paragraph (a)(1) introductory text of this section may enter into 
contracts for that agency. Use of this authority is subject to the 
statutory authority of that agency and any special contract terms or 
other requirements necessary for compliance with any conditions or 
limitations applicable to the funds of that agency. The agency's 
authorization shall cite the statute(s) and state any special contract 
terms or other requirements with which the acquisition so authorized 
must comply. In view of the contracting officer's responsibility

[[Page 357]]

for the legal, technical, and administrative sufficiency of contracts, 
questions regarding the propriety of contracting actions that the post 
is required to take pursuant to this authority may be referred to the 
Department for resolution with the headquarters of the agency concerned.
    (2) Office of Logistics Management; Office of Acquisition Management 
(A/LM/AQM). The authority to enter into and administer contracts for the 
expenditure of funds involved in the acquisition of supplies and 
services, including construction, is delegated to the Director or 
designee as the HCA.
    (3) Foreign Service Institute. The authority to enter into and 
administer contracts pursuant to Chapter 7, Title I, of the Foreign 
Service Act of 1980, as amended (22 U.S.C. 4021 et seq.), is delegated 
to the Director of the Foreign Service Institute, the Executive 
Director, the Deputy Executive Director, and the Supervisory Contracting 
Officer as the HCA.
    (4) Office of Foreign Missions. The authority to enter into and 
administer contracts pursuant to Title II of the State Department Basic 
Authorities Act of 1956, as amended (22 U.S.C. 4301 et seq.), is 
delegated to the Director, Office of Foreign Missions, and the 
Administrative Officer as the HCA.
    (5) U.S. Mission to the United Nations. The authority to enter into 
and administer contracts pursuant to the United Nations Participation 
Act of 1945, as amended (22 U.S.C. 287), is delegated to the Counselor 
for Administration as the HCA.
    (6) Regional Procurement Support Offices. The authority to enter 
into and administer contracts for the expenditure of funds involved in 
the acquisition of supplies, equipment, publications, and services on 
behalf of overseas posts is delegated to each Director, Regional 
Procurement Support Office (RPSO) as the HCA at the following locations:
    (i) RPSO Frankfurt in conjunction with Consulate General Frankfurt; 
and
    (ii) RPSO Florida in conjunction with the Florida Regional Center.
    (b) Other delegations. Several DOS offices have been delegated 
limited procurement authority, although they have not been designated as 
HCAs. Matters requiring HCA resolution are referred to the A/LM/AQM. 
These delegations are provided only to warranted contracting officers in 
the respective offices. They are as follows:
    (1) Office of Language Services. The authority to enter into and 
administer simplified acquisition transactions under FAR Part 13 and 
orders against existing contracts up to the maximum ordering threshold 
or limitation for interpreting, translating, conference reporting, and 
related language support and escort services.
    (2) Office of Overseas Schools. The authority to enter into and 
administer simplified acquisition transactions under FAR Part 13 and 
orders against existing contracts up to the maximum ordering threshold 
or limitation pursuant to section 29 of the State Department Basic 
Authorities Act of 1956, as amended.
    (3) Library. The authority to enter into and administer simplified 
acquisition transactions under FAR Part 13 and orders against existing 
contracts up to the maximum ordering threshold or limitation pursuant to 
the provisions of the Public Printing and Documents Act of 1968, as 
amended, and for the acquisition of newspapers, books, maps, and 
periodicals.
    (4) Office of International Conferences. The authority to enter into 
and administer simplified acquisition transactions under FAR Part 13 and 
orders against existing contracts up to the maximum ordering threshold 
or limitation pursuant to section 5, Title I, of the Department of State 
Basic Authorities Act of 1956, as amended.
    (5) Bureau of International Narcotics and Law Enforcement Affairs. 
The authority to enter into and administer simplified acquisition 
transactions under FAR Part 13, orders against existing contracts up to 
the maximum ordering threshold or limitation and personal services 
contracts pursuant to the Foreign Assistance Act of 1961, as amended; 
and, 48 CFR Chapter 7, Agency for International Development Acquisition 
Regulation, including any amendments thereto. These authorities extend 
to any acquisition performed by any Department of State contracting 
activity on behalf of INL.

[[Page 358]]

    (6) Office of Small and Disadvantaged Business Utilization. The 
authority to enter into and administer 8(a) purchase orders and 
contracts as a third party pursuant to the Memorandum of Understanding 
signed with the Small Business Administration.
    (7) Bureau of Administration, Office of Operations. The authority to 
enter into and administer simplified acquisition transactions for 
emergency or contingency operations necessary to protect life or federal 
property. This authority is limited to cases when a contracting officer 
in the Office of Acquisitions Management is unavailable.

[59 FR 66752, Dec. 28, 1994, as amended at 60 FR 39662, Aug. 3, 1995; 64 
FR 43620, Aug. 11, 1999; 69 FR 19330, Apr. 13, 2004; 71 FR 34839, June 
16, 2006; 72 FR 45695, Aug. 15, 2007]

                 PART 602_DEFINITIONS OF WORDS AND TERMS

                        Subpart 602.1_Definitions

Sec.

Sec. 602.101 Definitions.

Sec. 602.101-70 DOSAR definitions.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26162, July 11, 1988, unless otherwise noted.

                        Subpart 602.1_Definitions



Sec. 602.101  Definitions.



Sec. 602.101-70  DOSAR definitions.

    For the purposes of the DOSAR, unless otherwise indicated, the 
following terms have the meanings set forth in this subpart.
    Chief of Mission means the principal officer in charge of a 
diplomatic mission of the United States or of a United States office 
abroad which is designated by the Secretary of State as diplomatic in 
nature, including any individual assigned under section 502(c) of the 
Foreign Service Act of 1980 (Public Law 96-465) to be temporarily in 
charge of such a mission or office.
    Consolidated Receiving Point or CRP; means the contractor under 
contract to a Despatch Agency to receive and prepare items for shipment 
to a post. The CRP receives, records, consolidates, and packs items for 
shipment overseas under the direction of the Despatch Agency.
    Department or DOS means the Department of State, including all of 
its activities wherever located.
    Despatch Agency means the office responsible for the transportation 
of supplies between the U.S. and posts within its specific geographic 
area as assigned by the Office of Logistics Operations. There are six 
Despatch Agencies, one each in Iselin, New Jersey; Baltimore, Maryland; 
Miami, Florida; Seattle, Washington; Brownsville, Texas; and the 
European Logistical Support Office in Antwerp, Belgium.
    Government means the Government of the United States of America 
unless specifically stated otherwise.
    Major system has the same definition as described in FAR 2.101; 
however, the Department of State's dollar threshold as defined in 
paragraph (2) is $30 million. The Under Secretary for Management is the 
head of the agency for the purposes of paragraph (3).
    Overseas post means a ``post'' located outside the United States of 
America.
    Post means a diplomatic or consular mission of the United States of 
America, administered or managed by the DOS.

[53 FR 26163, July 11, 1988, as amended at 59 FR 66753, Dec. 28, 1994; 
60 FR 39662, Aug. 3, 1995; 64 FR 43620, Aug. 11, 1999; 69 FR 19330, Apr. 
13, 2004; 72 FR 45695, Aug. 15, 2007]

 PART 603_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

                        Subpart 603.1_Safeguards

Sec.

Sec. 603.104 Procurement integrity.

Sec. 603.104-4 Disclosure, protection, and marking of contractor bid or 
          proposal information and source selection information.

Sec. 603.104-7 Violations or possible violations.

       Subpart 603.2_Contractor Gratuities to Government Personnel


Sec. 603.204 Treatment of violations.

[[Page 359]]

                      Subpart 603.4_Contingent Fees


Sec. 603.405 Misrepresentations or violations of the Covenant Against 
          Contingent Fees.

Subpart 603.6_Contracts with Government Employees or Organizations Owned 
                          or Controlled by Them


Sec. 603.601 Policy.

Sec. 603.602 Exceptions.

             Subpart 603.7_Voiding and Rescinding Contracts


Sec. 603.704 Policy.

Sec. 603.705 Procedures.

 Subpart 603.8_Limitations on the Payment of Funds To Influence Federal 
                              Transactions


Sec. 603.804 Policy

    Subpart 603.9_Whistleblower Protections for Contractor Employees


Sec. 603.905 Procedures for investigating complaints.

Sec. 603.906 Remedies.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26163, July 11, 1988, unless otherwise noted.

                        Subpart 603.1_Safeguards

    Source: 64 FR 43620, Aug. 11, 1999, unless otherwise noted.



Sec. 603.104  Procurement integrity.



Sec. 603.104-4  Disclosure, protection, and marking of contractor bid or 
          proposal information and source selection information.

    (a) The following classes of persons may be authorized to receive 
contractor bid or proposal information or source selection information 
by the contracting officer or head of the contracting activity, who is 
the agency head's designee, when such access is necessary to the conduct 
of an acquisition:
    (1) Individuals involved in the selection process, such as the 
Contracting Officer's Representative, technical evaluators, advisors, 
consultants, and the Source Selection Official;
    (2) Clerical personnel directly involved in the acquisition;
    (3) Supervisors in the contracting officer's chain of command;
    (4) Contracting personnel involved in reviewing or approving the 
solicitation, contract, or contract modification;
    (5) Individuals from offices who may be required to perform pre-
award audits, such as DCAA; and,
    (6) Personnel in the following offices: Office of Small and 
Disadvantaged Business Utilization (A/SDBU), Office of the Legal 
Adviser, Office of Legislative Affairs, Office of the Inspector General, 
Office of the Procurement Executive, the Small Business Administration, 
and the Office of Federal Contract Compliance Programs (Department of 
Labor).
    (c) All information which is considered proprietary or source 
selection information shall be marked to prevent its unauthorized 
disclosure before award. This may be performed by marking each page of 
proprietary or source selection material with the statement ``Source 
Selection Information--See FAR 3.104'' or ``Proprietary Information--See 
FAR 3.104'', as applicable. Alternatively, this requirement may be met 
by attaching Forms DS-1926, Proprietary Information (Cover Page), and 
DS-1927, Source Selection Information (Cover Page), to any proprietary 
and source selection information. Individuals responsible for preparing 
derivative documents which reference, cite, or paraphrase proprietary or 
source selection information, are responsible for marking such documents 
as indicated in this paragraph. The required marking or cover page shall 
be included when technical proposals are submitted for evaluation and 
when an audit is requested. After award, the procedures governing the 
Freedom of Information Act and related laws/regulations shall be 
followed regarding release of proprietary or source selection 
information.

[64 FR 43620, Aug. 11, 1999. Redesignated at 69 FR 19330, Apr. 13, 2004]



Sec. 603.104-7  Violations or possible violations.

    (a)(1) The contracting officer shall report any violation or 
possible violation to the head of the contracting activity after he or 
she has reviewed the documentation and has concluded that there is no 
impact on the acquisition.

[[Page 360]]

    (d)(2)(ii)(B) The Procurement Executive is the agency head's 
designee for the purposes of FAR 3.104-7(d)(2)(ii)(B).

[64 FR 43620, Aug. 11, 1999. Redesignated and amended at 69 FR 19330, 
Apr. 13, 2004]

       Subpart 603.2_Contractor Gratuities to Government Personnel



Sec. 603.204  Treatment of violations.

    (a) The Procurement Executive is the agency head's designee for the 
purposes of FAR 3.204.
    (b) Upon completion of the investigation and/or prosecution or with 
the consent of the U.S. Department of Justice, the Assistant Inspector 
General for Investigations shall provide to the Procurement Executive a 
report, together with all pertinent documentation, concerning the 
suspected violation. The Office of the Procurement Executive shall 
provide to the contractor a written notice by certified mail, return 
receipt requested, presenting the findings, and shall establish a 
schedule, including location, for an investigative hearing for the 
purposes described in FAR 3.204(b).

[64 FR 43620, Aug. 11, 1999, as amended at 69 FR 19330, Apr. 13, 2004]

                      Subpart 603.4_Contingent Fees



Sec. 603.405  Misrepresentations or violations of the Covenant Against 
          Contingent Fees.

    (a) The contracting officer may request the Office of the Inspector 
General to develop further information if the facts available are deemed 
insufficient to determine whether an actual violation has occurred. The 
contracting officer may also obtain the advice of the Office of the 
Legal Adviser as to the legality and general propriety of any 
information disclosed.

[64 FR 43621, Aug. 11, 1999]

Subpart 603.6_Contracts with Government Employees or Organizations Owned 
                          or Controlled by Them



Sec. 603.601  Policy.

    (a) It is Department policy not to award contracts to Federal 
employees, or businesses substantially owned or controlled by Federal 
employees. This policy also applies to individuals hired under personal 
services agreements and personal services contracts.

[59 FR 66754, Dec. 28, 1994, as amended at 69 FR 19331, Apr. 13, 2004]



Sec. 603.602  Exceptions.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 3.602.

             Subpart 603.7_Voiding and Rescinding Contracts



Sec. 603.704  Policy.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 3.704.

[59 FR 66754, Dec. 28, 1994]



Sec. 603.705  Procedures.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 3.705.

[59 FR 66754, Dec. 28, 1994]

 Subpart 603.8_Limitations on the Payment of Funds To Influence Federal 
                              Transactions



Sec. 603.804  Policy

    (b) The contracting officer shall forward a copy of all contractor 
disclosures furnished pursuant to the clause at FAR 52.203-12 to the 
Office of the Legal Adviser, Employment Law, Senior Ethics Counsel (L/
EMP/Ethics).

[69 FR 19331, Apr. 13, 2004]

    Subpart 603.9_Whistleblower Protections for Contractor Employees

    Source: 64 FR 43621, Aug. 11, 1999, unless otherwise noted.

[[Page 361]]



Sec. 603.905  Procedures for investigating complaints.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 3.905.



Sec. 603.906  Remedies.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 3.906.

                     PART 604_ADMINISTRATIVE MATTERS

            Subpart 604.5_Electronic Commerce in Contracting


Sec. 604.502 Policy.

  Subpart 604.13_Personal Identity Verification of Contractor Personnel


Sec. 604.1300 Policy.

Sec. 604.1301 Contract clause.

Sec. 604.1301-70 DOSAR contract clause.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 69 FR 19331, Apr. 13, 2004, unless otherwise noted.

            Subpart 604.5_Electronic Commerce in Contracting



Sec. 604.502  Policy.

    (b) The Assistant Secretary of State for Administration is the head 
of the agency for the purpose of FAR 4.502(b).
    (1)(i) Materials not in automated format. For solicitations 
containing drawings or other materials that are not in an automated 
format, the contracting officer shall:
    (A) Post as much of the solicitation as possible on the Internet; 
and,
    (B) Make hard copies available for those parts of the solicitation 
that are not in an automated format.
    (ii) Posting solicitations for overseas contracting activities. 
Contracting officers at overseas contracting activities shall post 
competitive local guard solicitations on the Internet using the 
Government-wide point of entry if U.S. firms may be competing. Posting 
of other solicitations is optional.

[69 FR 19331, Apr. 13, 2004, as amended at 72 FR 45695, Aug. 15, 2007]

  Subpart 604.13_Personal Identity Verification of Contractor Personnel

    Source: 76 FR 20250, Apr. 12, 2011, unless otherwise noted.



Sec. 604.1300  Policy.

    The DOS official responsible for verifying contractor employee 
personal identity is the Assistant Secretary for Diplomatic Security.



Sec. 604.1301  Contract clause.



Sec. 604.1301-70  DOSAR contract clause.

    The contracting officer shall insert the clause at 652.204-70, 
Department of State Personal Identification Card Issuance Procedures, in 
solicitations and contracts that require contractor employees to perform 
on-site at a DOS location and/or that require contractor employees to 
have access to DOS information systems.

[[Page 362]]

            SUBCHAPTER B_COMPETITION AND ACQUISITION PLANNING

                  PART 605_PUBLICIZING CONTRACT ACTIONS

           Subpart 605.2_Synopsis of Proposed Contract Actions

Sec.

Sec. 605.202 Exceptions.

Sec. 605.202-70 Foreign acquisitions.

Sec. 605.207-70 Acquisitions available from only one responsible source.

                Subpart 605.3_Synopses of Contract Awards


Sec. 605.303 Announcement of contract awards.

                  Subpart 605.4_Release of Information


Sec. 605.403 Requests from members of Congress.

Sec. 605.404 Release of long-range acquisition estimates.

Sec. 605.404-1 Release procedures.

                    Subpart 605.5_Paid Advertisements


Sec. 605.502 Authority.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26164, July 11, 1988, unless otherwise noted.

           Subpart 605.2_Synopsis of Proposed Contract Actions



Sec. 605.202  Exceptions.



Sec. 605.202-70  Foreign acquisitions.

    (a) Policy. In accordance with a Determination and Findings issued 
by the Assistant Secretary of State for Administration, the requirement 
for advance notices in the Governmentwide point of entry (GPE) for the 
Department's foreign acquisitions awarded by overseas contracting 
activities is waived. GPE notices may be published for any acquisition 
where the contracting officer decides that publication would be in the 
Department's best interests.
    (b) Procedures. Contracting officers at overseas contracting 
activities are not required to prepare an individual determination and 
findings to document their decision to waive the GPE notice 
requirements.
    (c) Competition requirements. Nothing in this section waives the 
requirement to obtain competition as required by FAR part 6 and DOSAR 
(48 CFR) part 606. Competition, including the use of written 
solicitation, shall be obtained in all cases to the extent feasible. If 
there are known U.S. firms or firms with U.S. affiliations in local 
residence capable of supplying the required supplies or services, the 
contracting activity shall ensure that those firms are included in the 
source list for the acquisition.
    (d) Policy exclusions. GPE waiver authority does not apply to local 
guard service contracts exceeding $250,000, or any contracts exceeding 
$5 million. Local guard service contracts that exceed $250,000 and other 
contracts that exceed $5 million shall be published in the GPE. Option 
year prices shall be included when computing the applicability of this 
threshold.

[60 FR 39662, Aug. 3, 1995, as amended at 64 FR 43621, Aug. 11, 1999; 69 
FR 19331, Apr. 13, 2004]



Sec. 605.207-70  Acquisitions available from only one responsible 
          source.

    In addition to the information required at FAR 5.207, each notice of 
a proposed acquisition from only one responsible source shall include 
descriptions of the specific qualifications or capabilities required to 
perform the work and the information a potential source must submit.

[53 FR 26164, July 11, 1988, as amended at 69 FR 19331, Apr. 13, 2004]

                Subpart 605.3_Synopses of Contract Awards



Sec. 605.303  Announcement of contract awards.

    (a) Contracting officers shall make information available on awards 
over $10 million to the Bureau of Legislative Affairs, upon request, in 
sufficient time for an announcement by 5:00 p.m. Washington, DC time on 
the day of the award. This requirement applies only

[[Page 363]]

to awards made by domestic contracting activities where performance will 
take place within the United States or its possessions.

[59 FR 66755, Dec. 28, 1994, as amended at 64 FR 43621, Aug. 11, 1999; 
69 FR 19331, Apr. 13, 2004]

                  Subpart 605.4_Release of Information



Sec. 605.403  Requests from members of Congress.

     The Procurement Executive is the agency head for the purposes of 
FAR 5.403.

[59 FR 66755, Dec. 28, 1994, as amended at 72 FR 45695, Aug. 15, 2007]



Sec. 605.404  Release of long-range acquisition estimates.



Sec. 605.404-1  Release procedures.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 5.404-1(a) and the agency head for the purposes of FAR 
5.404-1(b).

[55 FR 5774, Feb. 16, 1990]

                    Subpart 605.5_Paid Advertisements



Sec. 605.502  Authority.

    (a) For paid advertisements in newspapers within the United States, 
the head of the contracting activity is the agency head's designee for 
the purposes of FAR 5.502(a). For acquisitions by overseas posts 
necessitating paid advertisements in newspapers outside the United 
States, the head of the contracting activity is the agency's head's 
designee for the purposes of FAR 5.502(a). When the head of the 
contracting activity is the contracting officer for the acquisition, no 
further approvals are necessary.

[59 FR 66755, Dec. 28, 1994]

                    PART 606_COMPETITION REQUIREMENTS

   Subpart 606.2_Full and Open Competition After Exclusion of Sources

Sec.

Sec. 606.202 Establishing or maintaining alternate sources.

           Subpart 606.3_Other Than Full and Open Competition


Sec. 606.302 Circumstances permitting other than full and open 
          competition.

Sec. 606.302-1 Only one responsible source and no other supplies or 
          services will satisfy agency requirements.

Sec. 606.302-4 International agreement.

Sec. 606.302-6 National security.

Sec. 606.302-7 Public interest.

Sec. 606.303-1 Requirements.

Sec. 606.304 Approval of the justification.

Sec. 606.304-70 Acquisitions by overseas posts.

Sec. 606.370 Department of State standardization program.

                   Subpart 606.5_Competition Advocates


Sec. 606.501 Requirement.

Sec. 606.501-70 Overseas posts.

Sec. 606.570 Solicitation provision.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26165, July 11, 1988, unless otherwise noted.

   Subpart 606.2_Full and Open Competition After Exclusion of Sources



Sec. 606.202  Establishing or maintaining alternate sources.

    The Procurement Executive is the agency head for the purposes of FAR 
6.202.

           Subpart 606.3_Other Than Full and Open Competition



Sec. 606.302  Circumstances permitting other than full and open 
          competition.



Sec. 606.302-1  Only one responsible source and no other supplies or 
          services will satisfy agency requirements.

    (b)(4) The Procurement Executive is the agency head for the purposes 
of FAR 6.302-1(b)(4).

[59 FR 66755, Dec. 28, 1994]



Sec. 606.302-4  International agreement.

    (b)(2) In accordance with FAR 6.302-4, guard services shall be 
acquired from the host government only when it is the sole available 
source.

[59 FR 66755, Dec. 28, 1994]

[[Page 364]]



Sec. 606.302-6  National security.

    (b) This subsection applies to all acquisitions involving national 
security information, regardless of dollar amount. In no case shall 
information be classified in order to restrict competition. Information 
may be classified only when its authorized disclosure could be expected 
to cause damage to national security.
    (c)(1) The Chief, Controls Division, Office of Intelligence Liaison, 
Directorate for Coordination, Bureau of Intelligence and Research, is 
responsible for reviewing and certifying on any proposed acquisitions 
derived from or funded or administered by intelligence community 
agencies that involve sensitive compartmented information and ensuring 
that the provisions of Executive Order 12958 and FAR 6.302-6 have been 
met. The Office Director, Office of Information Security, Office of 
Security Infrastructure, Bureau of Diplomatic Security (DS/SI/IS) is 
responsible for reviewing and certifying on all other proposed 
acquisitions funded by the Department of State that involve national 
security information and ensuring that the provisions of Executive Order 
12958 and FAR 6.302-6 have been met. When disclosure of the Department's 
needs through full and open competition would compromise national 
security, the Justification for Other than Full and Open Competition 
shall include the following specific information:
    (i) How national security would be compromised if the Department of 
State's (or other agencies') needs were disclosed in the GPE;
    (ii) Why the GPE notice cannot be worded in such a manner that 
national security would not be compromised;
    (iii) Necessity for access to classified information to prepare 
technical and/or cost proposal and level of security clearance required;
    (iv) Necessity for access to classified information to perform the 
proposed contract and level of security clearance required;
    (v) Number and value of contracts that the justification covers; and
    (vi) A statement as follows: ``I hereby certify that the national 
security concerns of the referenced acquisition(s) meet the criteria set 
forth in Executive Order 12958 and FAR 6.302-6''.
    (2) Any acquisition involving national security information shall be 
publicized in the GPE unless disclosure of the agency's needs would 
compromise national security.
    (3) The contracting officer is responsible for soliciting offers 
from as many potential sources as is practicable under the 
circumstances. However, given the sensitivity required for acquisitions 
involving national security information, it is expected that 
requirements offices will work closely with the contracting officer in 
maximizing competition.

[59 FR 66755, Dec. 28, 1994, as amended at 64 FR 43621, Aug. 11, 1999; 
69 FR 19331, Apr. 13, 2004; 72 FR 45695, Aug. 15, 2007]



Sec. 606.302-7  Public interest.

    The authority to approve the determination prescribed in FAR 6.302-
7(c) is reserved to the Secretary of State.



Sec. 606.303-1  Requirements.

    Justifications for contract actions prescribed in FAR 6.303-1(d) 
shall be forwarded by the contracting officer to A/OPE for transmittal 
to the Office of the United States Trade Representative.

[53 FR 26165, July 11, 1988, as amended at 59 FR 66755, Dec. 28, 1994]



Sec. 606.304  Approval of the justification.

    (a)(2) The approval authority for a proposed contract over $550,000 
but not exceeding $11.5 million for domestic contracting activities that 
do not have a competition advocate is the Department Competition 
Advocate.
    (d) The estimated dollar value of all options shall be included in 
determining the approval level of a justification.

[59 FR 66755, Dec. 28, 1994, as amended at 64 FR 43621, Aug. 11, 1999; 
72 FR 45695, Aug. 15, 2007]



Sec. 606.304-70  Acquisitions by overseas posts.

    The Departmental Competition Advocate is the approval authority for 
the purposes of FAR 6.304(a)(3). This authority is not redelegable. Any 
such justification must be transmitted

[[Page 365]]

through the Principal Officer at the overseas post.

[59 FR 66756, Dec. 28, 1994]



Sec. 606.370  Department of State standardization program.

    (a) It is the Department's policy to promote full and open 
competition in all procurement actions. The authority at 41 U.S.C. 
253(c)(1) shall be used with respect to standardization when only 
specified makes and models of equipment will satisfy the Department's 
needs and only one source is available. This policy applies to all 
acquisitions involving standardization, regardless of dollar amount.
    (b) Contracts awarded under the authority at 41 U.S.C. 253(c)(1) 
shall be supported by the written justification described in FAR 6.303. 
The contracting officer, requirements office, procuring activity 
competition advocate, and the Procurement Executive shall approve all 
Justifications for Other than Full and Open Competition that cite 
standardization of technical equipment as justification to restrict 
competition. The Management Officer at each post is the procuring 
activity competition advocate for that post and the requirements office 
at post is the embassy functional office responsible for identifying the 
need to contract.
    (c) Procurement of specified makes and models of technical equipment 
and systems, for which there is only one source of supply, is considered 
other than full and open competition. Such procurements shall be 
supported by an approved Justification for Other than Full and Open 
Competition. The justification shall include the content requirements of 
FAR 6.303-2. The justification shall also address potential cost savings 
in areas such as inventory, operations, training, maintenance, repairs, 
and administrative and management support. Areas of consideration for 
potential cost savings shall be supported by detailed estimates as 
attachments to the justification. Justifications shall specify an 
effective period, which shall bear a reasonable relationship to the life 
of the technical equipment. The effective period shall not exceed six 
years with a review at the end of the first three years. Periodic 
reviews shall be made during the standardization period to determine 
whether the standardization should be continued, revised or canceled.

[59 FR 66756, Dec. 28, 1994, as amended at 69 FR 19331, Apr. 13, 2004]

                   Subpart 606.5_Competition Advocates



Sec. 606.501  Requirement.

    (a) The Procurement Executive is the head of the agency for the 
purposes of FAR 6.501 and designates the Department Competition 
Advocate.
    (b) A contracting activity competition advocate has been designated 
for A/LM/AQM. A/LM/AQM's competition advocate is also designated the 
contracting activity competition advocate for the Regional Procurement 
Support Offices. The Department Competition Advocate is the activity 
competition advocate for all other domestic contracting activities.

[59 FR 66756, Dec. 28, 1994, as amended at 64 FR 43622, Aug. 11, 1999; 
69 FR 19331, Apr. 13, 2004]



Sec. 606.501-70  Overseas posts.

    The Management Officer at each overseas post is the competition 
advocate for that post.

[53 FR 26165, July 11, 1988, as amended at 69 FR 19331, Apr. 13, 2004]



Sec. 606.570  Solicitation provision.

    The contracting officer shall insert the provision at 652.206-70, 
Competition Advocate/Ombudsman, in all solicitations exceeding the 
simplified acquisition threshold.

[64 FR 43622, Aug. 11, 1999]

                      PART 607_ACQUISITION PLANNING

    Authority: 22 U.S.C. 2658; 40 U.S.C. 486(c); 48 CFR subpart 1.3.

                     Subpart 607.1_Acquisition Plans



Sec. 607.103  Agency-head responsibilities.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 7.103.

[55 FR 5774, Feb. 16, 1990]

[[Page 366]]

                   PART 609_CONTRACTOR QUALIFICATIONS

                Subpart 609.2_Qualifications Requirements

Sec.

Sec. 609.202 Policy.

Sec. 609.206 Acquisitions subject to qualification requirements.

Sec. 609.206-1 General.

         Subpart 609.4_Debarment, Suspension, and Ineligibility


Sec. 609.403 Definitions.

Sec. 609.403-70 DOSAR definitions.

Sec. 609.404 Excluded parties list system.

Sec. 609.404-70 Specially Designated Nationals List.

Sec. 609.405 Effect of listing.

Sec. 609.405-1 Continuation of current contracts.

Sec. 609.405-2 Restrictions on subcontracting.

Sec. 609.405-70 Termination action decision.

Sec. 609.406 Debarment.

Sec. 609.406-1 General.

Sec. 609.406-3 Procedures.

Sec. 609.407 Suspension.

Sec. 609.407-1 General.

Sec. 609.407-3 Procedures.

   Subpart 609.5_Organizational and Consultant Conflicts of Interests


Sec. 609.503 Waiver.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26165, July 11, 1988, unless otherwise noted.

                Subpart 609.2_Qualifications Requirements



Sec. 609.202  Policy.

    The authority prescribed in FAR 9.202(a)(1) is delegated, without 
power of redelegation, to the head of the contracting activity.

[53 FR 26165, July 11, 1988, as amended at 59 FR 66756, Dec. 28, 1994]



Sec. 609.206  Acquisitions subject to qualification requirements.



Sec. 609.206-1  General.

    (b) The authority prescribed in FAR 9.206-1(b) is delegated, without 
power of redelegation, to the head of the contracting activity.

[64 FR 43622, Aug. 11, 1999]

         Subpart 609.4_Debarment, Suspension, and Ineligibility



Sec. 609.403  Definitions.

    Debarring official means the Procurement Executive.
    Suspending official means the Procurement Executive.



Sec. 609.403-70  DOSAR definitions.

    Fact-finding official means the chairperson of a three member fact-
finding panel. The panel comprises one representative each from the 
Office of the Legal Adviser, the contracting activity, and the 
requirements office. The representative from the Office of the Legal 
Adviser is the panel chairperson.
    Notice means a written communication sent by certified mail (return 
receipt requested) to the last known address of the party, its 
identified counsel, or its agent. In the case of a business, such notice 
may be sent to any partner, principal officer, director, owner or co-
owner, or joint venturer. If no return receipt is received within 10 
calendar days of mailing, receipt shall then be presumed. This 
definition applies to the notice requirements in FAR 9.406-3 and FAR 
9.407-3.



Sec. 609.404  Excluded parties list system.

    A/OPE shall accomplish the agency responsibilities prescribed in FAR 
9.404(c)(1) through (c)(3). The authority to establish procedures 
prescribed in FAR 9.404(c)(7) is delegated, without power of 
redelegation, to the head of the contracting activity.

[53 FR 26165, July 11, 1988; 53 FR 36461, Sept. 20, 1988, as amended at 
55 FR 5774, Feb. 16, 1990; 59 FR 66756, Dec. 28, 1994; 72 FR 45695, Aug. 
15, 2007]



Sec. 609.404-70  Specially Designated Nationals List.

    Contracting officers shall not award to any of the entities listed 
on the Specially Designated Nationals (SDN) List, available on the 
Department of Treasury's Office of Foreign Assets Control Web site at 
http://www.treas.gov/ofac/. Contracting officers shall consult this list 
prior to award for any dollar amount. This list

[[Page 367]]

may also be accessed through the EPLS Web site at http://www.epls.gov.

[69 FR 19331, Apr. 13, 2004, as amended at 72 FR 45695, Aug. 15, 2007]



Sec. 609.405  Effect of listing.

    (a) The Procurement Executive is the agency head's designee for the 
purposes of FAR 9.405(a).
    (d)(3) The Procurement Executive is the agency head's designee for 
the purposes of FAR 9.405(d)(3).

[59 FR 66756, Dec. 28, 1994, as amended at 60 FR 39662, Aug. 3, 1995; 64 
FR 43622, Aug. 11, 1999; 69 FR 19331, Apr. 13, 2004]



Sec. 609.405-1  Continuation of current contracts.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 9.405-1. The decision whether to terminate a current 
contract shall be made in consideration of the circumstances listed in 
609.405-70.



Sec. 609.405-2  Restrictions on subcontracting.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 9.405-2.



Sec. 609.405-70  Termination action decision.

    (a) Prior to making a decision to terminate, based on the 
consideration listed below, the contracting officer shall have the 
proposed action reviewed and approved by:
    (1) The Office of the Legal Adviser;
    (2) An individual one level above the contracting officer; and
    (3) For overseas posts, A/OPE.
    (b) Termination for default. Termination for default under a 
contract's default clause is appropriate when the circumstances giving 
rise to the debarment or suspension also constitute a default in the 
contractor's performance of that contract. Debarment or suspension of 
the contractor for reasons unrelated to the performance of that contract 
may not support a termination for default.
    (c) Termination for convenience or cancellation. Termination for 
convenience or cancellation under appropriate contract clauses should be 
considered when the contractor presents a significant risk to the 
Government in completing a current contract and when such termination 
for convenience or cancellation is determined to be in the Government's 
best interests. In making this determination, the contracting officer 
should consider such factors as the--
    (1) Seriousness of the cause for debarment or suspension;
    (2) Extent of contract performance;
    (3) Potential costs to the Government;
    (4) Urgency of the requirement and the impact of the delay; and/or
    (5) Availability of other safeguards to protect the Government's 
interests.

[53 FR 26165, July 11, 1988, as amended at 59 FR 66756, Dec. 28, 1994]



Sec. 609.406  Debarment.



Sec. 609.406-1  General.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 9.406-1(c).



Sec. 609.406-3  Procedures.

    (a) Investigation and referral. (1) DOS employees aware of any cause 
that may serve as the basis for debarment shall immediately refer those 
cases through the contracting officer to the debarring official. The 
debarring official shall immediately refer to the Office of the 
Inspector General all reported cases that involve possible criminal or 
fraudulent activities for investigation by that office. The Office of 
the Inspector General shall investigate the matter, as appropriate, and 
provide a copy of its investigation report to the Procurement Executive 
for consideration of debarment action, if and when appropriate. The 
contracting officer shall provide to the Procurement Executive and the 
Office of the Inspector General a copy of his or her intended actions in 
response to the Office of the Inspector General report.
    (2) Referrals for consideration of debarment shall include--
    (i) The cause for debarment (see FAR 9.406-2);
    (ii) A statement of facts;
    (iii) Copies of supporting documentary evidence and a list of all 
necessary or probable witnesses, including addresses and telephone 
numbers, together with a statement concerning

[[Page 368]]

their availability to appear at a fact-finding proceeding and the 
subject matter of their testimony;
    (iv) A list of all contractors involved, either as principals or as 
affiliates, including current or last known home and business addresses 
and ZIP codes;
    (v) A statement of the acquisition history with such contractors;
    (vi) A statement concerning any known pertinent active or potential 
criminal investigation, criminal or civil court proceedings, or 
administrative claim before Boards of Contract Appeals; and
    (vii) A statement from each DOS organizational element affected by 
the debarment action as to the impact of a debarment on DOS programs.
    (b) Decisionmaking process. (1) If the contractor does not respond 
to a debarment notice within 30 calendar days after receipt of the 
notice, the debarring official may put the debarment into effect.
    (2) In response to the debarment notice, if the contractor or its 
representative notifies the debarring official within 30 days after 
receipt of the notice that it wants to present information and arguments 
in person to the debarring official, that official shall chair such a 
meeting within 20 calendar days of receipt of the request, unless the 
contractor requests a longer period of time. The oral presentation shall 
be conducted informally and a transcript need not be made. However, the 
contractor may supplement its oral presentation with written information 
and arguments for inclusion in the administrative record.
    (3) Pursuant to FAR 9.406-3(b)(2), the contractor may request and 
shall be entitled to a hearing before the fact-finding panel. The fact-
finding panel shall conduct the hearing within 20 calendar days of 
receipt of the request, unless the contractor requests a longer period 
of time.
    (4) The debarring official shall convene the fact-finding panel for 
this purpose and shall provide the panel with a copy of all documentary 
evidence on the matter. Upon receipt of such material, the fact-finding 
official shall notify the contractor and schedule a hearing date.
    (5) In addition to the purposes provided in FAR 9.406-3(b)(2), the 
hearing is intended to provide the debarring official with findings of 
fact based on a preponderance of evidence submitted to the fact-finding 
panel and to provide the debarring official with a determination as to 
whether a cause for debarment exists, based on the facts as found.
    (6) The fact-finding panel shall conduct its hearing in accordance 
with rules promulgated by the fact-finding official. The rules shall be 
as informal as is practicable, consistent with FAR 9.406-3(b) The fact-
finding official is responsible for making the transcribed record of the 
hearing, unless the contractor and the fact-finding panel agree to waive 
the requirement for a transcript.
    (7) The fact-finding official shall deliver written findings and the 
transcribed record, if made, to the debarring official within 30 
calendar days after the hearing. The findings shall resolve any facts in 
dispute based on a preponderance of the evidence presented and recommend 
whether a cause for debarment exists.
    (c) Notice of proposal to debar. (1) Upon receipt of a complete 
referral and after consulting with the Office of the Legal Adviser, the 
debarring official shall decide whether to initiate debarment action.
    (2) When a determination is made to initiate action, the debarring 
official shall provide to the contractor and any specifically named 
affiliates written notice in accordance with FAR 9.406-3(c). A copy of 
the notice shall be provided to the DOS officer who made the referral 
and to each DOS organizational elements affected by the determination.
    (3) When a determination is made not to initiate action, the 
debarring official shall so advise the DOS officer who made the 
referral.
    (d) Debarring official's decision. In addition to complying with FAR 
9.406-3(d) and FAR 9.406-3(e), the debarring official shall provide 
single copies of the decision to each DOS organizational element 
affected by the decision

[[Page 369]]

and to the General Services Administration in accordance with 609.404.

[53 FR 26165, July 11, 1988; 53 FR 36461, Sept. 20, 1988, as amended at 
64 FR 43622, Aug. 11, 1999; 69 FR 19331, Apr. 13, 2004]



Sec. 609.407  Suspension.



Sec. 609.407-1  General.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 9.407-1(d).



Sec. 609.407-3  Procedures.

    (a) Investigation and referral. Investigation and referral shall be 
accomplished as provided in 609.406-3(a), except that referrals made to 
the suspending official shall cite causes pertinent to a suspension 
action (see FAR 9.407-2).
    (b) Decisionmaking process. (1) If the contractor does not respond 
to a notice of suspension within 30 calendar days after receipt of the 
notice, the suspending official may proceed with completion of 
investigation.
    (2) The DOS decisionmaking process for a suspension action pursuant 
to FAR 9.407-3(b) follow those established for a debarment action (see 
609.406(b)), except that the contractor may request and shall be 
entitled to a hearing before the fact-finding panel only if permitted 
under FAR 9.407-3(b)(2).
    (c) Notice of suspension. Notice of suspension shall be accomplished 
as provided in 609.406-3(a), except that the suspending official shall 
process the notice in accordance with FAR 9.407-3(c).
    (d) Suspending official's decision. In addition to complying with 
FAR 9.407-3(d), the suspending official shall provide single copies of 
the decision to each DOS organizational element affected by the decision 
and to the General Services Administration in accordance with 609.404.

   Subpart 609.5_Organizational and Consultant Conflicts of Interests



Sec. 609.503  Waiver.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 9.503.

                    PART 611_DESCRIBING AGENCY NEEDS

Sec.

Sec. 611.002 Policy.

Sec. 611.002-70 Metric system implementation.

      Subpart 611.1_Selecting and Developing Requirements Documents


Sec. 611.103 Market acceptance.

                    Subpart 611.5_Liquidated Damages


Sec. 611.501 Policy.

                Subpart 611.6_Priorities and Allocations


Sec. 611.600 Scope of subpart.

Sec. 611.602 General.

Sec. 611.603 Procedures.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 64 FR 43622, Aug. 11, 1999, unless otherwise noted.



Sec. 611.002  Policy.



Sec. 611.002-70  Metric system implementation.

    (a) Policy. The Metric Conversion Act of 1975, as amended by the 
Omnibus Trade and Competitiveness Act of 1988 (15 U.S.C. 205a, et seq.), 
requires Federal agencies to establish implementing guidelines pursuant 
to metric policy to adopt the metric system as the preferred system of 
weights and measurements for United States trade and commerce. This 
section establishes the Department of State's metric conversion 
guidelines.
    (b) Applicability. This section applies to all DOS acquisitions, 
except to the extent that such use is impractical or is likely to cause 
significant inefficiencies or loss of markets to U.S. firms.
    (c) Definitions.
    Dual system means the use of both traditional and metric systems. 
For example, an item is designated, produced and described in inch-pound 
values with soft metric values also shown for information or comparison.
    Hard metric means the use of only standard metric (SI) measurements 
in specifications, standards, supplies and services.
    Hybrid system means the use of both traditional and hard metric 
values in specifications, standards, supplies and services.

[[Page 370]]

    Measurement sensitive means any item having an application or 
meaning depending substantially on some measured quantity. For example, 
measurement sensitive items include product or performance criteria and 
standards binding on others, such as emission levels, size and weight 
limitations, etc.
    Metric system means the International System of Units (Le System 
International d'Unites (SI)) of the International Bureau of Weights and 
Measures.
    Metrication means any act that increases metric system use, 
including metric training and initiation or conversion of measurement 
sensitive processes and systems to the metric system.
    Soft metric means the result of mathematical conversion of inch-
pound measurements to metric equivalents. The physical dimensions, 
however, are not changed.
    Traditional system of weights and measurements means the predominant 
weight and measurement system currently used in the United States, also 
referred to as the ``inch-pound system.'' The traditional system 
includes such commonly used units as inch, foot, yard, mile, pint, 
quart, gallon, bushel, ounce (fluid and avoirdupois), pound, degree 
Fahrenheit, ampere, candela, and second.
    (d) Procedures. (1) DOS contracting activities shall implement the 
metric system in a manner consistent with 15 U.S.C. 205a, et seq.
    (2) All DOS contracting activities shall use the metric system in 
acquisition consistent with security, operations, economic, technical, 
logistical, training and safety requirements.
    (3) The Department shall encourage industry to adopt the metric 
system by acquiring commercially available metric products and services 
that meet the Department's needs whenever practical. Toward this end, 
solicitations for DOS acquisitions shall:
    (i) State all measurement sensitive requirements in metric terms 
whenever possible. Alternatives to hard metric are soft, dual and hybrid 
metric terms. The Metric Handbook for Federal Officials regarding the 
selection of proper metric units and symbols is available from the 
National Technical Information Service; and
    (ii) For contracts expected to exceed $500,000 contracting officers 
shall return to the requirements office all specifications and 
statements of work that are not expressed in some form of metric terms 
unless the requirements office has prepared a justification, for the 
approval of the contracting officer, for the use of non-metric 
specifications or statements of work. The justification shall be in a 
format as prescribed by the head of the contracting activity. Option 
year prices shall be considered when computing the $500,000 threshold.
    (4) Waivers are not required when ordering from Federal Supply 
Schedules.
    (5) Valid justifications for non-metric specifications or statements 
of work include, but are not limited to:
    (i) Existing specifications or standards are in inch-pound units, 
unless conversion of the existing specifications or standards is 
necessary or advantageous to the Government. Unnecessary retrofit of 
existing systems with new metric components should be avoided if the 
total cost of the retrofit, including redesign costs, exceeds $50,000;
    (ii) Metric is not the accepted industry system with respect to a 
business-related activity; however, soft, hybrid, or dual systems may be 
used during the transition to hard metric;
    (iii) The use of metric is impractical or is likely to cause 
significant inefficiencies or loss of markets to U.S. firms.
    (6) The contracting officer shall review and, if acceptable, approve 
the waiver prior to the release of the solicitation. The waiver shall be 
placed in the contract file. If the waiver is not approved, the 
contracting officer shall return it to the requirements office with an 
explanation for the disapproval.
    (7) The in-house operating metric costs shall be identified. 
Identification includes, but is not limited to, the cost of metric aids, 
tools, equipment, training and increased cost to develop metric 
specifications. All contracting activities and requirements offices 
shall maintain a record of any costs and/or savings brought about by 
metric conversion.

[[Page 371]]

    (8) Bulk (loose, unpacked) materials shall be specified and 
purchased in metric or dual units.
    (9) Measuring devices, shop and laboratory equipment shall be 
purchased in metric or dual units.
    (10) Shipping allowances, bills of lading and other shipping 
documents shall be expressed in metric or dual units.

      Subpart 611.1_Selecting and Developing Requirements Documents



Sec. 611.103  Market acceptance.

    (a) The head of the contracting activity is the agency head for the 
purpose of FAR 11.103(a).

                    Subpart 611.5_Liquidated Damages



Sec. 611.501  Policy.

    (d) The head of the contracting activity is the agency head for the 
purpose of FAR 11.501(d).

[64 FR 43622, Aug. 11, 1999. Redesignated and amended at 71 FR 34839, 
June 16, 2006]

                Subpart 611.6_Priorities and Allocations

    Source: 69 FR 19332, Apr. 13, 2004, unless otherwise noted.



Sec. 611.600  Scope of subpart.

    On September 18, 2001, the Department of Commerce (DOC) authorized 
the Department of State to use the Defense Priorities and Allocations 
System (DPAS). This authority expires on October 1, 2006. The Department 
of Defense has approved the Department's Embassy Security Protection 
Program (DOSESPP) as a national defense program eligible for the 
priorities support under the DPAS.



Sec. 611.602  General.

    (c)(1) Authority to use the DPAS is limited to the following 
circumstances:
    (i) The contract or order must be placed with a U.S. firm; and,
    (ii) The contract or order must be in support of the DOSESPP, which 
consists of work involving the security of overseas posts. The DOSESPP 
includes a wide range of elements of both physical and technical 
security, such as:
    (A) New Embassy/Consulate Compound (NEC/NCC) Program. This program 
involves the construction of new secure Embassies, Consulates, and 
related facilities, as well as renovations of newly acquired buildings 
when used as alternatives to the construction of new secure buildings.
    (B) Physical security upgrade. This includes installation of forced 
entry/ballistic resistant (FE/BR) windows and doors, walls/fences, 
active anti-ram barriers, bollards (concrete and steel barriers), and 
related items.
    (C) Forced entry/ballistic resistant (FE/BR) components. This 
includes doors, windows, and related facilities and items that can 
provide the necessary time to protect Government personnel from attack.
    (D) Armored vehicles. This includes passenger vehicles with 
appropriate armoring.
    (E) Entry control and building surveillance equipment. This includes 
walk-through metal detectors, X-ray equipment, surveillance cameras, 
explosive detection equipment, and other features to enhance the 
protection of Government personnel and facilities.
    (2) DOC has assigned the following priority rating to DOSESPP 
contracts or orders: DO-H8.



Sec. 611.603  Procedures.

    (f) Department of State contracting officers are authorized to sign 
DO-H8 rated contracts or orders. It is the responsibility of the 
requirements office to determine which contracts or orders should be 
rated. All contracts with U.S. firms under the DOSESPP will not 
necessarily need to be assigned a priority rating.
    (g) The contracting officer should place a DO-H8 rating on any 
contract or order if there is any doubt as to whether a contractor doing 
work for Embassy security protection will be able to deliver on time. If 
an unrated contract or order is not completed on time, the contracting 
officer may modify the contract or order to add the rating; however, the 
rating shall only be effective for the newly established delivery date, 
not the original delivery date.

[[Page 372]]

    (1) DOC can provide special assistance to implement the DPAS program 
in specific cases. For example, the Department may request a higher 
priority rating, or request that DOC issue a written directive to a 
contractor that is not complying with the DPAS regulations. In addition, 
although the DPAS program normally applies only to U.S. firms, if the 
Department has a prime contract with a foreign firm that will be 
awarding subcontracts with U.S. firms, the Department may request from 
DOC authorization to place a rating on the prime contract.
    (2) Contracting officers or requirements offices who wish to request 
special assistance from DOC must complete DOC Form BXA-999, Request for 
Special Priorities Assistance, and submit it to A/OPE, which will 
arrange for submission of the request to DOC.

                PART 612_ACQUISITION OF COMMERCIAL ITEMS

   Subpart 612.3_Solicitation Provisions and Contract Clauses for the 
                     Acquisition of Commercial Items



Sec. 612.302  Tailoring of provisions and clauses for the acquisition of 
          commercial items.

    (c) The head of the contracting activity shall approve any request 
for a waiver to tailor a clause or otherwise include any additional 
terms or conditions in a solicitation or contract in a manner that is 
inconsistent with customary commercial practice.

[69 FR 19332, Apr. 13, 2004]

[[Page 373]]

           SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES

               PART 613_SIMPLIFIED ACQUISITION PROCEDURES

     Subpart 613.2_Actions At or Below the Micro-Purchase Threshold


Sec. 613.201 General.

              Subpart 613.3_Simplified Acquisition Methods

Sec.

Sec. 613.303 Blanket purchase agreements (BPAs).

Sec. 613.303-5 Purchases under BPAs.

Sec. 613.305 Imprest funds and third party drafts.

Sec. 613.305-3 Conditions for use.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 64 FR 43623, Aug. 11, 1999, unless otherwise noted.

     Subpart 613.2_Actions At or Below the Micro-Purchase Threshold



Sec. 613.201  General.

    (g)(1) The procurement Executive is the agency head's designee for 
the purpose of FAR 13.201(g)(1).

[72 FR 45695, Aug. 15, 2007]

              Subpart 613.3_Simplified Acquisition Methods



Sec. 613.303  Blanket purchase agreements (BPAs).



Sec. 613.303-5  Purchases under BPAs.

    (b) Individual purchases under BPAs for commercial items may exceed 
the simplified acquisition threshold; however, the higher threshold must 
be consistent with the requirements of FAR 13.303-5(b)(1) and (2).
    (c) In accordance with FAR 13.303-5(c), BPAs shall be awarded to 
small businesses to the maximum extent practicable.

[64 FR 43623, Aug. 11, 1999, as amended at 69 FR 19332, Apr. 13, 2004]



Sec. 613.305  Imprest funds and third party drafts.



Sec. 613.305-3  Conditions for use.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 13.305-3(a).

                         PART 614_SEALED BIDDING

                   Subpart 614.2_Solicitation of Bids

Sec.

Sec. 614.201 Preparation of Invitation for Bids (IFB).

Sec. 614.201-70 Use of English language.

           Subpart 614.4_Opening of Bids and Award of Contract


Sec. 614.402 Opening of bids.

Sec. 614.402-1 Unclassified bids.

Sec. 614.402-70 Waiver of public opening of bids.

Sec. 614.404 Rejection of bids.

Sec. 614.404-1 Cancellation of invitations after opening.

Sec. 614.407 Mistakes in bids.

Sec. 614.407-3 Other mistakes disclosed before award.

Sec. 614.407-4 Mistakes after award.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26168, July 11, 1988, unless otherwise noted.

                   Subpart 614.2_Solicitation of Bids

    Source: 64 FR 43623, Aug. 11, 1999, unless otherwise noted.



Sec. 614.201  Preparation of Invitation for Bids (IFB).



Sec. 614.201-70  Use of English language.

    Use of English language solicitations and contracts is mandatory 
unless a deviation has been approved by the Procurement Executive in 
accordance with 601.470. If any part of a contract is not written in the 
English language, the contracting officer shall attach an accurate 
English language translation of such part to the original and each copy 
of the contract, unless the contracting officer determines such action 
is infeasible.

[[Page 374]]

           Subpart 614.4_Opening of Bids and Award of Contract



Sec. 614.402  Opening of bids.



Sec. 614.402-1  Unclassified bids.

    After the unclassified bids have been opened pursuant to FAR 14.402-
1, the bid opening officer shall announce that the opening of bids has 
been completed and that all bidders will be notified as soon as possible 
regarding the award.



Sec. 614.402-70  Waiver of public opening of bids.

    Overseas posts may request waiver of the public opening of bids if 
that activity is inconsistent with local law or legal practice, or with 
post security. For that purpose, the Procurement Executive must approve 
a deviation in accordance with 601.470.



Sec. 614.404  Rejection of bids.



Sec. 614.404-1  Cancellation of invitations after opening.

    The authority to make the determination prescribed in FAR 14.404-
1(c) is delegated, without power of redelegation, to the head of the 
contracting activity. The head of the contracting activity shall obtain 
the concurrence of the Office of the Legal Adviser before making a 
determination pursuant to this subsection.
    (f) The head of the contracting activity is the agency head for the 
purpose of FAR 14.404-1(f). This authority is not redelegable.

[53 FR 26168, July 11, 1988, as amended at 59 FR 66758, Dec. 28, 1994; 
64 FR 43623, Aug. 11, 1999]



Sec. 614.407  Mistakes in bids.



Sec. 614.407-3  Other mistakes disclosed before award.

    The authority to make the determinations prescribed in FAR 14.407 is 
delegated, without power of redelegation, to the head of the contracting 
activity. In conformance with FAR 14.407-3(f), the head of the 
contracting activity shall obtain the concurrence of the Office of the 
Legal Adviser before making any determinations pursuant to this 
subsection.

[53 FR 26168, July 11, 1988. Redesignated and amended at 64 FR 43623, 
Aug. 11, 1999]



Sec. 614.407-4  Mistakes after award.

    The authority to make all determinations prescribed in FAR 14.407-4 
is delegated, without power of redelegation, to the head of the 
contracting activity. In conformance with FAR 14.407-4(d), the head of 
the contracting activity shall consult with the Office of the Legal 
Adviser before making any determinations pursuant to this subsection.

[53 FR 26168, July 11, 1988. Redesignated and amended at 64 FR 43623, 
Aug. 11, 1999]

                   PART 615_CONTRACTING BY NEGOTIATION

   Subpart 615.2_Solicitation and Receipt of Proposals and Information

Sec.

Sec. 615.204 Contract format.

Sec. 615.205 Issuing solicitations.

Sec. 615.205-70 Use of English language.

                     Subpart 615.3_Source Selection


Sec. 615.303 Responsibilities.

                   Subpart 615.6_Unsolicited Proposals


Sec. 615.604 Agency points of contact.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 64 FR 43623, Aug. 11, 1999, unless otherwise noted.

   Subpart 615.2_Solicitation and Receipt of Proposals and Information



Sec. 615.204  Contract format.

    (e) The Procurement Executive is the agency head's designee for the 
purposes of FAR 15.204(e).



Sec. 615.205  Issuing solicitations.

    (a) Contracting officers shall release copies of solicitation 
mailing lists in accordance with FAR 14.205-5(a). However, the list of 
those firms which actually submit proposals is not releasable. Requests 
for information other than

[[Page 375]]

solicitation mailing lists shall be handled under the Freedom of 
Information Act.



Sec. 615.205-70  Use of English language.

    The requirements of DOSAR 614.201-70 also apply when contracting by 
negotiation.

                     Subpart 615.3_Source Selection



Sec. 615.303  Responsibilities.

    (a) The Procurement Executive is the agency head for the purposes of 
FAR 15.303(a).

                   Subpart 615.6_Unsolicited Proposals



Sec. 615.604  Agency points of contact.

    (a)(4) The contact points for unsolicited proposals are the heads of 
the contracting activities.

                       PART 616_TYPES OF CONTRACTS

Sec.

Sec. 616.000 Scope of part.

                   Subpart 616.2_Fixed-Price Contracts


Sec. 616.203 Fixed-Price contracts with economic price adjustment.

Sec. 616.203-4 Contract clauses.

Sec. 616.207 Firm-fixed-price, level-of-effort term contracts.

Sec. 616.207-3 Limitations.

               Subpart 616.5_Indefinite-Delivery Contracts


Sec. 616.505 Ordering.

Sec. 616.506 Solicitation provisions and contract clauses.

Sec. 616.506-70 DOSAR contract clause.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26169, July 11, 1988, unless otherwise noted.



Sec. 616.000  Scope of part.

    The contracting officer may use any of the contract types described 
in FAR part 16 for acquisitions made under simplified acquisition 
procedures. The contracting officer shall document his/her decision to 
use a contract type in accordance with the requirements of FAR part 16.

[60 FR 39963, Aug. 3, 1995]

                   Subpart 616.2_Fixed-Price Contracts



Sec. 616.203  Fixed-Price contracts with economic price adjustment.



Sec. 616.203-4  Contract clauses.

    Contracting officers at domestic contracting activities may use an 
economic price adjustment clause based on cost indexes of labor or 
material in accordance with the circumstances listed in FAR 16.203-4(d) 
and after obtaining the approval of the head of the contracting 
activity. Overseas posts may use the clause at 652.216-71, Price 
Adjustment, when procuring continuing services (e.g., guard, janitorial, 
building maintenance, and gardening). Posts shall obtain A/OPE approval 
for any price adjustment clause that differs from the clause at 652.216-
71.

[53 FR 26169, July 11, 1988, as amended at 59 FR 66759, Dec. 28, 1994]



Sec. 616.207  Firm-fixed-price, level-of-effort term contracts.



Sec. 616.207-3  Limitations.

    The head of the contracting activity is the chief of the contracting 
office for the purposes of FAR 16.207-3.

               Subpart 616.5_Indefinite-Delivery Contracts



Sec. 616.505  Ordering.

    (b)(5) The Departmental Competition Advocate is designated the task 
and delivery order contract ombudsman.

[64 FR 43624, Aug. 11, 1999, as amended at 69 FR 19332, Apr. 13, 2004]



Sec. 616.506  Solicitation provisions and contract clauses.



Sec. 616.506-70  DOSAR contract clause.

    The contracting officer shall insert the clause at 652.216-70, 
Ordering--Indefinite-Delivery Contract, whenever the clause at FAR 
52.216-20, Definite Quantity, or the clause at FAR 52.216-21, 
Requirements, or the clause at FAR 52.216-22, Indefinite Quantity, is 
used.

[53 FR 26169, July 11, 1988. Redesignated at 64 FR 43624, Aug. 11, 1999]

[[Page 376]]

                  PART 617_SPECIAL CONTRACTING METHODS

                   Subpart 617.1_Multiyear Contracting

Sec.

Sec. 617.104 General.

Sec. 617.105 Policy.

Sec. 617.105-1 Uses.

Sec. 617.108 Congressional notification.

                          Subpart 617.2_Options


Sec. 617.201 Definitions.

Sec. 617.201-70 DOSAR Definitions.

Sec. 617.204 Contracts.

      Subpart 617.5_Interagency Acquisitions Under the Economy Act


Sec. 617.503 Determination and findings requirements.

Sec. 617.504-70 Ordering procedures.

            Subpart 617.6_Management and Operating Contracts


Sec. 617.602 Policy.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26169, July 11, 1988, unless otherwise noted.

                   Subpart 617.1_Multiyear Contracting

    Source: 64 FR 43624, Aug. 11, 1999, unless otherwise noted.



Sec. 617.104  General.

    (b) The Procurement Executive is the agency head for the purpose of 
FAR 17.104(b).



Sec. 617.105  Policy.



Sec. 617.105-1  Uses.

    (d) Every multiyear contract shall comply with FAR 17.104(c), unless 
an exception is approved through the budget process in coordination with 
the cognizant financial management office/comptroller.



Sec. 617.108  Congressional notification.

    (a) The Procurement Executive is the agency head for the purposes of 
FAR 17.108(a).

                          Subpart 617.2_Options



Sec. 617.201  Definitions.



Sec. 617.201-70  DOSAR Definitions.

    Evaluated option means an option that is evaluated for award 
purposes by adding the total price for the option(s) to the total price 
for the basic requirement.
    Price option means an option where the amount for the option is 
specified in or is reasonably determinable from the terms of the basic 
contract, as described in FAR 17.207(f) (1) through (5).
    Unevaluated option means an option that is not included in the 
evaluation for award purposes.
    Unpriced option means an option where the prices for the option 
quantities or performance periods are not specified in the contract at 
the time of award and the option prices are negotiated at the time the 
option is exercised.

[53 FR 26169, July 11, 1988, as amended at 59 FR 66759, Dec. 28, 1994]



Sec. 617.204  Contracts.

    (e) The Procurement Executive shall approve any solicitations or 
contracts which exceed the five (5) year maximum length for supplies or 
services. The Procurement Executive may delegate this approval authority 
to individuals within the Office of the Procurement Executive.

[59 FR 66759, Dec. 28, 1994, as amended at 69 FR 19332, Apr. 13, 2004]

      Subpart 617.5_Interagency Acquisitions Under the Economy Act



Sec. 617.503  Determination and findings requirements.

    The authority to make the determination prescribed in FAR 17.503 is 
delegated to the head of the contracting activity.

[64 FR 43624, Aug. 11, 1999]



Sec. 617.504-70  Ordering procedures.

    (a) Department deputy assistant secretaries and Bureau Executive 
Directors or their equivalents are authorized

[[Page 377]]

to execute Economy Act IAAs. Department contracting officers also are 
authorized to execute Economy Act IAAs, as prescribed in FAR 17.504(a).
    (b) Department of State form DS-1921, Award/Modification of 
Interagency Acquisition Agreement, shall be used for all Economy Act 
IAAs where the Department is the requesting agency. It shall also be 
used for Economy Act IAAs where the Department is the servicing agency 
if the requesting agency does not have a similar form that provides the 
same information.

[59 FR 66759, Dec. 28, 1994, as amended at 64 FR 43624, Aug. 11, 1999; 
69 FR 19332, Apr. 13, 2004]

            Subpart 617.6_Management and Operating Contracts



Sec. 617.602  Policy.

    The Assistant Secretary for Administration is the agency head for 
the purposes of FAR 17.602.

[[Page 378]]

                   SUBCHAPTER D_SOCIOECONOMIC PROGRAMS

                    PART 619_SMALL BUSINESS PROGRAMS

Sec.

Sec. 619.000 Scope of part.

                         Subpart 619.2_Policies


Sec. 619.201 General policy.

Sec. 619.202 Specific policies.

Sec. 619.202-70 The Department of State Mentor-Prot[eacute]g[eacute] 
          Program.

    Subpart 619.4_Cooperation with the Small Business Administration


Sec. 619.402 Small Business Administration procurement center 
          representatives.

Sec. 619.402-70 DOS designee.

               Subpart 619.5_Set-Asides for Small Business


Sec. 619.501 General.

Sec. 619.505 Rejecting Small Business Administration recommendations.

Sec. 619.506 Withdrawing or modifying set asides.

     Subpart 619.6_Certificates of Competency and Determinations of 
                               Eligibility


Sec. 619.602 Procedures.

Sec. 619.602-1 Referral.

         Subpart 619.7_The Small Business Subcontracting Program


Sec. 619.705 Responsibilities of the contracting officer under the 
          subcontracting assistance program.

Sec. 619.705-1 General support of the program.

Sec. 619.705-3 Preparing the solicitation.

Sec. 619.705-4 Reviewing the subcontracting plan.

Sec. 619.705-6 Postaward responsibilities of the contracting officer.

Sec. 619.705-6-70 Reporting responsibilities.

Sec. 619.708-70 Solicitation provisions and contract clauses.

 Subpart 619.8_Contracting with the Small Business Administration (The 
                              8(a) Program)


Sec. 619.800 General.

Sec. 619.803 Selecting acquisitions for the 8(a) program.

Sec. 619.803-70 Responsibilities of the Office of Small and 
          Disadvantaged Business Utilization (A/SDBU).

Sec. 619.803-71 Simplified procedures for 8(a) acquisitions under MOUs.

Sec. 619.804 Evaluation, offering, and acceptance.

Sec. 619.804-2 Agency offering.

Sec. 619.804-3 SBA acceptance.

Sec. 619.804-3-70 SBA acceptance under MOUs for acquisitions exceeding 
          $100,000.

Sec. 619.805 Competitive 8(a).

Sec. 619.805-2 Procedures.

Sec. 619.806 Pricing the 8(a) contract.

Sec. 619.808 Contract negotiation.

Sec. 619.808-1 Sole source.

Sec. 619.810 SBA appeals.

Sec. 619.811 Preparing the contracts.

Sec. 619.811-1 Sole source.

Sec. 619.811-2 Competitive.

Sec. 619.811-3 Contract clauses.

Sec. 619.812 Contract administration.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26170, July 11, 1988, unless otherwise noted.



Sec. 619.000  Scope of part.

    (b) It is the Department's policy to provide maximum opportunities 
for U.S. small businesses to participate in the acquisition process. DOS 
contracts that are awarded domestically for performance overseas shall 
be subject to the Small Business Act as a matter of policy. Contracts 
that are both awarded and performed overseas should comply on a 
voluntary basis.

[71 FR 34839, June 16, 2006]

                         Subpart 619.2_Policies



Sec. 619.201  General policy.

    (a) The Operations Director, Office of Small and Disadvantaged 
Business Utilization (A/SDBU), is responsible for performing all 
functions and duties prescribed in FAR 19.201(c) and (d).
    (b) In addition to the requirements of FAR 19.201(b), each head of 
the contracting activity, or designee, is responsible for establishing 
in coordination with the A/SDBU Operations Director annual goals for the 
DOS small business program.
    (d) Pursuant to FAR 19.201(d), each Small and Disadvantaged Business 
Utilization Specialist (SDBUS) is responsible for--
    (1) Maintaining a program to locate capable small business, small 
disadvantaged business, women-owned small

[[Page 379]]

business, HUBZone small business, veteran-owned small business, and 
service-disabled veteran-owned small business sources to fulfill DOS 
acquisition requirements;
    (2) Coordinating inquiries and requests for advice from small 
business, small disadvantaged business, women-owned small business, 
HUBZone small business, veteran-owned small business, and service-
disabled veteran-owned small business concerns on DOS contracting and 
subcontracting opportunities and other acquisition matters;
    (3) Advising contracting activities on new or revised small business 
policies, regulations, procedures, and other related information;
    (4) Assuring that small business, small disadvantaged business, 
women-owned small business, HUBZone small business, veteran-owned small 
business, and service-disabled veteran-owned small business concerns are 
provided adequate specifications or drawings by initiating, in writing, 
with appropriate technical and contracting personnel to ensure that all 
necessary specifications or drawings for current and future 
acquisitions, as appropriate, are available;
    (5) Reviewing all proposed acquisitions in excess of the simplified 
acquisition threshold, including commercial items using the simplified 
acquisition procedures of FAR Subpart 13.5, and task and delivery orders 
under multiple award contracts exceeding $2 million, to assure that 
small business, small disadvantaged business, women-owned small 
business, HUBZone small business, veteran-owned small business, and 
service-disabled veteran-owned small business concerns will be afforded 
an equitable opportunity to compete and, as appropriate, initiating 
recommendations for small business, 8(a), or HUBZone set-asides. This 
includes proposed contract modifications for new or additional 
requirements that do not fall within the original scope of the contract 
and which exceed the simplified acquisition limitation. This does not 
include the exercising of contract options;
    (6) Assuring that contract financing available under existing 
regulations is offered when appropriate and that requests by small 
business concerns for such financing are not treated as a handicap in 
the award of contracts;
    (7) Providing assistance to the contracting officer in making 
determinations concerning responsibility of prospective contractors 
whenever small business concerns are involved;
    (8) Participating in the evaluation of a prime contractor's small, 
small disadvantaged, woman-owned small, HUBZone small, veteran-owned 
small, and service-disabled veteran-owned small business subcontracting 
plans;
    (9) Assuring that the participation of small business, small 
disadvantaged business, women-owned small business, HUBZone small 
business, veteran-owned small business, and service-disabled veteran-
owned small business concerns is accurately reported;
    (10) Attending, as appropriate, debriefings to unsuccessful small 
business, small disadvantaged business, women-owned small business, 
HUBZone small business, veteran-owned small business, and service-
disabled veteran-owned small business concerns to assist those firms in 
understanding requirements for responsiveness and responsibility so that 
the firm may be able to qualify for future awards;
    (11) Making available to SBA copies of solicitations when so 
requested;
    (12) When a bid or offer from a small business, small disadvantaged 
business, women-owned small business, HUBZone small business, veteran-
owned small business, and service-disabled veteran-owned small business 
has been rejected for non-responsiveness or non-responsibility, upon 
request, aid, counsel, and assist that firm in understanding 
requirements for responsiveness and responsibility so that the firm may 
be able to qualify for future awards;
    (13) Participating in Government-industry conferences to assist 
small business concerns, including Business Opportunity/Federal 
Acquisition Conferences, Minority Business Enterprise Acquisition 
Seminars and Business Opportunity Committee meetings;
    (14) Maintaining a list of supplies and services that have been 
placed as repetitive small business set-asides;
    (15) Participating in the development, implementation, and review of

[[Page 380]]

automated source systems to assure that the interests of small business 
concerns are included;
    (16) Advising potential sources how they can obtain information 
about competitive acquisitions;
    (17) Providing small business, small disadvantaged business, women-
owned small business, HUBZone small business, veteran-owned small 
business, and service-disabled veteran-owned small business concerns 
information regarding assistance available from Federal agencies such as 
the Small Business Administration, Minority Business Development Agency, 
Bureau of Indian Affairs, Economic Development Administration, National 
Science Foundation, Department of Labor and others, including State 
agencies and trade associations; and
    (18) Participating in interagency programs relating to small 
business matters as authorized by the A/SDBU Operations Director.
    (f)(1) The Procurement Executive is the agency designee for the 
purposes of FAR 19.201(f)(1). The written determination shall be 
forwarded to the Procurement Executive through the A/SDBU Operations 
Director.

[69 FR 19333, Apr. 13, 2004, as amended at 72 FR 45695, Aug. 15, 2007]



Sec. 619.202  Specific policies.



Sec. 619.202-70  The Department of State Mentor-Prot[eacute]g[eacute] 
          Program.

    (a) Purpose. The Mentor-Prot[eacute]g[eacute] Program is designed to 
motivate and encourage firms to assist small businesses with business 
development, including small disadvantaged businesses, women-owned small 
businesses, HUBZone small businesses, veteran-owned small businesses and 
service-disabled veteran-owned small businesses. The program is also 
designed to improve the performance of DOS contracts and subcontracts, 
foster the establishment of long-term business relationships between 
small businesses and prime contractors, and increase the overall number 
of small businesses that receive DOS contract and subcontract awards. 
The program is limited to non-commercial item acquisitions.
    (b) Definitions. The definitions of small business (SB), HUBZone 
small business concern (HUBZone), small disadvantaged business (SDB), 
women-owned small business (WOSB), veteran-owned small business (VOSB), 
and service-disabled veteran-owned small business (SDVOSB) are the same 
as found in FAR 2.101.
    Mentor means a prime contractor that elects to promote and develop 
small business subcontractors by providing developmental assistance 
designed to enhance the business success of the prot[eacute]g[eacute].
    Prot[eacute]g[eacute] means a small business, HUBZone small 
business, small disadvantaged business, women-owned small business, 
veteran-owned small business, or service-disabled veteran-owned small 
business that is the recipient of developmental assistance pursuant to a 
mentor-prot[eacute]g[eacute] program.
    (c) Non-affiliation. For purposes of the Small Business Act, a 
prot[eacute]g[eacute] firm is not considered an affiliate of a mentor 
firm solely because the prot[eacute]g[eacute] firm is receiving 
developmental assistance from the mentor firm under the program.
    (d) General policy. (1) Eligible business prime contractors not 
included on the ``List of Parties Excluded from Federal Procurement and 
Nonprocurement Programs'' that are approved as mentor firms may enter 
into agreements with eligible prot[eacute]g[eacute].
    (2) A firm's status as a prot[eacute]g[eacute] under a DOS contract 
shall not have an effect on the firm's ability to seek other prime 
contracts or subcontracts.
    (e) Incentives for prime contractor participation. (1) Under the 
Small Business Act (15 U.S.C. 637(d)(4)(E)), DOS is authorized to 
provide appropriate incentives to encourage subcontracting opportunities 
for small businesses consistent with the efficient and economical 
performance of the contract. This authority is limited to negotiated 
acquisitions.
    (2) Before awarding a contract that requires a subcontracting plan, 
the existence of a mentor-prot[eacute]g[eacute] arrangement, and 
performance, if any, under an existing arrangement, may be considered by 
the contracting officer in:

[[Page 381]]

    (i) Evaluating the quality of a proposed subcontracting plan under 
FAR 19.704-5; and,
    (ii) Assessing the prime contractor's compliance with the 
subcontracting plans submitted in previous contracts as a factor in 
determining contractor responsibility under FAR 19.705-5(a)(1).
    (3) A non-monetary award may be presented annually (or as often as 
appropriate) to the mentoring firm providing the most effective 
developmental support of a prot[eacute]g[eacute]. The Mentor-
Prot[eacute]g[eacute] Program Manager will recommend an award winner to 
the Operations Director, A/SDBU.
    (f) Measurement of program success. The success of the DOS Mentor-
Prot[eacute]g[eacute] Program will be measured by:
    (1) The increase in the number and dollar value of contracts awarded 
to prot[eacute]g[eacute] firms under DOS contracts from the date the 
prot[eacute]g[eacute] enters the program;
    (2) The increase in the number and dollar value of contracts and 
subcontracts awarded to the prot[eacute]g[eacute] under other Federal 
agencies and commercial contracts; and,
    (3) The developmental assistance provided by the mentor firm and the 
resulting increase in the technical, managerial, financial or other 
capabilities of the prot[eacute]g[eacute] firm, as reported by the 
prot[eacute]g[eacute].
    (g) Eligibility of mentor firms. A mentor firm:
    (1) May be either a large or small business;
    (2) Must be eligible for award of U.S. Government contracts;
    (3) Must be able to provide developmental assistance that will 
enhance the ability of prot[eacute]g[eacute] to perform as 
subcontractors; and,
    (4) Will be encouraged to enter into arrangements with 
prot[eacute]g[eacute] and firms with whom they have established business 
relationships.
    (h) Eligibility of prot[eacute]g[eacute] firms. (1) A 
prot[eacute]g[eacute] firm must be:
    (i) A SB, HUBZone, SDB, WOSB, VOSB, or SDVOSB as those terms are 
defined in FAR 2.101;
    (ii) Small in the NAICS code for the services or supplies to be 
provided by the prot[eacute]g[eacute] to the mentor; and,
    (iii) Eligible for award of U.S. Government contracts.
    (2) Except for SDB and HUBZone firms, a prot[eacute]g[eacute] firm 
may self-certify to a mentor firm that it meets the requirements set 
forth in paragraph (h)(1) of this subsection. Mentors may rely in good 
faith on written representations by potential prot[eacute]g[eacute] that 
they meet the specified eligibility requirements. SDB status eligibility 
and documentation requirements are determined by FAR 19.304. HUBZone 
status eligibility and documentation requirements are determined by FAR 
19.1303.
    (3) Prot[eacute]g[eacute] may have multiple mentors. 
prot[eacute]g[eacute] participating in mentor-prot[eacute]g[eacute] 
programs in addition to DOS's program should maintain a system for 
preparing separate reports of mentoring activity for each agency's 
program.
    (i) Selection of prot[eacute]g[eacute] firms. (1) Mentor firms are 
solely responsible for selecting prot[eacute]g[eacute] firms. The mentor 
is encouraged to identify and select a broad base of 
prot[eacute]g[eacute] firms whose core competencies support DOS's 
mission.
    (2) Mentors may have multiple prot[eacute]g[eacute].
    (3) The selection of prot[eacute]g[eacute] firms by mentor firms may 
not be protested, except that any protest regarding the size or 
eligibility status of an entity selected by a mentor shall be handled in 
accordance with FAR and SBA regulations.
    (j) Application and agreement process for mentor-
prot[eacute]g[eacute] teams to participate in the program. (1) Firms 
interested in becoming a mentor firm shall apply in writing to A/SDBU. 
The application (Form DS-4053, Department of State Mentor-
Prot[eacute]g[eacute] Program Application), shall be evaluated by the 
nature and extent of technical and managerial support proposed as well 
as the extent of financial assistance in the form of equity investment, 
loans, joint-venture support, and traditional subcontracting support 
proposed.
    (2) A proposed mentor shall submit the application form and 
associated information to A/SDBU.
    (k) A/SDBU review of application. (1) A/SDBU shall review the 
information to ensure the mentor and prot[eacute]g[eacute] are eligible 
and the information provided is complete. A/SDBU shall consult with the 
contracting officer on the adequacy

[[Page 382]]

of the proposed mentor-prot[eacute]g[eacute] arrangement, and its review 
shall be complete no later than 30 calendar days after receipt of the 
application by A/SDBU.
    (2) Upon completion of the review, A/SDBU will advise the mentor if 
its application is acceptable. The mentor may then implement the 
developmental assistance program in accordance with the approved 
agreement.
    (3) The agreement defines the relationship between the mentor and 
prot[eacute]g[eacute] firms only. The agreement itself does not create 
any privity of contract between the mentor or prot[eacute]g[eacute] and 
the DOS.
    (l) Developmental assistance. The forms of developmental assistance 
a mentor can provide to a prot[eacute]g[eacute] include:
    (1) Management guidance relating to:
    (i) Financial management;
    (ii) Organizational management;
    (iii) Overall business management/planning;
    (iv) Business development; and,
    (v) Technical assistance.
    (2) Loans;
    (3) Rent-free use of facilities and/or equipment;
    (4) Property;
    (5) Temporary assignment of personnel to prot[eacute]g[eacute] for 
purpose of training; and,
    (6) Any other types of permissible, mutually beneficial assistance.
    (m) Obligation. (1) A mentor or prot[eacute]g[eacute] firm may 
voluntarily withdraw from the program. However, in no event shall such 
withdrawal impact the program mission and contractual requirements under 
the prime contract.
    (2) Mentor and prot[eacute]g[eacute] firms shall submit to A/SDBU 
annual reports on program progress of the mentor-prot[eacute]g[eacute] 
agreements. Large business mentors may submit these reports as part of 
their SB, HUBZone, SDB, WOSB, VOSB, and SDVOSB plan submission in 
accordance with the due date on the SF-295. DOS shall consider the 
following in evaluating these reports:
    (i) Specific actions taken by the contractor, during the evaluation 
period, to increase the participation of prot[eacute]g[eacute]s as 
suppliers to the U.S. Government and to commercial entities;
    (ii) Specific actions taken by the mentor, during the evaluation 
period, to develop the technical and corporate administrative expertise 
of a prot[eacute]g[eacute] as defined in the agreement;
    (iii) To what extent the prot[eacute]g[eacute] has met the 
developmental objectives in the agreement; and,
    (iv) To what extent the mentor firm's participation in the Mentor-
Prot[eacute]g[eacute] Program resulted in the prot[eacute]g[eacute] 
receiving contract(s) and subcontract(s) from private firms and agencies 
other than the DOS.
    (3) The DOS A/SDBU shall submit the annual reports to the cognizant 
contracting officer regarding participating prime contractor(s) 
performance in the program.
    (4) Mentor and prot[eacute]g[eacute] firms shall submit an 
evaluation to the A/SDBU at the conclusion of the mutually agreed upon 
program period, the conclusion of the contract, or the voluntary 
withdrawal by either party from the program, whichever comes first.
    (n) Internal controls. (1) A/SDBU shall oversee the program and 
shall work with the cognizant contracting officer to achieve program 
objectives.
    (2) DOS may rescind approval of an existing Mentor-
Prot[eacute]g[eacute] agreement if it determines that such an action is 
in the Department's best interest. The recission shall be in writing and 
sent to the mentor and prot[eacute]g[eacute] firms after approval by the 
A/SDBU Operations Director. Recission of an agreement does not change 
the terms of the subcontract between the mentor and the 
prot[eacute]g[eacute] or the prime contractor's obligations under its 
subcontracting plan.
    (o) Solicitation provision and contract clause. (1) The contracting 
officer shall insert the provision at 652.219-72, Department of State 
Mentor-Prot[eacute]g[eacute] Program, in all unrestricted solicitations 
exceeding $500,000 ($1,000,000 for construction) that offer 
subcontracting opportunities.
    (2) The contracting officer shall insert the clause at DOSAR 
652.219-73, Mentor Requirements and Evaluation, in all contracts where 
the prime contractor has signed a Mentor-Prot[eacute]g[eacute] Agreement 
with the Department of State.

[69 FR 19333, Apr. 13, 2004]

[[Page 383]]

    Subpart 619.4_Cooperation with the Small Business Administration



Sec. 619.402  Small Business Administration procurement center 
          representatives.



Sec. 619.402-70  DOS designee.

    Where the FAR requires action by a Small Business Administration 
procurement center representative, but one has not been assigned to the 
DOS contracting activity, the A/SDBU Operations Director shall perform 
the action so required.

               Subpart 619.5_Set-Asides for Small Business



Sec. 619.501  General.

    (c) Contracting officers shall use Department of State Form DS-1910, 
Small Business Review--Actions Above the Simplified Acquisition 
Threshold, to document set-aside decisions.

[59 FR 66759, Dec. 28, 1994, as amended at 60 FR 39663, Aug. 3, 1995; 64 
FR 43624, Aug. 11, 1999]



Sec. 619.505  Rejecting Small Business Administration recommendations.

    The Procurement Executive is the agency head for the purposes of FAR 
19.505.



Sec. 619.506  Withdrawing or modifying set asides.

    (b) The Procurement Executive shall resolve disagreements between 
the A/SDBU Operations Director and the contracting officer.

[59 FR 66759, Dec. 28, 1994]

     Subpart 619.6_Certificates of Competency and Determinations of 
                               Eligibility



Sec. 619.602  Procedures.



Sec. 619.602-1  Referral.

    The contracting officer shall transmit to the A/SDBU Operations 
Director concurrently with the submission to the appropriate SBA 
Regional Office, a copy of the documentation supporting the 
determination that a small business concern is not responsible, as 
required by FAR 19.602-1(a).

         Subpart 619.7_The Small Business Subcontracting Program



Sec. 619.705  Responsibilities of the contracting officer under the 
          subcontracting assistance program.



Sec. 619.705-1  General support of the program.

    It is the Department's policy to incorporate its current fiscal year 
goals as negotiated with the SBA into all pertinent Department 
solicitations, in addition to the standard subcontract clauses. 
Incorporation of the goals does not require that large prime contractors 
must subcontract, but does require that to the extent they plan to 
subcontract, specific goals be established for doing business with 
small, small disadvantaged, women-owned small, HUBZone small, veteran-
owned small, and service-disabled veteran-owned small business firms. 
Where funds are available, an incentive clause such as that found in FAR 
52.219-10, Incentive Subcontracting Program, is encouraged.

[69 FR 19335, Apr. 13, 2004]



Sec. 619.705-3  Preparing the solicitation.

    To further promote the use of small, disadvantaged, women-owned 
small, HUBZone small, veteran-owned small, and service-disabled veteran-
owned small business firms by large prime contractors, contracting 
officers are encouraged to consider the adequacy of the subcontracting 
plans, and/or past performance in achieving negotiated subcontract 
goals, as part of the overall evaluation of the technical proposals.

[69 FR 19335, Apr. 13, 2004]



Sec. 619.705-4  Reviewing the subcontracting plan.

    A/SDBU shall review subcontracting plans to determine if small, 
small disadvantaged, women-owned small, HUBZone small, veteran-owned 
small, and service-disabled veteran-owned small business concerns are 
afforded the maximum practicable opportunity to participate as 
subcontractors. A/

[[Page 384]]

SDBU shall recommend to the contracting officer changes needed to 
subcontracting plans found to be deficient.

[69 FR 19335, Apr. 13, 2004]



Sec. 619.705-6  Postaward responsibilities of the contracting officer.



Sec. 619.705-6-70  Reporting responsibilities.

    (a) The contracting officer shall forward to the A/SDBU Operations 
Director a copy of each subcontracting plan that was incorporated into a 
contract or contract modification. Each contracting activity shall 
maintain a list of its active prime contracts that contain 
subcontracting plans.
    (b) Contracting officers shall collect subcontracting data from 
contractors required to establish subcontracting plans in support of 
small, small disadvantaged, women-owned small, HUBZone small, veteran-
owned small, and service-disabled veteran-owned small business concerns. 
This data shall be collected annually and semiannually, using Standard 
Form 295, Summary Subcontracting Report, for the annual submissions, and 
Standard Form 294, Subcontracting Report for Individual Contracts, for 
the semiannual submissions. The head of the contracting activity shall 
forward these reports to the A/SDBU Operations Director, not later than 
the 30th day of the month following the close of the reporting period.

[53 FR 26170, July 11, 1988, as amended at 59 FR 66760, Dec. 28, 1994; 
69 FR 19335, Apr. 13, 2004]



Sec. 619.708-70  Solicitation provisions and contract clauses.

    The contracting officer shall insert a provision substantially the 
same as the provision at 652.219-70, Department of State Subcontracting 
Goals, in solicitations whenever the clause at FAR 52.219-9, Small 
Business Subcontracting Plan, is used.

[59 FR 66760, Dec. 28, 1994, as amended at 69 FR 19335, Apr. 13, 2004]

 Subpart 619.8_Contracting with the Small Business Administration (The 
                              8(a) Program)

    Source: 64 FR 43624, Aug. 11, 1999, unless otherwise noted.



Sec. 619.800  General.

    (d) Utilizing Memoranda of Understanding (MOUs), the SBA has 
delegated its authority to contract directly with program participants 
under Section 8(a) of the Small Business Act to the Senior Procurement 
Executives of various Federal contracting activities. The Department of 
State has signed an MOU with SBA, effective May 6, 1998. Under the MOU, 
a contract may be awarded directly to an 8(a) firm on either a sole 
source or competitive basis. The SBA reserves the right to withdraw any 
delegation issued as a result of an MOU; however, any such withdrawal 
shall have no effect on contracts currently awarded under the MOU.



Sec. 619.803  Selecting acquisitions for the 8(a) program.



Sec. 619.803-70  Responsibilities of the Office of Small and 
          Disadvantaged Business Utilization (A/SDBU).

    A/SDBU shall review the capabilities of 8(a) concerns and 
disseminate that information to DOS program and contracting personnel. 
As necessary, A/SDBU shall obtain from the SBA or 8(a) concerns 
supplemental information for DOS program and contracting personnel.



Sec. 619.803-71  Simplified procedures for 8(a) acquisitions under MOUs.

    Contracting activities may use the simplified acquisition procedures 
of FAR part 13 and DOSAR part 613 to issue purchase orders or contracts, 
not exceeding $100,000, to 8(a) participants. The $100,000 limitation 
for use of FAR part 13 simplified acquisition procedures applies to the 
acquisition of both commercial and non-commercial items. The following 
applies to such acquisitions:
    (a) Neither offering letters to, nor acceptance letters from, the 
SBA are required.

[[Page 385]]

    (b) The contracting activity shall use the Central Contractor 
Registration database (http://www.ccr.gov) to establish that the 
selected 8(a) firm is a current program participant.
    (c) Once an 8(a) contractor has been identified, the agency 
contracting officer shall establish the price with the selected 8(a) 
contractor.
    (d) The contracting officer shall issue the purchase order or 
contract directly to the 8(a) firm in accordance with the provisions of 
FAR part 13 and DOSAR part 613. The contracting officer shall insert FAR 
clause 52.219-14, Limitations on Subcontracting, and DOSAR clause 
652.219-71, Section 8(a) Direct Award, in all purchase orders and 
contracts awarded under this subsection. The contracting officer's title 
shall include the contracting activity, as follows: Contracting Officer 
for the Department of State [insert contracting activity]. In addition, 
in accordance with the MOU, A/SDBU staff who have been issued limited 
contracting officer warrants for this purpose, shall sign the purchase 
order or contract as a third party.
    (e) The contracting officer shall forward to the SBA District Office 
serving the 8(a) firm a copy of the purchase order or contract within 
five days after the order is issued.

[64 FR 43624, Aug. 11, 1999, as amended at 71 FR 34839, June 16, 2006]



Sec. 619.804  Evaluation, offering, and acceptance.



Sec. 619.804-2  Agency offering.

    (a) When applicable, this notification shall identify that the 
offering is in accordance with the MOU identified in 619.800.



Sec. 619.804-3  SBA acceptance.



Sec. 619.804-3-70  SBA acceptance under MOUs for acquisitions exceeding 
          $100,000.

    (a) The SBA's decision whether to accept the requirement shall be 
transmitted to the contracting agency in writing within five working 
days of receipt of the offer.
    (b) The SBA may request, and the contracting agency may grant, an 
extension beyond the five-day limit.
    (c) SBA's acceptance letter should be faxed or e-mailed to the 
offering contracting agency.
    (d) If the offering contracting agency has not received an 
acceptance or rejection of the offering from SBA within five days of 
SBA's receipt of the offering letter, the contracting agency may assume 
that the requirement has been accepted and proceed with the acquisition.
    (e) The contents of the acceptance letter shall be limited to the 
eligibility of the recommended 8(a) contractor.



Sec. 619.805  Competitive 8(a).



Sec. 619.805-2  Procedures.

    (a) 8(a) acquisitions may also be conducted using simplified 
acquisition procedures (see FAR part 13). The award process is 
significantly streamlined where an MOU is in place.
    (b) For requirements exceeding $100,000 processed under the MOU 
cited in 619.800, the contracting officer shall submit the name, 
address, and telephone number of the low offeror (in sealed bid 
acquisitions) or the apparent successful offeror (in negotiated 
acquisitions) to the SBA Business Opportunity Specialist at the field 
office servicing the identified 8(a) firm. The SBA shall determine the 
eligibility of the firm(s) and advise the contracting officer within two 
working days of the receipt of the request. If the firm is determined to 
be ineligible, the contracting officer shall submit information on the 
next low offeror or next apparent successful offeror, as applicable, to 
the cognizant SBA field office.

[64 FR 43624, Aug. 11, 1999, as amended at 69 FR 19335, Apr. 13, 2004; 
72 FR 45695, Aug. 15, 2007]



Sec. 619.806  Pricing the 8(a) contract.

    (a) When required by FAR subpart 15.4, the contracting officer shall 
obtain certified cost or pricing data directly from the 8(a) contractor 
if the contract is being awarded under the MOU cited in 619.800.



Sec. 619.808  Contract negotiation.



Sec. 619.808-1  Sole source.

    (a) If the acquisition is conducted under an MOU cited in 619.800, 
the 8(a)

[[Page 386]]

contractor is responsible for negotiating with the agency within the 
time established by the agency. If the 8(a) contractor does not 
negotiate within the established time and the agency cannot allow 
additional time, the agency may, after notification and approval by SBA, 
proceed with the acquisition from other sources.
    (b) If the acquisition is conducted under an MOU cited in 619.800, 
the agency is delegated the authority to negotiate directly with the 
8(a) participant; however, if requested by the 8(a) participant, the SBA 
may participate in the negotiations.



Sec. 619.810  SBA appeals.

    (c) The Procurement Executive is the agency head for the purposes of 
FAR 19.810(c).

[64 FR 43624, Aug. 11, 1999, as amended at 72 FR 45696, Aug. 15, 2007]



Sec. 619.811  Preparing the contracts.



Sec. 619.811-1  Sole source.

    (d) If the award is to be made under an MOU cited in 619.800, the 
contract to be awarded by the contracting activity to the 8(a) firm 
shall be prepared in accordance with the contracting activity's normal 
procedures, given contract type and dollar amount, that the contracting 
activity would use for a similar, non-8(a) acquisition, except for the 
following:
    (1) The award form shall cite 41 U.S.C. 253(c)(5) or 10 U.S.C. 
2304(c)(5), as appropriate, and 15 U.S.C. 637(a) as the authority for 
use of other than full and open competition.
    (2) The contracting officer shall insert FAR 52.219-14, Limitations 
on Subcontracting, and DOSAR 652.219-71, Section 8(a) Direct Awards.
    (3) For acquisitions exceeding $100,000, the contracting activity 
shall include SBA's requirement number on the award document.
    (4) A single award document shall be used between the agency and the 
8(a) contractor, i.e., an SBA signature will not be required. The title 
of the agency contracting officer shall include the contracting 
activity, as follows: Contracting Officer for the Department of State 
[insert contracting activity]. In addition, in accordance with the MOU, 
A/SDBU staff who have been issued limited contracting officer warrants 
for this purpose shall sign the contract as a third party. The 8(a) 
contractor's signature shall be placed on the award document as the 
prime contractor. The 8(a) contractor's name and address shall be placed 
in the ``Awarded to'' or ``Contractor name'' block on the appropriate 
form.



Sec. 619.811-2  Competitive.

    (a) If the award is made under the delegation of 8(a) contracting 
authority, competitive contracts for 8(a) firms shall be prepared in 
accordance with the same standards as 8(a) sole source contracts. See 
619.811-1.
    (b) If the acquisition is conducted under the MOU cited in 619.800, 
the process for obtaining signatures shall be as specified in 619.811-
1(d)(4).



Sec. 619.811-3  Contract clauses.

    (d) The contracting officer shall insert the clause at FAR 52.219-
18, Notification of Competition Limited to Eligible 8(a) Concerns, 
(Deviation), in competitive solicitations and contracts exceeding 
$100,000 when the acquisition is processed under the MOU cited in 
619.800.
    (e) The contracting officer shall insert the clause at FAR 52.219-
14, Limitations on Subcontracting, and DOSAR 652.219-71, Section 8(a) 
Direct Awards, in all solicitations and contracts that are processed 
under the MOU cited at 619.800. The clauses at FAR 52.219-11, Special 
8(a) Contract Conditions; 52.219-12, Special 8(a) Subcontract 
Conditions; and, 52.219-17, Section 8(a) Award, shall not be used.

[64 FR 43624, Aug. 11, 1999, as amended at 71 FR 34839, June 16, 2006; 
72 FR 45696, Aug. 15, 2007]



Sec. 619.812  Contract administration.

    (d) The head of the contracting activity is the agency head for the 
purposes of FAR 19.812(d). Awards under the MOU cited in 619.800 are 
subject to 15 U.S.C. 637(a)(21). These contracts contain the clause at 
DOSAR 652.219-71, Section 8(a) Direct Awards, that requires the 8(a) 
contractor to notify the SBA and the contracting officer when ownership 
of the firm is being transferred.

[[Page 387]]

      PART 622_APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

       Subpart 622.3_Contract Work Hours and Safety Standards Act

Sec.

Sec. 622.302 Liquidated damages and overtime pay.

   Subpart 622.4_Labor Standards for Contracts Involving Construction


Sec. 622.404 Davis-Bacon Act wage determinations.

Sec. 622.404-3 Procedures for requesting wage determinations.

Sec. 622.404-6 Modifications of wage determinations.

Sec. 622.404-7 Correction of wage determinations containing clerical 
          errors.

Sec. 622.404-11 Wage determination appeals.

Sec. 622.406 Administration and enforcement.

Sec. 622.406-1 Policy.

Sec. 622.406-8 Investigations.

Sec. 622.406-9 Withholding from or suspension of contract payments.

Sec. 622.406-10 Disposition of disputes concerning construction contract 
          labor standards enforcement.

Sec. 622.406-11 Contract terminations.

Sec. 622.406-12 Cooperation with the Department of Labor.

             Subpart 622.6_Walsh-Healey Public Contracts Act


Sec. 622.604 Exemptions.

Sec. 622.604-2 Regulatory exemptions.

               Subpart 622.8_Equal Employment Opportunity


Sec. 622.803 Responsibilities.

Sec. 622.807 Exemptions.

 Subpart 622.13_Special Disabled Veterans, Veterans of the Vietnam Era, 
                       and Other Eligible Veterans


Sec. 622.1305 Waivers.

Sec. 622.1310 Solicitation provision and contract clauses.

         Subpart 622.14_Employment of Workers with Disabilities


Sec. 622.1403 Waivers.

Sec. 622.1408 Contract clause.

Subpart 622.15_Prohibition of Acquisition of Products Produced by Forced 
                        or Indentured Child Labor


Sec. 622.1503 Procedures for acquiring end products on the List of 
          Products Requiring Contractor Certification as to Forced or 
          Indentured Child Labor.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26172, July 11, 1988, unless otherwise noted.

       Subpart 622.3_Contract Work Hours and Safety Standards Act



Sec. 622.302  Liquidated damages and overtime pay.

    The authority to make the determination prescribed in FAR 22.302(c) 
is delegated, without power of redelegation, to the head of the 
contracting activity.

[55 FR 5774, Feb. 16, 1990]

   Subpart 622.4_Labor Standards for Contracts Involving Construction

    Source: 55 FR 5774, Feb. 16, 1990, unless otherwise noted.



Sec. 622.404  Davis-Bacon Act wage determinations.



Sec. 622.404-3  Procedures for requesting wage determinations.

    The cognizant contracting activity (see 601.603-70) is the 
contracting agency for the purposes of 22.404-3(b) and (d).

[53 FR 26172, July 11, 1988, as amended at 72 FR 45696, Aug. 15, 2007]



Sec. 622.404-6  Modifications of wage determinations.

    The cognizant contracting activity is the contracting agency for the 
purposes of FAR 22.404-6.
    (b)(6) The head of the contracting activity is the agency head's 
designee for the purposes of FAR 22.404-6(b)(6).

[55 FR 5774, Feb. 16, 1990, as amended at 59 FR 66760, Dec. 28, 1994]

[[Page 388]]



Sec. 622.404-7  Correction of wage determinations containing clerical 
          errors.

    The cognizant contracting activity is the contracting agency for the 
purposes of FAR 22.404-7.



Sec. 622.404-11  Wage determination appeals.

    The cognizant contracting activity is the contracting agency for the 
purposes of FAR 22.404-11.



Sec. 622.406  Administration and enforcement.



Sec. 622.406-1  Policy.

    The cognizant contracting activity is the contracting agency for the 
purposes of FAR 22.406-1(a).



Sec. 622.406-8  Investigations.

    (a) The chief of the contracting activity is responsible for 
conducting labor standards investigations as prescribed in FAR 22.406-
8(a).
    (d) The Procurement Executive is the agency head's designee for the 
purposes of FAR 22.406-8(d).



Sec. 622.406-9  Withholding from or suspension of contract payments.

    The authority to suspend contract payments pursuant to FAR 22.406-
9(b) is delegated, without power of redelegation, to the head of the 
contracting activity.



Sec. 622.406-10  Disposition of disputes concerning construction 
          contract labor standards enforcement.

    The cognizant contracting activity is the contracting agency for the 
purposes of FAR 22.406-10(b).



Sec. 622.406-11  Contract terminations.

    The cognizant contracting activity is the contracting agency for the 
purposes of FAR 22.406-11.



Sec. 622.406-12  Cooperation with the Department of Labor.

    Any information furnished to the Department of Labor pursuant to FAR 
22.406-12(a) shall be submitted through the head of the contracting 
activity.

             Subpart 622.6_Walsh-Healey Public Contracts Act



Sec. 622.604  Exemptions



Sec. 622.604-2  Regulatory exemptions.

    The Procurement Executive is the agency head for the purposes of FAR 
22.604-2(b)(1).

[55 FR 5774, Feb. 16, 1990, as amended at 71 FR 34839, June 16, 2006]

               Subpart 622.8_Equal Employment Opportunity



Sec. 622.803  Responsibilities.

    (c) The Procurement Executive is the agency head for the purpose of 
FAR 22.803(c).

[64 FR 43626, Aug. 11, 1999]



Sec. 622.807  Exemptions.

    The Procurement Executive is the agency head for the purposes of FAR 
22.807(a)(1).

 Subpart 622.13_Special Disabled Veterans, Veterans of the Vietnam Era, 
                       and Other Eligible Veterans



Sec. 622.1305  Waivers.

    The Procurement Executive is the agency head for the purposes of FAR 
22.1305.

[53 FR 26172, July 11, 1988. Redesignated and amended at 69 FR 19335, 
Apr. 13, 2004]



Sec. 622.1310  Solicitation provision and contract clauses.

    The Procurement Executive is the agency head for the purposes of FAR 
22.1310 (a)(1)(ii) and (a)(2).

[55 FR 5775, Feb. 16, 1990. Redesignated and amended at 69 FR 19336, 
Apr. 13, 2004; 72 FR 45696, Aug. 15, 2007]

         Subpart 622.14_Employment of Workers with Disabilities



Sec. 622.1403  Waivers.

    The Procurement Executive is the agency head for the purposes of FAR 
22.1403.

[[Page 389]]



Sec. 622.1408  Contract clause.

    The Procurement Executive is the agency head for the purposes of FAR 
22.1408.

[55 FR 5775, Feb. 16, 1990]

Subpart 622.15_Prohibition of Acquisition of Products Produced by Forced 
                        or Indentured Child Labor



Sec. 622.1503  Procedures for acquiring end products on the List of 
          Products Requiring Contractor Certification as to Forced or 
          Indentured Child Labor.

    (e) The contracting officer shall refer to the DOS Inspector General 
for Investigation any instances where the contracting officer has reason 
to believe that forced or indentured child labor was used to mine, 
produce, or manufacture an end product furnished pursuant to a contract 
awarded subject to the certification required in FAR 22.1503(c).

[69 FR 19336, Apr. 13, 2004]

  PART 623_ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY 
       TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

Subpart 623.3_Hazardous Material Identification and Material Safety Data

Sec.

Sec. 623.302-70 Policy.

                Subpart 623.4_Use of Recovered Materials


Sec. 623.400 Scope of subpart.

                    Subpart 623.5_Drug-Free Workplace


Sec. 623.506 Suspension of payments, termination of contract, and 
          debarment and suspension actions.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26172, July 11, 1988, unless otherwise noted.

Subpart 623.3_Hazardous Material Identification and Material Safety Data



Sec. 623.302-70  Policy.

    Any work which affects the safety and/or health of post personnel, 
including the handling of hazardous materials, shall comply with the 
applicable requirements of the Department of State Safety/Health and 
Environmental Management Resource Guide (6 FAM 606.7). Requirements 
offices shall ensure that any contractor operations and activities, 
whether sponsored by the post or other Department organization, are 
closely coordinated with the Post Occupational Safety and Health Officer 
during both planning and implementation phases.

[59 FR 66760, Dec. 28, 1994]

                Subpart 623.4_Use of Recovered Materials

    Source: 64 FR 43626, Aug. 11, 1999, unless otherwise noted.



Sec. 623.400  Scope of subpart.

    The affirmative procurement program is applicable to all domestic 
acquisitions of items currently designated by an EPA guideline or by 
future guidelines promulgated by EPA. The requirements of this section 
are not applicable to acquisitions awarded outside the United States or 
its possessions.

[64 FR 43626, Aug. 11, 1999, as amended at 69 FR 19336, Apr. 13, 2004]

                    Subpart 623.5_Drug-Free Workplace



Sec. 623.506  Suspension of payments, termination of contract, and 
          debarment and suspension actions.

    The authority to approve the determination prescribed in FAR 
23.506(e) is reserved to the Secretary of State.

[55 FR 5775, Feb. 16, 1990]

[[Page 390]]

        PART 624_PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

    Authority: 22 U.S.C. 2658; 40 U.S.C. 486(c); 48 CFR Subpart 1.3.

                Subpart 624.2_Freedom of Information Act



Sec. 624.202  Policy.

    DOS regulations implementing the Freedom of Information Act (5 
U.S.C. 552), as amended, are codified in Chapter 1, Department of State, 
Subchapter R, Access to Information, Part 171, Availability of 
information and records to the public, of Title 22 of the Code of 
Federal Regulations (22 CFR Part 171).

[53 FR 26172, July 11, 1988]

                      PART 625_FOREIGN ACQUISITION

                 Subpart 625.1_Buy American Act_Supplies

Sec.

Sec. 625.103 Exceptions.

Sec. 625.105 Determining reasonableness of cost.

          Subpart 625.2_Buy American Act_Construction Materials


Sec. 625.202 Exceptions.

Sec. 625.204 Evaluating offers of foreign construction material.

        Subpart 625.70_Arab League Boycott and Related Provisions


Sec. 625.7001 Policy.

Sec. 625.7002 Solicitation provision and contract clause.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26172, July 11, 1988, unless otherwise noted.

                 Subpart 625.1_Buy American Act_Supplies



Sec. 625.103  Exceptions.

    (a) The authority to make the determination prescribed in FAR 
25.103(a) is delegated, without power of redelegation, to the head of 
the contracting activity.

[69 FR 19336, Apr. 13, 2004]



Sec. 625.105  Determining reasonableness of cost.

    (a)(1) The authority to make the determinations prescribed in FAR 
25.105(a)(1) is delegated, without power of redelegation, to the head of 
the contracting activity.

[69 FR 19336, Apr. 13, 2004]

          Subpart 625.2_Buy American Act_Construction Materials



Sec. 625.202  Exceptions.

    (a)(1) The authority to make the determination prescribed in FAR 
25.202(a)(1) is delegated, without power of redelegation, to the head of 
the contracting activity.

[69 FR 19336, Apr. 13, 2004]



Sec. 625.204  Evaluating offers of foreign construction material.

    (b) The head of the contracting activity is the agency head for the 
purposes of FAR 25.204(b).

[69 FR 19336, Apr. 13, 2004]

        Subpart 625.70_Arab League Boycott and Related Provisions

    Source: 64 FR 43626, Aug. 11, 1999, unless otherwise noted.



Sec. 625.7001  Policy.

    (a) Section 565 of the Fiscal Year 94/95 Foreign Relations 
Authorizations Act (Public Law 103-236) prohibits the Department of 
State from entering into any contract that expends funds appropriated to 
the Department of State:
    (1) With a foreign person that complies with the Arab League Boycott 
of Israel; or,
    (2) With any foreign or United States person that discriminates in 
the award of subcontracts on the basis of religion.
    (b) This authority has continuing effect. Section 565 requires 
specific language to be included in all Invitations for Bids and 
Requests for Proposals with respect to a contract subject to Section 
565's prohibitions.
    (c) Section 565 may be waived on a country-by-country basis if such 
a waiver is in the national interest and

[[Page 391]]

necessary to carry on diplomatic functions and is approved by the 
Secretary of State or his/her designee.



Sec. 625.7002  Solicitation provision and contract clause.

    Contracting officers shall include the following provision and 
clause in all solicitations and contracts exceeding the simplified 
acquisition threshold, unless a waiver has been granted in accordance 
with DOSAR 625.7001(c):
    (a) 652.225-70, Arab League Boycott of Israel; and.
    (b) 652.225-71, Section 8(a) of the Export Administration Act, as 
amended.

[[Page 392]]

              SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS

                 PART 627_PATENTS, DATA, AND COPYRIGHTS

                          Subpart 627.2_Patents

Sec.

Sec. 627.203 Patent indemnification of Government by contractor.

Sec. 627.203-6 Clause for Government waiver of indemnity.

         Subpart 627.3_Patent Rights Under Government Contracts


Sec. 627.303 Contract clauses.

Sec. 627.304 Procedures.

Sec. 627.304-1 General.

Sec. 627.304-5 Appeals.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 59 FR 66763, Dec. 28, 1994, unless otherwise noted.

                          Subpart 627.2_Patents



Sec. 627.203  Patent indemnification of Government by contractor.



Sec. 627.203-6  Clause for Government waiver of indemnity.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 27.203-6.

         Subpart 627.3_Patent Rights Under Government Contracts



Sec. 627.303  Contract clauses.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 27.303. Determinations issued by the Procurement 
Executive shall be reviewed by the Office of the Legal Adviser.



Sec. 627.304  Procedures.



Sec. 627.304-1  General.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 27.304-1. Questions regarding fact-finding procedures as 
specified in FAR 27.304-1(a)(4) shall be referred to A/OPE. 
Determinations issued by the Procurement Executive shall be reviewed by 
the Office of the Legal Adviser.



Sec. 627.304-5  Appeals.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 27.304-5. Questions regarding the appeals procedure as 
specified in FAR 27.304-5(b) shall be referred to A/OPE.

                      PART 628_BONDS AND INSURANCE

                           Subpart 628.1_Bonds

Sec.

Sec. 628.101 Bid guarantees.

Sec. 628.101-1 Policy on use.

Sec. 628.106-6 Furnishing information.

          Subpart 628.2_Sureties and Other Securities for Bonds


Sec. 628.203 Acceptability of individual surety.

Sec. 628.203-7 Exclusion of individual sureties.

                         Subpart 628.3_Insurance


Sec. 628.305 Overseas workers' compensation and war-hazard insurance.

Sec. 628.309 Contract clauses for workers' compensation insurance.

Sec. 628.309-70 DOSAR provisions and clauses.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26173, July 11, 1988, unless otherwise noted.

                           Subpart 628.1_Bonds

    Source: 59 FR 66763, Dec. 28, 1994, unless otherwise noted.



Sec. 628.101  Bid guarantees.



Sec. 628.101-1  Policy on use.

    (c) The Procurement Executive is the agency head's designee for the 
purposes of FAR 28.101-1(c).



Sec. 628.106-6  Furnishing information.

    (c) The head of the contracting activity is the agency head's 
designee for the purposes of FAR 28.106-6(c).

[[Page 393]]

          Subpart 628.2_Sureties and Other Securities for Bonds



Sec. 628.203  Acceptability of individual surety.

    (g) Evidence of possible criminal or fraudulent activities by an 
individual surety shall be referred to the Assistant Inspector General 
for Investigations.

[59 FR 66763, Dec. 28, 1994, as amended at 69 FR 19336, Apr. 13, 2004]



Sec. 628.203-7  Exclusion of individual sureties.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 28.203-7.

[59 FR 66763, Dec. 28, 1994]

                         Subpart 628.3_Insurance

    Source: 71 FR 34840, June 16, 2006, unless otherwise noted.



Sec. 628.305  Overseas workers' compensation and war-hazard insurance.

    (b)(1) Acquisitions for services, including construction but 
excluding personal services contracts, requiring contractor personnel to 
perform work outside of the United States, shall include the contractual 
obligation for coverage under the Defense Base Act (42 U.S.C. Sections 
1651-1654, as amended), for covered contractor employees. For the 
purposes of this section, ``covered contractor employees'' includes the 
following individuals:
    (i) United States citizens or residents;
    (ii) Individuals hired in the United States or its possessions, 
regardless of citizenship; and,
    (iii) Local nationals and third country nationals where contract 
performance takes place in a country where there are no local workers' 
compensation laws.
    (2) Individuals who are self-employed (i.e., they have not 
incorporated) do not meet the definition of an employee. No Defense Base 
Act insurance is required when contracting with these individuals.
    (3) Exceptions are discussed in paragraphs (e)(1) and (f) of this 
section.
    (c) The Department of State has entered into a contract with an 
insurance broker and carrier to provide Defense Base Act insurance (at a 
fixed rate for services and construction) to cover DOS contracts that 
require performance overseas by covered contractor employees. Upon award 
of a contract that requires Defense Base Act insurance, the contracting 
officer shall provide the contractor with the name of the insurance 
broker from which the contractor must acquire the Defense Base Act 
insurance.
    (d) The authority to recommend a waiver from the Defense Base Act, 
as set forth in FAR 28.305(d), is reserved to the Secretary of State.
    (e)(1) The Secretary of Labor has waived the applicability of the 
Defense Base Act to all DOS service contracts, including construction, 
for contractor employees who are local nationals or third country 
nationals. This waiver is conditioned on the requirement for the 
contractor to provide workers' compensation benefits against the risk of 
work injury or death and assume liability toward the employees and their 
beneficiaries for war-hazard injury, death, capture, or detention as 
prescribed by the local workers' compensation laws.
    (2) In cases where a contract is performed in a country where there 
are no local workers' compensation laws, local and third country 
national contractor employees are considered to be ``covered contractor 
employees'', and the contractor shall acquire Defense Base Act insurance 
for those employees pursuant to the contract between the Department of 
State and the Defense Base Act insurance broker.
    (f)(1) Section 16 of the State Department Basic Authorities Act (22 
U.S.C. 2680a), as amended, provides that the Defense Base Act shall not 
apply with respect to such contracts as the Secretary of State 
determines are contracts with persons employed to perform work for the 
Department of State on an intermittent basis for not more than 90 days 
in a calendar year. The Department of State has established that 
``persons'' includes employees hired by companies under contract with 
the Department. The Procurement Executive has the authority to

[[Page 394]]

issue the waivers for employees who work on an intermittent or short-
term basis. Waivers may be issued only for employees who are U.S. 
citizens and residents, and only where the contractor provides evidence 
of alternative workers' compensation coverage for those employees. 
Waivers may not be issued for local or third country nationals.
    (2) The contractor shall submit waiver requests to the contracting 
officer. The request shall contain the following information:
    (i) Contract number;
    (ii) Name of contractor;
    (iii) Brief description of the services to be provided under the 
contract and country of performance;
    (iv) Name and position title of individual(s);
    (v) Nationality of individual(s) (must be U.S. citizen or resident);
    (vi) Dates (or timeframe) of performance at the overseas location; 
and
    (vii) Evidence of alternative workers' compensation coverage for 
these employees (e.g., evidence that the State workers' compensation 
program covers workers on short-term foreign assignments).
    (3) The contracting officer shall review the request for 
completeness and accuracy. If the request is complete and accurate, the 
contracting officer shall forward the request to the Procurement 
Executive. If the contractor does not provide complete and accurate 
information, the contracting officer shall return the request to the 
contractor with an explanation as to what additional information is 
required.
    (4) The Procurement Executive shall review requests for waiver 
forwarded by the contracting officer and either approve or disapprove 
the request. The Procurement Executive shall return the request 
indicating his/her approval or disapproval to the contracting officer. 
Any request that is not approved shall describe the reason(s) why the 
request was not approved. The contracting officer shall provide the 
contractor with the original of the approved or disapproved document and 
maintain a copy in the contract file.



Sec. 628.309  Contract clauses for workers' compensation insurance.



Sec. 628.309-70  DOSAR provisions and clauses.

    (a) The contracting officer shall insert the provision at 652.228-
70, Defense Base Act--Covered Contractor Employees, in all solicitations 
for services and construction to be performed outside of the United 
States.
    (b) The contracting officer shall insert the clause at 652.228-71, 
Workers' Compensation Insurance (Defense Base Act)--Services, in 
solicitations and contracts for services to be performed outside of the 
United States when there is a reasonable expectation that offers will 
include covered contractor employees, as defined in 628.305(b). If the 
contracting officer is unsure as to whether offers will include covered 
contractor employees, the contracting officer shall insert the clause. 
If the contract is for construction, the contracting officer shall 
insert the clause with its Alternate I.
    (c) The contracting officer shall insert the provision at 652.228-
74, Defense Base Act Insurance Rates--Limitation, in solicitations for 
services or construction to be performed outside of the United States 
when there is a reasonable expectation that offers will include covered 
contractor employees, as defined in 628.305(b). If the contracting 
officer is unsure as to whether offers will include covered contractor 
employees, the contracting officer shall insert the provision.

                             PART 629_TAXES

                          Subpart 629.1_General

Sec.

Sec. 629.101 Resolving tax problems.

                   Subpart 629.2_Federal Excise Taxes


Sec. 629.202 General exemptions.

Sec. 629.202-70 Exemption from other Federal taxes.

                   Subpart 629.3_State and Local Taxes


Sec. 629.302 Application of State and local taxes to the Government.

Sec. 629.303 Application of State and local taxes to Government 
          contractors and subcontractors.

[[Page 395]]

                     Subpart 629.4_Contract Clauses


Sec. 629.401 Domestic contracts.

Sec. 629.401-70 DOSAR contract clause.

Sec. 629.402 Foreign contracts.

Sec. 629.402-1 Foreign fixed-price contracts.

Sec. 629.402-1-70 DOSAR contract clause.

    Authority: 22 U.S.C. 2658; 40 U.S.C. 486(c); 48 CFR Subpart 1.3.

    Source: 53 FR 26173, July 11, 1988, unless otherwise noted.

                          Subpart 629.1_General



Sec. 629.101  Resolving tax problems.

    In certain instances, acquisitions by posts are exempt from various 
taxes in foreign countries. Contracting officers shall ascertain such 
exemptions and take maximum advantage of them.

                   Subpart 629.2_Federal Excise Taxes



Sec. 629.202  General exemptions.



Sec. 629.202-70  Exemptions from other Federal taxes.

    Taxable articles purchased for presentation abroad as gifts to 
foreign dignitaries and taxable articles purchased for presentation as 
gifts to foreign dignitaries visiting in the United States but which are 
to be taken out of the United States may be exempt from retail taxes or 
manufacturers excise taxes, in accordance with the letter of October 18, 
1963, from the Chief, Excise Tax Branch, Internal Revenue Service.

                   Subpart 629.3_State and Local Taxes



Sec. 629.302  Application of State and local taxes to the Government.

    The Office of the Legal Adviser is the agency-designated counsel for 
the purposes of FAR 29.302(a).



Sec. 629.303  Application of State and local taxes to Government 
          contractors and subcontractors.

    The authority to make the determination prescribed in FAR 29.303(a) 
is delegated, without power of redelegation, to the head of the 
contracting activity (see 601.603-70). The Office of the Legal Adviser 
is the agency-designated counsel for the purposes of FAR 29.303(c).

                     Subpart 629.4_Contract Clauses



Sec. 629.401  Domestic contracts.



Sec. 629.401-70  DOSAR contract clause.

    The contracting officer shall insert the clause at 652.229-71, 
Excise Tax Exemption Statement for Contractors Within the United States, 
in solicitations and contracts if the prospective contractor is located 
inside the United States and the acquisition involves export of supplies 
to an overseas post.



Sec. 629.402  Foreign contracts.



Sec. 629.402-1  Foreign fixed-price contracts.



Sec. 629.402-1-70  DOSAR contract clause.

    The contracting officer shall insert the clause at 652.229-71, 
Personal Property Disposition at Posts Abroad, in all solicitations and 
contracts performed overseas.

[64 FR 43627, Aug. 11, 1999]

            PART 630_COST ACCOUNTING STANDARDS ADMINISTRATION

                 Subpart 630.2_CAS Program Requirements



Sec. 630.201  Contract requirements.



Sec. 630.201-5  Waiver.

    (a) The Procurement Executive is the head of the agency for the 
purposes of FAR 30.201-5(a) and (b).

[69 FR 19336, Apr. 13, 2004]

            PART 631_CONTRACT COST PRINCIPLES AND PROCEDURES

                       Subpart 631.1_Applicability

Sec.

Sec. 631.101 Objectives.

          Subpart 631.2_Contracts with Commercial Organizations


Sec. 631.205 Selected costs.

Sec. 631.205-6 Compensation for personal services.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

[[Page 396]]


    Source: 59 FR 66764, Dec. 28, 1994, unless otherwise noted.

                       Subpart 631.1_Applicability



Sec. 631.101  Objectives.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 31.101.

          Subpart 631.2_Contracts with Commercial Organizations



Sec. 631.205  Selected costs.



Sec. 631.205-6  Compensation for personal services.

    (g)(3) The head of the contracting activity is the agency head's 
designee for the purpose of FAR 31.205-6(g)(6).

[64 FR 43627, Aug. 11, 1999, as amended at 72 FR 45696, Aug. 15, 2007]

                       PART 632_CONTRACT FINANCING

Sec.

Sec. 632.006 Reduction or suspension of contract payments upon finding 
          of fraud.

Sec. 632.006-1 General.

Sec. 632.006-2 Definitions.

Sec. 632.006-4 Procedures.

          Subpart 632.1_Non-Commercial Item Purchase Financing


Sec. 632.114 Unusual contract financing.

            Subpart 632.2_Commercial Item Purchase Financing


Sec. 632.201 Statutory authority.

         Subpart 632.4_Advance Payments for Non-Commercial Items


Sec. 632.402 General.

Sec. 632.404 Exclusions.

Sec. 632.407 Interest.

                     Subpart 632.7_Contract Funding


Sec. 632.702 Policy.

Sec. 632.702-70 DOS policy.

Sec. 632.703 Contract funding requirements.

Sec. 632.703-3 Contracts crossing fiscal years.

Sec. 632.705 Contract clauses.

Sec. 632.705-70 DOSAR contract clause.

                   Subpart 632.8_Assignment of Claims


Sec. 632.803 Policies.

                      Subpart 632.9_Prompt Payment


Sec. 632.906 Making payments.

Sec. 632.908 Contract clauses.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26173, July 11, 1988, unless otherwise noted.



Sec. 632.006  Reduction or suspension of contract payments upon finding 
          of fraud.



Sec. 632.006-1  General.

    The Procurement Executive is the agency head for the purpose of FAR 
32.006-1.

[64 FR 43627, Aug. 11, 1999]



Sec. 632.006-2  Definitions.

    Remedy coordination official means the Procurement Executive.

[64 FR 43627, Aug. 11, 1999, as amended at 69 FR 19336, Apr. 13, 2004]



Sec. 632.006-4  Procedures.

    The Procurement Executive is the agency head for the purposes of FAR 
32.006-4.

[64 FR 43627, Aug. 11, 1999]

          Subpart 632.1_Non-Commercial Item Purchase Financing



Sec. 632.114  Unusual contract financing.

    The Procurement Executive is the agency head for the purpose of FAR 
32.114.

[64 FR 43627, Aug. 11, 1999]

            Subpart 632.2_Commercial Item Purchase Financing



Sec. 632.201  Statutory authority.

    The head of the contracting activity is the agency head for the 
purpose of FAR 32.201.

[64 FR 43627, Aug. 11, 1999]

         Subpart 632.4_Advance Payments for Non-Commercial Items



Sec. 632.402  General.

    (b) Advance payments shall be authorized sparingly. Contracting 
officers

[[Page 397]]

should consider the use of partial payments, fast payments, or more 
frequent payments as alternatives to advance payments.
    (c)(1)(iii) The authority to make the determination prescribed in 
FAR 32.402(c)(1)(iii) is delegated, without power of redelegation, to 
the head of the contracting activity (see 601.603-70). For acquisitions 
by overseas posts, the head of the contracting activity shall obtain the 
concurrence of the Procurement Executive before making a determination 
pursuant to this section.

[53 FR 26173, July 11, 1988, as amended at 59 FR 66764, Dec. 28, 1994]



Sec. 632.404  Exclusions.

    (a) Total advance payments may be authorized for the items listed in 
FAR 32.404(a), notwithstanding their designation as a commercial item 
and acquisition under FAR part 12 procedures.

[64 FR 43627, Aug. 11, 1999]



Sec. 632.407  Interest.

    (d) The Procurement Executive is the agency head's designee for the 
purposes of FAR 32.407(d).

[59 FR 66764, Dec. 28, 1994]

                     Subpart 632.7_Contract Funding

    Source: 64 FR 43628, Aug. 11, 1999, unless otherwise noted.



Sec. 632.702  Policy.



Sec. 632.702-70  DOS policy.

    The Department's policy is to provide full funding for all 
contracts, to the maximum extent practicable. FAR 32.704 and 32.705-2 
provide for incremental funding of cost-reimbursement contracts. Fixed-
price, labor-hour, and time-and-materials contracts for severable 
services may also be incrementally funded if full funding is not 
available at the time of contract award and the contracting officer 
executes a determination and findings, approved by the requirements 
office, justifying the need for incremental funding due to the 
unavailability of funds.



Sec. 632.703  Contract funding requirements.



Sec. 632.703-3  Contracts crossing fiscal years.

    (b) The head of the contracting activity is the agency head for the 
purpose of FAR 32.703-3(b).



Sec. 632.705  Contract clauses.



Sec. 632.705-70  DOSAR contract clause.

    The contracting officer shall insert the clause at 652.232-72, 
Limitation of Funds, in incrementally funded fixed-price, labor-hour, 
and time-and-materials solicitations and contracts for severable 
services.

                   Subpart 632.8_Assignment of Claims



Sec. 632.803  Policies.

    (b) The assignment of claims shall be prohibited for all personal 
services contracts. The assignment of claims shall also be prohibited 
for all contracts awarded and performed overseas, unless approval is 
received from the Procurement Executive. The Directors, Regional 
Procurement Support Offices may approve the assignment of claims for 
contracts under their administration after obtaining legal consultation.

[59 FR 66764, Dec. 28, 1994, as amended at 64 FR 43628, Aug. 11, 1999]

                      Subpart 632.9_Prompt Payment



Sec. 632.906  Making payments.

    (a) General. The authority to make the determination prescribed in 
FAR 32.906(a) is delegated, without power of redelegation, to the head 
of the contracting activity. Before making this determination, the head 
of the contracting activity shall consult with the appropriate financial 
office.

[69 FR 19336, Apr. 13, 2004]



Sec. 632.908  Contract clauses.

    (a) The contracting officer may insert a clause substantially the 
same as the clause at 652.232-70, Payment Schedule and Invoice 
Submission (Fixed-Price), in fixed-price type solicitations and 
contracts.

[[Page 398]]

    (b) The contracting officer may insert a clause substantially the 
same as the clause at 652.232-71, Voucher Submission (cost-
Reimbursement), in cost-reimbursement type solicitations and contracts.

[59 FR 66764, Dec. 28, 1994]

                PART 633_PROTESTS, DISPUTES, AND APPEALS

                         Subpart 633.1_Protests

Sec.

Sec. 633.102 General.

Sec. 633.103 Protests to the agency.

Sec. 633.104 Protests to GAO.

                   Subpart 633.2_Disputes and Appeals


Sec. 633.203 Applicability.

Sec. 633.214-70 Alternative dispute resolution.

Sec. 633.270 Disputes and appeals under DOS contracts subject to the 
          Contract Disputes Act of 1978.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26173, July 11, 1988, unless otherwise noted.

                         Subpart 633.1_Protests



Sec. 633.102  General.

    All communications relative to protests filed with the Government 
Accountability Office (GAO) shall be coordinated with the Office of the 
Legal Adviser.

[53 FR 26173, July 11, 1988, as amended at 64 FR 43628, Aug. 11, 1999; 
72 FR 45696, Aug. 15, 2007]



Sec. 633.103  Protests to the agency.

    (d)(4) The independent review as described in FAR 33.103(d)(4) shall 
be performed by the Departmental Competition Advocate.

[64 FR 43628, Aug. 11, 1999]



Sec. 633.104  Protests to GAO.

    (a) General procedures. The Office of the Assistant Legal Adviser 
for Buildings and Acquisitions (L/BA) coordinates the response of the 
Department of State to protests filed at the GAO. Contracting activities 
shall consult L/BA for guidance before taking any actions in response to 
a protest to GAO.

[64 FR 43628, Aug. 11, 1999]

                   Subpart 633.2_Disputes and Appeals



Sec. 633.203  Applicability.

    The Procurement Executive is the agency head for the purposes of FAR 
33.203(b).



Sec. 633.214-70  Alternative dispute resolution.

    (a) Policy. The Department's goal is to resolve contract disputes 
before the issuance of a contracting officer's final decision under the 
Contract Disputes Act. Contracting officers shall consider all possible 
means of reaching a negotiated settlement, consistent with the 
Government's best interests, before issuing a final decision on a 
contractor claim under the process outlined in FAR 33.206 through 
33.211.
    (b) When to use ADR--(1) Factors favoring ADR. Contracting officers 
should consider using ADR in those cases where:
    (i) Only facts are in dispute;
    (ii) The facts are clearly not favorable to the Government;
    (iii) The anticipated costs (in time and money) are less than the 
anticipated costs of litigation;
    (iv) Settlement attempts have reached an impasse;
    (v) ADR techniques have been used successfully in similar 
situations;
    (vi) There is a need for independent expert analysis; or,
    (vii) The claim has merit but its value is overstated.
    (2) Factors disfavoring ADR. The following circumstances do not 
favor use of ADR:
    (i) Cases involving disputes controlled by clear legal precedent, 
making compromise difficult;
    (ii) The resolution will have a significant impact on other pending 
cases or on the future conduct of Department business;
    (iii) The dispute is primarily over issues of law;
    (iv) A decision of precedential value is needed;
    (v) A significant policy question is involved;
    (vi) A full public record of the proceeding is important;

[[Page 399]]

    (vii) The outcome could significantly involve persons who are not 
parties to the contract;
    (viii) The costs of pursuing an ADR procedure (in time and money) 
exceed the cost of litigation;
    (ix) The nature of the case may cause ADR to be used merely for 
delay or discovery; or,
    (x) The case involves criminal violations.
    (3) Initial action. Immediately upon receipt of a claim, the 
contracting officer shall send a letter acknowledging receipt of the 
claim and soliciting the contractor's views on submitting this claim for 
ADR. In every dispute, the first step toward resolution shall be 
unassisted negotiations, in which the parties try to work out the 
disagreement among themselves. If this fails, before issuing a final 
decision, the contracting officer shall consult first with the head of 
the contracting activity, and contact the Office of the Legal Adviser 
and A/OPE to determine whether the disagreement appears susceptible to 
resolution by ADR. Consideration shall be given to pursuing additional 
fact-finding or designating a neutral expert in the disputed issue to 
provide an advisory opinion.
    (c) Methods of ADR. If the initial action to resolve the dispute 
fails, and the contracting officer issues a final decision which is 
appealed, ADR may still be feasible. The GSBCA issues a notice regarding 
ADR to all contractors who file appeals under the Contract Disputes Act. 
This notice describes the following ADR techniques, which contracting 
officers are urged to discuss with contractors at any time:
    (1) Settlement judge. A settlement judge is either an administrative 
judge or hearing examiner who is appointed by the parties in dispute for 
the purpose of facilitating settlement. The agenda is flexible and based 
on the specifics of the individual dispute. By holding a frank, in-depth 
discussion of the strengths and weaknesses of each party's position, the 
settlement judge may be able to foster a settlement of the dispute. The 
settlement judge may meet with the parties jointly or individually, and 
the settlement judge's recommendations are not binding. Typically, the 
settlement judge's opinions, based on his or her experience in handling 
prior disputes, will help the parties realize whether their arguments 
have merit or not.
    (2) Minitrial. A minitrial is not an actual trial but rather a 
flexible, expedited, but structured procedure in which each party 
presents an abbreviated version of its position both to a neutral 
advisor (who may be appointed by the GSBCA) and to principals of the 
parties who have full contractual authority to conclude a settlement. 
The parties mutually decide on the form of presentation without regard 
to traditional judicial proceedings or rules of evidence. An advance 
agreement by the parties specifies the procedure to be followed in 
making presentations, as well as the role of the neutral advisor. Upon 
conclusion of the presentations, settlement negotiations are conducted. 
The neutral advisor may assist the parties in negotiating settlement, 
including making non-binding recommendations.
    (3) Summary trial with binding decision. A summary trial with 
binding decision is a procedure in which the scheduling of an appeal is 
expedited and the parties try their appeal informally before an 
administrative judge or panel of judges. The length of the trial and the 
time for presentation and decision are tailored to the needs of the 
particular case. Trial procedures and rules applicable to appeals are 
modified or eliminated to expedite resolution of the appeal. The parties 
must agree, however, that all decisions, rulings, and orders by the 
judge(s) are final, conclusive, and not appealable, and may not be set 
aside, except for fraud. A summary ``bench'' decision is issued at the 
conclusion of the trial or a summary written decision will be issued 
within ten (10) days of either the trial's conclusion or receipt of a 
trial transcript.
    (4) Mediation. Mediation is a process in which a neutral and 
impartial third party assists the Government and the contractor in 
conflict to negotiate an acceptable settlement of contested issues. The 
mediator is jointly selected and is asked by the disputing parties to 
assist them to reach a voluntary agreement. The mediator has no 
decisionmaking authority and cannot impose a decision. Mediation 
assistance involves

[[Page 400]]

working with the parties to improve their communications, clarify or 
interpret data, identify key issues to be discussed, design an effective 
negotiation process, generate settlement options, or help to identify or 
formulate areas of agreement. Additional information on alternative 
dispute resolution and mediation resources is available at the following 
address on the Internet: http://www.adrr.com
    (5) Arbitration. Non-binding arbitration is a process in which a 
dispute is jointly submitted by the Government and a contractor to an 
impartial and neutral person or panel who provides a written, non-
binding opinion used as a guide for negotiations toward a settlement. 
Although the Administrative Dispute Resolution Act of 1990 (Pub. L. 101-
552) allows agencies to use binding arbitration, the law provides that 
the agency head may vacate any arbitration award within 30 days after it 
is served on all parties. For this reason, non-binding arbitration is 
preferable. Additional information on alternative dispute resolution and 
mediation resources is available at the following address on the 
Internet: http://www.adrr.com
    (6) Partnering. Partnering involves an agreement in principle to 
share the risks involved in completing a project, and to establish and 
promote a partnership environment. Partnering itself is not a 
contractual agreement and it does not create any legally enforceable 
rights, but instead partnering seeks to create a new cooperative 
attitude in completing Government contracts. The three basic steps in 
partnering are:
    (i) Establish the new relationship through personal contact among 
the principals for the Government and the contractor before the work 
begins;
    (ii) Prepare a joint statement of goals establishing common 
objectives in specific detail for reaching the goals; and,
    (iii) Identify specific dispute prevention processes designed to 
head off problems, evaluate performance, and promote cooperation. 
Additional information on alternative dispute resolution and mediation 
resources is available at the following address on the Internet: http://
www.adrr.com
    (d) ADR procedures. The ADR method shall be selected voluntarily by 
both the Government and the contractor. Both parties shall agree on the 
procedures to be followed, including the agenda and amount of time 
allowed for each party to present its case. The parties may choose not 
to have a written transcript or hearing on the record, as this might 
inhibit settlement. Also, the decision rendered, if any, should not be 
considered to establish any precedent for future litigation unless the 
parties agree otherwise. In cases where the parties agree to pay jointly 
for a third-party neutral advisor, it is recommended that the parties 
and the advisor agree on a fair and reasonable price. The Government 
would then issue a simplified acquisition (if the dollar amount does not 
exceed the simplified acquisition limitation) for 50% of the agreed 
price, and the advisor would submit separate invoices (each for 50% of 
the price) to the Government and the contractor.

[59 FR 66764, Dec. 28, 1994, as amended at 64 FR 43628, Aug. 11, 1999]



Sec. 633.270  Disputes and appeals under DOS contracts subject to the 
          Contract Disputes Act of 1978.

[[Page 401]]

             SUBCHAPTER F_SPECIAL CATEGORIES OF CONTRACTING

                    PART 634_MAJOR SYSTEM ACQUISITION

Sec.

Sec. 634.003 Responsibilities.

Sec. 634.005 General requirements.

Sec. 634.005-6 Full production.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26175, July 11, 1988, unless otherwise noted.



Sec. 634.003  Responsibilities.

    (a) The Procurement Executive is the agency head's designee for the 
purposes of FAR 34.003(a).
    (b) The Under Secretary for Management is the agency head for the 
purposes of FAR 34.003(c) and the acquisition executive for the purposes 
of A-109.

[53 FR 26175, July 11, 1988, as amended at 59 FR 66766, Dec. 28, 1994; 
64 FR 43628, Aug. 11, 1999]



Sec. 634.005  General requirements.



Sec. 634.005-6  Full production.

    The Deputy Secretary is the agency head for the purposes of FAR 
34.005-6 with power of redelegation to the Under Secretary for 
Management.

[59 FR 66766, Dec. 28, 1994, as amended at 64 FR 43628, Aug. 11, 1999]

         PART 636_CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

                          Subpart 636.1_General

Sec.

Sec. 636.101 Applicability.

Sec. 636.101-70 Exception.

Sec. 636.104 Policy

Sec. 636.104-70 Foreign Service Buildings Act of 1926, as amended.

Sec. 636.104-71 Omnibus Diplomatic Security and Antiterrorism Act.

      Subpart 636.2_Special Aspects of Contracting for Construction


Sec. 636.202 Specifications.

Sec. 636.209 Construction contracts with architect-engineer firms.

                     Subpart 636.5_Contract Clauses


Sec. 636.513 Accident prevention.

Sec. 636.570 Additional DOSAR provisions.

                Subpart 636.6_Architect-Engineer Services


Sec. 636.602 Selection of firms for architect-engineer contracts.

Sec. 636.602-1 Selection criteria.

Sec. 636.602-5 Short selection processes for contracts not to exceed the 
          simplified acquisition threshold.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26175, July 11, 1988, unless otherwise noted.

                          Subpart 636.1_General



Sec. 636.101  Applicability.



Sec. 636.101-70  Exception.

    Contracts for overseas construction, including capital improvements, 
alterations, and major repairs, may be excepted where necessary from the 
provisions of the FAR (48 CFR Chapter 1) under the authority of section 
3 of the Foreign Service Buildings Act of 1926, as amended (22 U.S.C. 
294). The Director/Chief Operating Officer of the Bureau of Overseas 
Buildings Operations is authorized to approve such exceptions.

[69 FR 19337, Apr. 13, 2004]



Sec. 636.104  Policy.



Sec. 636.104-70  Foreign Service Buildings Act of 1926, as amended.

    (a) Policy. Section 11 of the Foreign Service Buildings Act of 1926, 
as amended (22 U.S.C. 302) limits competition for the construction, 
alteration, or repair of buildings or grounds abroad exceeding $5 
million to:
    (1) American-owned firms; or
    (2) Firms from countries which permit or agree to permit 
substantially equal access to American firms for comparable diplomatic 
and consular building projects.
    (b) Limitation. This participation may be permitted by or limited 
to:
    (1) Host-country firms where required by international agreement; or

[[Page 402]]

    (2) By the laws of the host country; or
    (3) Where determined by the Secretary of State to be necessary in 
the interest of bilateral relations or necessary to carry out the 
construction project.
    (c) Evaluation preference. For purposes of determining competitive 
status, American-owned firms shall receive a ten (10) percent price 
preference reduction, provided that two prospective responsible bidders/
offerors submit a bid/offer.

[69 FR 19337, Apr. 13, 2004]



Sec. 636.104-71  Omnibus Diplomatic Security and Antiterrorism Act.

    (a) Preference for United States contractors. The Omnibus Diplomatic 
Security and Antiterrorism Act of 1986 (Public Law 99-399; 22 U.S.C. 
4852) limits certain construction projects abroad to United States 
persons or qualified United States joint venture persons. The Omnibus 
Diplomatic Security and Antiterrorism Act of 1986 applies to the 
following, as determined by the Assistant Secretary for Diplomatic 
Security:
    (1) Diplomatic construction or design projects abroad exceeding $10 
million; or,
    (2) Diplomatic construction projects abroad at any dollar amount 
that involve technical security, unless the project involves low-level 
technology.
    (b) Exception. This preference shall not apply with respect to any 
diplomatic construction or design project in a foreign country whose 
statutes prohibit the use of United States contractors on such projects.
    (c) Subcontracting limitation. With respect to a diplomatic 
construction project, a prime contractor may not subcontract more than 
50 percent of the total value of the contract for that project.

[69 FR 19337, Apr. 13, 2004]

      Subpart 636.2_Special Aspects of Contracting for Construction



Sec. 636.202  Specifications.

    (d) The Director/Chief Operating Officer of the Bureau of Overseas 
Building Operations is the head of the agency for the purposes of FAR 
36.202(d)(3) and (4).

[69 FR 19337, Apr. 13, 2004]



Sec. 636.209  Construction contracts with architect-engineer firms.

    The Procurement Executive is the head of the agency for the purposes 
of FAR 36.209.

                     Subpart 636.5_Contract Clauses



Sec. 636.513  Accident prevention.

    (a) In accordance with a class deviation approved by the Procurement 
Executive, contracting officers at overseas contracting activities shall 
insert DOSAR 652.236-70, Accident Prevention, in lieu of FAR clause 
52.236-13 when awarding construction contracts. The contracting officer 
shall confer with OBO/OM/SHEM if there are any questions on any factors 
listed in paragraph (4) of the clause, or if the contracting officer has 
any questions regarding construction safety issues.

[64 FR 43628, Aug. 11, 1999, as amended at 69 FR 19337, Apr. 13, 2004]



Sec. 636.570  Additional DOSAR provisions.

    (a) The contracting officer shall insert the provision at 652.236-
71, Foreign Service Buildings Act, As Amended, in all contracts 
exceeding $5,000,000 for the construction, alteration, or repair of 
buildings and grounds overseas, unless:
    (1) An international agreement with or laws of the host country 
government permits or limits the participation to host-country firms; 
or,
    (2) The Secretary of State determines that it is necessary to the 
interest of bilateral relations or to carry out the project to either 
permit or limit the participation to host-country firms; or,
    (3) The provision at DOSAR 652.236-72 applies.
    (b) The contracting officer shall insert the provision at 652.236-
72, Statement of Qualifications for the Omnibus Diplomatic Security and 
Antiterrorism Act, in all diplomatic construction or design 
solicitations exceeding $10 million; or, diplomatic construction 
projects abroad at any dollar amount that involve technical security, 
unless

[[Page 403]]

the project involves low-level technology, as determined by the 
Assistant Secretary of Diplomatic Security.

[69 FR 19337, Apr. 13, 2004]

                Subpart 636.6_Architect-Engineer Services



Sec. 636.602  Selection of firms for architect-engineer contracts.



Sec. 636.602-1  Selection criteria.

    (b) The head of the contracting activity is the agency head's 
designee for the purpose of FAR 36.602-1(b).

[64 FR 43628, Aug. 11, 1999]



Sec. 636.602-5  Short selection processes for contracts not to exceed 
          the simplified acquisition threshold.

    The short selection process described in FAR 36.602-5 is authorized 
for use for contracts not expected to exceed the simplified acquisition 
threshold.

[59 FR 66766, Dec. 28, 1994, as amended at 60 FR 39663, Aug. 3, 1995]

                      PART 637_SERVICE CONTRACTING

                 Subpart 637.1_Service Contracts_General

Sec.

Sec. 637.102 Policy.

Sec. 637.102-70 Special requirements for the acquisition of local guard 
          services overseas.

Sec. 637.103 Contracting officer responsibility.

Sec. 637.104 Personal services contracts.

Sec. 637.104-70 Personal services contracts.

Sec. 637.110 Solicitation provisions and contract clauses.

             Subpart 637.2_Advisory and Assistance Services


Sec. 637.204 Guidelines for determining availability of personnel.

               Subpart 637.6_Performance-Based Contracting


Sec. 637.601 General.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26176, July 11, 1988, unless otherwise noted.

                 Subpart 637.1_Service Contracts_General



Sec. 637.102  Policy.



Sec. 637.102-70  Special requirements for the acquisition of local guard 
          services overseas.

    (a) Policy. Section 136 of the Foreign Relations Authorization Act, 
Fiscal Years 1990 and 1991 (22 U.S.C. 4864) encourages the participation 
of United States persons and qualified United States joint venture 
persons in local guard contracts overseas under diplomatic security 
programs.
    (b) Evaluation preference. For purposes of determining competitive 
status, proposals of United States persons and qualified United States 
joint venture persons shall receive a ten (10) percent price preference 
reduction.

[69 FR 19337, Apr. 13, 2004]



Sec. 637.103  Contracting officer responsibility.

    The Office of the Legal Adviser is the DOS legal counsel for the 
purposes of FAR 37.103(a)(2).



Sec. 637.104  Personal services contracts.

    The Office of the Legal Adviser is the DOS legal counsel for the 
purposes of FAR 37.104(e).



Sec. 637.104-70  Personal services contracts.

    Pursuant to FAR 37.104(b), DOS statutory authorities for personal 
services contracts are--
    (a) For the Department, section 2(c) of the State Department Basic 
Authorities Act of 1956, as amended (22 U.S.C. 2669);
    (b) For the Bureau of Population, Refugees, and Migration, section 
5(a)(6) of the Migration and Refugee Assistance Act of 1962, as amended 
(22 U.S.C. 2605);
    (c) For the Bureau for International Narcotics and Law Enforcement 
Affairs, section 636(a)(3) of the Foreign Assistance Act of 1961, as 
amended (22 U.S.C. 2396);
    (d) For the Foreign Service Institute, section 704(a)(4) of the 
Foreign Service Act of 1980, as amended (22 U.S.C. 4024);

[[Page 404]]

    (e) For the Office of Foreign Missions, section 208(d) of Title II--
Authorities Relating to the Regulation of Foreign Missions, of the State 
Department Basic Authorities Act of 1956, as amended (22 U.S.C. 4308);
    (f) For the Bureau of Overseas Buildings Operations, section 5 of 
the Foreign Service Buildings Act, 1926, as amended (22 U.S.C. 296);
    (g) For the U.S. Mission to the United Nations, section 7 of the 
United Nations Participation Act of 1945, as amended (22 U.S.C. 287e);
    (h) For the Bureau of International Organization Affairs, the 
separate State Department appropriations acts; and
    (i) For the Bureau of Diplomatic Security, section 206 of Public Law 
99-399, as amended by the Emergency Supplemental Appropriations Act of 
1998.

[53 FR 26176, July 11, 1988, as amended at 59 FR 66766, Dec. 28, 1994; 
60 FR 39663, Aug. 3, 1995; 64 FR 43629, Aug. 11, 1999; 69 FR 19337, Apr. 
13, 2004]



Sec. 637.110  Solicitation provisions and contract clauses.

    (a) The contracting officer shall insert the clause at 652.237-70, 
Compensatory Time Off, in personal services contracts awarded in support 
of International Narcotics Control programs overseas, if the contracting 
officer determines its use appropriate.
    (b) The contracting officer shall insert a clause substantially the 
same as the clause at 652.237-72, Observance of Legal Holidays and 
Administrative Leave, in all solicitations and contracts where 
contractor personnel will be working on-site in any Department of State 
facility. Overseas contracting activities may add local holidays to the 
list included in paragraph (a) of the clause.
    (c) The contracting officer shall insert the provision at 652.237-
73, Statement of Qualifications for Preference as a U.S. Person, in all 
overseas local guard solicitations.

[59 FR 66766, Dec. 28, 1994, as amended at 64 FR 43629, Aug. 11, 1999; 
69 FR 19337, Apr. 13, 2004; 76 FR 20250, Apr. 12, 2011]

             Subpart 637.2_Advisory and Assistance Services



Sec. 637.204  Guidelines for determining availability of personnel.

    The head of the contracting activity is the agency head for the 
purposes of FAR 37.204.

[64 FR 43629, Aug. 11, 1999]

               Subpart 637.6_Performance-Based Contracting



Sec. 637.601  General.

    It is the Department's policy that all new service contracts be 
performance-based, with clearly defined deliverables and performance 
standards. Any deviations from this policy shall be fully justified in 
writing and approved by the Departmental Competition Advocate.

[69 FR 19337, Apr. 13, 2004]

             PART 639_ACQUISITION OF INFORMATION TECHNOLOGY

                          Subpart 639.1_General

Sec.

Sec. 639.107 Contract clause.

Sec. 639.107-70 DOSAR solicitation provision and contract clause.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 72 FR 51569, Sept. 10, 2007, unless otherwise noted.

                          Subpart 639.1_General



Sec. 639.107  Contract clause.



Sec. 639.107-70  DOSAR solicitation provision and contract clause.

    (a) The contracting officer shall insert the provision at 652.239-
70, Information Technology Security Plan and Accreditation, in 
solicitations that include information technology resources or services 
in which the contractor will have physical or electronic access to 
Department information that directly supports the mission of the 
Department.
    (b) The contracting officer shall insert the clause at 652.239-71, 
Security

[[Page 405]]

Requirements for Unclassified Information Technology Resources, in 
solicitations and contracts containing the provision at 652.239-70. The 
provision and clause shall not be inserted in solicitations and 
contracts for personal services with individuals.

                PART 641_ACQUISITION OF UTILITY SERVICES

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 64 FR 43629, Aug. 11, 1999, unless otherwise noted.

                Subpart 641.2_Acquiring Utility Services



Sec. 641.201  Policy.

    (d) The Procurement Executive is the agency head for the purposes of 
FAR 41.201(d)(2)(i) and FAR 41.201(d)(3).

[[Page 406]]

                    SUBCHAPTER G_CONTRACT MANAGEMENT

           PART 642_CONTRACT ADMINISTRATION AND AUDIT SERVICES

             Subpart 642.2_Contract Administration Services

Sec.

Sec. 642.270 Contracting Officer's Representative (COR).

Sec. 642.271 Government Technical Monitor (GTM).

Sec. 642.272 DOSAR contract clauses.

       Subpart 642.6_Corporate Administration Contracting Officer


Sec. 642.602 Assignment and location.

                    Subpart 642.7_Indirect Cost Rates


Sec. 642.703 General.

Sec. 642.703-2 Certificate of indirect costs.

          Subpart 642.14_Traffic and Transportation Management


Sec. 642.1406-2 Contract clause.

Sec. 642.1406-2-70 DOSAR contract clauses.

            Subpart 642.15_Contractor Performance Information


Sec. 642.1503 Procedures.

Sec. 642.1503-70 Contractor Performance System (CPS).

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26176, July 11, 1988, unless otherwise noted.

             Subpart 642.2_Contract Administration Services



Sec. 642.270  Contracting Officer's Representative (COR).

    (a) Scope. Contracting officers may designate technically qualified 
personnel as their authorized representatives to assist in the 
administration of contracts. This section is mandatory for domestic 
contracting activities and recommended for overseas contracting 
activities.
    (b) Policy. It is Department policy that only Department of State 
employees who have completed adequate training and have the necessary 
experience and judgment shall be appointed as CORs. This policy shall be 
reinforced by contracting officers and administered jointly by A/OPE and 
FSI. Required training shall be funded by the COR's office.

[59 FR 66766, Dec. 28, 1994]



Sec. 642.271  Government Technical Monitor (GTM).

    (a) Policy. The contracting officer may appoint a Government 
Technical Monitor (GTM) to assist the Contracting Officer's 
Representative (COR) in monitoring a contractor's performance. The 
contracting officer may appoint a GTM because of physical proximity to 
the contractor's work site, or because of special skills or knowledge 
necessary for monitoring the contractor's work. The contracting officer 
may also appoint a GTM to represent the interests of another 
requirements office or post concerned with the contractor's work. A GTM 
shall be a direct-hire U.S. Government employee.

[69 FR 19338, Apr. 13, 2004]



Sec. 642.272  DOSAR contract clauses.

    (a) The contracting officer shall insert a clause substantially the 
same as the clause at 652.242-70, Contracting Officer's Representative, 
in solicitations and contracts when appointment of a contracting 
officer's representative is anticipated.
    (b) The contracting officer shall insert a clause substantially the 
same as the clause at 652.242-73, Authorization and Performance, in all 
solicitations and contracts to be awarded and/or performed overseas. For 
overseas local guard contracts, the contracting officer shall use the 
clause with its Alternate I.

[64 FR 43629, Aug. 11, 1999. Redesignated at 69 FR 19338, Apr. 13, 2004]

       Subpart 642.6_Corporate Administration Contracting Officer



Sec. 642.602  Assignment and location.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 42.602(a).

[[Page 407]]

                    Subpart 642.7_Indirect Cost Rates



Sec. 642.703  General.



Sec. 642.703-2  Certificate of indirect costs.

    (b) The head of the contracting activity is the agency head's 
designee for the purpose of FAR 42.703-2(b).

[64 FR 43629, Aug. 11, 1999]

          Subpart 642.14_Traffic and Transportation Management



Sec. 642.1406-2  Contract clause.



Sec. 642.1406-2-70  DOSAR contract clauses.

    (a) The contracting officer shall insert the clause at 652.242-71, 
Notice of Shipment, in solicitations and contracts entered into and 
performed outside the United States, when overseas shipment of supplies 
is required.
    (b) The contracting officer shall insert the clause at 652.242-72, 
Shipping Instructions, in solicitations and contracts with a source in 
the United States and overseas shipment of supplies is required.

            Subpart 642.15_Contractor Performance Information



Sec. 642.1503  Procedures.



Sec. 642.1503-70  Contractor Performance System (CPS).

    (a) The Department of State subscribes to the Contractor Performance 
System (CPS) maintained by the National Institutes of Health. CPS is an 
Internet-based tool allowing contracting officers to input past 
performance information and view past performance information input by 
other contracting officers in other locations and agencies.
    (b) All DOS contracting officers with access to the Internet shall 
use CPS to evaluate contractor's past performance for all contracts 
exceeding $100,000, including options. Contracting officers shall also 
use the CPS to evaluate the past performance of offerors on all 
competitive negotiated acquisitions exceeding $100,000, including 
options, unless the contracting officer documents in the contract file 
why past performance is not an appropriate evaluation factor. The CPS 
may also be used for evaluating acquisitions not exceeding $100,000 to 
conform to the general principle of considering past performance in all 
acquisitions.
    (c) Form DS-1771, Contractor Past Performance Evaluation, shall be 
used only:
    (1) When the CPS is temporarily unavailable. When the CPS becomes 
available, data from any DS-1771 created in the interim shall be 
promptly entered into the CPS; or
    (2) At overseas locations where access to the Internet is not 
practicable.
    (d) Heads of contracting activities shall send a list of the names, 
work addresses, and phone numbers of all acquisition personnel whom they 
wish to have access to the CPS to A/LM/AQM.

[69 FR 19338, Apr. 13, 2004]

                     PART 643_CONTRACT MODIFICATIONS

                          Subpart 643.1_General

Sec.

Sec. 643.102 Policy.

Sec. 643.102-70 Contract compliance and review.

Sec. 643.104 Notification of contract changes.

Sec. 643.104-70 DOSAR contract clause.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26176, July 11, 1988, unless otherwise noted.

                          Subpart 643.1_General



Sec. 643.102  Policy.



Sec. 643.102-70  Contract compliance and review.

    When applicable, the contracting officer shall ensure the proposed 
contract modification complies with the competition requirements of FAR 
Part 6 and DOSAR Part 606.

[53 FR 26176, July 11, 1988, as amended at 59 FR 66767, Dec. 28, 1994; 
64 FR 43629, Aug. 11, 1999]



Sec. 643.104  Notification of contract changes.



Sec. 643.104-70  DOSAR contract clause.

    The contracting officer shall insert the clause at 652.243-70, 
Notices, in all solicitations and contracts exceeding

[[Page 408]]

the micro-purchase threshold which are awarded and/or performed 
overseas.

[64 FR 43629, Aug. 11, 1999]

             PART 644_SUBCONTRACTING POLICIES AND PROCEDURES

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 64 FR 43629, Aug. 11, 1999, unless otherwise noted.

          Subpart 644.3_Contractor's Purchasing System Reviews



Sec. 644.302  Requirements.

    (a) The Procurement Executive is the head of the agency for the 
purpose of FAR 44.302(a).

                      PART 645_GOVERNMENT PROPERTY

       Subpart 645.3_Providing Government Property to Contractors

Sec.

Sec. 645.302 Providing facilities.

Sec. 645.302-1 Policy.

     Subpart 645.4_Contractor Use and Rental of Government Property


Sec. 645.403 Rental--Use and Charges clause.

  Subpart 645.6_Reporting, Redistribution, and Disposal of Contractor 
                                Inventory


Sec. 645.608 Screening of contractor inventory.

Sec. 645.608-6 Waiver of screening requirements.

Sec. 645.610 Sale of surplus contractor inventory.

Sec. 645.610-2 Exemptions from sale by GSA.

    Authority: 22 U.S.C. 2658; 40 U.S.C. 486(c); 48 CFR Subpart 1.3.

    Source: 53 FR 26177, July 11, 1988, unless otherwise noted.

       Subpart 645.3_Providing Government Property to Contractors



Sec. 645.302  Providing facilities.



Sec. 645.302-1  Policy.

    The authority to make the determination prescribed in FAR 45.302-
1(a)(4) is delegated, without power of redelegation, to the head of the 
contracting activity (see 601.603-70).

     Subpart 645.4_Contractor Use and Rental of Government Property



Sec. 645.403  Rental--Use and Charges clause.

    (a) The head of the contracting activity is the agency head's 
designee for the purpose of FAR 45.403(a).

[64 FR 43629, Aug. 11, 1999]

  Subpart 645.6_Reporting, Redistribution, and Disposal of Contractor 
                                Inventory



Sec. 645.608  Screening of contractor inventory.



Sec. 645.608-6  Waiver of screening requirements.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 45.608-6.



Sec. 645.610  Sale of surplus contractor inventory.



Sec. 645.610-2  Exemptions from sale by GSA.

    The Procurement Executive is the agency head for the purposes of FAR 
45.610-2(a).

                         PART 647_TRANSPORTATION

Sec.

Sec. 647.000 Scope of part.

Subpart 647.2_Contracts for Transportation or for Transportation-Related 
                                Services


Sec. 647.207 Solicitation provisions, contract clauses, and special 
          requirements.

Sec. 647.207-7 Liability and insurance.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 59 FR 66767, Dec. 28, 1994, unless otherwise noted.



Sec. 647.000  Scope of part.

    The FAR and DOSAR do not apply to the acquisition of transportation 
services via Government bill of lading (GBL) or other similar forms.

[[Page 409]]

Subpart 647.2_Contracts for Transportation or for Transportation-Related 
                                Services



Sec. 647.207  Solicitation provisions, contract clauses, and special 
          requirements.



Sec. 647.207-7  Liability and insurance.

    (e) The Procurement Executive has approved a class deviation for 
paragraph (c) of FAR clause 52.247-23, Contractor Liability for Loss of 
and/or Damage to Household Goods. The contracting officer shall indicate 
that the contractor shall indemnify the owner of the goods at a rate of 
$5.00 per pound (or metric equivalent in local currency) based on the 
total net weight. The rate conforms with liability calculations found in 
International Through Government Bills of Lading (ITGBL).

[64 FR 43629, Aug. 11, 1999]

                       PART 648_VALUE ENGINEERING

    Authority: 22 U.S.C. 2658; 40 U.S.C. 486(c); 48 CFR 1.3.

                  Subpart 648.1_Policies and Procedures



Sec. 648.102  Policies.

    (a) The authority to grant exemptions prescribed in FAR 48.102(a), 
or to extend future contract savings or sharing pursuant to FAR 
48.102(g), is delegated, without power of redelegation, to the head of 
the contracting activity (see 601.603-70).

[55 FR 5775, Feb. 16, 1990]

                     Subpart 648.2_Contract Clauses



Sec. 648.201  Clauses for supply or service contracts.

    The authority to determine exemptions prescribed in FAR 48.201(a)(6) 
is delegated, without power of redelegation, to the head of the 
contracting activity.

[55 FR 5775, Feb. 16, 1990]

                    PART 649_TERMINATION OF CONTRACTS

    Authority: 40 U.S.C. 485(c); 22 U.S.C. 2658.

    Source: 59 FR 66767, Dec. 28, 1994, unless otherwise noted.

                    Subpart 649.1_General Principles



Sec. 649.106  Fraud or other criminal conduct.

    If the Termination Contracting Officer (TCO) suspects fraud or other 
criminal conduct related to the settlement of a terminated contract, the 
TCO shall discontinue negotiations and report the facts to the Office of 
the Inspector General.

            PART 651_USE OF GOVERNMENT SOURCES BY CONTRACTORS

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

   Subpart 651.70_Contractor Use of Travel Advances, Official Travel 
               Orders, and Government Travel Requisitions



Sec. 651.701  Policy.

    (a) It is the Department's policy that contractors shall not:
    (1) Receive travel advances from the Department for contract-related 
travel;
    (2) Travel under official travel orders; or,
    (3) Receive Government Travel Requisitions (GTRs) for 
transportation.
    (b) All contract-related travel shall be performed on the 
contractor's account with reimbursement provided after submission of a 
proper voucher.
    (c) This policy does not apply to personal services contractor; 
provided, that such contractors are paid through the Department's 
payroll system and they are subject to the standard payroll deductions 
of Federal Withholding Tax and FICA.

[59 FR 66767, Dec. 28, 1994, as amended at 69 FR 19338, Apr. 13, 2004]

[[Page 410]]

                     SUBCHAPTER H_CLAUSES AND FORMS

          PART 652_SOLICITATION PROVISIONS AND CONTRACT CLAUSES

Sec.

Sec. 652.000 Scope of part.

       Subpart 652.1_Instructions for Using Provisions and Clauses


Sec. 652.100 Scope of subpart.

Sec. 652.100-70 Policy.

Sec. 652.102 Incorporating provisions and clauses.

Sec. 652.102-1 Incorporation by reference.

              Subpart 652.2_Texts of Provisions and Clauses


Sec. 652.200 Scope of subpart.

Sec. 652.204-70 Department of State Personal Identification Card 
          Issuance Procedures.

Sec. 652.206-70 Competition Advocate/Ombudsman.

Sec. 652.216-70 Ordering--Indefinite-Delivery Contract.

Sec. 652.216-71 Price Adjustment.

Sec. 652.219-70 Department of State Subcontracting Goals.

Sec. 652.219-71 Section 8(a) Direct Awards.

Sec. 652.219-72 Department of State Mentor-Prot[eacute]g[eacute] 
          Program.

Sec. 652.219-73 Mentor Requirements and Evaluation.

Sec. 652.225-70 Arab League Boycott of Israel.

Sec. 652.225-71 Section 8(a) of the Export Administration Act of 1979, 
          as Amended.

Sec. 652.228-70 Defense Base Act--Covered Contractor Employees.

Sec. 652.228-71 Worker's Compensation Insurance (Defense Base Act)--
          Services.

Sec. 652.228-72--652.228-73 [Reserved]

Sec. 652.228-74 Defense Base Act insurance rates--Limitation.

Sec. 652.229-70 Excise Tax Exemption Statement for Contractors Within 
          the United States.

Sec. 652.229-71 Personal Property Disposition at Posts Abroad.

Sec. 652.232-70 Payment Schedule and Invoice Submission (Fixed-Price).

Sec. 652.232-71 Voucher Submission (Cost-Reimbursement).

Sec. 652.232-72 Limitation of Funds.

Sec. 652.236-70 Accident Prevention.

Sec. 652.236-71 Foreign Service Buildings Act, as Amended

Sec. 652.236-72 Statement of Qualifications for the Omnibus Diplomatic 
          Security and Antiterrorism Act.

Sec. 652.237-70 Compensatory time off.

Sec. 652.237-71 [Reserved]

Sec. 652.237-72 Observance of Legal Holidays and Administrative Leave.

Sec. 652.237-73 Statement of Qualifications for Preference as a U.S. 
          Person.

Sec. 652.239-70 Information Technology Security Plan and Accreditation.

Sec. 652.239-71 Security Requirements for Unclassified Information 
          Technology Resources.

Sec. 652.242-70 Contracting Officer's Representative (COR).

Sec. 652.242-71 Notice of Shipments.

Sec. 652.242-72 Shipping Instructions.

Sec. 652.242-73 Authorization and Performance.

Sec. 652.243-70 Notices.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26177, July 11, 1988, unless otherwise noted.



Sec. 652.000  Scope of part.

    This part sets forth solicitation provisions and contract clauses, 
in addition to those prescribed in FAR Part 52, for use in DOS 
acquisitions.

       Subpart 652.1_Instructions for Using Provisions and Clauses



Sec. 652.100  Scope of subpart.



Sec. 652.100-70  Policy.

    (a) The solicitation provisions and contract clauses in FAR Subpart 
52.2 or this Subpart 652.2 shall be used as prescribed therein, except 
when the use of any provision or clause is prohibited by or inconsistent 
with local laws, or the supplies or services could not be obtained if 
the provision or clause were to be included.
    (b) The contracting officer shall justify the exclusion of any 
provisions or clauses in accordance with FAR Subpart 1.4 and 601.470.



Sec. 652.102  Incorporating provisions and clauses.



Sec. 652.102-1  Incorporation by reference.

    The Procurement Executive is the agency head for the purposes of FAR 
52.102-1(a)(2)(ii).

[[Page 411]]

              Subpart 652.2_Texts of Provisions and Clauses



Sec. 652.200  Scope of subpart.

    This subpart sets forth the text of all DOSAR provisions and 
clauses, and for each provision and clause provides a cross-reference to 
the location in the DOSAR that prescribes its use.



Sec. 652.204-70  Department of State Personal Identification Card 
          Issuance Procedures.

    As prescribed in 604.1301-70, insert the following clause:

  Department of State Personal Identification Card Issuance Procedures 
                               (MAY 2011)

    (a) The Contractor shall comply with the Department of State (DOS) 
Personal Identification Card Issuance Procedures for all employees 
performing under this contract who require frequent and continuing 
access to DOS facilities, or information systems. The Contractor shall 
insert this clause in all subcontracts when the subcontractor's 
employees will require frequent and continuing access to DOS facilities, 
or information systems.
    (b) The DOS Personal Identification Card Issuance Procedures may be 
accessed at http://www.state.gov/m/ds/rls/rpt/c21664.htm.

                             (End of clause)

[76 FR 20251, Apr. 12, 2011]



Sec. 652.206-70  Competition Advocate/Ombudsman.

    As prescribed in 606.570, insert the following provision:

                Competition Advocate/Ombudsman (AUG 1999)

    (a) The Department of State's Competition Advocate is responsible 
for assisting industry in removing restrictive requirements from 
Department of State solicitations and removing barriers to full and open 
competition and use of commercial items. If such a solicitation is 
considered competitively restrictive or does not appear properly 
conducive to competition and commercial practices, potential offerors 
are encouraged to first contact the contracting officer for the 
respective solicitation. If concerns remain unresolved, contact the 
Department of State Competition Advocate on (703) 516-1680, by fax at 
(703) 875-6155, or write to: Department of State, Competition Advocate, 
Office of the Procurement Executive (A/OPE), Suite 603, SA-6, 
Washington, DC 20522-0602.
    (b) The Department of State's Acquisition Ombudsman has been 
appointed to hear concerns from potential offerors and contractors 
during the preaward and postaward phases of this acquisition. The role 
of the ombudsman is not to diminish the authority of the contracting 
officer, the Technical Evaluation Panel or Source Evaluation Board, or 
the selection official. The purpose of the ombudsman is to facilitate 
the communication of concerns, issues, disagreements, and 
recommendations of interested parties to the appropriate Government 
personnel, and work to resolve them. When requested and appropriate, the 
ombudsman will maintain strict confidentiality as to the source of the 
concern. The ombudsman does not participate in the evaluation of 
proposals, the source selection process, or the adjudication of formal 
contract disputes. Interested parties are invited to contact the 
contracting activity ombudsman, [insert name], at [insert telephone and 
fax numbers]. For an American Embassy or overseas post, refer to the 
numbers below for the Department Acquisition Ombudsman. Concerns, 
issues, disagreements, and recommendations which cannot be resolved at a 
contracting activity level may be referred to the Department of State 
Acquisition Ombudsman at (703) 516-1680, by fax at (703) 875-6155, or 
write to: Department of State, Acquisition Ombudsman, Office of the 
Procurement Executive (A/OPE), Suite 603, SA-6, Washington, DC 20522-
0602.

                           (End of provision)

[64 FR 43629, Aug. 11, 1999]



Sec. 652.216-70  Ordering--Indefinite-Delivery Contract.

    As prescribed in 616.506-70, insert the following clause:

           Ordering--Indefinite-Delivery Contracts (APR 2004)

    The Government shall use one of the following forms to issue orders 
under this contract:
    (a) The Optional Form 347, Order for Supplies or Services, and 
Optional Form 348, Order for Supplies or Services Schedule--
Continuation; or,
    (b) The DS-2076, Purchase Order, Receiving Report and Voucher, and 
DS-2077, Continuation Sheet.

                             (End of clause)

[53 FR 26177, July 11, 1988, as amended at 59 FR 66768, Dec. 28, 1994; 
64 FR 43630, Aug. 11, 1999; 69 FR 19338, Apr. 13, 2004]

[[Page 412]]



Sec. 652.216-71  Price Adjustment.

    As prescribed in 616.203-4, insert a clause substantially the same 
as follows:

                       Price Adjustment (AUG 1999)

    (a) The contract price may be increased or decreased in actual costs 
of direct service labor which result directly from laws enacted and 
effective during the term of this contract by the [insert name of 
country] Government. Direct service labor costs include only the costs 
of wages and direct benefits (such as social security, health insurance, 
unemployment compensation insurance) paid to or incurred for the direct 
benefit of personnel performing services under one of the categories 
listed in Section [identify section number] of this contract. Price 
adjustments will include only changes in direct service labor costs 
incurred in order to comply with the requirements of the law. No 
adjustment will be made under this clause with respect to labor costs of 
personnel not performing direct service labor under the categories of 
Section [identify section], nor for overhead, profit, general and 
administrative (G&A) costs, taxes or any other costs whatsoever.
    (b) For the contracting officer to consider any request for 
adjustment, the contractor shall demonstrate in writing:
    (1) That the change in the law occurred during the term of this 
contract and subsequent to the award date of this contract; and,
    (2) That the change in the law could not have been reasonably 
anticipated prior to contract award; and,
    (3) How the change in the law directly affects the contractor's 
costs under this contract.
    (c) The contractor shall present data that clearly supports any 
request for adjustment. This data shall be submitted no later than 30 
calendar days after the changes in the law have been made public. This 
data shall include, but not be limited to, the following:
    (1) The calculation of the amount of adjustment requested; and,
    (2) Documentation which identifies and provides the appropriate 
portions of the text of the particular law from which the request is 
derived.
    (d) In order to establish the change between the requested adjusted 
rate and the original rate, the contractor shall support the appropriate 
data and composition of the original rate and the requested adjusted 
rate. This shall include details regarding specific hourly rates paid to 
individual employees. For contracts paid in U.S. dollars, the 
contractor's request for price adjustment shall present data reflecting:
    (1) The exchange rate in effect on the date of the contractor's 
proposal that was accepted for the basic contract; and
    (2) The current exchange rate and its effect on payment of workers 
in local currency. The allowable adjustment shall be limited to the 
extent to which increases in direct service labor costs due to host 
country law changes are not offset by exchange rate gains.
    (e) Only direct cost changes mandated by enacted laws shall be 
considered for adjustment under this contract. Changes for purposes of 
maintaining parity of pay between employees at the minimum mandated 
levels and employees already paid at levels above the newly mandated 
minimums shall not be considered. Therefore, if the contractor elects to 
increase payments to employees who are already being paid at or above 
the mandated amounts, such increased costs shall be borne solely by the 
contractor and shall not be justification for an increase in the hourly 
and monthly rates under this contract.
    (f) Any request for adjustment shall be presented by signature of an 
officer or general partner of the contractor having overall 
responsibility for the conduct of the contractor's affairs.
    (g) No adjustment shall be made to the contract price that relates 
to any indirect, overhead, or fixed costs, profit or fee. Only the 
changes in direct service labor wages (and any benefits based directly 
on wages) shall be considered by the U.S. Government as basis for 
contract price changes.
    (h) No request by the contractor for an adjustment under this clause 
shall be allowed if asserted after final payment has been made under 
this contract.
    (i) This clause shall only apply to laws enacted by the [insert name 
of country] Government meeting the criterion set forth above in 
paragraph (b). No adjustments shall be made due to currency fluctuations 
in exchange rates.

                             (End of clause)

[64 FR 43630, Aug. 11, 1999]



Sec. 652.219-70  Department of State Subcontracting Goals.

    As prescribed in 619.708-70, insert a provision substantially the 
same as follows:

           Department of State Subcontracting Goals (APR 2004)

    (a) The offeror shall provide a Small, Small Disadvantaged, Woman-
Owned Small,

[[Page 413]]

HUBZone Small, and Service-Disabled Veteran-Owned Small Enterprise 
Subcontracting Plan that details its approach to selecting and using 
Small, Small Disadvantaged, Woman-Owned Small, HUBZone Small, and 
Service-Disabled Veteran-Owned Small Business Enterprises.
    (b) For the fiscal year [insert appropriate fiscal year], the 
Department's subcontracting goals are as follows:

Sec. (1) Goal for subcontracting to SB: ----------------

Sec. (2) Goal for subcontracting to SDB: ----------------

Sec. (3) Goal for subcontracting to SWB: ----------------

Sec. (4) Goal for subcontracting to HUBZone Firms: ----------------

Sec. (5) Goal for subcontracting to SDVO: ----------------

Sec. (6) Omnibus goals (if applicable): ----------------
    (i) 10% to minority business
    (ii) 10% to small business

                           (End of provision)

[69 FR 19338, Apr. 13, 2004]



Sec. 652.219-71  Section 8(a) Direct Awards.

    As prescribed in 619.811-3(f), insert the following clause:

                  Section 8(a) Direct Awards (AUG 1999)

    (a) This purchase order or contract is issued as a direct award 
between the contracting activity and the 8(a) contractor pursuant to the 
Memorandum of Understanding between the Small Business Administration 
(SBA) and the Department of State (DOS). SBA retains responsibility for 
8(a) certification, 8(a) eligibility determinations and related issues, 
and provides counseling and assistance to the 8(a) contractor under the 
8(a) program. The cognizant SBA district office is: [To be completed by 
the contracting officer at the time of award]
    (b) The DOS contracting officer is responsible for administering the 
purchase order or contract and taking any action on behalf of the 
Government under the terms and conditions of the purchase order or 
contract. However, the DOS contracting officer shall give advance notice 
to the SBA before it issues a final notice terminating performance, 
either in whole or in part, under the purchase order or contract. The 
DOS contracting officer shall also coordinate with SBA prior to 
processing any novation agreement. The DOS contracting officer may 
assign contract administration functions to a contract administration 
office.
    (c) The contractor agrees:
    (1) to notify the DOS contracting officer, simultaneous with its 
notification to SBA (as required by SBA's 8(a) regulations), when the 
owner or owners upon whom 8(a) eligibility is based, plan to relinquish 
ownership or control of the concern. Consistent with 15 U.S.C. 
637(a)(21), transfer of ownership or control shall result in termination 
of the contract for convenience, unless SBA waives the requirement for 
termination prior to the actual relinquishing of ownership and control; 
and,
    (2) to adhere to the requirements of FAR 52.219-14, Limitations on 
Subcontracting.

                             (End of clause)

[64 FR 43630, Aug. 11, 1999]



Sec. 652.219-72  Department of State Mentor-Prot[eacute]g[eacute] 
          Program.

    As prescribed in 619.202-70(o)(1), insert the following provision:

   Department of State Mentor-Prot[eacute]g[eacute] Program (APR 2004)

    (a) Large and small businesses are encouraged to participate in the 
Department of State Mentor-Prot[eacute]g[eacute] Program. Mentor firms 
provide eligible small business prot[eacute]g[eacute]s with 
developmental assistance to enhance their business capabilities and 
ability to obtain Federal contracts.
    (b) Mentor firms are large prime contractors or eligible small 
businesses capable of providing developmental assistance. 
Prot[eacute]g[eacute] firms are small businesses, as defined in 13 CFR 
parts 121, 124, and 126.
    (c) Developmental assistance is technical, managerial, financial, 
and other mutually beneficial assistance that aids 
prot[eacute]g[eacute]s. Firms interested in participating in the program 
are encouraged to contact the Department of State OSDBU for further 
information.

                           (End of provision)

[69 FR 19338, Apr. 13, 2004]



Sec. 652.219-73  Mentor Requirements and Evaluation.

    As prescribed in 619.202-70(o)(2), insert the following clause:

              Mentor Requirements and Evaluation (APR 2004)

    (a) Mentor and prot[eacute]g[eacute] firms shall submit an 
evaluation to the Department of State's OSDBU at the conclusion of the 
mutually agreed upon program period, the conclusion of the contract, or 
the voluntary withdrawal by either party from the program, whichever 
occurs first. At the conclusion of each year in the mentor-
prot[eacute]g[eacute] program, the prime contractor and 
prot[eacute]g[eacute] will formally brief the Department of State 
Mentor-Prot[eacute]g[eacute]

[[Page 414]]

Program Manager regarding program accomplishments under their mentor-
prot[eacute]g[eacute] agreement.
    (b) A mentor or prot[eacute]g[eacute] shall notify the OSDBU and the 
contracting officer, in writing, at least 30 calendar days in advance of 
the effective date of the firm's withdrawal from the program. A mentor 
firm shall notify the OSDBU and the contracting officer upon receipt of 
a prot[eacute]g[eacute]'s notice of withdrawal from the program.

                             (End of clause)

[69 FR 19338, Apr. 13, 2004]



Sec. 652.225-70  Arab League Boycott of Israel.

    As prescribed in 625.7002(a), insert the following provision:

                Arab League Boycott of Israel (AUG 1999)

    (a) Definitions. As used in this provision:
    Foreign person means any person other than a United States person as 
defined below.
    United States person means any United States resident or national 
(other than an individual resident outside the United States and 
employed by other than a United States person), any domestic concern 
(including any permanent domestic establishment of any foreign concern), 
and any foreign subsidiary or affiliate (including any permanent foreign 
establishment) of any domestic concern which is controlled in fact by 
such domestic concern, as provided under the Export Administration Act 
of 1979, as amended.
    (b) Certification. By submitting this offer, the offeror certifies 
that it is not:
    (1) Taking or knowingly agreeing to take any action, with respect to 
the boycott of Israel by Arab League countries, which Section 8(a) of 
the Export Administration Act of 1979, as amended (50 U.S.C. 2407(a)) 
prohibits a United States person from taking; or,
    (2) Discriminating in the award of subcontracts on the basis of 
religion.

                           (End of provision)

[64 FR 43631, Aug. 11, 1999]



Sec. 652.225-71  Section 8(a) of the Export Administration Act of 1979, 
          as Amended.

    As prescribed in 625.7002(b), insert the following clause:

 Section 8(a) of the Export Administration Act of 1979, as Amended (AUG 
                                  1999)

    (a) Section 8(a) of the U.S. Export Administration Act of 1979, as 
amended (50 U.S.C. 2407(a)), prohibits compliance by U.S. persons with 
any boycott fostered by a foreign country against a country which is 
friendly to the United States and which is not itself the object of any 
form of boycott pursuant to United States law or regulation. The Boycott 
of Israel by Arab League countries is such a boycott, and therefore, the 
following actions, if taken with intent to comply with, further, or 
support the Arab League Boycott of Israel, are prohibited activities 
under the Export Administration Act:
    (1) Refusing, or requiring any U.S. person to refuse to do business 
with or in Israel, with any Israeli business concern, or with any 
national or resident of Israel, or with any other person, pursuant to an 
agreement of, or a request from or on behalf of a boycotting country;
    (2) Refusing, or requiring any U.S. person to refuse to employ or 
otherwise discriminating against any person on the basis of race, 
religion, sex, or national origin of that person or of any owner, 
officer, director, or employee of such person;
    (3) Furnishing information with respect to the race, religion, or 
national origin of any U.S. person or of any owner, officer, director, 
or employee of such U.S. person;
    (4) Furnishing information about whether any person has, has had, or 
proposes to have any business relationship (including a relationship by 
way of sale, purchase, legal or commercial representation, shipping or 
other transport, insurance, investment, or supply) with or in the State 
of Israel, with any business concern organized under the laws of the 
State of Israel, with any Israeli national or resident, or with any 
person which is known or believed to be restricted from having any 
business relationship with or in Israel;
    (5) Furnishing information about whether any person is a member of, 
has made contributions to, or is otherwise associated with or involved 
in the activities of any charitable or fraternal organization which 
supports the State of Israel; and,
    (6) Paying, honoring, confirming, or otherwise implementing a letter 
of credit which contains any condition or requirement against doing 
business with the State of Israel.
    (b) Under Section 8(a), the following types of activities are not 
forbidden ``compliance with the boycott,'' and are therefore exempted 
from Section 8(a)'s prohibitions listed in paragraphs (a)(1)-(6) above:
    (1) Complying or agreeing to comply with requirements:
    (i) Prohibiting the import of goods or services from Israel or goods 
produced or services provided by any business concern organized under 
the laws of Israel or by nationals or residents of Israel; or,
    (ii) Prohibiting the shipment of goods to Israel on a carrier of 
Israel, or by a route other than that prescribed by the boycotting 
country or the recipient of the shipment;

[[Page 415]]

    (2) Complying or agreeing to comply with import and shipping 
document requirements with respect to the country of origin, the name of 
the carrier and route of shipment, the name of the supplier of the 
shipment or the name of the provider of other services, except that no 
information knowingly furnished or conveyed in response to such 
requirements may be stated in negative, blacklisting, or similar 
exclusionary terms, other than with respect to carriers or route of 
shipments as may be permitted by such regulations in order to comply 
with precautionary requirements protecting against war risks and 
confiscation;
    (3) Complying or agreeing to comply in the normal course of business 
with the unilateral and specific selection by a boycotting country, or 
national or resident thereof, of carriers, insurance, suppliers of 
services to be performed within the boycotting country or specific goods 
which, in the normal course of business, are identifiable by source when 
imported into the boycotting country;
    (4) Complying or agreeing to comply with the export requirements of 
the boycotting country relating to shipments or transshipments of 
exports to Israel, to any business concern of or organized under the 
laws of Israel, or to any national or resident of Israel;
    (5) Compliance by an individual or agreement by an individual to 
comply with the immigration or passport requirements of any country with 
respect to such individual or any member of such individual's family or 
with requests for information regarding requirements of employment of 
such individual within the boycotting country; and,
    (6) Compliance by a U.S. person resident in a foreign country or 
agreement by such person to comply with the laws of that country with 
respect to his or her activities exclusively therein, and such 
regulations may contain exceptions for such resident complying with the 
laws or regulations of that foreign country governing imports into such 
country of trademarked, trade named, or similarly specifically 
identifiable products, or components of products for his or her own use, 
including the performance of contractual services within that country, 
as may be defined by such regulations.

                             (End of clause)

[64 FR 43631, Aug. 11, 1999]



Sec. 652.228-70  Defense Base Act--Covered Contractor Employees.

    As prescribed in 628.309-70(a), insert the following provision:

        Defense Base Act--Covered Contractor Employees (JUN 2006)

    (a) Bidders/offerors shall indicate below whether or not any of the 
following categories of employees will be employed on the resultant 
contract, and, if so, the number of such employees:

----------------------------------------------------------------------------------------------------------------
              Category                               Yes/No                                Number
----------------------------------------------------------------------------------------------------------------
(1) United States citizens or
 residents
(2) Individuals hired in the United
 States, regardless of citizenship
(3) Local nationals or third         .....................................  Local nationals:
 country nationals where contract                                           --------------------
 performance takes place in a                                               Third country nationals:
 country where there are no local                                           --------------------
 workers' compensation laws.
(4) Local nationals or third         .....................................  Local nationals:
 country nationals where contract                                           --------------------
 performance takes place in a                                               Third country nationals:
 country where there are local                                              --------------------
 workers' compensation laws.
----------------------------------------------------------------------------------------------------------------

    (b) The contracting officer has determined that for performance in 
the country of [contracting officer insert country of performance and 
check the appropriate block below]
    [squ] Workers' compensation laws exist that will cover local 
nationals and third country nationals.
    [squ] Workers' compensation laws do not exist that will cover local 
nationals and third country nationals.
    (c) If the bidder/offeror has indicated ``yes'' in block (a)(4) of 
this provision, the bidder/offeror shall not purchase Defense Base Act 
insurance for those employees. However, the bidder/offeror shall assume 
liability toward the employees and their beneficiaries for war-hazard 
injury, death, capture, or detention, in accordance with the clause at 
FAR 52.228-4.
    (d) If the bidder/offeror has indicated ``yes'' in blocks (a)(1), 
(2), or (3) of this provision, the bidder/offeror shall compute Defense 
Base Act insurance costs covering those employees pursuant to the terms 
of the contract between the Department of State and the Department's 
Defense Base Act insurance carrier at the rates specified in DOSAR 
652.228-74, Defense Base Act Insurance Rates--Limitation. If DOSAR 
provision 652.228-74 is not included in this solicitation, the bidder/
offeror shall notify the contracting officer before the closing date so

[[Page 416]]

that the solicitation can be amended accordingly.

                           (End of provision)

[71 FR 34841, June 16, 2006; 71 FR 41177, July 20, 2006]



Sec. 652.228-71  Worker's Compensation Insurance (Defense Base Act)--
          Services.

    As prescribed in 628.309-70(b), insert the following clause:

 Workers' Compensation Insurance (Defense Base Act)--Services (JUN 2006)

    (a) This clause supplements FAR 52.228-3. For the purposes of this 
clause, ``covered contractor employees'' includes the following 
individuals:
    (1) United States citizens or residents;
    (2) Individuals hired in the United States or its possessions, 
regardless of citizenship; and
    (3) Local nationals and third country nationals where contract 
performance takes place in a country where there are no local workers' 
compensation laws.
    (b) The Contractor shall procure Defense Base Act (DBA) insurance 
pursuant to the terms of the contract between the Department of State 
and the Department's DBA insurance carrier for covered contractor 
employees, unless the Contractor has a DBA self-insurance program 
approved by the Department of Labor. The Contractor shall submit a copy 
of the Department of Labor's approval to the contracting officer upon 
contract award, if applicable.
    (c) The current rate under the Department of State contract is 
[contracting officer insert rate] of compensation for services.
    (d) The Contractor shall insert a clause substantially the same as 
this in all subcontracts. The Contractor shall require that 
subcontractors insert a similar clause in any of their subcontracts.
    (e) Should the rates for DBA insurance coverage increase or decrease 
during the performance of this contract, the contracting officer shall 
modify this contract accordingly.
    (f) The Contractor shall demonstrate to the satisfaction of the 
contracting officer that the equitable adjustment as a result of the 
insurance increase or decrease does not include any reserve for such 
insurance. Adjustment shall not include any overhead, profit, general 
and administrative expenses, etc.
    (g)(1) Section 16 of the State Department Basic Authorities Act (22 
U.S.C. 2680a), as amended, provides that the Defense Base Act shall not 
apply with respect to such contracts as the Secretary of State 
determines are contracts with persons employed to perform work for the 
Department of State on an intermittent basis for not more than 90 days 
in a calendar year. ``Persons'' includes individuals hired by companies 
under contract with the Department. The Procurement Executive has the 
authority to issue the waivers for Contractor employees who work on an 
intermittent or short-term basis.
    (2) The Contractor shall submit waiver requests to the contracting 
officer. The request shall contain the following information:
    (i) Contract number;
    (ii) Name of Contractor;
    (iii) Brief description of the services to be provided under the 
contract and country of performance;
    (iv) Name and position title of individual(s);
    (v) Nationality of individual(s) (must be U.S. citizen or U.S. 
resident);
    (vi) Dates (or timeframe) of performance at the overseas location; 
and,
    (vii) Evidence of alternative workers' compensation coverage for 
these employees (e.g., evidence that the State workers' compensation 
program covers workers on short-term foreign assignments).
    (3) The contracting officer shall provide to the Contractor the 
original of the approved or disapproved document and maintain a copy in 
the contract file.

                             (End of clause)

    Alternate I. (MO/YR) If the contract is for construction, as 
prescribed in 628.309-70(b), substitute the following paragraph (c) for 
paragraph (c) of the basic clause:

    (c) The current rate under the Department of State contract is 
[contracting officer insert rate] of compensation for construction.

[71 FR 34841, June 16, 2006; 71 FR 41177, July 20, 2006]



Sec. 652.228-72--652.228-73  [Reserved]



Sec. 652.228-74  Defense Base Act insurance rates--Limitation.

    As prescribed in 628.309-70(c), insert the following provision:

         Defense Base Act Insurance Rates--Limitation (JUN 2006)

    (a) The Department of State has entered into a contract with an 
insurance carrier to provide Defense Base Act (DBA) insurance to 
Department of State covered contractor employees at a contracted rate. 
For the purposes of this provision, ``covered contractor

[[Page 417]]

employees'' includes the following individuals:
    (1) United States citizens or residents;
    (2) Individuals hired in the United States or its possessions, 
regardless of citizenship; and
    (3) Local nationals and third country nationals where contract 
performance takes place in a country where there are no local workers' 
compensation laws.
    (b) In preparing the cost proposal, the bidder/offeror shall use the 
following rates in computing the cost for DBA insurance:
    Services @[contracting officer insert current rate] of compensation; 
or
    Construction @[contracting officer insert current rate] of 
compensation.
    (c) Bidders/offerors shall compute the total compensation (direct 
salary plus differential, but excluding per diem, housing allowance and 
other miscellaneous allowances) to be paid to covered contractor 
employees and the cost of the DBA insurance in their bid/offer using the 
foregoing rate. Bidders/offerors shall include the estimated DBA 
insurance costs in their proposed total fixed price or estimated cost. 
However, the DBA insurance costs shall be identified in a separate line 
item in the bid/proposal.

                           (End of provision)

[71 FR 34841, June 16, 2006; 71 FR 41177, July 20, 2006]



Sec. 652.229-70  Excise Tax Exemption Statement for Contractors Within 
          the United States.

    As prescribed in 629.401-70, insert the following clause:

Excise Tax Exemption Statement for Contractors Within the United States 
                               (JUL 1988)

    This is to certify that the item(s) covered by this contract is/are 
for export solely for the use of the U.S. Foreign Service Post 
identified in the contract schedule.
    The Contractor shall use a photocopy of this contract as evidence of 
intent to export. Final proof of exportation may be obtained from the 
agent handling the shipment. Such proof shall be accepted in lieu of 
payment of excise tax.

                             (End of clause)

[53 FR 26177, July 11, 1988, as amended at 64 FR 43632, Aug. 11, 1999]



Sec. 652.229-71  Personal Property Disposition at Posts Abroad.

    As prescribed in 629.402-1-70, insert the following clause:

        Personal Property Disposition at Posts Abroad (AUG 1999)

    Regulations at 22 CFR Part 136 require that U.S. Government 
employees and their families do not profit personally from sales or 
other transactions with persons who are not themselves entitled to 
exemption from import restrictions, duties, or taxes. Should the 
contractor experience importation or tax privileges in a foreign country 
because of its contractual relationship to the United States Government, 
the contractor shall observe the requirements of 22 CFR part 136 and all 
policies, rules, and procedures issued by the chief of mission in that 
foreign country.

                             (End of clause)

[64 FR 43633, Aug. 11, 1999]



Sec. 652.232-70  Payment Schedule and Invoice Submission (Fixed-Price).

    As prescribed in 632.908(a), the contracting officer may insert a 
clause substantially the same as follows:

    Payment Schedule and Invoice Submission (Fixed-Price) (AUG 1999)

    (a) General. The Government shall pay the contractor as full 
compensation for all work required, performed and accepted under this 
contract, inclusive of all costs and expenses, the firm fixed-price 
stated in Section B of this contract.
[Use paragraph (b) only if partial payments apply. Otherwise, paragraph 
(a) above assumes the contractor will be paid in full amount upon 
completion of all contractural requirements.]
    (b) Payment Schedule. Payments will be made in accordance with the 
following partial payment schedule:

------------------------------------------------------------------------
                                  Specific      Delivery       Payment
     Partial payment No.        deliverable       date         amount
------------------------------------------------------------------------
1                              .............  ............  ............
2                              .............  ............  ............
3                              .............  ............  ............
------------------------------------------------------------------------

[Continue as necessary]

    (c) Invoice Submission. Invoices shall be submitted in an original 
and [contracting officer insert appropriate number of copies] to the 
office identified in Block 10 of the SF-26, Block 23 of the SF-33, or 
Block 18b of the SF-1449. To constitute a proper invoice, the invoice 
must include all items per FAR 52.232-25, ``Prompt Payment''.
    (d) Contractor Remittance Address. Payment shall be made to the 
contractor's address as specified on the cover page of this contract, 
unless a separate remittance address is specified below:

________________________________________________________________________


[[Page 418]]

________________________________________________________________________
________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

                             (End of clause)

[59 FR 66771, Dec. 28, 1994, as amended at 64 FR 43633, Aug. 11, 1999]



Sec. 652.232-71  Voucher Submission (Cost-Reimbursement).

    As prescribed in 632.908(b), the contracting officer may insert a 
clause substantially the same as follows:

           Voucher Submission (Cost-Reimbursement) (AUG 1999)

    (a) General. The contractor shall submit, on a monthly basis 
[contracting officer may substitute a different time frame, if 
appropriate], an original and [contracting officer insert appropriate 
number] copies of each voucher. In addition to the items necessary per 
FAR 52.232-25, ``Prompt Payment'', the voucher shall show the elements 
of cost for the billing period and the cumulative costs to date. All 
vouchers shall be submitted to the office identified in Block 10 of the 
SF-26, Block 23 of the SF-33, or Block 18b of the SF-1449.
    (b) Contractor Remittance Address. Payment shall be made to the 
contractor's address as specified on the cover page of this contract, 
unless a separate remittance address is specified below:

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

                             (End of clause)

[59 FR 66772, Dec. 28, 1994, as amended at 64 FR 43633, Aug. 11, 1999]



Sec. 652.232-72  Limitation of Funds.

    As prescribed in 632.705-70, insert the following clause:

                     Limitation of Funds (AUG 1999)

    (a) Of the total price in Section B (or the ``Prices'' section), 
only the amount stated on the contract award document or subsequent 
modifications is now available for payment and obligated under this 
contract. It is anticipated that from time to time, additional funds 
will be obligated under the contract until the total price of the 
contract is obligated.
    (b) The Government is not obligated to pay or reimburse the 
contractor more than the amount obligated pursuant to this clause. The 
contractor agrees to perform the contract up to the point at which the 
total amount paid and payable by the Government (including amounts 
payable for subcontracts and settlement costs if this contract is 
terminated for convenience) approximates but does not exceed the total 
amount obligated.
    (c)(1) It is contemplated that funds now obligated under this 
contract will cover the work to be performed until [contracting officer 
insert date].
    (2) If the contractor considers the funds obligated under this 
contract to be insufficient to cover the work to be performed until that 
date, or another date agreed to by the parties, the contractor shall 
notify the contracting officer in writing and indicate the date on which 
it expects expended funds to approximate 75 percent of the total amount 
obligated. The notice shall state the estimated amount of additional 
funds required to continue performance through the date specified in 
paragraph (c)(1) of this clause or another date agreed to by the 
parties.
    (3) If, after notification is provided pursuant to paragraph (c)(2) 
of this clause, additional funds are not obligated, or an earlier date 
than the date in paragraph (c)(1) of this clause is not agreed to, the 
contractor shall not be obligated to continue performance under this 
contract (including actions under the termination clause of this 
contract) beyond the funds obligated for contract performance.
    (d) When additional funds are obligated from time to time for 
continued performance of this contract, the contract shall be modified 
to increase the funds obligated and to indicate the period of 
performance for which funds are applicable. The contractor may notify 
the contracting officer as provided in paragraph (c)(2) of this clause 
regarding any additional funds obligated.
    (e) If the contractor incurs additional costs or is delayed in the 
performance of work under this contract, solely by reason of the 
Government's failure to obligate additional funds in amounts sufficient 
for the timely performance of this contract, an equitable adjustment may 
be made to the price, or time of delivery, or both.
    (f) This clause shall become inoperative upon obligation of funds 
sufficient to cover the full price stated in the contract, except for 
rights and obligations then existing under this clause.
    (g) Nothing in this clause shall affect the Government's right to 
terminate the contract for convenience or default.

                             (End of clause)

[64 FR 43633, Aug. 11, 1999]



Sec. 652.236-70  Accident Prevention.

    As prescribed in 636.513, insert the following clause:

[[Page 419]]

                     Accident Prevention (APR 2004)

    (a) General. The contractor shall provide and maintain work 
environments and procedures which will safeguard the public and 
Government personnel, property, materials, supplies, and equipment 
exposed to contractor operations and activities; avoid interruptions of 
Government operations and delays in project completion dates; and, 
control costs in the performance of this contract. For these purposes, 
the contractor shall:
    (1) Provide appropriate safety barricades, signs and signal lights;
    (2) Comply with the standards issued by any local government 
authority having jurisdiction over occupational health and safety 
issues; and,
    (3) Ensure that any additional measures the contracting officer 
determines to be reasonably necessary for this purpose are taken.
    (4) For overseas construction projects, the contracting officer 
shall specify in writing additional requirements regarding safety if the 
work involves:
    (i) Scaffolding;
    (ii) Work at heights above two (2) meters;
    (iii) Trenching or other excavation greater than one (1) meter in 
depth;
    (iv) Earth moving equipment;
    (v) Temporary wiring, use of portable electric tools, or other 
recognized electrical hazards. Temporary wiring and portable electric 
tools require the use of a ground fault circuit interrupter (GFCI) in 
the affected circuits; other electrical hazards may also require the use 
of a GFCI;
    (vi) Work in confined spaces (limited exits, potential for oxygen 
less than 19.5 percent or combustible atmosphere, potential for solid or 
liquid engulfment, or other hazards considered to be immediately 
dangerous to life or health such as water tanks, transformer vaults, 
sewers, cisterns, etc.);
    (vii) Hazardous materials--a material with a physical or health 
hazard including but not limited to, flammable, explosive, corrosive, 
toxic, reactive or unstable, or any operations which creates any kind of 
contamination inside an occupied building such as dust from demolition 
activities, paints, solvents, etc.; or
    (viii) Hazardous noise levels.
    (b) Records. The contractor shall maintain an accurate record of 
exposure data on all accidents incident to work performed under this 
contract resulting in death, traumatic injury, occupational disease, or 
damage to or theft of property, materials, supplies, or equipment. The 
contractor shall report this data in the manner prescribed by the 
contracting officer.
    (c) Subcontracts. The contractor shall be responsible for its 
subcontractors' compliance with this clause.
    (d) Written program. Before commencing work, the contractor shall:
    (1) Submit a written plan to the contracting officer for 
implementing this clause. The plan shall include specific management or 
technical procedures for effectively controlling hazards associated with 
the project; and,
    (2) Meet with the contracting officer to discuss and develop a 
mutual understanding relative to administration of the overall safety 
program.
    (e) Notification. The contracting officer shall notify the 
contractor of any non-compliance with these requirements and the 
corrective actions required. This notice, when delivered to the 
contractor or the contractor's representative on site, shall be deemed 
sufficient notice of the non-compliance and corrective action required. 
After receiving the notice, the contractor shall immediately take 
corrective action. If the contractor fails or refuses to promptly take 
corrective action, the contracting officer may issue an order suspending 
all or part of the work until satisfactory corrective action has been 
taken. The contractor shall not be entitled to any equitable adjustment 
of the contract price or extension of the performance schedule on any 
suspension of work order issued under this clause.

                             (End of clause)

[64 FR 43633, Aug. 11, 1999, as amended at 69 FR 19339, Apr. 13, 2004]



Sec. 652.236-71  Foreign Service Buildings Act, as Amended.

    As prescribed in 636.570(a), insert the following provision:

          Foreign Service Buildings Act, as Amended (APR 2004)

    (a) This solicitation is subject to Section 11 of the Foreign 
Service Buildings Act of 1926, as amended (22 U.S.C. 302). This statute 
limits competition under this solicitation to:
    (1) American-owned firms, as described in paragraph (b) of this 
provision; and,
    (2) Firms from countries that permit or agree to permit 
substantially equal access to American firms for comparable diplomatic 
and consular building projects.
    (b) To qualify as an American-owned firm for purposes of this 
solicitation, the bidder/offeror must demonstrate evidence of:
    (1) Performance of similar construction work in the United States; 
and
    (2) Either--
    (i) Ownership in excess of 50% by U.S. citizens or permanent 
residents; or
    (ii) Incorporation in the United States for more than three (3) 
years and employment of U.S. citizens or permanent residents in more 
than half of the company's permanent full-

[[Page 420]]

time professional and managerial positions in the United States.
    (c) For purposes of determining competitive status, offers submitted 
by American-owned firms shall be reduced by ten (10) percent, provided 
that two responsible bidders/offerors submit a bid/offer.
    (d) Evidence of qualification. (1) Performance of similar 
construction work in the United States. The bidder/offeror must describe 
below one or more similar projects completed in the United States. For 
each project, provide the following information:

 Location:______________________________________________________________
 (City and State)_______________________________________________________
 Complexity:____________________________________________________________
________________________________________________________________________
(Office building, etc.)
 Type of construction:__________________________________________________
 Value of project:______________________________________________________
 Location:______________________________________________________________
 (City and State)_______________________________________________________
 Complexity:____________________________________________________________
________________________________________________________________________
(Office building, etc.)
 Type of construction:__________________________________________________
 Value of project:______________________________________________________
 Location:______________________________________________________________
 (City and State)_______________________________________________________
 Complexity:____________________________________________________________
________________________________________________________________________
(Office building, etc.)
 Type of construction:__________________________________________________
 Value of project:______________________________________________________
    If the bidder/offeror's participation was as a partner or co-
venture, indicate the percentage of the project performed by the bidder/
offeror: ------ %
    (2) Corporate location or ownership.
    (i) The bidder/offeror certifies that it [squ] is [squ] is not owned 
in excess of fifty (50) percent by United States citizens or permanent 
residents.
    (ii) The bidder/offeror certifies that it [squ] has [squ] has not 
been incorporated in the United States for more than three years and 
that it [squ] employs [squ] does not employ United States citizens or 
permanent residents in more than half of its permanent full-time 
professional and managerial positions in the United States.
    (e) By signing this bid/offer, the bidder/offeror certifies to the 
best of its knowledge, all of the representations and certifications 
provided in this provision are accurate, current and complete.

                           (End of provision)

[69 FR 19339, Apr. 13, 2004]



Sec. 652.236-72  Statement of Qualifications for the Omnibus Diplomatic 
          Security and Antiterrorism Act.

    As prescribed in 636.570(b), insert the following provision:

  Statement of Qualifications for the Omnibus Diplomatic Security and 
                      Antiterrorism Act (APR 2004)

    (a) This solicitation is subject to Section 402 and Section 406(c) 
of the Omnibus Diplomatic Security and Antiterrorism Act of 1986 (P.L. 
99-399; 22 U.S.C. 4852). The Act limits certain construction projects 
abroad to United States persons or United States joint venture persons, 
and excludes organizations that have business arrangements with Libya. 
This Statement of Qualifications shall be used to determine if a bidder/
offeror meets the definition of a ``United States person'' or a ``United 
States joint venture person'' and whether they have any business 
arrangements with Libya that may disqualify them from participating in 
this solicitation.
    (b) Definition. As used in this provision--
    U.S. person means a company, partnership, or joint venture that the 
Government determines, after consideration of all available information, 
including but not limited to that provided by the bidder/offeror in 
response to this solicitation, to be qualified pursuant to Section 402.
    (c) Representation. The bidder/offeror represents as part of its 
bid/offer that it [squ] does [squ] does not meet the qualifications as a 
U.S. person as set forth in Section 402 of the Act.
    [Complete a Statement of Qualifications for Purposes of Determining 
Status as a U.S. Person if the offeror represents that it is eligible. 
See paragraph (d) of this provision.]
    Warning: Any material misrepresentation made in the Statement of 
Qualifications may be the basis for disqualification of a bidder/offeror 
and reference for consideration of suspension or debarment or for 
prosecution under Federal law (cf. 18 U.S.C. 1001). Bidder/offeror 
qualifications will be determined primarily on the basis of information 
submitted in the Statement of Qualifications, including attachments 
thereto, but the Government may, at its discretion, rely on information 
contained elsewhere in the bidder's/offeror's bid/proposal or obtained 
from other sources.
    (d) Statement of Qualifications for Purposes of Determining Status 
as a U.S. Person (22 U.S.C. 4852). A bidder/offeror that represents that 
it is a U.S. person must provide the following information.
    Statement of Qualifications for Purposes of Determining Status as a 
U.S. Person (22 U.S.C. 4852)
Name and address of U.S. person organization providing this information:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

    Introduction. Section 402 of the Omnibus Diplomatic Security and 
Antiterrorism Act (Public Law 99-399) provides that a ``United States 
person'' or a ``qualified United States joint venture'' must meet 
certain requirements, listed in sections 402(c)(2) and (3) of

[[Page 421]]

the Act, to be eligible to compete. To assist business entities to 
determine whether they qualify as a U.S. person or U.S. joint venture 
person, guidance is hereby provided. For ease of reference, the 
statutory language is quoted immediately before the definitions that 
apply to it. Space for the required information is provided immediately 
following each definition.

    Note: The Statement of Qualifications shall provide information 
correctly applicable to the U.S. person whose qualifications are being 
certified, and shall not include information pertaining to corporate 
affiliates or subsidiaries. Organizations that wish to use the 
experience or financial resources of any other legally dependent 
organization or individual, including parent companies, subsidiaries, or 
other related organizations, must do so by way of a joint venture. A 
prospective bidder/offeror may be an individual organization or firm, a 
formal joint venture in which the co-venturers have reduced their 
arrangement to writing, or a de facto joint venture where no formal 
agreement has been reached, but the offering entity relies upon the 
experience of a related U.S. firm that guarantees performance. To be 
considered a ``qualified United States joint venture person,'' the joint 
venture must have at least one firm or organization that itself meets 
all the requirements of a U.S. person listed in Section 402. By signing 
this bid/proposal, the U.S. person co-venturer agrees to be individually 
responsible for performance of the contract, notwithstanding the terms 
of any joint venture agreement.

    1. Section 402(c)(2)(A): ``The term `United States person' means a 
person which--(A) is incorporated or legally organized under the laws of 
the United States, including the District of Columbia, and local laws.''
    Definitions for purposes of Section 402 determinations of 
eligibility--
    Incorporated means the successful de jure incorporation of a 
business organization pursuant to the laws of any United States 
jurisdiction or component thereof.
    Legally organized means the legally recognized existence of an 
organization other than a de jure corporation (e.g., a partnership) 
under the laws of any United States jurisdiction or component thereof. 
Only organizations that have a legal status, including the right to 
bring suit, to sign contracts, and to hold property under the law of the 
jurisdiction where they are doing business will qualify as legally 
organized. A natural person who is a United States citizen acting in his 
or her entrepreneurial capacity will be deemed to be a ``person legally 
organized'' within the scope of this definition, provided that the 
prospective bidder/offeror holds all required licenses to do business in 
the jurisdiction where he or she is located.
    United States means any jurisdiction that is one of the fifty 
States, the District of Columbia, a United States territory, a United 
States possession, or the Commonwealths of Puerto Rico and the Northern 
Mariana Islands.
    Question 1. The organization seeking eligibility under Section 402 
is incorporated or is legally organized under the laws of what 
jurisdiction?
________________________________________________________________________

    2. Section 402(c)(2)(B): ``The term `United States person' means a 
person which--(B) has its principal place of business in the United 
States.''
    Definitions for purposes of Section 402 determinations of 
eligibility--
    Principal place of business means the main location of the 
prospective bidder/offeror. For purposes of this section, a prospective 
bidder/offeror shall identify only one principal place of business, and 
such location shall include at least the offices of the chief operating 
officer and headquarters staff. The named location must be a United 
States jurisdiction from which a tax return has been filed or will be 
filed during the calendar year in which the prospective bidder/offeror 
submits this bid/offer.
    United States means any jurisdiction that is one of the fifty 
States, the District of Columbia, a United States territory, a United 
States possession, or the Commonwealths of Puerto Rico and the Northern 
Mariana Islands.
    Question 2(a). The organization seeking eligibility has its 
principal place of business in what city and state?
________________________________________________________________________

    Question 2(b). What kind of tax return was or will be filed, and in 
what jurisdiction, during the current calendar year?
 (i) Jurisdiction:______________________________________________________
(e.g., federal, state, city)
    (ii) Type of return (e.g., income tax, franchise tax, etc.). Include 
all that apply:
________________________________________________________________________
________________________________________________________________________

    3. Section 402(c)(2)(C): ``The term `United States person' means a 
person which has been incorporated or legally organized in the United 
States--
    (i) for more than 5 (five) years before the issuance date of the 
invitation for bids or request for proposals with respect to a 
construction project under subsection (a)(1); and,
    (ii) for more than 2 (two) years before the issuance date of the 
invitation for bids or request for proposals with respect to a 
construction or design project abroad that involves technical security 
under subsection (a)(2).''
    Definitions for purposes of Section 402 determinations of 
eligibility--

[[Page 422]]

    Has been incorporated or legally organized means that the 
organization can show continuity as an ongoing business. Organizations 
that have changed only their names meet the continuity requirement of 
this subsection. Organizations that have been bought, sold, merged, or 
otherwise substantially altered or enlarged their principal business 
activities will have the burden of proving that there have been ongoing 
operations by the same business entity for the required period of time. 
If the successor entity has acquired all of the assets and liabilities 
of the predecessor business and the predecessor business has no further 
existence, the successor may claim the incorporation date of the 
predecessor. In any other circumstance, the prospective bidder/offeror 
must show that the law of the jurisdiction in which it operates regards 
the prospective bidder/offeror as the complete successor in interest of 
the predecessor business for purpose of contractual obligations.
    Issuance date means the date in Block 3 of the Standard Form 1442 
accompanying this solicitation.
    Years means calendar years measured from day of the month to day of 
the month. For example, January 1, 2002 through December 31, 2002 is one 
calendar year, as is July 1, 2002 through July 1, 2003.
    Question 3:
    (i) On what date was the organization seeking eligibility 
incorporated or legally organized? ----------------
    (ii) If this date is less than the required number of years before 
the issuance date, on the basis of what documentation does the 
organization seeking eligibility claim that it has been in business for 
the requisite period of time?-------------------------------- (Identify, 
and forward copies as an Attachment to this Statement. This material may 
include such items as certificates of incorporation, partnership 
agreements, resolutions of boards of directors, etc.).
    4. Section 402(c)(2)(D): ``The term `United States person' means a 
person which has performed within the United States or at a United 
States diplomatic or consular establishment abroad administrative and 
technical, professional, or construction services similar in complexity, 
type of construction, and value to the contract being bid.''
    Definitions for purposes of Section 402 determination of 
eligibility--
    Administrative and technical, professional, or construction services 
means the kind of work in which the prospective bidder/offeror is 
interested. If the proposed contract is for construction management 
services, the prospective bidder/offeror will be expected to demonstrate 
construction management expertise. In general, ``administrative'' means 
the capacity or ability to manage; ``technical'' means the specific 
skills peculiar to the type of work required; ``professional'' means 
expert services resulting from advanced training in the type of work 
required; and ``construction'' experience if it has not directly 
performed all of the actual construction activities. Thus, an entity 
whose only construction work experience was performed by its legally 
distinct subsidiary or parent will not be considered to have 
construction experience.
    Complexity means the physical size and technical size and demands of 
the project. ``Performed'' means projects that have been fully completed 
by the prospective bidder/offeror and accepted by the owner or other 
party to the transaction. Projects still in progress have not yet been 
performed for purposes of this definition.
    Type of construction means the overall nature of the facilities to 
be built, including the kinds of materials to be used. Thus, if the 
contract will require the construction of a multi-story office building, 
the prospective bidder/offeror will be expected to demonstrate 
experience with facilities of this type.
    Value means the total contract price of the project, not to the 
profit or loss to the bidder/offeror.
    Within the United States means a United States jurisdiction that is 
the place where the subject matter of the contract or other arrangement 
was in fact completed. It does not mean the place where the contract or 
other arrangement was negotiated or signed. The term ``United States'' 
means any jurisdiction that is one of the 50 states, the District of 
Columbia, a United States territory, a United States possession, or the 
Commonwealth of Puerto Rico and the Northern Mariana Islands.
    Question 4: List on this page, and an attachment (if necessary), one 
or more similar projects completed by the prospective bidder/offeror. 
For each project, provide the following information:
________________________________________________________________________
Location:
(City and State, or Country)
________________________________________________________________________
Type of service:
(administrative, etc.)
________________________________________________________________________
Complexity:
(office building, etc.)
________________________________________________________________________
Type of construction:
________________________________________________________________________
Value of project:

    If the prospective bidder/offeror's participation was as a partner 
or co-venturer, indicate the percentage of the project performed by the 
prospective offeror: -------- %
    5. Section 402(c)(2)(E): ``The term `United States person' means a 
person which--with respect to a construction project under subsection 
(a)(1)--has achieved a total business volume equal to or greater than 
the value of

[[Page 423]]

the project being bid in 3 years of the 5-year period before the date 
specified in subparagraph (C)(i).''
    Definitions of purposes of Section 402 determination of 
eligibility--
    3 years of the 5-year period before the date specified in 
subparagraph (C)(i) means the three to five calendar year period 
immediately preceding the issuance date of this solicitation.
    Total business volume means the U.S. dollar value of the gross 
income or receipts reported by the prospective bidder/offeror on its 
annual federal income tax returns.
    Years means the business year of the prospective bidder/offeror, as 
reflected on its annual federal income tax returns.
    Question 5: Please complete the information below for at least three 
of the five listed years.
    The gross receipts for the business year: (list year and amount).
    The gross receipts for the business year: (list year and amount).
    The gross receipts for the business year: (list year and amount).
    The gross receipts for the business year: (list year and amount).
    The gross receipts for the business year: (list year and amount).
    6. Section 402(c)(2)(F): ``The term `United States person' means a 
person which--(i) employs United States citizens in at least 80 percent 
of its principal management positions in the United States; (ii) employs 
United States citizens in more than half of its permanent, full-time 
positions in the United States; and (iii) will employ United States 
citizens in at least 80 percent of the supervisory positions on the 
foreign buildings office project site.''
    Definitions for purposes of Section 402 determinations of 
eligibility--
    In the United States refers to those positions that the prospective 
bidder/offeror maintains within all jurisdictions which are one of the 
50 states, the District of Columbia, a United States territory, a United 
States possession, or the Commonwealths of Puerto Rico and the Northern 
Mariana Islands.
    Permanent, full-time positions means positions with the prospective 
bidder/offeror that are intended to be indefinite, as opposed to 
limited, seasonal, or project-duration periods. The term `full-time' 
refers to positions in which the occupants are expected to and 
ordinarily work 40 hours a week. The term `permanent, full-time 
positions' covers the portion of the prospective bidder's/offeror's 
workforce that continues to be employed without regard to the 
fluctuating requirements of production or projects.
    Principal management positions refers to chief operating officer and 
those management officials reporting directly to him or her. In the case 
of a partnership, the term refers to every general partner. In the case 
of a corporation, the term refers to those officers of the corporation 
who are active in running its day-to-day operations. Members of 
corporation boards of directors who do not have operational 
responsibilities do not occupy ``principal management positions'' simply 
by virtue of their service on the board. In all cases, the term 
``principal management positions'' also includes the position or 
positions held by the individual or individuals who will have primary 
corporate management oversight responsibility for this contract if the 
prospective bidder/offeror is awarded the contract. Each prospective 
bidder/offeror is responsible for listing all of its principal 
management positions and identifying their current occupants by name and 
citizenship.
    Supervisory positions means all positions with significant authority 
to direct the work of others as well as those for which access to 
classified or controlled documents is required. Such positions will be 
identified in each contract.
    United States citizen means natural persons with United States 
citizenship by virtue either of birth or of naturalization.
    Question 6(a): The bidder/offeror has the following staff:
    (i) Principal management positions in the United States:

                        Chief Operating Officer:

________________________________________________________________________
(name)
________________________________________________________________________
(citizenship)
    (ii) For each individual reporting directly to the above-named Chief 
Operating Officer, list position, name, and citizenship:
________________________________________________________________________
Position:
________________________________________________________________________
Name:
________________________________________________________________________
Citizenship:
    (iii) Individual(s) expected to have primary management oversight 
responsibility for contract if it is awarded:
________________________________________________________________________
(name)
________________________________________________________________________
(citizenship)
    Question 6(b): Number of permanent, full-time positions in the 
United States: --------
    Question 6(c): Number of United States citizens currently employed 
in permanent, full-time positions in the United States: --------
    Question 6(d): Certification of intent to employ U.S. citizens in a 
minimum of 80 percent of the supervisory positions identified by the 
Government on this project:
 I so certify:__________________________________________________________
(signature)
________________________________________________________________________
(name typed or printed)

[[Page 424]]

________________________________________________________________________
(position)
________________________________________________________________________
(date)
    7. Section 402(c)(2)(G): ``The term `United States person' means a 
person which has the existing technical and financial resources in the 
United States to perform this contract.''
    Definitions for purposes of Section 402 determinations of 
eligibility--
    Existing technical and financial resources means the capability of 
the prospective bidder/offeror to mobilize adequate staffing and 
monetary arrangements from within the United States sufficient to 
perform the contract. Adequate staffing levels may be demonstrated by 
presenting the resumes of current United States citizens and resident 
aliens with skills and expertise necessary for the work in which the 
prospective bidder/offeror is interested or some other indication of 
available United States citizen or permanent legal resident human 
resources. Demonstration of adequate financial resources must be issued 
by entities that are subject to the jurisdiction of United States courts 
and have agents located within the United States for acceptance of 
service of process.
    Question 7: Submit, as an Attachment to this Statement, materials 
demonstrating existing technical and financial resources in the United 
States.
    8. Section 402(c)(3): ``The term `qualified United States joint 
venture person' means a joint venture in which a United States person or 
persons owns at least 51 percent of the assets of the joint venture.''
    Definitions for purposes of Section 402 determinations of 
eligibility--
    Assets means tangible and intangible things of value conveyed or 
made available to the joint venture by the co-venturers.
    Joint venture means a formal or de facto arrangement by and through 
which two or more persons or entities associate for the purpose of 
carrying out the prospective contract. Prospective bidders/offerors are 
advised that a joint venture may not be acceptable to projects requiring 
a Department of Defense facility security clearance because each co-
venturer may post particular problems in obtaining security clearances. 
To be acceptable, all members of a joint venture must be individually 
and severally liable for the full performance of and resolution of any 
and all matters arising out of the contract, notwithstanding any 
provision of the joint venture agreement of law of the jurisdiction 
under which the joint venture was created.
    Question 8(a): The bidder/offeror is is not a joint venture.
    Question 8(b): If the bidder/offeror is a joint venture, the U.S. 
person participant is:
________________________________________________________________________
(name)
________________________________________________________________________
(address)
    Question 8(c): If the bidder/offeror is a joint venture, the names 
and countries of citizenship for all co-venturers are as follows:
________________________________________________________________________
(name)
________________________________________________________________________
(citizenship)
________________________________________________________________________
(name)
________________________________________________________________________
(citizenship)
________________________________________________________________________
(name)
________________________________________________________________________
(citizenship)
    Question 8(d): If the bidder/offeror is a joint venture, the U.S. 
person will own at least 51 percent of the assets of the joint venture.
 I so certify:__________________________________________________________
(signature)
________________________________________________________________________
(name typed printed)
________________________________________________________________________
(position)
________________________________________________________________________
(title)
    9. Libya. Section 406(c) states ``No person doing business with 
Libya may be eligible for any contract awarded pursuant to this Act.''
    Definitions for purposes of Section 406 eligibility--
    Contract awarded establishes a time frame for the bar on doing 
business with Libya. The time during which a relationship with Libya is 
prohibited begins on the date the Section 406 information is submitted. 
For bidders/offerors not selected for contract award, the prohibition 
ceases on the date of award. For the bidder/offeror that is awarded the 
contract, the bar continues through the life of the contract, ending on 
the date of final acceptance of the work.
    Doing business means all transactions of any kind agreed to or 
performed after the earlier of the date on which a bid/proposal is 
submitted to the Department of State under this solicitation or on which 
the contract, subcontract, program, or other arrangement with the 
Department of State is awarded or becomes effective. Any transaction 
commenced prior to the date of submittal or award and not yet completed 
must be reported. Transactions that call for continued or future 
performance shall be disqualifying. Transactions that have been 
completely performed but for which payment has not yet been made must be 
reported, but shall not be disqualifying unless any event other than 
payment of a previously-agreed upon sum occurs. Examples of 
disqualifying actions include any pending litigation arising out of 
business transactions with Libya, renegotiation of the terms of a loan, 
and refinancing an amount owed or owing.
    Person means any individual or legal entity, whether U.S. or 
foreign. Subcontractors

[[Page 425]]

and others who do not have a direct contractual relationship with the 
United States are not covered by this section.
    With Libya means transactions between any person and the Government 
of Libya, government entities of Libya, or any other organization wholly 
owned or effectively controlled by the Government of Libya. It is the 
responsibility of the entity submitting Section 406 information to 
disclose existing relationships with the entities that it has reasonable 
grounds to believe are or may be Libyan. In case of doubt or dispute, 
the Department of State shall determine, at its sole discretion, whether 
any organization is a governmental entity of Libya, wholly owned by the 
Government of Libya, or effectively controlled by the Government of 
Libya.

                              Certification

    Based on the foregoing, I hereby certify on behalf of this 
organization that it is is not doing business with Libya as those terms 
are used in Section 406(c) of the Omnibus Diplomatic Security and 
Antiterrorism Act of 1986.
    (e) Signature: By signing this document, the offeror indicates that 
to the best of his or her knowledge, all of the representations and 
certifications provided in response to the questions contained in this 
Statement of Qualifications are accurate, current, and complete and that 
the offeror is aware of the penalty prescribed in 18 U.S.C. 1001 for 
making false statements.

                           (End of provision)

[69 FR 19339, Apr. 13, 2004]



Sec. 652.237-70  Compensatory time off.

    As prescribed in 637.110(a), insert the following clause:

                    Compensatory Time Off (DEC 1994)

    (a) Compensatory time off means time from work during the personal 
service contract employee's basic work week in exchange for performing 
an equal amount of irregular of occasional overtime work which is 
officially ordered or approved.
    (b) At the discretion of the Contracting Officer's Representative 
(COR), the contractor may earn compensatory time off in accordance with 
3 FAM Section 232.6--Compensatory Time Off. Compensation time off 
remaining to the credit of a personal services contract employee at the 
end of a 16-week period and/or at the end of the contract period shall 
be forfeited.
    (c) Compensatory time may not be converted to overtime.

                             (End of clause)

[59 FR 66772, Dec. 28, 1994]



Sec. 652.237-71  [Reserved]



Sec. 652.237-72  Observance of Legal Holidays and Administrative Leave.

    As prescribed in 637.110(b), insert the following clause:

    Observance of Legal Holidays and Administrative Leave (APR 2004)

    (a) The Department of State observes the following days as holidays:

New Year's Day
Martin Luther King's Birthday
Washington's Birthday
Memorial Day
Independence Day
Labor Day
Columbus Day
Veterans Day
Thanksgiving Day
Christmas Day
Any other day designated by Federal law, Executive Order, or 
Presidential Proclamation.

    (b) When any such day falls on a Saturday or Sunday, the following 
Monday is observed. Observance of such days by Government personnel 
shall not be cause for additional period of performance or entitlement 
to compensation except as set forth in the contract. If the contractor's 
personnel work on a holiday, no form of holiday or other premium 
compensation will be reimbursed either as a direct or indirect cost, 
unless authorized pursuant to an overtime clause elsewhere in this 
contract.
    (c) When the Department of State grants administrative leave to its 
Government employees, assigned contractor personnel in Government 
facilities shall also be dismissed. However, the contractor agrees to 
continue to provide sufficient personnel to perform round-the-clock 
requirements of critical tasks already in operation or scheduled, and 
shall be guided by the instructions issued by the contracting officer or 
his/her duly authorized representative.
    (d) For fixed-price contracts, if services are not required or 
provided because the building is closed due to inclement weather, 
unanticipated holidays declared by the President, failure of Congress to 
appropriate funds, or similar reasons, deductions will be computed as 
follows:
    (1) The deduction rate in dollars per day will be equal to the per 
month contract price divided by 21 days per month.
    (2) The deduction rate in dollars per day will be multiplied by the 
number of days

[[Page 426]]

services are not required or provided. If services are provided for 
portions of days, appropriate adjustment will be made by the contracting 
officer to ensure that the contractor is compensated for services 
provided.
    (e) If administrative leave is granted to contractor personnel as a 
result of conditions stipulated in any ``Excusable Delays'' clause of 
this contract, it will be without loss to the contractor. The cost of 
salaries and wages to the contractor for the period of any such excused 
absence shall be a reimbursable item of direct cost hereunder for 
employees whose regular time is normally charged, and a reimbursable 
item of indirect cost for employees whose time is normally charged 
indirectly in accordance with the contractor's accounting policy.

                             (End of clause)

[59 FR 66772, Dec. 28, 1994, as amended at 64 FR 43634, Aug. 11, 1999; 
69 FR 19343, Apr. 13, 2004; 76 FR 20251, Apr. 12, 2011]



Sec. 652.237-73  Statement of Qualifications for Preference as a U.S. 
          Person.

    As prescribed in 637.110(c), insert the following provision:

 Statement of Qualifications for Preference as a U.S. Person (APR 2004)

    (a) This solicitation is subject to Section 136 of the Foreign 
Relations Authorization Act, Fiscal Years 1990 and 1991 (22 U.S.C. 
4864). The Act encourages the participation of United States persons and 
qualified United States joint venture persons in the provision of local 
guard services overseas, and provides for a preference for eligible 
offers.
    (b) Definitions. As used in this provision--
    Eligible offer means an offer that (1) is otherwise responsive to 
the solicitation; and (2) contains a fully prepared Statement of 
Qualifications (see paragraph (d) of this provision), which upon review 
is determined by the Government to meet the requirements of Section 136 
for assignment of preference as a U.S. person.
    Preference means subtraction by the Government of ten percent (10%) 
from the total evaluated price of an offer.
    U.S. person means a company, partnership, or joint venture that the 
Government determines, after consideration of all available information, 
including but not limited to that provided by the offeror in response to 
the solicitation, to be qualified for assignment of preference pursuant 
to Section 136.
    (c) Representation. The offeror represents as part of its offer that 
it is, is not eligible for preference as a U.S. person. [Complete a 
Statement of Qualifications for Purposes of Obtaining Preference as a 
U.S. Person if the offeror represents that it is eligible. See paragraph 
(d) of this provision.]
    Warning: Any material misrepresentation made in the Statement of 
Qualifications may be the basis for disqualification of an offeror and 
reference for consideration of suspension or debarment or for 
prosecution under Federal law (cf. 18 U.S.C. 1001). The Government will 
determine offeror qualifications primarily on the basis of information 
submitted in the Statement of Qualifications, including Attachments 
thereto, but the Government may, at its discretion, rely on information 
contained elsewhere in the offeror's proposal or obtained from other 
sources.
    (d) Statement of Qualifications for Purposes of Obtaining Preference 
as a U.S. Person (22 U.S.C. 4864). An offeror that represents that it is 
eligible for preference as a U.S. person must provide the following 
information. This Statement of Qualifications must be a complete and 
certified document, and submitted as a separate Volume 5, with all 
necessary attachments, as defined in Section L of this solicitation.

 Statement of Qualifications for Purposes of Obtaining Preference as a 
                      U.S. Person (22 U.S.C. 4864)

Name and address of U.S. person or organization providing this 
information:
________________________________________________________________________
________________________________________________________________________

    Introduction. Section 136 of the Foreign Relations Authorization Act 
for Fiscal Years 1990 and 1991, Public Law 101-246 (22 U.S.C. 4864), as 
amended, provides that a ``United States person'' or a ``qualified 
United States joint venture'' must meet certain requirements, listed in 
the Act, to be eligible for the statutory preference. To assist business 
entities to determine whether they qualify as a U.S. person or U.S. 
joint venture person entitled to preference under Section 136, guidance 
is hereby provided. Only those prospective offerors submitting a 
properly completed and certified Volume 5 with their initial proposals 
will be considered in the determination of eligibility for assignment of 
preference as a U.S. person or U.S. joint venture person. For ease of 
reference, statutory language is quoted immediately before the 
definitions that apply to it. Space for the required information is 
provided immediately following each definition.

    Note: The Statement of Qualifications shall provide information 
correctly applicable to the U.S. person whose qualifications are being 
certified, and shall not include information pertaining to corporate 
affiliates or subsidiaries. Organizations that wish to use the 
experience or financial resources of another organization or individual, 
including parent companies, subsidiaries, or local, national or offshore 
organizations, must do so

[[Page 427]]

by way of a joint venture. The contract resulting from this solicitation 
shall not allow subcontracting. A prospective offeror may be a sole 
proprietorship, a formal joint venture in which the co-venturers have 
reduced their arrangement to writing, or a de facto joint venture with 
no written agreement. To be considered a ``qualified joint venture 
person,'' the joint venture must have at least one firm or organization 
that itself meets all the requirements of a U.S. joint venture person 
listed in Section 136. By signing this proposal, the U.S. person co-
venturer agrees to be individually responsible for performance of the 
contract, notwithstanding the terms of any joint venture agreement.

    1. Section 136(d)(1): ``The term `United States person' means a 
person which--(A) is incorporated or legally organized under the laws of 
the United States, including the laws of any State, locality, or the 
District of Columbia.''
    Definitions for purposes of Section 136 determinations of 
eligibility--
    Incorporated means the state of legal recognition as an artificial 
person that may be afforded to a business entity pursuant to the laws of 
any United States jurisdiction or component thereof.
    Legally organized means the state of legal recognition that may be 
afforded to a business entity that is other than a corporation pursuant 
to the laws of any United States jurisdiction or component thereof. This 
is the least form of legal recognition that will qualify an offeror for 
this preference. Only those prospective offerors that have legal status, 
including the right to bring suit, to sign contracts, and to hold 
property under the law of the jurisdiction under which they are doing 
business will qualify as legally organized. A natural person who is a 
United States citizen acting in his or her entrepreneurial capacity will 
be deemed to be a ``person legally organized'' within the scope of this 
definition, provided that the prospective offeror holds all required 
licenses to do business in the jurisdiction where he or she is located.
    United States means any jurisdiction that is one of the fifty 
States, the District of Columbia, a United States territory, a United 
States possession, or the Commonwealth of Puerto Rico and the Northern 
Mariana Islands.
    Question 1. The organization seeking eligibility under Section 136 
is incorporated or is legally organized under the laws of what 
jurisdiction?
________________________________________________________________________

    2. Section 136(d)(1): ``The term `United States person' means a 
person that--(B) has its principal place of business in the United 
States.''
    Definitions for purposes of Section 136 determinations of 
eligibility--
    Principal place of business means the geographic location of the 
main office or seat of management of the prospective offeror. For 
purposes of this Statement, a prospective offeror shall identify only 
one principal place of business, and such location shall include at 
least the offices of the chief operating officer and headquarters staff. 
The named location must be a United States jurisdiction in which the 
prospective offeror may bring suit and be sued and in which service of 
process shall be accepted.
    Question 2(a). The organization seeking eligibility has its 
principal office in what city and state?
________________________________________________________________________
    Question 2(b). What kind of tax return was or will be filed, and in 
what jurisdiction, during the current calendar year? The jurisdiction 
identified herein need not be the same jurisdiction identified in 
Question 2(a).
________________________________________________________________________
    (i) Jurisdiction:
________________________________________________________________________
    (ii) Type of return (e.g., income tax, franchise tax, etc.). Include 
all that apply:
________________________________________________________________________

    3. Section 136(d)(1): ``The term `United States person' means a 
person which--(C) has been incorporated or legally organized in the 
United States--(i) for more than 2 (two) years before the issuance date 
of the invitation for bids or request for proposals with respect to the 
contract under subsection (c) of this section.''
    Definitions for purposes of Section 136 determinations of 
eligibility--
    Has been incorporated or legally organized means that the 
organization can show continuity as an ongoing business. Organizations 
that have changed only their names meet the continuity requirement of 
this subsection. Organizations that have been bought, sold, merged, or 
otherwise substantially altered or enlarged their principal business 
activities will have the burden of proving that there have been ongoing 
operations by the same business entity for the required period of time. 
If the successor entity has acquired all of the assets and liabilities 
of the predecessor entity and the predecessor entity has no further 
existence, the successor may claim the incorporation or legal 
organization date of the predecessor. In any other circumstance, the 
prospective offeror must show that the law of the jurisdiction in which 
it operates regards the prospective offeror as the complete successor in 
interest of the predecessor entity for purpose of contractual 
obligations.
    Issuance date means the date in Block 5 of the Standard Form 33 
accompanying this solicitation.
    Years means calendar years measured from day of the month to day of 
the month. For example, January 1, 2002 through December

[[Page 428]]

31, 2002 is one calendar year, as is July 1, 2002 through July 1, 2003.
    Question 3:
    (i) On what date was the organization seeking eligibility 
incorporated or legally organized?
________________________________________________________________________
    (ii) If this date is less than two years before the issuance date, 
on the basis of what documentation does the organization seeking 
eligibility claim that it has been in business for the requisite period 
of time?
________________________________________________________________________
(Identify, and forward copies as an Attachment to this Statement).
    4. Section 136(d)(1): ``The term `United States person' means a 
person which--(D) has performed within the United States or overseas 
security services similar in complexity to the contract being bid.''
    Definitions for purposes of Section 136 determination of 
eligibility--
    Complexity means the physical size or extent of the effort, as 
described in Section B and Exhibit A of this solicitation; combined with 
the required quality of the effort as described in Sections C and H of 
this solicitation.
    Overseas means within any jurisdiction that is not a part of the 
United States as defined below.
    Performed means contracts that have been fully completed by the 
prospective offeror and accepted by the other party to the transaction. 
Contracts still in progress have been performed for purposes of this 
definition if performance in complexity to the contract being bid has 
been ongoing for at least one year. Contracts need not have been with 
the U.S. Government.
    Security services means work of a kind as to fall within or compare 
closely with those described in the Statement of Work in Section C of 
this solicitation. An entity whose only security services experience was 
performed by its legally distinct parent or subsidiary organization will 
not be considered to have security services experience.
    Within the United States means within the legal geographic 
boundaries of a United States jurisdiction that is the place where the 
subject matter (e.g., services) of the contract or other arrangement was 
in fact completed. The place where the contract or other arrangement was 
negotiated or signed is not relevant to this definition.
    Question 4: Describe in an Attachment to this Statement (see 
L.1.3.5), the qualifying similar contracts or other arrangements 
performed by the prospective offeror. Provide required information on a 
sufficient number of arrangements to show that similar services have 
been performed overseas or in the United States. The description must 
consist of the following information on each arrangement, which shall be 
submitted as an Attachment to this Statement:
    Location: (city and state or country).
    Type of service: (for example, stationary guards, roving patrol, 
quick-reaction force, etc.).
    Complexity: (type of facilities guarded, and number or extent of 
facilities, number of guards, etc.).
    5. Section 136(d)(1): ``The term `United States person' means a 
person which--(E) with respect to the contract under subsection (c) of 
this section, has achieved a total business volume equal to or greater 
than the value of the project being bid in 3 years of the 5-year period 
before the date specified in subparagraph (C).''
    Definitions of purposes of Section 136 determination of 
eligibility--
    3 years of the 5-year period before the date specified in 
subparagraph (C) means the three to five calendar year period 
immediately preceding the issuance date of this solicitation.
    Total business volume means the U.S. dollar value of the gross 
income or receipts reported by the prospective offeror on its annual 
federal income tax returns.
    Years means calendar years.
    Question 5: Describe in an Attachment to this Statement (see 
L.1.3.5), for at least three of the five twelve-month income tax periods 
(fiscal years) defined below, the gross receipts of the organization 
seeking eligibility.
    (i) The fiscal year ending during the calendar year that includes 
the date of this solicitation.
    (ii) The fiscal year ending in the calendar year immediately prior 
to the calendar year that includes the date of this solicitation.
    (iii) The fiscal year ending in the calendar year two years before 
the calendar year that includes the date of this solicitation.
    (iv) The fiscal year ending in the calendar year three years before 
the calendar year that includes the date of this solicitation.
    (v) The fiscal year ending in the calendar year four years before 
the calendar year that includes the date of this solicitation.
    An entity will be deemed to have met this requirement if the total 
cumulative business volume for the three years presented exceeds the 
contract price at time of award under this solicitation for the full 
term for which prices are solicited, including any option periods.
    6. Section 136(d)(1): ``The term `United States person' means a 
person which `` (F)(i) employs United States citizens in at least 80 
percent of its principal management positions in the United States; and 
(F)(ii) employs United States citizens in more than half of its 
permanent full-time positions in the United States.''
    Definitions for purposes of Section 136 determinations of 
eligibility--

[[Page 429]]

    Full-time (positions) means those personnel positions in which the 
occupants are expected to and ordinarily work for 40 or more hours per 
week.
    In the United States refers to those personnel positions that are 
encumbered as of the date of this solicitation and that the prospective 
offeror maintains in geographic locations within the jurisdictions 
defined above as constituting the United States.
    Permanent (positions) means personnel positions that are intended to 
be indefinite as to length of employment, as opposed to limited, 
seasonal, or project-length personnel appointments.
    Permanent, full-time positions means that portion of the prospective 
offeror's workforce that continues to be employed without regard to the 
ordinary fluctuations of production or projects.
    Principal management positions means those personnel positions 
including at least the chief executive officer (if any) and the chief 
operating officer (whether by title or by function) of the organization 
seeking eligibility, together with all those management officials who 
constitute the highest levels of management authority within the 
organization. In the case of a partnership, all general partners are 
deemed to hold principal management positions. In the case of a 
corporation, those officers of the corporation who are principally 
responsible for the day-to-day operation of the corporation. Members of 
corporation boards of directors do not occupy ``principal management 
positions'' simply by virtue of their service on the board. In all 
cases, the term ``principal management positions'' also includes the 
position or positions held by the individual or individuals in the 
United States who will have primary corporate management oversight 
responsibility for this contract if the prospective contractor is 
awarded the contract.
    United States citizen means natural persons with United States 
citizenship by virtue either of birth or of naturalization.
    Question 6(a): The organization seeking eligibility shall list all 
of its principal management positions and identify the current occupant 
of each listed position by name and citizenship. Provide the information 
as an Attachment to this Statement in the following format:
    (i) Principal management positions in the United States:
Chief Executive Officer (if any):
________________________________________________________________________
(name)
________________________________________________________________________
(citizenship)
Chief Operating Officer:
________________________________________________________________________
(name)
________________________________________________________________________
(citizenship)
    (ii) For each additional corporate officer having principal 
responsibility for the day-to-day operations of the corporation, list 
position, name, and citizenship.
________________________________________________________________________
Position:
________________________________________________________________________
Name:
________________________________________________________________________
Citizenship:
    (iii) Individual(s) in the United States expected to have primary 
management oversight responsibility for contract if it is awarded:
________________________________________________________________________
(name)
________________________________________________________________________
(citizenship)
    Question 6(b): Number of permanent, full-time, currently encumbered 
personnel positions that are located in the United States (good faith 
estimates acceptable): ----------
    Question 6(c): Number of United States citizens currently employed 
in permanent, full-time positions that are located in the United States 
(good faith estimates acceptable): ----------
    7. Section 136(d)(1): ``The term `United States person' means a 
person which--(G) has the existing technical and financial resources in 
the United States to perform the contract.''
    Definitions for purposes of Section 136 determinations of 
eligibility--
    Existing technical and financial resources means technical and 
financial capability within the United States to mobilize adequate 
staffing, equipment and organizational arrangements to perform the 
contract. Adequate technical resources may be demonstrated by presenting 
an organization chart, and r[eacute]sum[eacute]s of current officers and 
employees in the United States who possess skills and expertise 
necessary to provide management and oversight of the work. Other indicia 
will be considered if offered to demonstrate that the prospective 
offeror has available resources in the United States adequate to provide 
home office management and oversight of the work. Adequate financial 
resources may be demonstrated by proof of possession of a combination of 
net worth, bank lines of credit, or bank guarantees. If lines of credit 
or bank guarantees are used to demonstrate adequate financial resources, 
they must be from entities within the United States.
    Question 7: Submit, as an Attachment to this Statement, materials 
demonstrating existing technical and financial resources in the United 
States (see L.1.3.5).
    8. Section 136(d)(2): ``The term `qualified United States joint 
venture person' means a joint venture in which a United States person or 
persons owns at least 51 percent of the assets of the joint venture.''

[[Page 430]]

    Definitions for purposes of Section 136 determinations of 
eligibility--
    Assets means tangible and intangible things of value conveyed or 
made available to the joint venture by the co-venturers. To be qualified 
for U.S. preference, 51 percent of the assets of the joint venture must 
be owned by the U.S. person co-venturer(s).
    Joint venture means a formal or de facto association of two or more 
persons or entities to carry out a single business enterprise for 
profit, for which purpose they combine their property, money, effects, 
skills, and knowledge. To be acceptable, all members of a joint venture 
must be jointly and severally liable for full performance and resolution 
of matters arising out of the contract.
    Question 8(a): The prospective offeror is is not a joint venture.
    Question 8(b): If the prospective offeror is a joint venture, the 
U.S. person participant is:
________________________________________________________________________
(name)
________________________________________________________________________
(address)
    Question 8(c): If the prospective offeror is a joint venture, the 
names and countries of citizenship for all co-venturers are as follows:
________________________________________________________________________
(name)
________________________________________________________________________
(citizenship)
________________________________________________________________________
(name)
________________________________________________________________________
(citizenship)
________________________________________________________________________
(name)
________________________________________________________________________
(citizenship)
    Question 8(d): If the prospective offeror is a joint venture, the 
U.S. person will own at least 51 percent of the assets of the joint 
venture.
________________________________________________________________________
I so certify: (name)
________________________________________________________________________
(position)
________________________________________________________________________
(title)
    (e) Signature: By signing this document, the offeror indicates that 
to the best of his or her knowledge, all of the representations and 
certifications provided in response to the questions contained in this 
Statement of Qualifications are accurate, current, and complete and that 
the offeror is aware of the penalty prescribed in 18 U.S.C. 1001 for 
making false statements.
________________________________________________________________________

                           (End of provision)

[69 FR 19343, Apr. 13, 2004, as amended at 76 FR 20251, Apr. 12, 2011]



Sec. 652.239-70  Information Technology Security Plan and Accreditation.

    As prescribed in 639.107-70(a), insert the following provision:

    Information Technology Security Plan and Accreditation (SEP 2007)

    All offers/bids submitted in response to this solicitation must 
address the approach for completing the security plan and certification 
and accreditation requirements as required by the clause at 652.239-71, 
Security Requirements for Unclassified Information Technology Resources.

                           (End of provision)

[72 FR 51569, Sept. 10, 2007]



Sec. 652.239-71  Security Requirements for Unclassified Information 
          Technology Resources.

    As prescribed in 639.107-70(b), insert the following clause:

Security Requirements for Unclassified Information Technology Resources 
                               (SEP 2007)

    (a) General. The Contractor shall be responsible for information 
technology (IT) security, based on Department of State (DOS) risk 
assessments, for all systems connected to a Department of State (DOS) 
network or operated by the Contractor for DOS, regardless of location. 
This clause is applicable to all or any part of the contract that 
includes information technology resources or services in which the 
Contractor has physical or electronic access to DOS's information that 
directly supports the mission of DOS. The term ``information 
technology'', as used in this clause, means any equipment, including 
telecommunications equipment, that is used in the automatic acquisition, 
storage, manipulation, management, movement, control, display, 
switching, interchange, transmission, or reception of data or 
information. This includes both major applications and general support 
systems as defined by OMB Circular A-130. Examples of tasks that require 
security provisions include:
    (1) Hosting of DOS e-Government sites or other IT operations;
    (2) Acquisition, transmission or analysis of data owned by DOS with 
significant replacement cost should the Contractor's copy be corrupted; 
and
    (3) Access to DOS general support systems/major applications at a 
level beyond that granted the general public; e.g., bypassing a 
firewall.
    (b) IT Security Plan. The Contractor shall develop, provide, 
implement, and maintain an IT Security Plan. This plan shall describe

[[Page 431]]

the processes and procedures that will be followed to ensure appropriate 
security of IT resources that are developed, processed, or used under 
this contract. The plan shall describe those parts of the contract to 
which this clause applies. The Contractor's IT Security Plan shall 
comply with applicable Federal laws that include, but are not limited 
to, 40 U.S.C. 11331, the Federal Information Security Management Act 
(FISMA) of 2002, and the E-Government Act of 2002. The plan shall meet 
IT security requirements in accordance with Federal and DOS policies and 
procedures, as they may be amended from time to time during the term of 
this contract that include, but are not limited to:
    (1) OMB Circular A-130, Management of Federal Information Resources, 
Appendix III, Security of Federal Automated Information Resources;
    (2) National Institute of Standards and Technology (NIST) Guidelines 
(see NIST Special Publication 800-37, Guide for the Security 
Certification and Accreditation of Federal Information Technology 
Systems (http://csrc.nist.gov/publications/nistpubs/800-37/SP800-37-
final.pdf)); and
    (3) Department of State information security sections of the Foreign 
Affairs Manual (FAM) and Foreign Affairs Handbook (FAH) (http://
foia.state.gov/Regs/Search.asp), specifically:
    (i) 12 FAM 230, Personnel Security;
    (ii) 12 FAM 500, Information Security (sections 540, 570, and 590);
    (iii) 12 FAM 600, Information Security Technology (section 620, and 
portions of 650);
    (iv) 5 FAM 1060, Information Assurance Management; and
    (v) 5 FAH 11, Information Assurance Handbook.
    (c) Submittal of IT Security Plan. Within 30 days after contract 
award, the Contractor shall submit the IT Security Plan to the 
Contracting Officer and Contracting Officer's Representative (COR) for 
acceptance. This plan shall be consistent with and further detail the 
approach contained in the contractor's proposal or sealed bid that 
resulted in the award of this contract and in compliance with the 
requirements stated in this clause. The plan, as accepted by the 
Contracting Officer and COR, shall be incorporated into the contract as 
a compliance document. The Contractor shall comply with the accepted 
plan.
    (d) Accreditation. Within six (6) months after contract award, the 
Contractor shall submit written proof of IT security accreditation for 
acceptance by the Contracting Officer. Such written proof may be 
furnished either by the Contractor or by a third party. Accreditation 
must be in accordance with NIST Special Publication 800-37. This 
accreditation will include a final security plan, risk assessment, 
security test and evaluation, and disaster recovery plan/continuity of 
operations plan. This accreditation, when accepted by the Contracting 
Officer, shall be incorporated into the contract as a compliance 
document, and shall include a final security plan, a risk assessment, 
security test and evaluation, and disaster recovery/continuity of 
operations plan. The Contractor shall comply with the accepted 
accreditation documentation.
    (e) Annual verification. On an annual basis, the Contractor shall 
submit verification to the Contracting Officer that the IT Security Plan 
remains valid.
    (f) Warning notices. The Contractor shall ensure that the following 
banners are displayed on all DOS systems (both public and private) 
operated by the Contractor prior to allowing anyone access to the 
system:

                           Government Warning

                      **WARNING**WARNING**WARNING**

    Unauthorized access is a violation of U.S. law and Department of 
State policy, and may result in criminal or administrative penalties. 
Users shall not access other user's or system files without proper 
authority. Absence of access controls IS NOT authorization for access! 
DOS information systems and related equipment are intended for 
communication, transmission, processing and storage of U.S. Government 
information. These systems and equipment are subject to monitoring by 
law enforcement and authorized Department officials. Monitoring may 
result in the acquisition, recording, and analysis of all data being 
communicated, transmitted, processed or stored in this system by law 
enforcement and authorized Department officials. Use of this system 
constitutes consent to such monitoring.

                      **WARNING**WARNING**WARNING**

    (g) Privacy Act notification. The Contractor shall ensure that the 
following banner is displayed on all DOS systems that contain Privacy 
Act information operated by the Contractor prior to allowing anyone 
access to the system:
    This system contains information protected under the provisions of 
the Privacy Act of 1974 (Pub. L. 93-579). Any privacy information 
displayed on the screen or printed shall be protected from unauthorized 
disclosure. Employees who violate privacy safeguards may be subject to 
disciplinary actions, a fine of up to $5,000, or both.
    (h) Privileged or limited privileged access. Contractor personnel 
requiring privileged access or limited privileged access to systems 
operated by the Contractor for DOS or interconnected to a DOS network 
shall adhere to the specific contract security requirements contained 
within this contract and/or the Contract Security Classification 
Specification (DD Form 254).

[[Page 432]]

    (i) Training. The Contractor shall ensure that its employees 
performing under this contract receive annual IT security training in 
accordance with OMB circular A-130, FISMA, and NIST requirements, as 
they may be amended from time to time during the term of this contract, 
with a specific emphasis on rules of behavior.
    (j) Government access. The Contractor shall afford the Government 
access to the Contractor's and subcontractor's facilities, 
installations, operations, documentation, databases and personnel used 
in performance of the contract. Access shall be provided to the extent 
required to carry out a program of IT inspection (to include 
vulnerability testing), investigation and audit to safeguard against 
threats and hazards to the integrity, availability and confidentiality 
of DOS data or to the function of information technology systems 
operated on behalf of DOS, and to preserve evidence of computer crime.
    (k) Subcontracts. The Contractor shall incorporate the substance of 
this clause in all subcontracts that meet the conditions in paragraph 
(a) of this clause.
    (l) Notification regarding employees. The Contractor shall 
immediately notify the Contracting Officer when an employee either 
begins or terminates employment when that employee has access to DOS 
information systems or data.
    (m) Termination. Failure on the part of the Contractor to comply 
with the terms of this clause may result in termination of this 
contract.

                             (End of clause)

[72 FR 51569, Sept. 10, 2007]



Sec. 652.242-70  Contracting Officer's Representative (COR).

    As prescribed in 642.272(a), insert a clause substantially the same 
as follows:

          Contracting Officer's Representative (COR) (AUG 1999)

    (a) The Contracting Officer may designate in writing one or more 
Government employees, by name and position title, to take action for the 
Contracting Officer under this contract. Each designee shall be 
identified as a Contracting Officer's Representative (COR). Such 
designation(s) shall specify the scope and limitations of the authority 
so delegated; provided, that the designee shall not change the terms or 
conditions of the contract, unless the COR is a warranted Contracting 
Officer and this authority is delegated in the designation.
    (b) The COR is [insert job title of COR].

                             (End of clause)

[53 FR 26177, July 11, 1988, as amended at 59 FR 66772, Dec. 28, 1994; 
64 FR 43634, Aug. 11, 1999; 69 FR 19345, Apr. 13, 2004]



Sec. 652.242-71  Notice of Shipments.

    As prescribed in 642.1406-2-70(a), insert the following clause:

                     Notice of Shipments (JUL 1988)

    At the time of delivery of supplies to a carrier for onward 
transportation, the Contractor shall give notice of prepaid shipment to 
the consignee establishment, and to such other persons as instructed by 
the Contracting Officer. If the Contractor has not received such 
instructions by 24 hours prior to the delivery time, the Contractor 
shall contact the Contracting Officer and request instructions from the 
Contracting Officer concerning the notice of shipment to be given.

                             (End of clause)

[53 FR 26177, July 11, 1988, as amended at 64 FR 43634, Aug. 11, 1999]



Sec. 652.242-72  Shipping Instructions.

    As prescribed in 642.1406-2-70(b), insert the following clause:

                    Shipping Instructions (DEC 1994)

    (a) Each packing box shall be of solid construction in accordance 
with best commercial practices and sufficiently strong in direct ratio 
to the weight of the contents to withstand excessively rough handling 
while in transit overseas. It shall be constructed of lumber that is 
well seasoned, reasonably sound, free from bad cross grain and from 
knots or knotholes that interfere with nailing or that occupy more than 
\1/3\ of the width of the piece of lumber. Box shall be constructed with 
three-way corners and diagonal bracing. All nails shall be cement-
coated, of correct size and properly spaced to avoid splitting or 
warping, and shall be driven into the grain of the wood. Dimension of 
lumber shall be in accordance with the following table, dependent upon 
the weight of the contents:

------------------------------------------------------------------------
                                        Minimum dimensions of lumber for
      Weight of box and contents           struts, frame members, and
                                             single diagonal braces
------------------------------------------------------------------------
Up to 45 kg...........................  19.05 x 57.15mm
46 to 113 kg..........................  22.23 x 73.03mm
114 to 181 kg.........................  22.23 x 98.43mm
182 to 272 kg.........................  22.23 x 123.83mm or 25.4 x 98.43
                                         mm
------------------------------------------------------------------------

    (b) Each box shall be lined with waterproof paper and shall be bound 
with 19.05mm steel straps firmly stapled in position to 
prevent

[[Page 433]]

the straps from slipping off the box. Articles must be secured and 
braced inside the shipping container to prevent the articles from 
shifting.
    (c) Packing cases weighing 453.5kg and more must be equipped with 
skids. Each skid shall consist of two end sections of 50.8 x 152.4mm 
lumber placed flat and a center section of 50.8 x 101.6mm lumber placed 
flat and then arranged in line to provide 254mm forklift spaces between 
center and end sections. When goods are ready for shipment, the 
Contractor shall prepare four (4) copies of a packing list, indicating 
the contract and, if applicable, order numbers; case number; itemized 
list of contents; net and gross weights in kilograms; and outside 
dimensions, including all clears, of each shipping container. The 
Contractor shall provide three (3) copies of the packing list to the 
U.S. Despatch Agent as specified in the contract or order. The 
Contractor shall place the fourth copy of the packing list in packing 
case number one, which shall be marked as such so that it is easily 
identified by the consignee. Upon receipt of the packing list, the 
Despatch Agent will furnish export marks and instructions regarding 
shipment to the port specified, depending upon steamer services 
available at the time.
    (d) The export marks shall be stenciled on one side of each box 
reserved for that purpose, and the appropriate case number stenciled in 
the lower left-hand corner of the same side. The contract and, as 
necessary, order numbers, net and gross weights in kilograms shall be 
stenciled on the same side. However, if the size of the box is too small 
to accommodate all stenciling on one side, the contract and order 
numbers and weights may be stenciled on the side opposite that used for 
the export marks and case number.
    (e) The contract and, as necessary, order numbers must appear on all 
containers and papers relating to this clause.

                             (End of clause)

[53 FR 26177, July 11, 1988; 53 FR 36462, Sept. 20, 1988, as amended at 
59 FR 66772, Dec. 28, 1994; 64 FR 43634, Aug. 11, 1999]



Sec. 652.242-73  Authorization and Performance.

    As prescribed in 642.272(b), insert a clause substantially the same 
as follows:

                Authorization and Performance (AUG 1999)

    (a) The contractor warrants the following:
    (1) That is has obtained authorization to operate and do business in 
the country or countries in which this contract will be performed;
    (2) That is has obtained all necessary licenses and permits required 
to perform this contract; and,
    (3) That it shall comply fully with all laws, decrees, labor 
standards, and regulations of said country or countries during the 
performance of this contract.
    (b) If the party actually performing the work will be a 
subcontractor or joint venture partner, then such subcontractor or joint 
venture partner agrees to the requirements of paragraph (a) of this 
clause.

                             (End of clause)

    Alternate I (AUG 1999). If the contract is for overseas local guard 
services, as prescribed in 642.272(b), substitute the following 
paragraphs (a)(1) and (a)(2) for paragraphs (a)(1) and (a)(2) of the 
basic clause:

    (a)(1) That it has obtained authorization to operate and do business 
in the country or countries in which this contract will be performed, or 
will obtain such authorization before performance of this contract 
begins;
    (a)(2) That it has obtained all necessary licenses and permits 
required to perform this contract, or will obtain such licenses and 
permits before performance of this contract begins;

[64 FR 43634, Aug. 11, 1999, as amended at 69 FR 19345, Apr. 13, 2004]



Sec. 652.243-70  Notices.

    As prescribed in 643.104-70, insert the following clause:

                           Notices (AUG 1999)

    Any notice or request relating to this contract given by either 
party to the other shall be in writing. Said notice or request shall be 
mailed or delivered by hand to the other party at the address provided 
in the schedule of the contract. All modifications to the contract must 
be made in writing by the contracting officer.

                             (End of clause)

[64 FR 43634, Aug. 11, 1999]

                             PART 653_FORMS

Sec.

Sec. 653.000 Scope of part.

                          Subpart 653.1_General


Sec. 653.101 Requirements for use of forms.

Sec. 653.101-70 Policy.

Sec. 653.110 Continuation sheets.

[[Page 434]]

                   Subpart 653.2_Prescription of Forms


Sec. 653.200 Scope of subpart.

Sec. 653.213 Simplified acquisition procedures (SF's 18, 30, 44, 1165, 
          OF's 347, 348).

Sec. 653.217 Special contracting methods.

Sec. 653.217-70 DOS form DS-1921, Award/Modification of Interagency 
          Acquisition Agreement.

Sec. 653.219 Small business programs.

Sec. 653.219-70 DOS form DS-1910, Small Business Agency Review--Actions 
          Above the Simplified Acquisition Threshold.

Sec. 653.219-71 DOS form DS-4053, Department of State Mentor-
          Prot[eacute]g[eacute] Program Application.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26180, July 11, 1988, unless otherwise noted.



Sec. 653.000  Scope of part.

    This part prescribes DOSAR forms in addition to those provided in 
FAR Part 53.

                          Subpart 653.1_General



Sec. 653.101  Requirements for use of forms.



Sec. 653.101-70  Policy.

    The forms in FAR subpart 53.2 or in subpart 653.2 shall be used as 
precribed therein, except when the use of any form is prohibited by or 
inconsistent with local laws, or the supplies or services could not be 
obtained if the form were used. The contracting officer shall justify 
the exclusion of any form in accordance with FAR subpart 1.4 and 
601.470.

[53 FR 26180, July 11, 1988, as amended at 69 FR 19345, Apr. 13, 2004; 
72 FR 45696, Aug. 15, 2007]



Sec. 653.110  Continuation sheets.

    The provisions of FAR 53.110 also apply to forms prescribed in the 
DOSAR.

                   Subpart 653.2_Prescription of Forms



Sec. 653.200  Scope of subpart.

    This subpart prescribes or references optional and DOS forms for use 
in acquisition. Consistent with FAR 53.200, this subpart is arranged by 
subject matter, in the same order as and keyed to the parts of the DOSAR 
in which the form usage requirements are addressed.



Sec. 653.213  Simplified acquisition procedures (SF's 18, 30, 44, 1165, 
          OF's 347, 348).



Sec. 653.217  Special contracting methods.



Sec. 653.217-70  DOS form DS-1921, Award/Modification of Interagency 
          Acquisition Agreement.

    As prescribed in 617.504-70(b)(5)(i), DS-1921 is prescribed for use 
when awarding or modifying Economy Act Interagency Acquisition 
Agreements where the Department is the requesting agency.

[59 FR 66773, Dec. 28, 1994]



Sec. 653.219  Small business programs.



Sec. 653.219-70  DOS form DS-1910, Small Business Agency Review--Actions 
          Above the Simplified Acquisition Threshold.

    As prescribed in 619.501(c), DS-1910 is prescribed for use in 
documenting set-aside decisions.

[64 FR 43634, Aug. 11, 1999]



Sec. 653.219-71  DOS form DS-4053, Department of State Mentor-
          Prot[eacute]g[eacute] Program Application.

    As prescribed in 619.102-70(i), DS-4053 is prescribed for use in 
applying for an agreement under the Department of State Mentor-
Prot[eacute]g[eacute] Program.

[69 FR 19345, Apr. 13, 2004]

[[Page 435]]



                              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 437]]



                    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 438]]

       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 439]]

    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 440]]

   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 441]]

       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 442]]

        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 443]]

               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 444]]

                    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 445]]

                       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 446]]

        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 447]]

        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 448]]

      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 449]]

         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 (Parts 700--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 450]]

                          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 451]]

       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 452]]

         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 453]]

       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 454]]

        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 455]]

         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 457]]





           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 458]]

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 459]]

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 460]]

  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 461]]

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 462]]

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 463]]

  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 464]]

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 465]]

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 466]]

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 467]]



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 4
422.1303 Correctly redesignated as 422.1305; CFR correction........55450
422.1305 Correctly redesignated from 422.1303; CFR correction......55450
422.1306 Correctly redesignated as 422.1308; CFR correction........55450
422.1308 Correctly redesignated from 422.1306; CFR correction......55450
Chapter 5
511.204 (c)(3) and (d) revised; interim............................54337
516.506 (c) revised; interim.......................................54338
522 Authority citation revised.....................................46203
    Technical correction...........................................49616
522.001 Revised....................................................46203
522.101-1 Revised..................................................46203
522.103-5 Revised..................................................46203
522.406-6 Revised..................................................46203
522.803 Amended....................................................46203
522.804-1 (a) introductory text and (1) amended; (b) revised.......46203
522.804-2 Added....................................................46203
522.805 (a) amended; (b) and (c) revised...........................46203
532.206 (a) and (b) revised; interim...............................54338
532.7003 (b) and (c) revised; interim..............................54338
533 Authority citation revised.....................................74614
533.103-1 Added....................................................74614
533.103-72 Removed.................................................74614
533.209 Added......................................................74614
533.211 Revised....................................................74614
533.215 Removed....................................................74615
538.273 (a)(2) and (b)(2) revised; interim.........................54338
538.7000 Revised; interim..........................................54338
538.7001 Amended; interim..........................................54338
538.7002 (c) redesignated as (d); new (c) added; new (d) revised; 
        interim....................................................54338
538.7003 Introductory text revised; interim........................54338
538.7004 Revised; interim..........................................54339
546.710 (b) revised; interim.......................................54339
552.233-70 Removed.................................................74615
552.233-71 Removed.................................................74615
552.238-78 Clause amended; interim.................................54339

                                  2009

48 CFR
                                                                   74 FR
                                                                    Page
Chapter 3
Chapter 3 Revised..................................................62398
352.270-1 Clause corrected; CFR correction.........................47108
Chapter 4
470 (Subchapter I) Added...........................................13079
Chapter 5
501 Authority citation revised.....................................21273

[[Page 468]]

501.106 Table amended.......................................21273, 41063
    Table amended; eff. 10-19-09...................................47738
    Amended........................................................66253
502.101 Revised....................................................39564
503 Authority citation revised.....................................51511
503.104-3 Removed..................................................51511
503.104-9 Removed..................................................51511
503.204 (a)(1), (2), (c) introductory text, (1), (2), (3) and (f) 
        amended....................................................51511
503.404 Removed....................................................51511
503.570-1 Amended..................................................51511
503.702 Removed....................................................51511
503.703 Added......................................................51512
503.705 Removed....................................................51512
503.1004 (Subpart 503.10) Added....................................51512
509 Authority citation revised.....................................12732
509.105 Revised....................................................12732
509.105-1 Revised..................................................12732
509.105-2 Revised..................................................12732
509.106 Removed....................................................12732
509.206--509.206-2 (Subpart 509.2) Removed.........................12732
509.306 Revised....................................................12732
509.308 Removed....................................................12732
509.401 Revised....................................................12732
509.403 Amended....................................................12732
509.405 Revised....................................................12732
509.405-1 Revised..................................................12732
509.405-2 Revised..................................................12732
509.406-1 Revised..................................................12733
509.406-3 (a), (b), (2), (d)(1) and (2) amended; (b)(7) removed; 
        (c) and (d)(3) revised.....................................12733
509.407-1 Amended..................................................12733
509.407-3 Amended..................................................12733
511.104--511.104-70 (Subpart 511.1) Removed........................66253
511.204 Revised....................................................66253
511.404 Revised....................................................66253
511.600 Revised....................................................66254
511.601 Removed....................................................66254
511.602 Revised....................................................66254
511.603 Revised....................................................66254
511.604 Removed....................................................66254
513 Authority citation revised.....................................25449
513 Removed........................................................25449
514.201-2 Revised; eff. 10-19-09...................................47738
514.201-6 Revised; eff. 10-19-09...................................47739
514.201-7 Revised; eff. 10-19-09...................................47739
514.202-4 Revised; eff. 10-19-09...................................47739
514.202-5 Added; eff. 10-19-09.....................................47739
514.203 Removed; eff. 10-19-09.....................................47739
514.270-2 (a)(4) and (5) redesignated as (a)(5) and (6); new 
        (a)(4) added; (b) introductory text and (c) revised; eff. 
        10-19-09...................................................47739
514.270-3 Revised; eff. 10-19-09...................................47739
514.270-4 (a) revised; (b), (d)(2) and (3)(i) amended; eff. 10-19-
        09.........................................................47739
514.270-6 (a) introductory text, (d) and (e) amended; eff. 10-19-
        09.........................................................47739
514.270-7 (a), (e) and (h) amended; (b) introductory text, (c) 
        introductory text, (d), (i)(6) and (8) revised; eff. 10-
        19-09......................................................47739
514.407-3 Revised; eff. 10-19-09...................................47740
514.407-4 Revised; eff. 10-19-09...................................47740
519.7001--519.7017 (Subpart 519.70) Added..........................41063
525 Authority citation revised.....................................20894
525.302--525.302-70 (Subpart 525.3) Removed........................20894
525.570 (Subpart 525.5) Removed....................................20894
525.1101 (Subpart 525.11) Removed..................................20894
528 Authority citation revised.....................................17098
528.202 Revised....................................................17099
528.310 Revised....................................................17099
528.311 Added......................................................17099
528.311-1 Added....................................................17099
532.111 Revised....................................................54917
532.206 (Subpart 532.2) Removed....................................54917
532.705--532.705-1 (Subpart 532.7) Removed.........................54917
532.902 Removed....................................................54917
532.904 Added......................................................54917
532.905 Revised....................................................54917
532.905-70 Removed.................................................54918
532.905-71 Removed.................................................54918
532.908 Revised....................................................54918
532.7001--532.7003 (Subpart 532.70) Heading revised................54918
532.7001 Removed...................................................54918
532.7003 Revised...................................................54918
532.7101--532.7104 (Subpart 532.71) Removed........................54918
537 Authority citation revised.....................................20606
537.101 Removed....................................................20606
537.110 (a) introductory text amended..............................20606
537.201 Added......................................................20606
542 Authority citation revised.......................................863
542.1107 Revised.....................................................863

[[Page 469]]

542.1503--542.1503-71 (Subpart 542.15) Removed.......................863
543.205 Revised......................................................864
546.302-70 Revised.................................................26108
546.302-71 Amended.................................................26108
546.302-72 Added...................................................26108
546.470-2 (Subpart 546.4) Removed..................................26108
546.708 Revised....................................................26108
546.710 Revised....................................................26108
547 Removed........................................................25671
549 Authority citation revised.....................................21273
549.502 (Subpart 549.5) Removed....................................21273
552.203-5 Removed..................................................51512
552.203-70 Removed.................................................51512
552.209-70 Removed.................................................12733
552.209-71 Removed.................................................12733
552.209-72 Removed.................................................12733
552.209-73 Removed.................................................12733
552.211-8 Removed..................................................66254
552.211-15 Removed.................................................66254
552.211-71 Removed.................................................66254
552.211-72 Introductory text amended...............................66255
552.211-73 Introductory text amended...............................66255
552.211-74 Removed.................................................66255
552.211-75 Introductory text and Alternate I amended...............66255
552.211-76 Revised.................................................66255
552.211-77 Introductory text amended...............................66255
552.211-78 Removed.................................................66255
552.211-79 Introductory text amended...............................66255
552.211-80 Introductory text amended...............................66255
552.211-81 Introductory text amended...............................66255
552.211-82 Removed.................................................66255
552.211-83 Introductory text amended...............................66255
552.211-84 Removed.................................................66255
552.211-85 Added...................................................66255
552.211-86 Added...................................................66255
552.211-87 Added...................................................66255
552.211-88 Added...................................................66255
552.211-89 Added...................................................66255
552.211-90 Added...................................................66255
552.211-91 Added...................................................66255
552.211-92 Added...................................................66255
552.211-93 Added...................................................66255
552.211-94 Added...................................................66255
552.212-4 Added....................................................54918
552.214-70 Heading revised; clause amended; Alternate I removed; 
        eff. 10-19-09..............................................47740
552.214-71 Clause amended; eff. 10-19-09...........................47740
552.214-72 Clause amended; eff. 10-19-09...........................47740
552.219-75 Added...................................................41066
552.219-76 Added...................................................41066
552.225-70 Removed.................................................20894
552.228-5 Added....................................................17099
552.228-70 Removed.................................................17099
552.232-1 Clause amended...........................................54918
552.232-8 Removed..................................................54918
552.232-25 Introductory text and clause amended....................54918
552.232-70 Removed.................................................54918
552.232-71 Removed.................................................54918
552.232-72 Heading and introductory text revised; clause amended 
                                                                   54918
552.232-73 Removed.................................................54918
552.232-74 Removed.................................................54918
552.232-75 Removed.................................................54918
552.232-76 Removed.................................................54918
552.232-77 Heading revised; introductory text added; clause 
        amended; Alternate I removed...............................54918
552.232-78 Removed.................................................54919
552.232-79 Removed.................................................54919
552.232-81 Removed.................................................54919
552.232-82 Removed.................................................54919
552.232-83 Removed.................................................54919
552.237-70 Clause amended..........................................20606
552.237-71 Introductory text revised...............................20606
552.237-72 Introductory text revised...............................20606
552.237-73 Clause amended..........................................20606
552.242-70 Clause amended............................................863
552.243-70 Removed...................................................864
552.243-71 Revised...................................................864
552.243-72 Removed...................................................866
552.246-17 Removed.................................................26108
552.246-70 Revised.................................................26108
552.246-71 Clause amended..........................................26110
552.246-73 Removed.................................................26110
552.246-74 Removed.................................................26110
552.246-75 Removed.................................................26110
552.246-76 Removed.................................................26110
552.246-77 Added...................................................26110
552.246-78 Added...................................................26110
552.247-70 Removed.................................................25671
552.247-71 Removed.................................................25671
552.249-70 Removed.................................................21273

[[Page 470]]

552.249-71 Removed.................................................21273

                                  2010

48 CFR
                                                                   75 FR
                                                                    Page
Chapter 3
301.101 (a) revised................................................21509
301.270 (b)(3) revised.............................................21509
301.603-73 (e) revised.............................................21509
301.604-70 Amended.................................................21509
301.604-72 Revised.................................................21509
301.604-74 Revised.................................................21509
301.606-71 Amended.................................................21509
301.606-73 Redesignated as 301.606-74..............................21509
    New 301.606-73 added...........................................21510
301.606-74 Redesignated as 301.606-75; new 301.606-74 redesignated 
        from 301.606-73............................................21509
301.606-75 Redesignated from 301.606-74............................21509
    Revised........................................................21510
301.607-77 Removed; new 301.606-77 redesignated from 301.607-78....21510
301.607-78 Redesignated as 301.607-77; new 607-78 redesignated 
        from 301.607-79............................................21510
301.607-79 Redesignated as 301.607-78..............................21510
302.101 (d)(1) revised; (e) and (f) amended........................21510
302.7000 (b) table amended.........................................21510
303.1003 (b)(1) revised............................................21510
304.7001 (b)(2) and (c)(2) amended.................................21510
305.303 Revised....................................................21510
306.501 Amended....................................................21510
307.7101 (c) amended...............................................21510
307.7102 (b) revised...............................................21510
315.305 (a)(3)(ii)(A)(3) and (v) amended...........................21510
316.505 (b)(5) amended.............................................21511
317.105-1 (a) introductory text amended; (a)(1) and (b) revised; 
        (c) added..................................................21511
317.107 Revised....................................................21511
317.503 (a)(6) and (7) revised; (a)(8) added.......................21511
319.201 (e)(1) amended.............................................21511
324.102 (f) revised................................................21511
332.703-70 (b) amended.............................................21511
352.219-70 Provision heading amended...............................21511
352.219-71 Clause heading amended..................................21511
352.222-70 Clause heading amended..................................21511
352.231-70 Clause heading amended..................................21511
352.233-70 Clause heading amended..................................21511
352.239-70 Clause heading amended..................................21511
352.239-71 Clause heading amended..................................21511
352.239-72 Clause heading amended..................................21511
352.239-73 Provision and clause headings amended...................21512
352.270-7 Clause heading amended...................................21512
352.270-8 Clause heading amended...................................21512
352.270-9 Provision heading amended................................21512
370.400 Revised....................................................21512
370.403 (a) revised................................................21512
370.404 Revised....................................................21512
Chapter 5
505 Removed........................................................32860
512.301 Revised.....................................................5242
516.203-4 Revised..................................................41095
516.506 Revised....................................................41096
516.603--516.603-3 (Subpart 516.6) Removed.........................41096
541 Added..........................................................48873
552.212-70 Removed..................................................5243
552.212-73 Removed..................................................5243
552.216-71 Heading and introductory text revised; clause, 
        Alternate I and Alternate II amended.......................41096
552.216-72 Introductory text revised; clause and Alternate I 
        amended; Alternates II, III and IV removed.................41096
552.216-73 Introductory text revised; clause and Alternate I 
        amended; Alternate II removed..............................41096
552.216-74 Added...................................................41096
552.241-70 Added...................................................48873
552.241-71 Added...................................................48873

                                  2011

48 CFR
                                                                   76 FR
                                                                    Page
Chapter 4
422.70--452.222-7001 (Subpart 422.70) Added........................74723

[[Page 471]]

Chapter 5
501.106 Table amended (OMB numbers)................................30845
539 Added; interim.................................................34888
552.239-70 Added; interim..........................................34888
552.239-71 Added; interim..........................................34888
552.270-1 introductory text, clause and Alternates I and II 
        amended....................................................30845
552.270-2 Introductory text amended................................30845
552.270-3 Introductory text and clause amended.....................30845
552.270-4 Introductory text and clause amended.....................30846
552.270-5 Introductory text amended................................30846
552.270-6 Introductory text amended................................30846
552.270-7 Introductory text and clause amended.....................30846
552.270-8 Introductory text amended................................30846
552.270-9 Introductory text amended................................30846
552.270-10 Introductory text amended...............................30846
552.270-11 Introductory text amended...............................30846
552.270-12 introductory text amended...............................30846
552.270-13 Introductory text amended...............................30846
552.270-14 Introductory text and clause amended....................30846
552.270-15 Introductory text amended...............................30846
552.270-16 Revised.................................................30846
552.270-17 Introductory text amended...............................30846
552.270-18 Introductory text and clause amended....................30846
552.270-19 Introductory text amended...............................30846
552.270-20 Introductory text and clause amended....................30846
552.270-21 Introductory text amended...............................30846
552.270-22 Introductory text amended...............................30846
552.270-23 Introductory text amended...............................30846
552.270-24 Introductory text amended...............................30846
552.270-25 Introductory text amended...............................30847
552.270-26 Introductory text amended...............................30847
552.270-27 Introductory text amended...............................30847
552.270-28 Introductory text amended...............................30847
552.270-29 Introductory text and clause amended....................30847
552.270-30 Added...................................................30847
552.270-31 Added...................................................30847
552.270-32 Added...................................................30847
570.101 (b) table amended; (d) added...............................30848
570.102 Amended....................................................30848
570.103 Revised....................................................30848
570.104 Amended....................................................30849
570.105-1 Revised..................................................30849
570.105-2 Heading and introductory text revised; (a), (b) 
        introductory text, (1) and (4) amended; (b)(4)(iv), (v) 
        and (vi) redesignated as (b)(4)(v), (vi) and (vii); new 
        (b)(4)(iv) and (c) added...................................30849
570.105-3 Removed..................................................30849
570.106 Revised....................................................30849
570.106-1 Added....................................................30849
570.107 Amended....................................................30849
570.108 (a) through (d) amended....................................30849
570.109 Amended....................................................30849
570.110 (b) revised................................................30850
570.111 Revised....................................................30850
570.112 Amended....................................................30850
570.113 Revised....................................................30850
570.115 Added......................................................30850
570.116 Added......................................................30850
570.117 Added......................................................30850
570.117-1 Added....................................................30850
570.117-2 Added....................................................30850
570.203-2 (a) revised; (b) amended.................................30850
570.203-3 Revised..................................................30850
570.203-4 Revised..................................................30850
570.301--570.309 (Subpart 570.3) Heading revised...................30851
570.303-1 Introductory text and (h) amended; (i) added.............30851
570.303-2 Revised..................................................30851
570.303-4 (d) revised; (e) added...................................30851
570.304 (a) introductory text, (c) and (d) revised.................30851
570.305 (a) amended; (c)(1)(iv) redesignated as (c)(1)(v); new 
        (c)(1)(iv) added; (c)(2) and (d) introductory text revised
                                                                   30851

[[Page 472]]

570.306 (a) amended; (b) and (c) revised; (d) redesignated as (e); 
        new (d) and (f) added......................................30851
570.308 Revised....................................................30851
570.401 Revised....................................................30851
570.402-1 Revised..................................................30852
570.402-2 Introductory text, (a), (b) and (c) revised..............30852
570.402-4 Amended..................................................30852
570.402-5 Introductory text and (b)(1) amended.....................30852
570.403 (a), (b) introductory text and (c) introductory text 
        amended....................................................30852
570.404 (a) and (b) amended........................................30852
570.405 (b), (c) introductory text and (3) amended; (c)(4) added 
                                                                   30852
570.501 (a) introductory text and (1) revised; (b) introductory 
        text and (1) amended.......................................30852
570.502 Revised....................................................30852
570.502-1 Revised..................................................30852
570.502-2 Revised..................................................30852
570.503 Revised....................................................30853
570.601--570.604 (Subpart 570.6) Redesignated as 570.701--570.704 
        (Subpart 570.7); new 570.601 (Subpart 570.6) added.........30853
570.601 (Subpart 570.6) Added......................................30853
570.701--570.702 (Subpart 570.7) Redesignated as 570.801--570.802 
        (Subpart 570.8)............................................30853
570.701--570.704 (Subpart 570.7) Redesignated from 570.601--
        570.604 (Subpart 570.6)....................................30853
570.701 Revised....................................................30853
570.702 Introductory text revised..................................30854
570.703 Revised....................................................30854
570.704 Revised....................................................30854
570.801--570.802 (Subpart 570.8) Redesignated from 570.701--
        570.702 (Subpart 570.7)....................................30853
570.801 Revised....................................................30854
570.802 Revised....................................................30854
Chapter 6
601.603-3 (c) revised..............................................30265
604.1300--604.1301-70 (Subpart 604.13) Added.......................20250
637.110 (b) removed; (c) and (d) redesignated as new (b) and (c) 
                                                                   20250
652.204-70 Added...................................................20251
652.237-71 Removed.................................................20251
652.237-72 Introductory text amended...............................20251
652.237-73 Introductory text amended...............................20251

                                  2012

48 CFR
                                                                   77 FR
                                                                    Page
Chapter 4
422.70--452.222-7001 (Subpart 422.70) Regulation at 76 FR 74723 
        withdrawn...................................................5714
Chapter 5
501.106 Amended......................................................750
504.402 Revised....................................................59792
504.475 Revised....................................................59792
504.500 Removed....................................................59792
504.502 Revised....................................................59792
504.570 Removed....................................................59792
504.602-71 Redesignated as 504.605-70..............................59792
504.604 Added......................................................59792
    (a)(3) correctly amended.......................................69768
504.605-70 Redesignated from 504.602-71; (a) amended...............59792
504.1103 (Subpart 504.11) Added....................................59792
504.1301--504.1303 (Subpart 504.13) Added..........................59793
519 Authority citation revised.....................................10666
519.870-8 (a)(3) revised...........................................10666
532.905-70 Added....................................................6987
539 Regulation at 76 FR 34888 confirmed..............................750
552.204-9 Added....................................................59793
552.219-71 Clause amended..........................................10666
552.219-72 Clause amended..........................................10666
552.219-76 Clause amended..........................................10666
552.232-72 Revised..................................................6988
552.239-70 Regulation at 76 FR 34888 confirmed.......................750
552.239-71 Regulation at 76 FR 34888 confirmed.......................750
    Clause amended...................................................751

                                  2013

(No regulations published from January 1, 2013, through October 1, 2013)


                                  [all]